• Justin Hein

Prehearing and Settlement Conferences at OAH

Obtaining a prehearing and settlement conference at OAH prior to your actual hearing ensures timely organization and planning for hearing, simplification of disputes, and potential early resolution.

The Office of Administrative Hearings ("OAH"), found within the Department of General Services, is a state agency to provides adjudicatory hearings to resolve disputes for other state agencies within the state of California. Using administrative law judges ("ALJs"), this includes disputes with professional and occupational licensees. Those hearings can have serious consequences for licensees and their livelihoods.

Oftentimes, licensees go into the hearings ill-prepared and not anticipating the formality of the hearing structure. Moreover, many licensees do not know of all of the other formalities that must be minded prior to the actual hearing. From asserting affirmative defenses, requesting discovery, moving to compel discovery, identifying witnesses, identifying exhibits, identifying experts, and obtaining interpreters or reasonable accommodations for the hearing, there are countless opportunities that are lost by licensees solely due to ignorance.

One aspect is the prehearing and(/or) settlement conference. This is a conference held in advance of the actual hearing concerning the dispute. The conference is designed to streamline the issues, make certain the parties are prepared, and attempt to resolve the dispute.

However, it is not always scheduled for every matter. Moreover, if it is not set immediately by OAH, it oftentimes objected to and opposed by the agency.

Prehearing Conference

The ALJ is authorized on his or her own motion – or on a motion of either party – to conduct a Prehearing Conference. The Prehearing Conference is used to deal with specific matters arising in the matter. It is overseen by the ALJ assigned to the case and results in a Prehearing Orrder incorporating the matters determined at the conference. The ALJ sets the time and place for the conference and provides reasonable written notice to all parties.

Cases where the parties anticipate the hearing exceeding four (4) days, are automatically set for a Prehearing Conference, typically 30-90 days in advance of the hearing date.

The key to ensuring the prehearing conference is set is by asserting all appropriate affirmative defenses and identifying as many witnesses as possible for those defenses as early as possible so that OAH exercises its discretion in setting the prehearing conference at the same time as it sets the hearing.

Preparing for the Prehearing Conference

Discovery motions and demurrers may be heard at the prehearing conference. They must be filed with OAH no later than fifteen (15) Days before the conference and otherwise must comply with Regulation 1022. Responses must be filed with OAH no later than three (3) business days prior to the prehearing conference. The ALJ may also, in his or her discretion, allow oral motions during the prehearing conference.

The parties are to exchange hearing exhibits at least three (3) business days before the conference. Typically, the conference will provide an opportunity for both parties to discuss the merits of pre-marking exhibits or stipulating to a joint exhibit list.

In addition, at least three (3) business days before the conference, each party files with OAH and serves on all other parties a Prehearing Conference Statement containing the following information:

  1. Identification of all operative pleadings by title and date signed;

  2. The party’s current estimate of time necessary to try the Case;

  3. The name of each witness the party may call at the Hearing along with a brief statement of the subject matter of the witness’s expected testimony;

  4. The identity of any witness whose testimony will be presented by affidavit pursuant to section 11514;

  5. The name and address of each expert witness the party intends to call at the Hearing along with a brief statement of the opinion the expert is expected to give and a copy of the expert’s current resume;

  6. The need for an interpreter or special accommodation;

  7. A list of the documentary exhibits the party intends to present and a description of any physical or demonstrative evidence; and

  8. A concise statement of any legal issues or affirmative defenses that may affect the presentation of evidence or the disposition of the Case.

What Occurs at the Prehearing Conference

Much like a Case Management Conference or Pre-trial Conference in a case before Superior Court, the Prehearing Conference is conducted to ensure the hearing is “run” efficiently, and expedite a conclusion to the underlying matter. Thus, each party must be prepared to discuss each of the following issues (see Gov. Code, § 11511.5(b)):

  1. Settlement possibilities (note – a separate Settlement Conference may also be held, governed under separate rules [1 Cal. Code Regs., § 1028.]).

  2. All factual and legal issues.

  3. Stipulations to factual matters and exhibits.

  4. Exchange of witness lists and of exhibits or documents to be offered in evidence at the hearing, and rulings on identity and limitation of the number of witnesses.

  5. The need for interpreters.

  6. Objections to testimony or exhibits and evidentiary or foundational issues.

  7. Whether the party intends to file a motion in limine with regard to any issue.

  8. The order of presentation of evidence and cross-examination.

  9. Rulings on issuance of subpoenas.

  10. Rulings on motions for protective orders.

  11. Schedules for the submission of written briefs and the beginning and conduct of the hearing.

  12. Rulings on other motions, such as intervention, discovery, claims of privilege, and demurrers.

  13. The possibility of using alternative dispute resolution or informal hearing procedures (note – subject to the consent of the parties).

  14. Any other matters that will promote the orderly and prompt conduct of the hearing.

Settlement Conference

Often scheduled in conjunction with the Prehearing Conference is the Settlement Conference. This is presided over by a different ALJ than the one who will hear the underlying case. And this ALJ serves as a mediator or settlement conference judge to try to resolve the dispute and get the parties to enter into a stipulated settlement agreement.

It, like the prehearing conference, is set at the option of OAH. Again, the lengthier or more complicated the case, the more likely OAH will incorporate a settlement conference into its setting of the hearing.

The settlement conference is governed by Title 1, California Code of Regulations, section 1028. Each party or representative who attends the settlement conference shall be fully familiar with the facts and issues in the Case and shall have authority, or be able to obtain authority immediately by telephone, to negotiate settlement terms subject to the approval by the agency head. An agency representative who is familiar with the case, and has authority to approve settlement terms subject to the approval by the agency head, must be available to participate in the settlement conference in person or by telephone, subject to Government Code, section 11511.7.

3 days in advance of the Settlement Conference, the parties are encouraged (sometimes ordered) to file and serve a Settlement Conference statement. This statement, contrary to the Prehearing Conference statement, describes the factual and legal issues and the status of any previous settlement discussions in the Case. The statement may be Served on all other parties or it may be marked “confidential” and submitted only to the Presiding Judge or the settlement conference ALJ.

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