Order Following Prehearing Conference of April 7, 2014; Granting Motion to Consolidate

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Consolidated Matters of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2014010758 v.

CAPISTRANO UNIFIED SCHOOL

DISTRICT,

CAPISTRANO UNIFIED SCHOOL OAH Case No. 2014040197

DISTRICT,

v.

ORDER FOLLOWING PREHEARING

PARENT ON BEHALF OF STUDENT. CONFERENCE OF APRIL 7, 2014;

GRANTING MOTION TO

CONSOLIDATE

On April 7, 2014, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Paul H. Kamoroff, Office of Administrative Hearings (OAH). Robin J. Champlin, Attorney at Law, appeared on behalf of Parent on behalf of Student (Student). Ernest Bell, Attorney at Law, appeared on behalf of the Capistrano Unified School District (District). Lisa Saltzman, Attorney at Law, appeared on behalf of the Orange County Department of Education. The PHC was recorded.

Based on discussion of the parties, the ALJ issues the following order:

1. Hearing Dates, Times, and Location. The hearing shall take place on April

15, 16, 17, 29, and 30, 2014, and day by day thereafter, Monday through Thursday, at the discretion of the ALJ, unless otherwise ordered. The Hearing shall take place at District’s offices located at 33122 Valle Road, San Juan Capistrano, CA 92675. The hearing shall begin at 9:30 a.m. the first day of the hearing and at 9:00 a.m. all other days unless otherwise ordered.

The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.

A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.

2. Issues The issues at the due process hearing are listed below.

Student’s Issues:

a) Whether District denied Student a free appropriate public education (FAPE)

during the 2011-2012 school year, beginning January 22, 2012, by:

i) Failing to provide a safe and appropriate school placement designed to meet Student’s unique needs;

ii) Failing to develop an appropriate behavior intervention plan (BIP); and iii) Failing to provide appropriate staff with appropriate training? b) Whether District Denied Student a FAPE during the 2012-2013 school year by:

i) Failing to provide a safe and appropriate school placement designed to meet Student’s unique needs;

ii) Failing to develop an appropriate BIP;

iii) Failing to provide appropriate staff with appropriate training;

iv) Failing to properly respond to Parent’s request for an appropriate residential center placement for Student; and v) Failing to appropriately implement Student’s BIP? c) Whether District denied Student a FAPE during the 2013-2014 school year by:

i) Failing to provide a safe and appropriate school placement designed to meet Student’s unique needs;

ii) Failing to develop an appropriate BIP; and iii) Failing to provide appropriate staff with appropriate training? District’s Issue Whether District’s offer of placement and services, as described in Student’s individualized education programs of March 10, and March 31, 2014, constitute a FAPE in the least restrictive environment?

3. Exhibits. Exhibits shall be pre-marked and placed in three-ring exhibit

binders prior to the hearing. The parties shall use numbers to identify exhibits, but shall place the letter “S” or “D” in front of the exhibit to designate if it is a Student or District exhibit (for example, “S-5, S-6,” or “D-1, D-2”). Each exhibit shall be internally paginated by exhibit, or all of a party’s exhibits shall be Bates-stamped. Each exhibit binder shall contain a detailed table of contents. The parties represent that they will serve their evidence binders on each other in compliance with Education Code section 56505, subdivision (e)(7).

At the hearing, each party shall supply an exhibit binder containing its exhibits for use by the ALJ, and a second exhibit binder for use by witnesses. The parties may not serve exhibits on OAH prior to the hearing. In the event of duplicate exhibits, the most legible version will be used.

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not included in the exhibit lists and not previously exchanged shall not be admitted into evidence at the hearing unless it is supported by written declaration under penalty of perjury, and the ALJ rules that it is admissible.

4. Witnesses. Each party is responsible for procuring the attendance at hearing

of its own witnesses. Each party shall make witnesses under its control reasonably available. The parties shall schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses out of order. Neither party shall be permitted to call any witnesses not disclosed in the party’s prehearing conference statement except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.

The parties are ordered to meet and confer by April 11, 2014, as to the schedule of witnesses. The parties shall coordinate the availability and order of testimony of witnesses to ensure that there is a witness available to testify at all times during the hearing, and to ensure that the hearing is completed as scheduled.

The parties are encouraged to review and shorten their witness lists prior to the hearing, bearing in mind that evidence will be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear.

The parties shall attempt to reach agreement on a witness list for the first day of hearing. The District shall have witnesses available in case agreement on a witness list is not reached. The parties shall be prepared at the end of each day of hearing to discuss the witnesses to be presented the next day and the time the testimony of each such witness is expected to take.

5. Scope of Witness Examination. After the first direct and cross-examinations,

each party shall be limited in examining the witness to only those matters raised in the immediately preceding examination.

6. Telephonic Testimony. Whether a witness may appear by telephone is a

matter within the discretion of the ALJ. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) Any party seeking to present a witness by telephone shall move in advance for leave to do so, unless the opposing party has stipulated that the witness may appear by telephone. The proponent of the witness shall provide the proposed witness with a complete set of exhibit binders from all parties, containing all of each party’s exhibits, prior to the hearing; and shall ensure that the hearing room has sound equipment that allows everyone in the room to hear the witness, and the witness to hear objections and rulings. No witness will be heard by telephone unless all these requirements have been fulfilled.

Student’s motion to allow Dr. David Chu and Kristen Baker to testify telephonically is granted. District’s motion to allow a representative of the Chileda Institute (Chileda) to testify telephonically is granted. Each party shall provide their respective witnesses with a complete exhibit binder from each party, containing all of each party’s exhibits, prior to the hearing. District shall ensure that the hearing room has sound equipment that allows everyone in the room to hear the witness.

7. Order of Presentation of Evidence. In an administrative proceeding, the

burden of proof is ordinarily on the party requesting the hearing. (Schaffer v. Weast (2005)

546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Here, the matter is consolidated and involves two parties. Accordingly, the order of presentation of evidence shall be as follows:

Student shall present his case in chief first as to his issues, followed by District’s case in chief as to its issue. If a witness is to be called by more than one party, each party shall ask their questions of the witness so that the witness does not need to return for testimony.

8. Motions. On April 1, 2014, District moved to consolidate OAH Case

Number. 2014010758 and OAH Case Number 2014040197, on the basis that the cases share common questions of law and fact, common witnesses, and the existence of directly competing/opposing remedies. On April 3, 2014, Student submitted his non-opposition to District’s motion to consolidate. District’s motion to consolidate OAH Case Number.

2014010758 and OAH Case Number 2014040197 is hereby GRANTED.

Per stipulation by the parties, OAH shall base the timeline for the consolidated cases on the date of the filing of the complaint in OAH Case Number 2014010758. Hearing dates shall remain as set herein.

At present no additional prehearing motions are pending or contemplated. Any prehearing motion filed after this date shall be supported by a declaration under penalty of perjury establishing good cause why the motion was not made prior to or during the prehearing conference of April 7, 2014.

9. Stipulations. Stipulations to pertinent facts, contentions or resolutions are

encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.

10. Conduct of Counsel and Hearing Room Decorum. Counsel, all parties, and all

witnesses shall conduct themselves in a professional and courteous manner at all times.

Cellular phones, pagers, recorders, and other noisemaking electronic devices shall be shut off or set to vibrate during the hearing unless permission to the contrary is obtained from the

ALJ.

The District shall ensure that the hearing room is configured into a courtroom setting and shall have at a minimum 1) a table for Parent and Student’s representative; 2) a table for District and District’s representative; 3) a table for the witness; and 4) a table for the ALJ, near an electrical outlet. District shall provide drinking water to all parties, witnesses and the ALJ. The same hearing room shall be used for each day of hearing and shall be available at least one hour prior to the commencement of the hearing each day. The hearing room shall be locked following the hearing each night

11. Compensatory Education and Reimbursement. Any party seeking

reimbursement of expenditures shall present admissible evidence of these expenditures, or a stipulation to the amount of expenditures, as part of its case in chief. A party seeking compensatory education should provide evidence regarding the type, amount, duration, and need for any requested compensatory education.

12. Special Needs and Accommodations. District shall ensure that Student has

access to an audio/visual device which can project a digital video recording. Other than the foregoing, neither party anticipates the need for special accommodation for any witness or party, or for translation services.

13. Hearing Open To the Public. At the request of the parent, the hearing will be

open to the public.

14. Settlement. The parties are encouraged to continue working together

to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.

IF A FULL AND FINAL WRITTEN SETTLEMENT AGREEMENT IS REACHED

AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL LEAVE A

VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-6035. THE

PARTIES SHOULD ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR

PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY. THE

PARTIES SHOULD SIMULTANEOUSLY FAX THE SIGNATURE PAGE OF THE

SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE

OAH AT THE FAXINATION LINE at 916-376-6319.

Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages the evening prior to the hearing or the morning of the hearing.

15. Failure to comply with this order may result in the exclusion of evidence or

other sanctions.

IT IS SO ORDERED.

DATE: April 8, 2014 /s/

PAUL H. KAMOROFF

Administrative Law Judge Office of Administrative Hearings