Order Following Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENTS ON BEHALF OF STUDENT, OAH Case No. 2018070818 v.

ORDER FOLLOWING PREHEARING

CAPISTRANO UNIFIED SCHOOL CONFERENCE

DISTRICT.

On November 26, 2018, a telephonic prehearing conference was held before Administrative Law Judge Rommel P. Cruz, Office of Administrative Hearings. Tania L.

Whiteleather, Attorney at Law, and Mother appeared on behalf of Student. Ernest L. Bell, Attorney at Law, appeared on behalf of Capistrano Unified School District. The PHC was recorded.

Capistrano filed its response to Student’s complaint on July 30, 2018, which permits the hearing to go forward. (M.C. v. Antelope Valley Unified Sch. Dist. (9th Cir. 2017) 858 F.3d 1189, 1199-1200.)

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

1. Hearing Dates, Times, and Location. The hearing shall take place on

December 4-6, 18 and 19, 2018, 1 and continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at Capistrano’s offices located at 33122 Valle Road, San Juan Capistrano, California 92675. 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 The dates have been changed after the PHC based on the fact that OAH Case No. 2018050914 is scheduled on those dates, and was filed before this case and was continued to accommodate the continuance in OAH Case No. 2018071234 caused by Ms. Whiteleather’s failure to comply with PHC order in that case regarding production of Student’s evidence binder.

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, Capistrano 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 Capistrano’s legal representative and special education representative; (3) a table for the witness; and (4) a table for the ALJ, near an electrical outlet. Capistrano 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. Capistrano 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. Issues and Proposed Resolutions. The issue at the due process hearing, and

the proposed resolution, are listed below.

Issue:

1) Did Capistrano fail to meet its Child Find obligation, during the two years preceding the filing of Student’s complaint, by failing to find Student eligible for special education services prior to Student reaching 18 years of age? Proposed Resolution: As a remedy, Student seeks an order in her favor solely on the issue of eligibility.

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 letters “S” or “D” in front of the exhibit to designate if it is a Student or school district exhibit (for example, “S-1” or “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. Each party shall serve a physical exhibit binder containing its respective exhibits on the other party by November 27, 2018, 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.

During the PHC, Capistrano requested it be allowed to provide Student with the Nelson-Denny Reading Test manual at the commencement of the hearing and not before.

Student objected to the request based on her right to receive Capistrano’s exhibits prior to the hearing in accordance with Education Code section 56505, subdivision (e)(7). (See, Newport-Mesa Unified School Dist. v. California Dept. of Educ. (C.D. Cal. 2005) 371 F.Supp.2d 1170.) Capistrano shall serve Student with a copy of the Nelson-Denny Reading Test manual in accordance with Education Code section 56505, subdivision (e)(7), if Capistrano seeks to use the manual as an exhibit for hearing. Any copies of the Nelson- Denny Reading Test Manual provided to Student shall be confidential and not disclosed to any person other than Parent, Student’s attorney, or Student’s expert.

Each exhibit shall consist of one document; separate documents may not be combined into one exhibit. Emails or letters may be consolidated into one exhibit if they are part of a single chain of messages. Documents offered as evidence to support a request for reimbursement must be separated by vendor and should be internally chronological where possible. To the extent practicable, exhibits in the binders shall be in chronological order.

Excerpts of an audio record of an individualized education program team meeting, if any, must 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. Electronic recording of the excerpts of the audio record shall be included with the transcript to allow the ALJ to listen to the recording as well as read the transcript. The parties may also be required to electronically transfer the audio recordings to OAH, at the ALJ’s discretion.

The parties shall meet and confer by 5:00 p.m. on November 30, 2018, to eliminate duplicate exhibits from the exhibit binders. Duplicate exhibits and tabs should be removed from all binders prior to the first day of hearing. The parties shall not re-number exhibits after duplicates are removed. The parties are encouraged, if the total number of documents is not too large, to place the exhibits for both parties into one binder. Each exhibit shall consist of one document; separate documents may not be combined into one exhibit.

The parties shall include, as exhibits, resumes for each witness expected to testify as to their professional credentials. Notwithstanding the requirements of Education Code section 56505, subdivision (e)(7), the parties shall exchange resumes not later than 24 hours before the witness is scheduled to testify.

Capistrano 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. Education Code section 56505, subdivision (e)(8), affords each party the right to prohibit the introduction of any evidence at the hearing that has not been disclosed at least five days before the hearing.

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 to the other party. The parties shall schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses twice or out of order. Neither party shall be permitted to call any witnesses not disclosed in the party’s prehearing conference statement and listed below, except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ. Education Code section 56505, subdivision (e)(8), affords each party the right to prohibit the introduction of any evidence at the hearing that has not been disclosed at least five days before the hearing.

The parties are ordered to meet and confer by 5:00 p.m. on November 30, 2018, as to the schedule of witnesses. The parties shall coordinate the availability and order of testimony 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.

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 ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony.

Education Code, section 56505.1, subdivision (h), empowers the ALJ presiding at a due process hearing to set a reasonable limit on the length of the hearing after consideration of all of the following: (i) issues to be heard, (ii) complexity of facts to be proven, (iii) ability of the parties or their representatives to present their respective cases, and (iv) estimates of the parties as to the time needed to present their respective cases.

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. Capistrano shall have witnesses available in case agreement on a witness list is not reached.

No later than 5:00 p.m. on November 27, 2018, Capistrano’s counsel shall inform Student’s counsel whether any of the witnesses on Student’s witness list are employed by or otherwise under the control of Capistrano, and if not, shall provide Student’s counsel with the witness(es)’ most recent contact information, including a telephone number and address at which process may be served. Any contact information provided by Capistrano shall be used by Student’s counsel for the limited purpose of issuing subpoenas or for contacting the witness(es) for purposes of attending the hearing and shall not be disseminated to any other person(s).

The ALJ will finalize the witness schedule, and will revisit the schedule at the beginning and end of each hearing day. Counsel shall meet and confer each day of hearing to revise the witness schedule as needed.

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. If a party intended to call a witness called first by the other party, that party shall complete their direct examination at the same time as their cross 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 physical 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. Electronic copies of the evidence binders will not be permitted. The witness must be on a clear telephone connection, and in a location that ensures the confidentiality of the proceedings. No witness will be heard by telephone unless all these requirements have been fulfilled.

Student’s motion to allow Dr. Christine Majors and Dr. Catherine Fabian to testify by telephone because they are located in another State is granted, subject to the conditions set forth in this section.

Capistrano’s motion to allow Dr. David Kirschen to testify by telephone based on the distance to travel to hearing is denied. Dr. Kirschen’s office is located in Pasadena, CA, which is within a reasonable driving distance to the hearing location.

7. Electronic Recording of Hearing.

a. Audio Recording. Student’s and Capistrano’s requests to make an

audio recording of the hearing are granted, subject to the following conditions: (1) The parties shall turn on and off the recording device at the same time that the ALJ is on and off the record, to avoid recording conversations while off the record; (2) the parties shall not play any part of the recording for a prospective witness; (3) the parties shall not publish or play any part of the recording for any purpose other than assisting in the representation and presentation of this due process hearing; (4) the parties will erase, or otherwise destroy, the recording after the hearing and all opportunities for appeal from any decision herein has been exhausted; and (5) the parties shall not use this recording in any subsequent due process hearing. The recording by OAH is the only official recording; recording of the hearing by a party is not the official record and is permitted as a courtesy. The operation of the party’s recording mechanism will not be allowed to delay the hearing.

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 her case-in-chief, followed by Capistrano.

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 at least three days prior to the PHC of November 26, 2018.

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. Neither party indicated a need for any

accommodations in this case. 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 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. Each of the parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing, or if the petitioning party withdraws the request for due process. 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,

OR THE PETITIONING PARTY WITHDRAWS THE DUE PROCESS HEARING

REQUEST, AFTER 3:00 P.M. THE DAY PRIOR TO HEARING, EACH OF THE

PARTIES SHALL LEAVE A VOICEMAIL MESSAGE FOR OAH REGARDING THE

SETTLEMENT OR WITHDRAWAL AT (916) 274-6035. THE PARTIES SHOULD

ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR PHONE NUMBERS

OF EACH PARTY OR COUNSEL FOR EACH PARTY. IN THE CASE OF

SETTLEMENT, THE PARTIES SHOULD SIMULTANEOUSLY EMAIL THE

SIGNATURE PAGE OF THE SIGNED AGREEMENT OR A LETTER

WITHDRAWING THE CASE TO THE OAH AT

https://www.applications.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.

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

other sanctions.

IT IS SO ORDERED.

DATE: November 26, 2018

ROMMEL P. CRUZ

Administrative Law Judge Office of Administrative Hearings