Order Following Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

CAMPBELL UNION HIGH SCHOOL OAH Case No. 2018061181

DISTRICT,

ORDER FOLLOWING PREHEARING

v. CONFERENCE

PARENT ON BEHALF OF STUDENT.

On August 31, 2018, a telephonic prehearing conference was held before Administrative Law Judge Rebecca Freie, Office of Administrative Hearings. Jeffery W.

Maisen, Attorney at Law, appeared on behalf of Campbell Union High School District.

Amanda K. O’Neal, 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 shall take place on September 11,

12 and 13, continuing day to day, Monday through Thursday, at the discretion of the ALJ.

The hearing shall take place at the Campbell administrative offices located at 3235 Union Avenue, San Jose, California 95124. 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, Campbell is 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. Campbell has failed to certify that it would provide a facility for this case that complied with the law. Campbell will file appropriate certification that it will provide a facility that complies with the law no later than two days after the date of this order.

Prior to the beginning of the hearing, Campbell 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 Campbell’s legal representative and special education representative; (3) a table for the witness; and (4) a table for the ALJ, near an electrical outlet. Campbell shall provide drinking water to all parties and tissues shall be available for 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. Campbell shall ensure that the hearing room and access to it are in compliance with the Americans with Disabilities Act. If at all possible, Campbell shall provide a separate room for the use of Student’s attorneys and representatives when it is necessary for them to confer privately.

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. Issue and Proposed Resolution. The issue at the due process hearing, and the

proposed resolutions, is listed below.

Issue Is Campbell’s fall 2017 triennial psychoeducational evaluation of Student legally compliant, such that it is not required to fund an independent psychoeducational evaluation? 1 Resolutions Campbell asks that its fall 2017 triennial psychoeducational evaluation be found to be legally compliant.

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

binders prior to the hearing. Each exhibit shall be separated from the next by a tabbed numbered index page. 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 exhibit binders shall be consecutively paginated or 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 psychoeducational evaluation contains a section with the results of academic achievement testing, and Campbell has agreed to fund an independent assessment in this area only. However, it has not agreed to fund an independent psychological evaluation.

Nevertheless, because it is determined that the entire evaluation needs to be considered as a whole, and because there is nothing to prevent Campbell from withdrawing its offer to fund an independent academic achievement assessment, the ALJ will consider the psychoeducational evaluation as a whole, including the academic achievement testing.

The parties are encouraged, but not ordered to provide resumes or curriculum vitae for any witness testifying in a professional capacity. 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 the ALJ rules that it is admissible. The parties agree that this provision shall not be applicable to the resumes or curriculum vitae discussed above.

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 no later than September 6, 2018, and attempt to reach agreement on a witness list for at least the first day of hearing. The Campbell shall have witnesses available in case agreement on a witness list is not reached. Prior to the commencement of the due process hearing, the ALJ and the parties will discuss the length of time anticipated for direct and cross-examination of each witness and scheduling issues for individual witnesses, and the ALJ will finalize the witness schedule. Additionally, 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. Each witness shall be called to testify only

once, except for rebuttal purposes, and the parties shall examine the witness on all issues when the witness is first called, if both parties intended to call the witness as part of their case in chief. 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.

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.

Student, who is attending school in Vermont shall be permitted to testify telephonically. The parties shall determine who is responsible for providing him with each parties’ evidence binders. Campbell shall ensure that the hearing room has sound equipment that allows everyone in the room to hear the witness, and the witness to hear questions, objections and rulings.

7. Electronic Recording of Hearing.

a. Audio Recording. Both parties intend to make an audio recording of

the hearing, and that recording shall be subject to the following conditions: 1) that OAH’s recording is the only official recording; 2) that the recorder will be turned on and off at the same time as the ALJ’s recorder, in order to avoid recording conversations while off the record; 3) that operation of the party’s recording mechanism will not be allowed to delay the hearing; and 4) if a party is recording the hearing and leaves the hearing room, the recorder shall be removed from the room by the party.

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, Campbell is the petitioning party. Accordingly, Campbell has the burden of proof and shall present its case-in-chief, followed by Student.

9. Motions. No 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 filed three business days prior to the PHC of August 31, 2018.2

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.

As part of its evidence, Student intends to present a recording of one or more IEP team meetings. The ALJ informed Student’s attorney, in response to her question, that the recording itself is sufficient, and transcripts are not necessary. However, the recording shall contain entire IEP team meeting, not just selected parts.

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

13. Special Needs and Accommodations. Neither party has need of a foreign

language interpreter, or other accommodation. A party or participant to this case, such as a witness, requiring reasonable accommodation to participate in the 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 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 NOON ON FRIDAY, SEPTEMBER 7, 2018, 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 AND A LETTER WITHDRAWING THE CASE TO THE OAH

AT https://www.applications.dgsapps.dgs.ca.gov/oah/oahsftweb . IF THE

SETTLEMENT AGREEMENT IS SUBJECT TO BOARD APPROVAL, THE

LETTER SHALL STATE THAT, AND GIVE THE DATE OF THE MEETING

WHEN THE BOARD SHALL CONSIDER THE AGREEMENT.

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.

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

other sanctions.

IT IS SO ORDERED.

DATE: September 7, 2018

REBECCA FREIE

Administrative Law Judge Office of Administrative Hearings