Prehearing Conferences before the Office of Administrative Hearings

In a formal Administrative Procedure Act (“APA“) proceeding before an Administrative Law Judge (“ALJ”) of the Office of Administrative Hearings (“OAH”), 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, not to be confused with a Settlement 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 involving the Medical Board of California or other departments, agencies, bureaus, or commissions in which the matter is set for a hearing exceeding four (4) days, are automatically set for a Prehearing Conference, typically 30-90 days in advance of the hearing date.
Motions to be heard at the prehearing conference shall be filed with OAH no later than fifteen (15) Days before the conference and shall otherwise comply with Regulation 1022. Responses shall 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 shall file with OAH and serve 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.

In matters brought before the Medical Board of California, a party may use expert testimony only if, under an order issued by the OAH, the following information is exchanged in writing with opposing counsel: (1) a curriculum vitae setting forth the expert’s qualifications; (2) a brief narrative statement of the general substance of the expert’s expected testimony, including any opinion testimony and its basis; (3) a representation that the expert has agreed to testify at the hearing; and (4) a statement of the expert’s hourly and daily fee for providing testimony and for consulting with the party who retained his or her services. (Bus. & Prof. Code, § 2334.)
Much like a Case Management Conference or Pretrail Conference in a case before Superior Court, the Prehearing Conference is conducted to identify and clarify issues, ensure the hearing is “run” efficiently, and expedite a conclusion to the underlying matter. Thus, each party should 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.