Order Following Prehearing Conference and Granting Request for Official Notice

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

PARENTS ON BEHALF OF STUDENT,

v.

SACRAMENTO CITY UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2022110614

ORDER FOLLOWING PREHEARING CONFERENCE AND

GRANTING REQUEST FOR OFFICIAL NOTICE

DECEMBER 12, 2022

On December 12, 2022, at 1:00 PM, Administrative Law Judge Cynthia Fritz, Office of Administrative Hearings, called OAH, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH. The prehearing conference is called a PHC.

Parent appeared on behalf of Student. Student was also present with Parent during the PHC. Attorney Kaitlyn Tucker appeared on behalf of Sacramento City Unified School District. The PHC was recorded. The ALJ issues the following order:

EXPEDITED HEARING DATES, TIMES, AND LOCATION

DUE PROCESS HEARING

The expedited hearing will take place on December 20, 21, and 22, 2022, and continue day to day at the discretion of the ALJ. The expedited hearing will begin at 9:30 AM each day and generally end at 3:30 PM, unless otherwise ordered. Parent and Sacramento City Unified School District anticipate it will take three days to complete the hearing. Any additional hearing dates will be discussed with the ALJ during the hearing.

HEARING LOCATION

OAH is authorized to conduct due process hearings by videoconference or telephone. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) OAH will conduct the due process hearing by videoconference using the Zoom application. Unless otherwise ordered, participants are required to appear by videoconference using computer or device with video capability and Zoom.

The parties will immediately notify all potential witnesses of the hearing dates and will subpoena witnesses, if necessary, to ensure that the witnesses will appear to testify. A party’s failure to notify or subpoena a witness to testify will not be considered good cause to continue the hearing. Instructions for issuing and responding to subpoenas and optional forms for subpoenas can be found on the website at https://www.dgs.ca.gov/OAH/Case-Types/Special- Education/Forms/Subpoenas?search=special%20education%20subpoena.

EXPEDITED ISSUES AND PROPOSED RESOLUTIONS

The issues at the due process hearing, and proposed resolutions, as alleged in the complaint and clarified by parties and the ALJ during the PHC are:

EXPEDITED ISSUE

Did Sacramento City Unified School District fail to timely hold a manifestation determination meeting when Student was removed from his placement for more than 10 school days during the 2021-2022 school year? A party must immediately file a written request for relief if the issue as stated in this order does not reflect their understanding of the issue as clarified at the PHC.

PROPOSED RESOLUTIONS

Student seeks an order from OAH for Sacramento City to follow the “put in place”

order, and a determination that the school district interfered with Student’s right to an education and ability to go to school.

Sacramento City Unified School District filed a response to Student’s complaint on December 5, 2022. (M.C. v. Antelope Valley Union High School Dist. (9th Cir. 2017)

858 F.3d 1189, 1199-1200.)

EXHIBITS

The parties must serve their exhibits on each other in compliance with Education Code section 56505, subdivision (e)(7). The parties must upload their exhibits electronically according to the Order Setting Procedures for Filing Exhibits Electronically.

Timely uploading electronic hearing exhibits five business days before the first day of hearing constitutes that party’s timely exchange of evidence in compliance with Education Code section 56505, subdivision (e)(7).

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not timely exchanged as required by Education Code section 56505, subdivision (e)(7) will not be admitted into evidence at the hearing unless the ALJ rules that it is admissible.

IDENTIFYING EXHIBITS AND PAGE NUMBERS

Each exhibit must be identified by a letter and number. Student must use the letter S before the number to identify Student’s exhibits. Sacramento City Unified School District must use the letter D before the number to identify its exhibits. A cover sheet with this identifying letter and number should be the first page of each exhibit.

The electronic evidence program will automatically number the exhibits and additional page numbering or bates stamping should not be added.

CONTENT

Each exhibit must 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. Exhibits should be in chronological order.

Parties should include resumes or curriculum vitae for each witness expected to testify as an expert.

Sacramento City Unified School District must include a copy of the school calendar for each school year in question.

Electronic copies of exhibits filed with OAH shall be filed by 5:00 PM at least five business days before the first day of hearing. Please refer to the General Order OAH issued with the Scheduling Order that contains the Order Setting Procedures for Filing Exhibits Electronically. It includes instructions for how to file exhibits electronically.

Beginning three business days before the hearing, the electronic evidence system will not allow parties to upload exhibits unless permitted by the ALJ during the hearing at the ALJ’s discretion.

Student did not file a prehearing conference statement but listed the exhibits that Student intended to use at hearing. Sacramento City Unified School District had one question regarding Student’s exhibits. Student did not have questions regarding Sacramento City Unified School District exhibits.

WITNESSES

The parties must serve their list of witnesses on each other in compliance with Education Code section 56505. No party will be permitted to call any witnesses not timely disclosed except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.

Parties are responsible for ensuring that all participants are familiar with and follow the Instructions for Joining the Online Due Process Hearing provided with this Order. Participants who have not previously used the Zoom application, may find informative instructions by visiting, Getting Started with Zoom at https://support.zoom.us/hc/en-us/categories/200101697.

The parties are responsible for ensuring that witnesses join the virtual hearing room at the designated date and time to testify. Witnesses are required to join the due process hearing by computer and appear by videoconference unless they do not have the necessary computer equipment. If a witness does not have the necessary equipment, the ALJ may permit the witnesses to appear by audio only or by telephone.

“Audio only” means using a computer without video. A witness’s inability to attend the hearing by videoconference will be discussed at the start of the hearing.

The parties are responsible for producing their own witnesses unless otherwise ordered by the ALJ. Parties must make witnesses under their control reasonably available. The parties must schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses out of order.

Student failed to file a prehearing conference statement but listed four witnesses that Student intended to call at hearing, including Student. Sacramento City Unified School District represented that two of the four witnesses were under its control and would make available to Student for the hearing. Parent was told the other witnesses would need a subpoena. Student also had the opportunity to ask questions regarding Sacramento City Unified School District’s exhibits.

The ALJ has discretion to limit the number of witnesses and the time allowed for testimony. Education Code, section 56505.1, subdivision (h), empowers the ALJ to set a reasonable limit on the length of the hearing after consideration of four factors. The first two factors are the issues to be heard and the complexity of facts to be proven. The second two factors are the ability of the parties or their representatives to present their respective cases and the parties’ estimates of the time needed to present their cases.

MEET AND CONFER

The parties are encouraged to review and shorten their witness and exhibit lists before the hearing. Evidence may be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear.

The parties are ordered to meet and confer no later than December 15, 2022, to discuss scheduling witnesses and how much time each witness will take. The parties must discuss any issues related to counsel and witnesses appearing by videoconference for hearing, electronically viewing exhibits during the hearing, and subpoenas, if any.

The parties should attempt to eliminate duplicate exhibits from their hearing exhibits.

The parties must discuss whether they can produce a written stipulation as to pertinent facts, contentions, resolutions and the authenticity and admissibility of documents to shorten the length of time needed for the hearing.

As part of the meet and confer process, Sacramento City Unified School District must inform Student which proposed witnesses are District employees and identify witnesses Student’s list that require a subpoena.

PARTICIPANT INFORMATION FORM

Both parties have an ongoing obligation to ensure that OAH has current information on the Participant Information Form filed with OAH and must file an updated Form as necessary. The Participant Information Form is not served upon the opposing party. The ongoing obligation to ensure that the Participant Information Form filed with OAH is current does not change the parties’ statutory obligation to timely disclose their witnesses to the other party(s) at least five business days before the hearing. The parties must file an updated Participant Information Form to inform OAH of any changes, additions, or deletions, including the required information no later than 5:00 PM at least two business days before the first day of hearing.

Any contact information provided will be used for the limited purpose of issuing subpoenas or for contacting a witness to attend the hearing. Any contact information will not be disclosed to any other person.

EVIDENCE PRESENTATION

In an administrative proceeding, the burden of proof is ordinarily on the party requesting the hearing. (Schaffer v. Weast (2005) 546 U.S. 49, 62.) Here, Student requested the hearing and bears the burden of proof. Student’s case will be presented first, followed by Sacramento City Unified School District, unless otherwise ordered.

WITNESS LISTS

The parties must provide a joint proposed witness list to the ALJ on the first day of hearing. The list should include the first and last name of the witness, which party is calling the witness to testify, and include dates and time estimates of each witness’s expected testimony. In the event an agreement cannot be reached, each party must prepare a separate written list. Student must have witnesses available in case there is no agreement.

At the beginning of the hearing, the ALJ and the parties will discuss the length of time anticipated for each witness and scheduling issues for individual witnesses. The ALJ will finalize the witness schedule. Parties must be prepared at the end of each day to discuss the witnesses to be presented the next day and the estimated time for the testimony of each witness.

SCOPE OF WITNESS EXAMINATION

Each witness will be called to testify only once, except for rebuttal purposes. All parties must examine a witness on all issues when the witness is first called to testify.

Requiring a witness to appear only once takes priority over the order in which parties present their case-in-chief.

AUDIO ONLY OR TELEPHONIC TESTIMONY

Whether a witness may appear by audio only or telephone instead of videoconference 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 audio only or telephone must request permission to do so before the hearing. Any party seeking to present a witness who cannot access exhibits electronically must inform the ALJ at the beginning of the hearing.

ELECTRONIC RECORDINGS

AUDIO RECORDING

A party may request permission to make an audio recording of the hearing.

Permission to make an audio recording is subject to the ALJ’s discretion and based upon the following conditions:

1. the OAH recording is the only official recording;

2. the parties shall turn their recording device on and off at the same time

that the ALJ is on and off the record to avoid recording conversations while off the record;

3. operation of the party’s recording mechanism will not be allowed to delay

the hearing;

4. a party’s recording may not be given, provided, or played to a witness, or

potential witness;

5. the recording is subject to the same confidentiality as the due process

hearing; and

6. participants shall not take screenshots of the videoconference nor share or

publish any portion of the videoconference or audio recording.

Both parties’ requests to make an audio recording of the hearing is granted.

VIDEO RECORDING

No party, witness, or anyone else may videorecord any part of the proceedings or stream live through any means.

RECORDINGS AS EXHIBITS

Recordings may not be uploaded electronically without the ALJ’s permission. The ALJ has discretion to admit or exclude evidence in the form of a recording. Any request to submit a recording shall be considered at the time of hearing. No request was made at the time of the PHC.

The ALJ may grant or deny the request or grant the request subject to certain conditions. The party offering the recording must establish that all or a part of the recording is relevant. The ALJ may request a transcript of the portion of the recording requested or have the party offering the recording to provide an exact identifiable portion of the recording the party seeks to admit. The identities of any person speaking on the portion of the tape being introduced must be established. An ALJ may allow the opposing party to offer additional portions of a recording to establish the context, or to rebut, the recording.

MOTIONS

1. MOTION TO UNEXPEDITE

Sacramento City Unified School District requested to unexpedite the hearing. The undersigned previously denied this request on December 7, 2022. Sacramento City was ordered to file this request immediately in writing.

2. MOTION FOR JUDICIAL NOTICE

On August 8, 2022, Sacramento City Unified School District filed a request for due process hearing with OAH, naming Student, in case number 2022080223. On September 22, 2022, OAH issued a decision in case number 2022080223.

On November 17, 2022, Student filed with OAH, a request for due process hearing naming Sacramento City Unified School District. On November 30, 2022, Sacramento City Unified School District filed a request for judicial notice. Sacramento City Unified School District’s request is interpreted as a request for official notice.

The parties were given the opportunity to argue this motion at the PCH. Student opposed the motion arguing that evidence from a prior matter should be admitted for this matter. Sacramento City Unified School District asserted that the prior findings of fact involve the timing manifestation determination meeting at issue in this matter and is relevant to this case.

Government Code section 11515 provides that “official notice can be taken, either before or after submission of the case for decision …of any fact which may be judicially noticed by the courts of the state.” Courts have traditionally taken judicial notice of public records public records issued by public agencies. (Board of Education of City of Los Angeles v. Watson (1966) 63 Cal. 2d 829, 836, fn.3; McPheeters v. Board of Medical Examiners of State (1946) 74 Cal. App. 2d 46, 48.)

Sacramento City Unified School District requests that OAH take official notice of the due process hearing request and final decision in OAH case number 2022080223 issued on September 22, 2022, because some of the findings of fact in the previous matter are relevant to this matter.

The due process hearing request and decision in OAH case number 2022080223 are part of the OAH administrative file, the decision is public record, and both documents may have relevance to this case. Thus, Sacramento City Unified School District’s request for official notice is granted.

Sacramento City Unified School District’s request for official notice of the due process hearing request, filed August 8, 2022, in OAH case number 2022080223 is granted. Sacramento City Unified School District’s request for official notice of the decision, dated September 22, 2022, in OAH case number 2022080223 is granted.

3. MOTION FOR MEDIATOR ASSISTANCE

Student requested and was granted mediator assistance for Student’s issues that were found insufficient in the December 7, 2022 Order Determining Due Process Complaint Insufficient In Part.

No other prehearing motions are pending or contemplated. Any motion that was not filed three business days before the PHC, shall be supported by a declaration under penalty of perjury establishing good cause why the motion was not timely filed.

STIPULATIONS

Stipulations to pertinent facts, contentions, resolutions and authenticity and admissibility of documents are encouraged. Any proposed stipulation must be submitted to the assigned ALJ in writing prior to the start of the hearing.

CONDUCT OF PARTICIPANTS AND HEARING ROOM DECORUM

All participants to the videoconference should observe the same decorum as in an in-person due process hearing. Participants must always conduct themselves in a professional and courteous manner. Cellular phones, telephones and computer notifications must be shut off or set to silent during the hearing unless the ALJ grants permission otherwise. Participants should appear from a private location, unless otherwise ordered. Participants should take reasonable efforts to minimize background noise and maintain adequate room lighting. Use of virtual background images are at the discretion of the ALJ. Witnesses are prohibited from reading exhibits, documents, notes, text messages, telephones or computers while testifying, unless permitted to do so by the ALJ. The parties, their representative and witnesses are prohibited from passing notes to, exchanging electronic messages with, or signaling the witness in any way while the witness is testifying.

LANGUAGE INTERPRETERS AND REASONABLE ACCOMMODATIONS

Parent requested videoconference capability for the hearing. Sacramento City Unified School District offered to set up a room at the district office with a laptop and camera for the hearing. Parent had some security concerns with it. Sacramento City represented that the room would be locked any time Parent left the room. Student declined the offer. Student also stated that Student is home and she does not feel comfortable leaving Student alone to the district office. No other accommodations were requested.

A party or participant in this case, such as a witness, requiring reasonable accommodation to participate in a mediation or hearing may contact OAH at (916) 263-0880, or send an email to OAHADA@dgs.ca.gov as soon as the need is known. The e-mail should have “Request for Accommodation” in the Subject Line.

Additional information concerning requests for reasonable accommodation is available on OAH’s website at: https://www.dgs.ca.gov/OAH/Services/Page-Content/Office-of- Administrative-Hearings-Services-List-Folder/Request-Reasonable-Accommodations- for-OAH-Legal-Proceedings.

HEARING OPEN TO THE PUBLIC

Special education hearings are closed to the public unless Student requests the hearing to be open to the public. Here, Parent requested that the hearing be open.

An ALJ may restrict attendance because of the physical limitations of the hearing facility or take other action to promote due process or the orderly conduct of the hearing. (Tit. 1, Cal. Code Regs., § 1030.) Government Code, section 11425.20 empowers the ALJ to order an open hearing to be closed or make other protective orders to the extent necessary or proper to ensure a fair hearing in the circumstances of the particular case. Currently, all hearings are being conducted via videoconference without observers present or participating in the videoconference. OAH will provide the hearing recording upon request.

SETTLEMENT

The parties are encouraged to continue working together to reach an agreement before the due process hearing. The parties must inform OAH in writing immediately if 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 must also inform OAH of the settlement by telephone at (916) 263-0880. At the same time, the parties should send the signature page of the signed agreement or a letter withdrawing the case to OAH by visiting OAH Secure e-file at https://www.applications.dgs.ca.gov/oah/oahsftweb.

If a full and final written settlement agreement is reached after 4:00 PM the day prior to hearing, the parties must 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.

Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received and processed 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 before the hearing.

If the matter settles subject to board approval, in addition to a signed copy of the signature page of the settlement agreement, the parties must provide the date of the next board meeting. The hearing dates will not be cancelled without this information.

FAILURE TO COMPLY

The failure to comply with this Order may result in the exclusion of evidence or other sanctions.

ORDER INCLUDES ALL RULINGS

This Order includes all rulings made at the prehearing conference. Any discussion and conversation not referenced in this Order is not binding on the ALJ conducting the hearing and may not be relied upon by the parties.

The parties should be aware that, at hearing, the ALJ conducting the hearing has discretion to reconsider any part of this Order.

Cynthia Fritz Administrative Law Judge Office of Administrative Hearings