California OAH special education order · January 14, 2019
Order Following Prehearing Conference and Granting Motion to Consolidate
OAH Case No. 2018110157, 2018121032 · ALJ Kara Hatfield
OAH consolidated El Segundo's assessment case with Student's case over the District's objection. Student's claim that the District failed to assess in all suspected areas in 2016 is a defense to the District's request to assess now.
Summary
Student moved to consolidate El Segundo's due process case with Student's earlier case. El Segundo objected, saying the issues were different and it would be harmed by consolidation. Student replied that the issues overlapped and most witnesses were the same in both cases. The ALJ granted consolidation because the cases share a common question: Student argues that the District's alleged failure to assess in all areas of suspected disability in fall 2016 is a defense to the District's request to assess under its December 2018 plan. Student's case was made the primary case, so its filing date sets the 45-day decision timeline.
Why it matters
When a district files its own case to get permission to assess, a parent can often have it joined with the parent's earlier case if the parent's claims serve as a defense. Showing heavy witness overlap helps make the case for consolidation, and the parent's earlier filing date controls the decision timeline.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Consolidated Matters of:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2018110157 v.
EL SEGUNDO UNIFIED SCHOOL
DISTRICT,
EL SEGUNDO UNIFIED SCHOOL OAH Case No. 2018121032
DISTRICT,
ORDER FOLLOWING PREHEARING
v. CONFERENCE AND GRANTING
MOTION TO CONSOLIDATE
PARENTS ON BEHALF OF STUDENT.
On January 14, 2019, a telephonic prehearing conference was held before Administrative Law Judge Kara Hatfield, Office of Administrative Hearings.
Devan Brothers, Attorney at Law, appeared on behalf of Student. Adam Newman, Attorney at Law, appeared on behalf of El Segundo Unified School District. The PHC was recorded.
Based upon discussion with the parties, the ALJ issues the following order:
1. Student’s Motion to Consolidate. On November 2, 2018, Student filed with
the Office of Administrative Hearings a Request for Due Process Hearing in OAH Case Number 2018110157 (Student’s Case), naming El Segundo Unified School District.
On December 28, 2018, El Segundo filed a Request for Due Process Hearing in OAH Case Number 2018121032 (El Segundo’s Case), naming Student.
On January 9, 2019, Student filed a Motion to Consolidate El Segundo’s Case with Student’s Case.
On January 11, 2019, El Segundo filed an objection to consolidation on the ground that the issues in Student’s Case and El Segundo’s Case are different and El Segundo would be prejudiced by consolidation.
On January 11, 2019, Student filed a reply arguing that the issues in Student’s Case and El Segundo’s Case substantially overlap and that between Student’s Case and El Segundo’s Case, 13 of El Segundo’s 15 proposed witnesses are the same for both cases, and 15 of Student’s 17 proposed witnesses are the same for both cases.
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, El Segundo’s Case and Student’s Case involve a common question of law or fact, specifically, Student asserts that El Segundo’s alleged failure to assess Student in all areas of suspected disability in fall 2016, one of the claims in Student’s Case, is a defense to the issue in El Segundo’s Case, namely whether El Segundo has the right to assess Student pursuant to an assessment plan given to Parents in December 2018, which includes the areas of suspected disability for which Student seeks independent educational evaluations as a remedy in Student’s Case. Accordingly, consolidation is granted.
Student’s Motion to Consolidate is granted. All dates previously set in OAH Case Number 2018121032 (El Segundo’s Case) 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 OAH Case Number 2018110157 (Student’s Case), which shall be designated as the primary case.
2. 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 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.
3. Failure to Comply. The failure to comply with this order may result in the
exclusion of evidence or other sanctions.
IT IS SO ORDERED.
DATE: January 14, 2019
KARA HATFIELD
Administrative Law Judge Office of Administrative Hearings