California OAH special education order · September 13, 2013
Order Following Prehearing Conference Continuing Prehearing Conference Only
OAH Case No. 2013050308 · ALJ Deidre L. Johnson
OAH briefly continued the prehearing conference after Student's attorney twice failed to file a required prehearing statement, and warned that further noncompliance could lead to an order to show cause regarding sanctions.
This case went to decision
Student v. Fresno Unified School District (consolidated): Fresno Unified must fund 55 months of individualized compensatory education through EvoLibri for a 22-year-old denied FAPE for 39 months. (2014)
This case went to decision
Stanislaus Union School District v. Student: Stanislaus Union may exit a first grader with autism from special education; triennial assessment upheld and IEE denied. (2013)
Summary
Student's attorney filed a last-minute request to continue the hearing because he was busy with another OAH hearing. He had also failed, for the second time, to file a prehearing conference statement listing witnesses and exhibits, despite a prior order. The ALJ shortened the District's time to respond to the continuance request, gave Student until 11:00 a.m. on September 16, 2013 to file the statement, and continued the prehearing conference to that afternoon. The ALJ warned that if the statement was not filed, OAH would consider issuing an order to show cause why sanctions should not be imposed.
Why it matters
Prehearing conference statements are mandatory, and the other side is entitled to notice of witnesses and exhibits. Missing the deadline, even because counsel is busy in another case, can bring a sanctions warning and put the case at risk.
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:
STANISLAUS UNION SCHOOL OAH CASE NO. 2013050308
DISTRICT,
ORDER FOLLOWING PREHEARING
v. CONFERENCE CONTINUING
PREHEARING CONFERENCE ONLY
PARENTS ON BEHALF OF STUDENT.
Hearing in this matter is now set for September 23 through 26, 2013. On September 13, 2013, a telephonic prehearing conference (PHC) in this matter was convened before Administrative Law Judge Deidre L. Johnson (ALJ), Office of Administrative Hearings (OAH). ). Attorney S. Diane Beall appeared on behalf of the Stanislaus Union School District (District). Attorney Roger A. Greenbaum appeared on behalf of Student and Parents (Student). The PHC was recorded. Based on discussion with the parties, the following order is issued:
1. Motion for Continuance: On September 13, 2013, Student filed a request for a
continuance which was not received by OAH or District prior to the start of the PHC.
During the PHC, Student’s attorney orally explained the request is based on the attorney’s current involvement in another due process hearing before OAH, in a matter bearing primary OAH Case Number 2012100242. OAH generally allows three business days after receipt of the motion for the opposing party’s response. However, because the due process hearing is set to begin on Monday, September 23, 2013, OAH should swiftly rule on the motion.
Therefore, the ALJ has shortened the time for District’s response, as follows:
(a) District has until 11:00 a.m. on Monday September 16, 2013, within which to file and serve a written response to Student’s motion.
(b) OAH shall rule on Student’s motion for a continuance prior to or in connection with the continued PHC in this matter, as ordered below.
2. Continuance of PHC only: In the OAH scheduling order issued in this case on
May 9, 2013, OAH ordered both parties to file written PHC statements at least three business days prior to the PHC. In connection with a prior PHC held on August 5, 2013, Student did not file a PHC statement. During that PHC and in the Order that followed, Student was ordered to file a PHC statement not less than three business days prior to September 13,
2013. To date, Student has failed to file and serve any PHC statement disclosing his lists of
witnesses and documentary exhibits to OAH or District. Student’s attorney indicated during the present PHC that he inadvertently forgot to file a PHC statement due to his immersion in his other case under stressful circumstances. OAH is obligated to proceed to prepare for hearing and the District has to right to have notice of Student’s intended witnesses and documents in order to prepare for hearing. In order to accommodate Student’s attorney and nevertheless proceed to prepare for hearing, the ALJ ordered the PHC to be briefly continued, as follows:
(a) Student has until 11:00 a.m. on Monday September 16, 2013, within which to file and serve a written PHC statement.
(b) The PHC is continued to 1:00 p.m. on Monday, September 16, 2013. 1
3. Other Matters: All other matters relevant to preparing for hearing, including
clarification of issues and identification of witnesses and exhibits, will be addressed at the PHC. All hearing dates remain as scheduled.
4. Settlement: Dates for the PHC and the hearing will not be cancelled until a
letter of withdrawal, or a request for dismissal with the signature page of the signed agreement has been received by OAH. If the settlement agreement has been executed but is subject to approval of a school board, the parties may file a motion for OAH to vacate the hearing dates and set a telephonic status conference (TSC) for a Wednesday about two weeks following board approval.
Dated: September 13, 2013 /s/
DEIDRE L. JOHNSON
Administrative Law Judge Office of Administrative Hearings Student’s attorney was advised by the ALJ during the PHC that if he fails to file a PHC statement as ordered, OAH will consider issuing an order to show cause why sanctions should not be imposed.