BEFORE THEOFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

DECISION ON CONSOLIDATED CASES

Administrative Law Judge (ALJ) Darrell Lepkowsky, Office of AdministrativeHearings (OAH), State of California, heard these matters in Temecula, California, onOctober 22, 24, and 25, 2012, and November 13, 14, 15, 16, 26, 27, and 28, 2012.

Attorney Margaret Adams represented Student A and Student B (collectively referredto in this Decision as Students or, sometimes, the boys). Eric Austin, a law clerk for Ms.Adams, attended the hearing on many days. Students mother (Mother) attended the hearingevery day. Students father attended the first three days of the hearing. Students stepfather(Stepfather) attended the first day of the hearing (Mother and Stepfather are referred tocollectively as Parents since they are the two parents most involved with the issues in thesecases). Students were not in attendance on any of the hearing days.

Attorney Sarah Sutherland of the law firm Dannis Woliver Kelley represented theTemecula Valley Unified School District (Temecula) and the Keegan Academy (Keegan)1

1 As will be discussed below, Keegan is a charter school of Temecula. Temecula isthe local education agency for Keegan. It is unclear why Keegan was named as a separateand distinct party to these actions. However, neither Keegan nor Temecula moved to dismissKeegan as a party and both have appeared jointly and separately and defended against the

In the Consolidated Matters of:

PARENTS ON BEHALF OF STUDENT A,

v.

TEMECULA VALLEY UNIFIED SCHOOLDISTRICT and THE KEEGAN ACADEMY.

OAH CASE NO. 2012080512

PARENTS ON BEHALF OF STUDENT B,

v.

TEMECULA VALLEY UNIFIED SCHOOLDISTRICT and THE KEEGAN ACADEMY.

OAH CASE NO. 2012080514

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(collectively referred to as the Districts). Keegan is a charter school chartered by Temecula.Ms. Sutherland was accompanied each day by her colleague, attorney Emily Hirsekorn.Attorney Megan Moore of the law firm Middleton, Young, & Minney, LLP, appeared onbehalf of Keegan for most of the hearing days. Her colleague Sarah Bancroft appeared onbehalf of Keegan on the day Ms. Moore was not present. Ms. Hirsekorn, Ms. Moore and Ms.Bancroft did not take part in examination of any of the witnesses at hearing.

Sonja Clause, School Principal for Keegan, was present for each hearing day onbehalf of Keegan. Kimberly Velez, Temeculas Director of Special Education, was presentfor the first three days of hearing on behalf of Temecula. Melanie Hertig, an AssistantDirector for Special Education for Temecula, was present for Temecula during all hearingdays in November.

PROCEDURAL ISSUES IN THIS CASE

Motion to Consolidate

On August 17, 2012, Parents on behalf of Student A filed a request for due processhearing (complaint) in OAH case number 2012080512, (First Case), naming Temecula andKeegan as respondents. Also on August 17, 2012, Parents on behalf of Student B filed acomplaint in OAH case number 2012080514 (Second Case), naming Temecula and Keeganas respondents.

Student A and Student B are twin brothers. Their respective complaints allegedprocedural and substantive due process violations against Keegan and Temecula with regardto school years 2010-2011, 2011-2012, and 2012-2013. The complaints in the First Case andthe Second Case are almost identical, with the exception of a few words.

The parties filed separate joint requests for continuance in both cases on September26, 2012. In separate orders issued on September 27, 2012, OAH granted both motions forcontinuance.

The due process hearing in Student As case began as scheduled on October 22, 2012.The hearing in Student Bs case was scheduled to start on November 13, 2012. At theprehearing conference held on October 15, 2012, in Student Bs case, the parties discussedthe possibility of consolidating the two cases. However, the parties did not file a motion todo so prior to the start of the hearing in Student As case on October 22, 2012.

allegations brought by Students. When the ALJ queried the parties at the beginning of thehearing the reasons for Keegans participation as a separately named respondent, the partiesresponded that they had no objection. Therefore, although Keegan is not a local educationagency, for purposes of this Decision and for ease of identification of the parties, the ALJ hasreferred to Keegan collectively with Temecula as one of the Districts.

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On October 25, 2012, at the beginning of the third day of hearing in the First Case,the parties conferred about scheduling issues in both cases. After conferring, the partiesmade a joint oral motion to consolidate Student As case with Student Bs case. The partiesrequested a continuance of the proceedings so that the consolidated hearing would begin onNovember 13, 2012, the date already scheduled for the hearing in the Second Case.

Generally the consolidation of cases involving different petitioning students, eventhose who are siblings, would be disfavored given the individual nature of the claimspresented. However, in the instant case, all parties agreed that the procedural allegationsraised in each complaint were basically identical. The Students respective IEP meetingswere held on the same days and are therefore dated the same. Additionally, all parties agreedthat the substantive issues raised in the Students respective complaints were nearlyindistinguishable because Student A and Student B have almost identical disabilities andspecial education needs. The issues raised for hearing in the prehearing conferencestatements of both Students were identical except for their respective names. The partiesstated that the witnesses, evidence, and testimony in each case would be almost identical, andthat it would be a waste of resources to have separate proceedings where the second casewould effectively duplicate the first.

After due consideration, in light of the unique nature of the cases, the agreement ofthe parties that the cases raised almost identical procedural and substantive issues, and in thefurtherance of judicial economy, the ALJ granted the parties joint motion to consolidate onOctober 26, 2012. The ALJ also granted the parties motion to continue the consolidatedhearing. The ALJ indicated that the 45-day timeline for issuance of the decision in theconsolidated cases would be based on the date of the filing of both complaints since thecomplaints were filed on the same day and the parties motions for continuance in each casewere granted on the same day. The ALJ also indicated that testimony already taken inStudent As case would be considered as part of the hearing testimony in the consolidatedmatter.

Motions to Continue

The consolidated hearing started as scheduled on November 13, 2012. At theconclusion of the hearing on November 28, 2012, the ALJ granted the parties request for acontinuance in order for them to file written closing briefs. Briefs were scheduled to be filedno later than December 19, 2012. However, there were evidentiary issues that remainedoutstanding. The parties were unable to resolve the issues prior to the date their briefs weredue. On December 17, 2012, Students filed a motion to admit evidence and a request for astatus conference. The ALJ convened a telephonic status conference with the parties onDecember 19, 2012. At that time, Students requested a one-week continuance in order toresolve the evidentiary issues. The Districts did not oppose the motion to continue, whichthe ALJ granted during the status conference. On December 21, 2012, the parties filed ajoint motion to continue the filing date for their closing briefs for an additional week basedon their need to incorporate information from an evidentiary stipulation into their briefs. The

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ALJ granted their motion on December 26, 2012. The parties timely filed their writtenclosing briefs on January 3, 2013.

Evidentiary Issues

Request for Official Notice

On December 12, 2012, the Districts filed a request that the ALJ take official noticeof Brandman Universitys Education Course Catalogue for the 2006-2007 academic schoolyear. The Districts request notice pursuant to Evidence Code section 452, subdivision (h),which permits official notice of facts and propositions that are not reasonably subject todispute and are capable of immediate and accurate determination by resort to sources ofreasonably indisputable accuracy. The course descriptions are found on the BrandmanUniversity website. Brandman University is part of the Chapman University system. TheDistricts argue that the information is relevant because it describes a course taken byStudents mother while she was obtaining her general education teaching credential. TheDistricts contend that the course description contradicts Mothers testimony regarding thescope of her knowledge of special education procedures.

Students object to the request for official notice on several grounds. Students contendthat the Districts have provided no evidence that the course is the same one taken by Mother.By way of declaration in support of Students opposition, Mother testifies that BrandmanUniversity did not become part of Chapman University until two years after she attendedChapman. Mother also states that the course she took concerned the philosophy of co-teaching with a special education teachers rather than the legal requirements of the IEPprocess.

The fact that the Districts motion creates a factual dispute emphasizes theinadvisability of attempts by parties to offer evidence subsequent to the close of a hearingunless by stipulation of the parties. Here, Mother disputes that the course she took was thecourse described in the course offering. Further, even assuming that the course descriptionsare the same, the Districts present no evidence that the i