Order Following Prehearing Conference and Granting Motion to Dismiss Issues Outside the Statute of Limitations

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2017011169 v. ORDER FOLLOWING PREHEARING

CONFERENCE AND GRANTING

MORGAN HILL UNIFIED SCHOOL MOTION TO DISMISS ISSUES

DISTRICT. OUTSIDE THE STATUTE OF

LIMITATIONS

On April 21, 2017, a telephonic prehearing conference was held before Administrative Law Judge Cole Dalton, Office of Administrative Hearings. Thomas Douvan, Attorney at Law, appeared on behalf of Student. Jennifer Baldassari, Attorney at Law, appeared on behalf of 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 shall take place on

May 2, 3, and 4, and continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at District’s offices located at 15600 Concord Circle, Morgan Hill, CA 95037. 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.

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.A. § 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.

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.

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 and Proposed Resolutions. The issues at the due process

hearing, and the proposed resolutions, are listed below.

(1) Did District deny Student a free appropriate public education by failing to assess in all areas of suspected disability from January 30, 2015 through January 30, 2017, specifically in the areas of (a) neuropsychology, (b) behavior, (c) social-emotional functioning,(d) health, and (e) academics? (2) Did District deny Student a FAPE from January 30, 2015 through January 30, 2017, by failing to translate documents into Parents’ native language of Spanish, specifically (a) individualized education programs dated October 12, 2015, November 8, 2015, November 12, 2015; and the Notice of IEP team meeting for the November 12, 2015 IEP? (3) Did District deny Student a FAPE by failing to timely produce all Student records in response to Student’s August 23, 2016 request? (4) Did District deny Student a FAPE by failing to hold a resolution session within 15 days of December 22, 2016, when Student filed his prior complaint, OAH Case No. 2016120908, involving similar issues?1 (5) Did District deny Student a FAPE from January 30, 2015 through January 30, 2017 by failing to offer an IEP that was reasonably calculated to enable him to make progress appropriate in light of his circumstances, specifically in the areas of (1) academics (2) behavior, and (3) social-emotional functioning? In resolution of the issues, Student seeks independent assessments in the areas of neuropsychology, health, behavior, speech and language, audiology, and academics. Further, Student seeks compensatory education in the areas of reading remediation, behavior and social-emotional functioning. Student seeks placement in a non-public school with transportation.

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-1, S-2, or D-1, D-2”). Each exhibit shall be internally paginated by exhibit, or all of a party’s exhibits shall be Bates-stamped.

On January 30, 2017, Student dismissed OAH Case No. 2016120908, and filed the instant matter, which added allegations to the expedited portion of the complaint.

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 by no later than 5:00 p.m. on April 27, 2017, to discuss exhibits and eliminate duplicate exhibits from the exhibit binders.

Each exhibit shall consist of one document; separate documents may not be combined into one exhibit. Excerpts of an audio record of an individualized education program team meeting, if any, 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.

The parties shall exchange resumes for each witness who is expected to testify as to their professional credentials. District shall include as part of its exhibits the school calendar(s) for the years at issue.

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).

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 notice of witnesses and evidence except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.

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 meet and confer by 5:00 p.m. on April 27, 2017, 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.

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.

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.

5. Scope of Witness Examination. Each witness shall be called to testify

only once, except for rebuttal purposes, and all parties shall examine the witness on all issues when the witness is first called. 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. The order in which the parties present their cases in chief shall be subordinate to the need for each witness to appear only once.

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. Electronic Recording of Hearing.

a. Audio Recording. District’s motion to make an audio recording

of 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 hearing will not be stopped or delayed at any time to accommodate the recordings or any problems with the recording equipment; (4) The parties shall not play any part of the recording for any prospective witness(es) and the recording shall not be disseminated; (5) The parties shall not use the recording in any subsequent due process hearing; and (6) 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. The OAH recording made by the hearing ALJ is the official record unless otherwise ordered.

b. Video Recording. No party, witness or anyone else present

may make any video recording of any part of the proceedings. Any person doing so shall be subject to sanctions.

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 its case-in-chief, followed by District.

9. Motions. On April 18, 2017, District filed a motion to dismiss,

addressed below. No other 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 April 21, 2017.

a. Motion to Dismiss. On April 18, 2017, District filed a motion to

dismiss issues raised in Student’s complaint, outside of the two year statute of limitations. Student opposed the motion on grounds that the instant filing should relate back to Student’s initial filing on December 22, 2016, for purposes of calculating the statute of limitations date. After the initial December 2016 filing, Student filed a motion to amend the expedited portion of his complaint, which OAH denied on January 27, 2017. In order to add allegations to the expedited complaint, Student dismissed the initial complaint and filed the instant matter on January 30, 2017.

A request for due process hearing “shall be filed within two years from the date the party initiating the request knew or had reason to know of the facts underlying the basis for the request.” (Ed. Code, § 56505, subd. (1).) This limitation does not apply to a parent if the parent was prevented from requesting the due process hearing due to either: (1) Specific misrepresentations by the local educational agency that it had solved the problem forming the basis of the due process hearing request; or (2) The withholding of information by the local educational agency from the parent that was required to be provided to the parent under special education law. (Ibid, see 20 U.S.C. § 1415(f)(3)(D).)

The statute of limitations begins to run when a party is aware of the facts that would support a legal claim, not when a party learns that it has a legal claim. (See El Pollo Loco, Inc. v. Hashim (9th Cir. 2003) 316 F.3d 1016, 1039.)

Here, Student’s complaint makes no allegations supporting an exception to the two year statute of limitations. Further, Student’s contention that the limitations date relates back to his original filing lacks merit. Though an amended complaint relates back to the filing date of an original complaint, the same is not true where a party dismisses their complaint altogether, and files anew. For these reasons, District’s motion is granted. Student shall proceed on issues relating to the time period between January 30, 2015 and January 30, 2017.

10. 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.

11. Stipulations. Stipulations to pertinent facts, contentions or resolutions

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

12. 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.

13. Special Needs and Accommodations. Parents require a Spanish

language interpreter. A party or participant to this case, such as a witness, requiring reasonable accommodation to participate in the mediation or hearing may contact the assigned calendar staff, identified in the scheduling order, at (916) 263-0880, as soon as the need is known. Additional information concerning requests for reasonable accommodation is available on OAH’s website at https://www.dgs.ca.gov/oah/Home/Accessibility.aspx.

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.

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: April 24, 2017

COLE DALTON

Administrative Law Judge Office of Administrative Hearings