California OAH special education order · October 10, 2014
Order Following Prehearing Conference
OAH Case No. 2014040982 · ALJ Alexa J. Hohensee
OAH denied District's unopposed motion to consolidate its new case with Student's long-pending case because the issues arose later and delay would not serve judicial economy. OAH dismissed Student's Section 504, ADA, and Unruh claims.
This case went to decision
Student v. Rialto Unified School District: Rialto Unified had to hold a manifestation determination before its attendance review board removed a special education student; staff training ordered. (2014)
Summary
At the prehearing conference, District asked OAH to consolidate its newly filed due process case with Student's case, and Student did not oppose. The ALJ denied consolidation. District's issues arose after the events in Student's complaint, so the cases did not share enough common questions of law or fact. Student's case had also been pending since April 2014 and continued twice, so more delay would not serve judicial economy. The ALJ also granted District's unopposed motion to dismiss Student's Section 504, ADA Title II, and Unruh Act claims because OAH's jurisdiction is limited to the IDEA. The hearing was set for October 20, 2014, on a single FAPE issue before a newly assigned ALJ.
Why it matters
Even an unopposed consolidation motion can be denied when the cases cover different time periods and joining them would further delay a long-pending case. Families should bring non-IDEA civil rights claims in another forum, because OAH will dismiss them.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- 20 U.S.C. § 1400 et seq.
- Ed. Code, § 56505, subd. (e)(7)
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
People named in the order
- Adrienne Krikorian, Administrative Law Judge assigned to conduct the hearing
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2014040982
v. ORDER FOLLOWING PREHEARING
CONFERENCE
RIALTO UNIFIED SCHOOL DISTRICT.
On October 10, 2014, a telephonic prehearing conference was held before Administrative Law Judge Alexa J. Hohensee, Office of Administrative Hearings. Michael J. Smith, Attorney at Law, appeared on behalf of Student. Vivian E. Billups, Attorney at Law, appeared on behalf of Rialto Unified School District. The PHC was recorded. Please read this order carefully, as following the prehearing conference, a new ALJ was assigned to the hearing.
Based on discussion of the parties, the ALJ issues the following order
1. Hearing Dates, Times, Location and Change in Assigned ALJ. The hearing
shall take place on October 20-23, 2014, and continuing day to day, Monday through Thursday as needed at the discretion of the ALJ. The hearing shall begin each day at 9:00 a.m. and end at 4:30 p.m., with the exception of the first day of hearing, on which day the hearing shall begin at 1:30 p.m., unless otherwise ordered.
The hearing shall take place at the District’s offices located at 182 E. Walnut Avenue, Rialto, California 92376.
This hearing will be conducted by ALJ Adrienne Krikorian.
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. Was Student substantively denied a free appropriate public education
from the time the student attendance review board referred him to Bob Murphy Community Day School through January 14, 2013?
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 shall 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.
The parties shall meet and confer before the first day of hearing in order to delete duplicate exhibits from the exhibit binders and to consolidate exhibits where possible.
The parties shall exchange resumes or curriculum vitae for each witness who is expected to testify as to their professional credentials. Notwithstanding the requirements of Education Code section 56505, subd. (e)(7), the parties shall exchange resumes not later than 24 hours before the witness is scheduled to testify.
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 5:00 p.m. on October 15, 2014, as to the schedule of witnesses. The parties shall provide the ALJ with a joint hour-by-hour schedule of witnesses, specifying estimates of time anticipated for each party to question each witness, on the first day of hearing. The parties have agreed to 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 witness schedule will be finalized at the commencement of the due process hearing.
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.
7. Timely Disclosure of Witnesses/Exhibits. Education Code section 56505,
subdivision (e)(7), provides for disclosure of witnesses and exhibits “at least” five business days prior to the hearing.
8. Order of Presentation of Evidence. The order of presentation of evidence shall
be as follows: Student’s evidence followed by District’s evidence, however witnesses to be called by both sides will be fully questioned on all issues whenever first called to the stand.
9. Motions. On September 25, 2014, District moved to dismiss Student’s claims
brought under Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act and the California Unruh Civil Rights Act. Student did not oppose the motion. OAH jurisdiction extends to determining if a student with a disability has received a FAPE under the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) OAH does not have jurisdiction over claims raised under other statutes. Accordingly, the motion to dismiss those claims is granted.
At the PHC, District informed the ALJ that it had just filed its own due process hearing request against Student, with a motion to consolidate that case with this case.
Student did not oppose the motion, and District argued the motion on the record. Although no statute or regulation specifically provides a standard to be applied in deciding a motion to consolidate special education cases, OAH will generally consolidate matters that involve: a common question of law and/or fact; the same parties; and when consolidation of the matters furthers the interests of judicial economy by saving time or preventing inconsistent rulings.
(See Gov. Code, § 11507.3, subd. (a).) Here, the issues in the District’s filing arose after the events alleged in Student’s complaint, and therefore the cases do not involve sufficient common questions of law or fact to warrant consolidation. Further, Student’s case has been pending since April 2014 and continued twice at the joint request of the parties, and further delay in hearing this matter does not further the interests of judicial economy. District’s motion to consolidate is denied. District contemplates a motion for reconsideration.
Any motion filed after this date shall be supported by a declaration under penalty of perjury establishing good cause as to why the motion was not made prior to or during the PHC of October 10, 2014.
10. Stipulations. Stipulations to pertinent facts, contentions or resolutions are
encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.
11. 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.
12. Compensatory Education/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.
13. Special Needs and Accommodations. District’s counsel represented that the
hearing location is ADA compliant. At present neither party anticipates the need for special accommodation for any witness or party, or for translation services.
14. Hearing Closed To the Public. The hearing will be closed to the public.
15. 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.
16. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: October 10, 2014
/ S/
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings