NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT R.D., a minor, by and through her personal representatives, Catherine Davis and Sean Davis; et al., Plaintiffs

- Appellants,

v. LAKE WASHINGTON SCHOOL DISTRICT, a municipal corporation,

Defendant

- Appellee. No. 19

- 35622
D.C. No. 2:18

- cv - 01009

- RAJ

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding Argued and Submitted February 3, 2021

Seattle, Washington Before: GRABER, McKEOWN, and PAEZ, Circuit Judges. R.D., a minor, and her parents, Catherine Davis and Sean Davis (collectively , “the Davises”), sued the Lake Wa shington School District (“the District”) for discrimination against R.D. in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § § 12131

– 12134 , and Section 504 of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

FEB 11 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as for violations of state law

. T he district court granted the District’s motion for summary judgment as to the Davises’ ADA and Section 504 claims and some of their state law claims

. T he district court r emanded the surviving s tate law claims , denied the Davise s’ motion for discovery sanctions , and awarded costs to the District. W e affirm in part, as to the dismissal of the Section 504 and ADA claims arising prior to June 18, 2015 and the district court’s denial of the Davises’ motion for sanctions ; reverse in part, as to the district court’s dismissal of the Section 504 and ADA claims arising after June 18, 2015 ; vacate the award of costs ; and remand. We have appellate jurisdiction. A party has 30 days after entry of judgment or order to file the n otice of appeal, 28 U.S.C. § 2107 (a) ; Fed. R. App. P. 4(a)(1) (A) , and must “designate the judgment, order, or part thereof being appealed,” Fed. R. App. P. 3(c)(1)(B). The Davises’ notice of appeal identified the date the district court remanded the state law claims and closed the ca se as the “[d]ate of judgment or order [they] are appealing.” The notice of appeal is reasonably understood to appeal th e final judgment, which includes the summary judgment order and the order taxing costs

. Moreover, the ful l discussion of the various orders , including the sanctions order , in the opening brief , “ and the detailed
response [ s ] in the

. . . answering brief [,] dispose of any claims that [the District] [was] misled or harmed. ” Lolli v. County of Orange , 351 F.3d 410, 414

– 15 (9th3

Cir. 2003)

. We review de novo the determination of the appropriate statute of limitations and whether a claim is barred by the statute of limitations

. See Johnson v. Lucent Techs

. Inc. , 653 F.3d 1000, 1005 (9th Cir. 2011)

. The Davises did not present to the district court the equitable tolling argument that they now advance on appeal , so we decline to entertain it. See Cold Mou ntain v. Garber , 375 F.3d 884, 891 (9th Cir. 2004)

. And applying Washington ’s tolling provision for minors would be inconsistent with the federal policy underlying the Davises’ claims. See Alexopulos v. S.F. Unified Sch

. Dis t

. , 817 F.2d 551, 555 (9th Cir. 1987)

. The district court properly concluded that the Section 504 and ADA claims that accrued prior to June 18, 2015 are time

- barred. The Davises moved for sanctions based on the District’s late disclosure of various emails

. The district court denie d the motion, conclud ing that any late disclosure was harmless because the withheld documents merely “supplemented” evidence that the Davises already had and did not affect the Davises’ chances at summary judgment. Given th ose findings, the district court did not abuse its discretion in denying the motion under Federal Rule of Civil Procedure 37

. See Goodman v. Staples T

he Off. Superstore, LLC , 644 F.3d 817, 822 (9th Cir. 2011) (stating the abuse of discretion standard for review of discovery orders).
We review de novo the district court ’s order grant ing summary judgment4

and may affirm only if, viewing the evidence in the light most favorable to the nonmoving party, “there is no genuine issue of material fact such that the prevailing party is entitled to judgment as a matter of law

. ” A.G. v. Paradise Valley Unified Sch. Dist. No. 69 , 815 F.3d 1195, 1202 (9th Cir. 2016). “A plaintiff bringing suit under section 504 or Title II of the ADA must show: (1) she is a qualified individual with a disa bility; (2) she was denied ‘a reasonable accommodation that [she] needs in order to enjoy meaningful access to the benefits of public services;’ and (3) the program providing the benefit receives federal financial assistance.” Id. at 1204 (alteration in o riginal) (quoting Mark H. v.
Hamamoto , 620 F.3d 1090, 1097 (9th Cir. 2010) ). Only prong two is in dispute in this appeal. “A plaintiff may satisfy prong two by showing that the federally funded program denied her services that she needed to enjoy meaning ful access to the benefits of a public education and that were available as reasonable accommodations” or “by showing that the program denied her meaningful access to public education through another means, such as by violating a regulation that implements section 504’s prohibitions.” Id

. The 2016 Section 504 plan provided that R.D. was to “ stay inside when it is damp or raining, and when the high temperature of the day is below 60 degrees (must be overseen by an adult) , ” and that she “should be allowed to have supervised inside recess that will include a variety of activities (including gross5

motor). ” T he Davises have offered evidence that r ecess is a part of a free appropriate public education and includes gross motor activity and supervision

. Whether R.D. was offered gross motor activities is disputed

. T he Davises have also set forth evidence that R.D. was not, in fact, supervised to ensure that she stayed inside when it was unsafe for her to be outside. In granting summary judgment on the Davises’ S ection 504 and ADA claims, t he district court focused too narrowly on a mainstreaming regulation of Section 504, without considering that the Davises could satisfy the second prong by showing that R.D. was denied
“s ervices that she needed to enjoy meaningf ul access to the benefits of a public education and that were available as reasonable accommodation s. ” T he Davises have set forth g enuine issues of material fact that preclude summary judgment as to the post

- June 18, 2015 Section 504 and ADA claims. On th e damages claim s , t he District acted with deliberate indifference if it “(1) ‘ [ had ] knowledge that a harm to a federally protected right is substantially likely,’ and (2) ‘fail [ ed ] to act upon that likelihood.’” Mark H. , 620 F.3d at 109 9 (alterations in o riginal) (quoting Lovell v. Chandler , 303 F.3d 1039, 1056 (9th Cir. 2002)). “The plaintiff establishes the requisite knowledge (or notice) on behalf of the defendant when she shows that she ‘alerted the public entity to [her] need for
accommodation

. . . .’” A.G. , 815 F.3d at 1204 (alteration in original) (quoting Duvall v. County of Kitsap , 260 F.3d 1124, 1139 (9th Cir. 2001) ). The District had6

a Section 504 plan for R.D. that explicitly provided as accommodations supervision and gross motor activity. Taking the disputed facts in the light most favorable to the Davises, a reasonable juror could conclude that the District knew
that R.D. needed supervision and gross motor activities and failed to provide th ose

accomm odations , such that it acted with deliberate indifference. Thus , summary judgment should not have been granted as to the Section 504 and ADA damages claims. We reverse the grant of summary judgment as to the post

- June 18, 2015 Section 504 and ADA claims, and remand for further proceedings.
Because we reverse in part and remand, we vacate the taxation of costs

. The parties shall bear their own costs as to this appeal. AFFIRMED IN PART, REVERSED IN PART , VACATED AS TO THE COSTS AWARD, and REMANDED.