Order Following Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2015021006 v. ORDER FOLLOWING PREHEARING

CONFERENCE

AVESON SCHOOL OF LEADERS AND

AVESON GLOBAL LEADERSHIP

ACADEMY (CHARTER SCHOOLS).

On July 20, 2015, a telephonic prehearing conference was held before Administrative Law Judge Laurie Gorsline, Office of Administrative Hearings. Lisa Dennis, Attorney at Law, and Hamlet Yarijanian, Special Education Advocate, appeared on behalf of Student.

Michael Ohira, Attorney at Law, appeared on behalf of Aveson School of Leaders and Aveson Global Leadership Academy (Charter Schools). The PHC was recorded.

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

1. Charter Schools’ Motion to Continue the hearing. At the PHC, Charter

Schools made a motion to continue the hearing to September 7, 2015, or in the alternative, to August 10, 2015 on the grounds that the school was closed until September 7, 2015, an important witness with the keys to the school was on vacation traveling and was unavailable until August 10, 2015, and another witness was on vacation and unavailable until August 3,

2015. These issues, including the unavailability of these two witnesses, can be

accommodated with an extra hearing day for purposes of their testimony on August 10, 2015 and moving the initial location of the hearing to OAH, without a delay in starting this due process proceeding. The motion to continue the start date of the hearing was denied at the PHC for lack of good cause.

2. Hearing Dates, Times, and Location. The hearing shall take place on July 28,

29, and 30, and August 10 and 11, 2015, and will continue 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. with the exception of July 28, 2015, on which day the hearing shall begin at 9:30 a.m., and August 10, 2015, on which day the hearing will begin at 1:30 p.m. unless otherwise ordered.

The hearing on July 28, 29 and 30, 2015 shall take place at OAH’s regional office located at 15350 Sherman Way, Suite 300, Van Nuys, CA 91406. OAH facilities fully comply with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. § 794), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and all laws governing accessibility of government facilities to persons with disabilities.

The hearing on August 10 and 11, 2015 shall take place at Aveson School of Leaders, 1919 East Pinecrest Drive, Altadena, California 91001. Charter Schools will ensure that parking is available for Student and his representatives and the ALJ. Charter Schools shall provide facilities that fully comply with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. § 794), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and all laws governing accessibility of government facilities to persons with disabilities.

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.

3. Issues and Proposed Resolutions. The issues at the due process hearing are

listed below.

(1) Did Charter School(s) deny Student a free appropriate public education between September 2011 and the December 2014 individualized education program by failing to comply with their child find obligations? (2) Did Charter School(s) deny Student a FAPE by failing to assess Student in a timely manner in response to Parent’s fall 2011 request? (3) Did Charter Schools deny Student a FAPE by failing to appropriately assess Student in February 2012 and find him eligible for special education at the March 2012 IEP? Student seeks the following proposed resolutions:

(1) For Charter Schools to fund the program Seeing Stars and Visualization and Verbalization at Lindamood Bell in Pasadena for nine weeks, four hours per day;

(2) For Charter Schools to fund the program Cloud-9 at Lindamood Bell in Pasadena for three weeks, four hours per day; or (3) As an alternative to compensatory education, for Charter Schools to reimburse Parents for tutoring costs.

4. Respondents. In the caption of the complaint, Student named Aveson School

of Leaders and Aveson Global Leadership Academy. At the PHC on May 18, 2015, Student was prepared to stipulate that Aveson Charter Schools is the correct respondent. Charter Schools was not prepared to address this issue at the May 18, 2015 PHC. The parties are ordered to meet and confer about this issue by July 21, 2015 and be prepared to address this issue on the first day of hearing.

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

prior to the hearing. Except as permitted herein or otherwise ordered by the ALJ, the parties shall use numbers to identify exhibits, but shall place the letter “S” or “C” in front of the exhibit to designate if it is a Student or Charter Schools exhibit (for example, “S-5, S-6, or C- 1, C-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.

Each exhibit shall consist of one document; separate documents may not be combined into one exhibit.

In the event of duplicate exhibits, the most legible version will be used. The parties shall meet and confer by July 23, 2015 to delete duplicate exhibits from the exhibit binders.

The parties shall exchange resumes 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 and curriculum vitae not later than 24 hours before the witness is scheduled to testify.

Charter Schools shall include as part of its exhibits the school calendar(s) for all of the years at issue. Notwithstanding the requirements of Education Code section 56505, subd.

(e)(7), Charter Schools shall serve a copy of the school calendar(s) on Student by July 23, 2015 and include the school calendar(s) in the binders provided for use by the witnesses and the ALJ.

If the parties intend to rely on individualized education programs, the parties shall attach all pages of the IEP(s), including copies of all actual signatures on the IEP(s) and any typewritten or handwritten notes or comments, if any, written on the IEP(s). Excerpts of an audio record of an individualized education program team meeting should be transcribed and offered as documentary evidence; that portion of the audio record transcribed shall be provided to the opposing party with the transcript to allow an opportunity to verify the accuracy of the transcription. Transcription need not be done by a certified court reporter.

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not timely 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.

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

of its own witnesses, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify. 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.

The parties shall comply with Education Code section 56505 (e)(7). No party shall be permitted to call any witnesses not timely disclosed except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.

The parties shall meet and confer by July 23, 2015, as to the schedule of witnesses and coordinate the availability and order 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.

During the PHC, the parties were ordered to meet and confer by on July 21, 2015, and identify the witnesses on its/his respective witness lists who cannot be produced at hearing without a subpoena and provide the witnesses contact information to opposing counsel so that subpoenas can be issued.

On the first day of hearing before the first witness testifies, the parties shall provide the ALJ with one joint detailed hour-by-hour schedule of all witnesses expected to testify at hearing, which list shall also include an estimate of time for each party’s direct and cross- examination.

Each witness will only be called once to testify, except for rebuttal purposes, and all parties shall examine the witness when the witness is first called. 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 each witness is expected to take.

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 such evidence. The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony.

7. 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. Prior to the hearing, the proponent of the witness shall provide the proposed witness with a complete set of duplicate exhibit binders from all parties, containing all exhibits from each party, and instruct the witness not to remove any documents from the exhibit binders. The hearing room shall have sound equipment that allows everyone in the room to hear the witness, and the witness to hear objections and rulings. Unless otherwise ordered, the witness shall testify on a land- line telephone while alone in a private room. No witness will be heard by telephone unless all these requirements have been fulfilled.

At the PHC, Student indicated that some of the witnesses on its list might require telephonic testimony and requested that telephonic testimony be permitted, but Student could not identify any specific witness requiring telephonic testimony. Charter Schools opposed the request because Student could not identify the witnesses who required telephonic testimony. The parties were ordered to meet and confer to discuss the necessity of telephonic testimony for specific witnesses and attempt to reach a stipulation in the event they require telephonic testimony. If the parties are not able to reach agreement, the matter shall be addressed by the ALJ on the first day of hearing.

8. 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, Student is the petitioning party.

Accordingly, Student shall present his case-in-chief, followed by District. If a witness is to be called by more than one party, each party shall ask questions of the witness so that the witness does not need to return for testimony.

9. Motions. At present no prehearing motions are pending or contemplated. Any

prehearing motion filed after the prehearing conference shall be supported by a declaration under penalty of perjury establishing good cause why the motion was not made prior to or at the prehearing conference.

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

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

The parties shall meet and confer by July 23, 2015 to determine legal and factual stipulations, if any, to be submitted at hearing.

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 during the hearing unless permission to the contrary is obtained from the ALJ.

There shall be no texting permitted while the hearing is in session.

The ALJ shall record the hearing and the ALJ’s recording is the only official record of the hearing. No person shall record or photograph the proceedings unless otherwise permitted by the ALJ.

Student’s request to audiotape the hearing is granted subject to the following conditions, which shall be applicable to both parties: (1) Such recording shall be for counsel’s personal use only and only for review and preparation of the hearing; (2) The recording device shall be turned on only when the ALJ states that the matter is on the record, and shall be turned off when the ALJ states that the matter is off the record; (3) The parties shall not play any part of the recording for any prospective witness(es) and the recording shall not be disseminated to anyone other than counsel; (4) The parties shall not use the recording in any subsequent due process hearing or other proceeding; and (5) The parties shall dispose of the unofficial recording when the ALJ’s decision in this matter is issued.

Any recording made by either party is not the official record and is permitted as a courtesy, unless otherwise ordered by the hearing 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. At present neither party anticipates the

need for special accommodation for any witness or party, or for translation services.

A party or participant to this case, such as a witness, requiring reasonable accommodation to participate in the hearing may contact the assigned calendar clerk at (916) 263-0880 or the OAH ADA Coordinator at OAHADA@dgs.ca.gov or (916) 263-0880 as soon as the need is made known. Additional information concerning requests for reasonable accommodation is available on OAH’s website at http://www.dgs.ca.gov/oah/Home/Accommodations.aspx.

14. Hearing Open To the Public. At the request of Student, the hearing will be

open 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.

If the matter settles subject to board approval, in addition to a signed copy of the signature page of the settlement agreement as noted above, the parties shall submit a request for a status conference and provide the date of the next board meeting. The hearing dates will not be cancelled without this information.

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

other sanctions.

IT IS SO ORDERED.

DATE: July 20, 2015

/ S/

LAURIE GORSLINE

Administrative Law Judge Office of Administrative Hearings