Order Following Prehearing Conference; Granting Request to Change Hearing Venue

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

SAN DIEGO UNIFIED SCHOOL OAH Case No. 2015050873

DISTRICT,

ORDER FOLLOWING PREHEARING

v. CONFERENCE; GRANTING

REQUEST TO CHANGE HEARING

PARENTS ON BEHALF OF STUDENT. VENUE

On June 29, 2015, a telephonic prehearing conference was held before Administrative Law Judge Paul H. Kamoroff, Office of Administrative Hearings. Sarah L.W. Sutherland, Attorney at Law, appeared on behalf of the San Diego Unified School District. No appearance was made on behalf of Student. 1 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 July 8

and 9, 2015, and continuing day by day thereafter, Monday through Thursday, at the discretion of the ALJ. The hearing shall begin at 9:30 a.m. on the first day, and at 9:00 a.m.

on each subsequent day, unless otherwise ordered. The hearing shall take place at OAH’s regional office, located at 1350 Front Street, Suite 3005, San Diego, CA 92101.

2. Issues and Proposed Resolutions. The issues at the due process hearing, and

proposed resolutions, are listed below.

i) Whether District appropriately found that Student was not eligible for special education and related services, pursuant to its May 13, 2015 individualized education program? 2 OAH made several attempts to contact Student’s parents, including leaving several voicemail messages.

A party has the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” (20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a).) The jurisdiction of OAH is limited to these matters. (Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026, 1028-1029.) In accord with the foregoing ii) Whether District appropriately conducted its February 9, 2015 psychoeducational assessment, and its April 2, 2015 mental health related services report? As remedy, District seeks an order that it prevailed on all issues.

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 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.

Student failed to submit a prehearing conference statement. Therefore, Student’s exhibits are limited to those included in District’s prehearing conference statement of June 24, 2015.

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.

Student failed to submit a prehearing conference statement. Therefore, Student’s witnesses are limited to those included in District’s prehearing conference statement of June 24, 2015.

The parties are ordered to meet and confer by the close of business on July 1, 2015, regarding scheduling witness testimony. 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.

authority, District shall bear the burden of proving that OAH has jurisdiction to hear and decide Issue One.

The parties shall attempt to reach agreement on a witness list for the first day of hearing. 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.

District’s request for Michael Pinto to testify telephonically is granted. District shall provide Mr. Pinto with a complete set of exhibit binders from all parties, containing all of each party’s exhibits, prior to the hearing.

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, District is the petitioning party.

Accordingly, District shall present its case-in-chief, followed by Student. 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.

8. Motions. During the prehearing conference, District submitted a request to

change the hearing venue from its office to OAH’s regional office. District based its motion on its inability to locate a suitable hearing venue.

The place for conducting a due process hearing must be reasonably convenient to the parents and pupil involved the proceeding. California Education Code section 56505, subdivision (b), directs the place for a due process hearing and provides that the “hearing shall be held at a time and place reasonably convenient to the parent or guardian and the pupil.”

Here, OAH’s regional office in San Diego, CA, is reasonably convenient to Parents and the witnesses in this matter. Therefore, District’s request for the change in hearing venue is granted.

No additional pretrial motions are pending or contemplated. 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 prehearing conference of June 29, 2015.

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.

11. Special Needs and Accommodations. At present, neither party anticipates

requiring any special needs or accommodations for this hearing.

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, the OAH ADA Coordinator at OAHADA@dgs.ca.gov or (916)263-0880 as soon the need is made known. Additional information concerning requests for reasonable accommodations is available on OAH’s website at htp.www.dgs.ca.gov/oah/Home/Accomodations.aspx.

12. Hearing Closed to the Public. Unless an open hearing is requested by

Student’s parents, and ordered, the hearing will be closed to the public.

13. 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.

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

other sanctions.

IT IS SO ORDERED.

DATE: June 29, 2015

/ S/

PAUL H. KAMOROFF

Administrative Law Judge Office of Administrative Hearings