Order Following Prehearing Conference, Order Consolidating Due Process Matters, and Continuance

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Consolidated Matters of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2016101114 v.

NEWPORT-MESA UNIFIED SCHOOL

DISTRICT,

NEWPORT-MESA UNIFIED SCHOOL OAH Case No. 2016090853

DISTRICT,

ORDER FOLLOWING PREHEARING

v. CONFERENCE, ORDER

CONSOLIDATING DUE PROCESS

PARENT ON BEHALF OF STUDENT. MATTERS, AND CONTINUANCE

On December 5, 2016, a telephonic prehearing conference was held before Administrative Law Judge Judith L. Pasewark, Office of Administrative Hearings. Timothy Adams, Attorney at Law, appeared on behalf of Student. Alefia Mithaiwala, Attorney at Law, appeared on behalf of Newport-Mesa Unified School District. The PHC was recorded.

Based upon discussion with the parties, the ALJ issues the following order:

1. Hearing Dates, Times, and Location. The hearing is continued on motion of

Student and shall take place on February 14, 15, and 16, 2017, and continue day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at the District’s offices located at 2985-A Bear Street, Costa Mesa, California 92626. 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. A telephonic prehearing conference shall take place on February 3, 2017 at 10:00 a.m. OAH shall initiate the telephone call.

As ordered in the scheduling order, the named local educational agency shall provide a facility for the hearing that fully complies 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 et seq.), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and all laws governing accessibility of government facilities to persons with disabilities. The named local educational agency certified that the facilities used for this case comply with the law. The local educational agency shall inform OAH within two days of the date of this order if it is unable to comply with this order.

Prior to the beginning of the hearing, District shall ensure that the hearing room is configured into a courtroom setting and shall have at a minimum (1) a table for Student and his representatives; (2) a table for District’s legal representative and special education representative; (3) a table for the witness; and (4) a table for the ALJ, near an electrical outlet. District shall provide drinking water and tissue 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. District shall ensure that the hearing room and access to it are in compliance with the Americans with Disabilities Act.

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. Motions. The following oral motions and orders were made during the

prehearing conference:

A. The parties made a joint motion to consolidate Student’s case, OAH Case No. 2016101114 with District’s case, OAH Case No. 2016090853.

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) [administrative proceedings may be consolidated if they involve a common question of law or fact]; Code of Civ. Proc., § 1048, subd. (a) [same applies to civil cases].)

Here, Student’s case and District’s case involve a common question of law and fact, specifically, regarding the validity of District’s assessments and recommendations. In addition, consolidation furthers the interests of judicial economy because both cases involve the same witnesses and documents.

Consolidation of Student’ case, OAH Case No. 2016101114 with District’s case, OAH Case No. 2016090853 is granted. All dates set under District’s case, OAH Case No. 2016090853 are vacated. The 45-day timeline for issuance of the decision in the consolidated cases shall be based on the date of the filing of the complaint in Student’s Case No. 2016101114, and matter shall proceed on the dates in Student’s Case.

B. Student requested a continuance of Student’s case, OAH Case No.

20160101114, which was opposed by District.

A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R.

§ 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (See Cal. Rules of Court, rule 3.1332(c).) OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance;

and any other relevant fact or circumstance. (See Cal. Rules of Court, rule 3.1332(d).)

Here, Student has requested a continuance as OAH has ordered counsel back to hearing on December 13, 14 and 15, 2016, in the consolidated matters of OAH Case No. 2016080016 and OAH Case No. 2016070586, which constitutes good cause for continuance.

C. Student’s motion to quash District’s subpoena duces tecum, which was filed on December 1, 2016, and District’s opposition filed on December 5, 2016, shall be determined at the prehearing conference of the consolidated matters set for February 3, 2017.

3. 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.

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.

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

other sanctions.

IT IS SO ORDERED.

DATE: December 5, 2016

JUDITH PASEWARK

Administrative Law Judge Office of Administrative Hearings