BILL NUMBER: AB 1742	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  FEBRUARY 24, 2010

INTRODUCED BY   Assembly Member Coto

                        FEBRUARY 8, 2010

    An act to add Section 1021.11 to the Code of Civil
Procedure, relating to attorneys' fees.   An act to
amend Section 56345 of the Education Code, relating to special
education. 



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1742, as amended, Coto.  Attorneys' fees: civil
actions.   Education: special education.  
   Existing law requires individualized education programs for pupils
with exceptional needs in grades 7 to 12, inclusive, to include any
and all alternative means and modes necessary for the pupil to
complete the prescribed course of study of the district and to meet
or exceed proficiency standards for graduation.  
   This bill would make a clarifying change to that provision to
allow pupils to use technology-based materials.  
   Existing law provides that attorneys' fees allowed by contract,
statute, or law are costs, and the prevailing party in any action or
proceeding is entitled to a recovery of costs as a matter of right.
Existing law also provides that, except as attorneys' fees are
specifically provided for by statute, the measure and mode of
compensation of attorneys is controlled by the agreement of the
parties.  
   This bill would authorize a court, upon motion, to award attorneys'
fees to a successful plaintiff in an action for damages arising out
of the fraud, theft, embezzlement, fraudulent conversion, or
misappropriation of property by the defendant. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 56345 of the  
Education Code   is amended to read: 
   56345.  (a) The individualized education program is a written
statement for each individual with exceptional needs that is
developed, reviewed, and revised in accordance with this section, as
required by Section 1414(d) of Title 20 of the United States Code,
and that includes the following:
   (1) A statement of the individual's present levels of academic
achievement and functional performance, including the following:
   (A) The manner in which the disability of the individual affects
his or her involvement and progress in the general education
curriculum.
   (B) For preschool children, as appropriate, the manner in which
the disability affects his or her participation in appropriate
activities.
   (C) For individuals with exceptional needs who take alternate
assessments aligned to alternate achievement standards, a description
of benchmarks or short-term objectives.
   (2) A statement of measurable annual goals, including academic and
functional goals, designed to do the following:
   (A) Meet the needs of the individual that result from the
disability of the individual to enable the pupil to be involved in
and make progress in the general education curriculum.
   (B) Meet each of the other educational needs of the pupil that
result from the disability of the individual.
   (3) A description of the manner in which the progress of the pupil
toward meeting the annual goals described in paragraph (2) will be
measured and when periodic reports on the progress the pupil is
making toward meeting the annual goals, such as through the use of
quarterly or other periodic reports, concurrent with the issuance of
report cards, will be provided.
   (4) A statement of the special education and related services and
supplementary aids and services, based on peer-reviewed research to
the extent practicable, to be provided to the pupil, or on behalf of
the pupil, and a statement of the program modifications or supports
for school personnel that will be provided to enable the pupil to do
the following:
   (A) To advance appropriately toward attaining the annual goals.
   (B) To be involved in and make progress in the general education
curriculum in accordance with paragraph (1) and to participate in
extracurricular and other nonacademic activities.
   (C) To be educated and participate with other individuals with
exceptional needs and nondisabled pupils in the activities described
in this subdivision.
   (5) An explanation of the extent, if any, to which the pupil will
not participate with nondisabled pupils in the regular class and in
the activities described in subparagraph (C) of paragraph (4).
   (6) (A) A statement of individual appropriate accommodations that
are necessary to measure the academic achievement and functional
performance of the pupil on state and districtwide assessments
consistent with Section 1412(a)(16)(A) of Title 20 of the United
States Code.
   (B) If the individualized education program team determines that
the pupil shall take an alternate assessment instead of a particular
state or districtwide assessment of pupil achievement, a statement of
the following:
   (i) The reason why the pupil cannot participate in the regular
assessment.
   (ii) The reason why the particular alternate assessment selected
is appropriate for the pupil.
   (7) The projected date for the beginning of the services and
modifications described in paragraph (4), and the anticipated
frequency, location, and duration of those services and
modifications.
   (8) Beginning not later than the first individualized education
program to be in effect when the pupil is 16 years of age, or younger
if determined appropriate by the individualized education program
team, and updated annually thereafter, the following shall be
included:
   (A) Appropriate measurable postsecondary goals based upon
age-appropriate transition assessments related to training,
education, employment, and where appropriate, independent living
skills.
   (B) The transition services, as defined in Section 56345.1,
including courses of study, needed to assist the pupil in reaching
those goals.
   (b) If appropriate, the individualized education program shall
also include, but not be limited to, all of the following:
   (1) For pupils in grades 7 to 12, inclusive, any alternative means
and modes necessary for the pupil to complete the prescribed course
of study of the district and to meet or exceed proficiency standards
for graduation  , including allowing   pupils to use
technology-based materials as defined in subdivision (m) of Section
60010  .
   (2) For individuals whose native language is other than English,
linguistically appropriate goals, objectives, programs, and services.

   (3) Pursuant to Section 300.106 of Title 34 of the Code of Federal
Regulations, extended school year services shall be included in the
individualized education program and provided to the pupil if the
individualized education program team of the pupil determines, on an
individual basis, that the services are necessary for the provision
of a free appropriate public education to the pupil.
   (4) Provision for the transition into the regular class program if
the pupil is to be transferred from a special class or nonpublic,
nonsectarian school into a regular class in a public school for any
part of the schoolday, including the following:
   (A) A description of activities provided to integrate the pupil
into the regular education program. The description shall indicate
the nature of each activity, and the time spent on the activity each
day or week.
   (B) A description of the activities provided to support the
transition of pupils from the special education program into the
regular education program.
   (5) For pupils with low-incidence disabilities, specialized
services, materials, and equipment, consistent with guidelines
established pursuant to Section 56136.
   (c) It is the intent of the Legislature in requiring
individualized education programs, that the local educational agency
is responsible for providing the services delineated in the
individualized education program. However, the Legislature recognizes
that some pupils  may   shall  not meet or
exceed the growth projected in the annual goals and objectives of
the individualized education program of the pupil.
   (d) Consistent with Section 56000.5 and Section 1414(d)(3)(B)(iv)
of Title 20 of the United States Code, it is the intent of the
Legislature that, in making a determination of the services that
constitute an appropriate education to meet the unique needs of a
deaf or hard-of-hearing pupil in the least restrictive environment,
the individualized education program team shall consider the related
services and program options that provide the pupil with an equal
opportunity for communication access. The individualized education
program team shall specifically discuss the communication needs of
the pupil, consistent with "Deaf Students Education Services Policy
Guidance" (57 Fed. Reg. 49274 (October 1992)), including all of the
following:
   (1) The pupil's primary language mode and language, which may
include the use of spoken language with or without visual cues, or
the use of sign language, or a combination of both.
   (2) The availability of a sufficient number of age, cognitive, and
language peers of similar abilities, which may be met by
consolidating services into a local plan areawide program or
providing placement pursuant to Section 56361.
   (3) Appropriate, direct, and ongoing language access to special
education teachers and other specialists who are proficient in the
pupil's primary language mode and language consistent with existing
law regarding teacher training requirements.
   (4) Services necessary to ensure communication-accessible academic
instructions, school services, and extracurricular activities
consistent with the federal Vocational Rehabilitation Act of 1973 (29
U.S.C. Sec. 794 et seq.) and the federal Americans with Disabilities
Act of 1990 (42 U.S.C. Sec. 12101 et seq.).
   (5) In accordance with Section 300.113 of Title 34 of the Code of
Federal Regulations, each public agency shall ensure that hearing
aids worn in school by children with hearing impairments, including
deafness, are functioning properly.
   (6) Subject to paragraph (7), each public agency, pursuant to
Section 300.113(b) of Title 34 of the Code of Federal Regulations,
shall ensure that external components of surgically implanted medical
devices are functioning properly.
   (7) For a child with a surgically implanted medical device who is
receiving special education and a service under Section 56363, a
public agency is not responsible for the postsurgical maintenance,
programming, or replacement of the medical device that has been
surgically implanted, or of an external component of the surgically
implanted medical device.
   (e) State moneys appropriated to districts or local educational
agencies  may   shall  not be used for any
additional responsibilities and services associated with paragraphs
(1) and (2) of subdivision (d), including the training of special
education teachers and other specialists, even if those additional
responsibilities or services are required pursuant to a judicial or
state agency determination. Those responsibilities and services shall
only be funded by a local educational agency as follows:
   (1) The costs of those activities shall be funded from existing
programs and funding sources.
   (2) Those activities shall be supported by the resources otherwise
made available to those programs.
   (3) Those activities shall be consistent with Sections 56240 to
56243, inclusive.
   (f) It is the intent of the Legislature that the communication
skills of teachers who work with hard-of-hearing and deaf children be
improved. This section does not remove the discretionary authority
of the local educational agency in regard to in-service activities.
   (g) Beginning not later than one year before the pupil reaches
 the age of  18 years  of age  , a
statement that the pupil has been informed of the pupil's rights
under this part, if any, that will transfer to the pupil upon
reaching  the age of  18 years  of age 
pursuant to Section 56041.5.
   (h) The individualized education program team is not required to
include information under one component of a pupil's individualized
education program that is already contained under another component
of the individualized education program.
   (i) This section does not require that additional information,
beyond that explicitly required by Section 1414 of Title 20 of the
United States Code and this part, be included in the individualized
education program of a pupil. 
  SECTION 1.    Section 1021.11 is added to the Code
of Civil Procedure, to read:
   1021.11.  Upon motion, a court may award attorneys' fees to a
successful plaintiff in an action for damages arising out of the
fraud, theft, embezzlement, fraudulent conversion, or
misappropriation of property by the defendant.