California OAH special education order · June 9, 2022
Order Granting Motion to Strike Exhibit 1 From the Motion to Amend
OAH Case No. 2022010333 · ALJ Laurie Gorsline
OAH struck an email thread that Student attached to a motion to amend because it reflected confidential mediation communications. No ALJ will consider the exhibit.
This case went to decision
Student v. Los Angeles Unified School District (consolidated): Los Angeles Unified missed child find for gifted eighth grader, but student was ineligible; IEE denied and no remedy ordered. (2022)
Summary
Student filed a motion to amend the due process complaint. As Exhibit 1, Student attached an email thread about the parties' communications during and after their second mediation. Los Angeles Unified did not oppose the amendment but moved to strike Exhibit 1 as confidential settlement communications, and Student filed no response. OAH granted the motion to strike because the emails were plainly made pursuant to mediation discussions and are protected by Evidence Code section 1119 even after mediation ends.
Why it matters
Emails and other communications that follow up on mediation discussions stay confidential under the Evidence Code and cannot be attached to OAH filings. Parents and advocates should keep mediation-related correspondence out of motions and evidence.
Key authority cited
- Evid. Code, § 1115 et seq.
- Evid. Code, § 1119
- Evid. Code, § 1126
- Rojas v. Superior Court (2004) 33 Cal.4th 407
- Wimsatt v. Superior Court, 152 Cal.App.4th 137
- Saeta v. Superior Court (2004) 117 Cal.App.4th 261
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 MATTER OF:
PARENTS ON BEHALF OF STUDENT,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2022010333
ORDER GRANTING MOTION TO STRIKE EXHIBIT 1 FROM
THE MOTION TO AMEND
JUNE 9, 2022
On January 12, 2022, Student filed a Due Process Hearing Request, referred to as a complaint, with the Office of Administrative Hearings, naming Los Angeles Unified School District. The Office of Administrative Hearings is referred to as OAH.
The parties participated in a second mediation on May 26, 2022.
On June 1, 2022 Student filed a Motion to Amend the Due Process Hearing Request, along with a declaration supporting the motion, attaching as Exhibit 1 an email thread regarding the parties’ communications during mediation and following up on those discussions.
On June 1, 2022, Los Angeles Unified filed a notice of non-opposition and a motion to strike Exhibit 1 because it contained confidential settlement communications.
On June 2, 2022, OAH granted the motion to amend, stating that the motion to strike would be addressed by a separate order. Student was ordered to file any response or opposition by June 6, 2022 at 5:00 PM. OAH received no response or opposition from Student.
APPLICABLE LAW AND DISCUSSION
Mediation, which can take many forms, is one type of alternative dispute resolution. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 415 (Rojas ); Saeta v. Superior Court (2004) 117 Cal.App.4th 261, 269–270.)
Mediation confidentiality is codified in Evidence Code section 1115, et seq. This evidentiary restriction is not limited to those communications made “in the course of mediation. [Citation.]” (Rojas, supra, 33 Cal.4th at p. 417.) Rather, as delineated in Evidence Code section 1119, the restriction applies to any written or oral communication made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,” as well as all “communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation....”
(Evid. Code, § 1119.) Even after mediation ends, communications and writings protected by the statutes are to remain confidential. (Wimsatt v. Superior Court, 152 Cal.App. 4th 137, 152, citing Evid.Code, § 1126; cf. Evid.Code, § 1128 [reference to mediation in subsequent trial is grounds for new trial].)
Here, there can be no doubt that the communications referenced in Exhibit 1 were made pursuant to the discussions had by the parties during mediation. The email says as much, and Student has not offered a different interpretation. Accordingly, the motion to strike Exhibit 1 from the record is granted and no ALJ will consider any information contained in Exhibit 1.
IT IS SO ORDERED.
Laurie Gorsline Administrative Law Judge Office of Administrative Hearings