Order Following Prehearing Conference; Order Denying Student's Motion to Consolidate and Request for Continuance

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

CORONA-NORCO UNIFIED SCHOOL OAH Case No. 2018050185

DISTRICT,

ORDER FOLLOWING PREHEARING

v. CONFERENCE;

ORDER DENYING STUDENT’S

PARENT ON BEHALF OF STUDENT. MOTION TO CONSOLIDATE AND

REQUEST FOR CONTINUANCE

On June 1, 2018, a telephonic prehearing conference was held before Administrative Law Judge Cole Dalton, Office of Administrative Hearings. Debra Ferdman, Attorney at Law, appeared on behalf of District. Philip Sparks, Attorney at Law, appeared on behalf of Student. 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 June 7

and 12, 2018, and continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at the District’s offices located at 2820 Clark Avenue, Norco, CA 92860. 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 was to 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 failed to certify that it would provide a facility for this case that complied with the law. The local educational agency shall inform OAH within two days of the date of this order it is able to certify that it will provide a facility that complies with the law.

Prior to the beginning of the hearing, District shall assist the ALJ to ensure that the hearing room is configured into a courtroom setting, including (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 also make reasonable effort to ensure that drinking water and tissue are available to all parties, witnesses and the ALJ.

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) May District assess Student pursuant to its November 10, 2016 assessment plan without parental consent? District seeks an order allowing it to assess Student over lack of parental consent.

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 by no later than 5:00 p.m. on June 4, 2018, 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 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 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 June 4, 2018, 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. The proponent of the witness shall ensure the witness testifies from a private location with no other persons present using a “land-line” 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. If any party desires to make an audio recording of

the hearing, that party shall move for leave to do so in advance of the hearing, 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 and the deadline for filing an appeal has passed. 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, District is the petitioning party.

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

9. Motion to Consolidate and Continue. On May 2, 2018, District filed a request

for due process hearing in the instant matter (OAH case number 2018050185) naming Student (District’s case). District’s case alleged a single, discrete issue of whether it may assess Student pursuant to its November 10, 2016 assessment plan, over lack of parental consent.

On May 21, 2018, Student filed a notice of representation and motion to continue the original hearing date of May 30, 2018 set in District’s case on the grounds Student had recently retained counsel sought additional time to prepare for hearing. Student’s request to continue was denied without prejudice as Student had not met and conferred with District to obtain mutually agreeable dates for a continuance.

On May 24, 2018, the parties stipulated to continue District’s case to the current dates with a PHC on June 1, 2018 and hearing on June 7, 2018.

On May 25, 2018, Student filed a request for due process hearing in OAH Case number 2018051219, naming District (Student’s case). Student’s case is set for PHC on July 9, 2018 and hearing on July 19, 2018. Student’s case alleges, in 13 issues, that District denied him a free appropriate public education for the last two school years by: failing to offer sufficient services; creating a hostile education environment; predetermination; failing to develop appropriate goals; failing to offer placement in the least restrictive environment;

failing to provide accurate present levels of performance; failing to implement Student’s May 2015 individualized education program; failing to provide prior written notice; attempting to exit Student from special education without written consent; failing to assess in all areas of suspected disability; and failing to conduct assessments within 60 days of receiving a signed assessment plan.

On May 29, 2018, Student filed a motion to consolidate Student’s case with District’s case. Student contends that consolidation is necessary to further the interests of judicial economy because there are common issues of law and fact, involving the same parties.

Student seeks a continuance of the June 1, 2018 PHC and June 6 and 7, 2018 hearing dates to allow consolidation and because counsel was only recently retained and needs additional time to review Student’s records and prepare for hearing.

On May 29, 2018, District filed an opposition to the consolidation and the continuance. District contends the issues raised in Student’s case involve various IEP offers in a different timeframe, requiring multiple additional witnesses and evidence, thereby extending the scope and length of the hearing. District argues against continuance on the ground that it prepared for hearing in reliance on Student’s stipulation to hearing dates and should be allowed to resolve the matter expeditiously.

Consolidation 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 made no showing that any of the multiple issues alleged in his complaint are inextricably intertwined with the discrete issue of District’s right to assess pursuant to a November 2016 assessment plan, alleged in its case. Consolidation would merely delay a resolution of District’s sole issue and significantly lengthen an otherwise one to two day hearing. Moreover, there is no danger of inconsistent rulings as both parties will have a full opportunity to present evidence in both cases and the Decision in District’s case will consider only District’s right to assess, which is not at issue in Student’s case.

Consolidation of District’s sole issue with Student’s multiple procedural and substantive issues over multiple school years would not further the interests of judicial economy by saving time or preventing inconsistent rulings. Accordingly, Student’s motion to consolidate is denied.

Continuance 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 requested a continuance to allow for consolidation and to prepare for hearing. Denial of Student’s motion for consolidation renders the first argument moot.

Student’s second argument lacks merit for the following reasons. Student initially moved to continue District’s case based on recently retained counsel’s need for further time to prepare for hearing. Student met and conferred with District on continued hearing dates, no doubt keeping in mind the amount of time needed to prepare for hearing in District’s case. Student has not shown good cause for a further continuance.

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 June 1, 2018.

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. Special Needs and Accommodations. The parties are not aware of the need for

accommodations.

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.

13. Hearing Closed To the Public. The hearing will be closed to the public.

14. 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 EMAIL THE SIGNATURE PAGE OF THE

SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE OAH AT

https://www.dgsapps.dgs.ca.gov/oah/oahsftweb .

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.

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

sanctions.

IT IS SO ORDERED.

DATE: June 4, 2018

COLE DALTON

Administrative Law Judge Office of Administrative Hearings