California OAH special education order · September 9, 2013
Order Following Pre-Hearing Conference of September 6, 2013; Granting Consolidation of OAH Cases; Resetting Mediation, Prehearing Conference and Due Process Hearing
OAH Case No. 2013040960, 2013090162 · ALJ Paul H. Kamoroff
OAH consolidated the District's and Student's cases over the District's objection because both cases raised identical issues about the triennial IEP and assessment and involved similar witnesses.
This case went to decision
Student v. Tustin Unified School District (consolidated): Tustin Unified may implement IEP moving medically fragile student from county program to Currie Middle School; Student's claims denied. (2013)
Summary
Student filed a due process complaint and asked OAH to consolidate it with the District's earlier case defending its triennial IEP offer and triennial assessment, and to continue the District's hearing dates. The District opposed. OAH granted consolidation because two of Student's six issues were identical to the District's two issues, the other four were related, and the District agreed the cases involved similar witnesses. The consolidated cases will be heard on the dates set for Student's case, so the continuance request was denied as moot.
Why it matters
A parent who files their own complaint after a district files first can often get both cases heard together on the parent's later timeline, even if the district objects, when the issues and witnesses overlap.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
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:
TUSTIN UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2013040960
v. OAH CASE NO. 2013090162
(PRIMARY)
PARENT ON BEHALF OF STUDENT.
ORDER FOLLOWING PRE-HEARING
CONFERENCE OF SEPTEMBER 6,
2013; GRANTING CONSOLIDATION
OF OAH CASES; RESETTING
MEDIATION, PREHEARING
CONFERENCE AND DUE PROCESS
HEARING
On September 6, 2013, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Paul H. Kamoroff, Office of Administrative Hearings (OAH). Karen Van Dyke, Attorney at Law, appeared on behalf of the Tustin Unified School District (District). Richard M. Peterson, Attorney at Law, appeared on behalf of Parents on behalf of Student (Student). The PHC was recorded.
PROCEDURAL HISTORY
On May 23, 2013, the District filed a Due Process Hearing Request, naming the Student. This case was designated OAH Case Number 2013040960 (First Case). On September 6, 2013, the Student filed a Due Process Hearing Request, naming the District.
This case was designated OAH Case Number 2013090162 (Second Case). Also on September 6, 2013, Student filed a motion to consolidate the First Case and the Second Case, and to continue the hearing dates set for the First Case. During the PHC held on September 6, 2013, the District opposed Student’s motions.
APPLICABLE LAW
Although no statute or regulation specifically provides a standard to be applied in deciding a motion to consolidate special education cases, OAH will generally consolidate matters that involve: a common question of law and/or fact; the same parties; and when consolidation of the matters furthers the interests of judicial economy by saving time or preventing inconsistent rulings. (See Gov. Code, § 11507.3, subd. (a) [administrative proceedings may be consolidated if they involve a common question of law or fact]; Code of Civ. Proc., § 1048, subd. (a) [same applies to civil cases].)
DISCUSSION
In the First Case the District asserts two issues. First, the District asserts that the offer contained in Student’s triennial individualized education program (IEP) of October 30, 2012, November 29, December 6 and 14, 2012, January 23 and March 11, 2013, including the goals, accommodations, modifications, placement, related services, and transition portion, constitute a free appropriate public education (FAPE) for Student. Second, the District asserts that Student’s Triennial Assessment was conducted pursuant to all legal requirements.
In the Second Case, the Student alleges six issues. Student’s issues one and six are identical to the District’s issues one and two. Student’s remaining four issues relate tangentially to the District’s issue one. Consequently, the First Case and the Second Case encompass identical issues. In addition, during the PHC, although the District objected to consolidation, it agreed that the First Case and the Second Case involve similar witnesses.
Accordingly, the undersigned ALJ hereby grants the Student’s request to consolidate the First Case and the Second Case. By permitting the consolidation of the First Case and the Second Case, all issues can be litigated in a single forum which will result in judicial economy.
Consolidation of the First Case and the Second Case will reset the hearing dates for the First Case. Therefore, Student’s request to continue the First Case is denied as moot.
ORDER
1. OAH Case Number 2013040960 (First Case) and OAH Case Number
2013090162 (Second Case) are consolidated. The consolidated cases shall now be heard on the dates set for the Second Case, unless otherwise ordered.
2. All dates previously set in OAH Case Number 2013040960, the First Case, are
vacated.
IT IS SO ORDERED.
Dated: September 9, 2013 /s/
PAUL H. KAMOROFF
Administrative Law Judge Office of Administrative Hearings