California OAH special education order · July 6, 2016

Order to Show Cause Why Student Should Not Be Ordered to Pay Expenses

OAH Case No. 2016050828 · ALJ Peter Paul Castillo

OAH ordered Student's counsel to show cause why counsel should not pay OAH's mediation and travel costs after canceling mediation with the District but never notifying OAH, so the mediator traveled for nothing.

Order to show cause issued Sanctions and cost-shifting

Summary

On the morning of a scheduled July 6, 2016 mediation, the assigned mediator traveled to the District's office and only then learned that Student's attorney had canceled the mediation by telling the District, not OAH. On its own motion, OAH ordered Student to show cause why Student's counsel should not be required to pay OAH's costs for the mediation, including the mediator's travel expenses and the cost of the order to show cause. Student had to file a written response by 5:00 p.m. on July 13, 2016, explaining why counsel did not contact OAH, and a telephonic hearing was set for July 15, 2016, at 11:00 a.m. The District was not expected to respond.

Why it matters

Canceling a mediation or hearing means telling OAH directly, not just the other side. Otherwise the attorney can face an order to pay OAH's wasted expenses under Government Code section 11455.30 and Title 5, section 3088.

Key authority cited

  • Gov. Code, § 11405.80
  • Gov. Code, § 11455.30
  • Gov. Code, § 11455.10
  • Cal. Code Regs., tit. 5, § 3088
  • Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026

People named in the order

  • Soo Yun, Counsel for Student

Topics

sanctions order to show cause mediation cancellation expense shifting attorney conduct

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:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2016050828 v. ORDER TO SHOW CAUSE WHY

STUDENT SHOULD NOT BE

LOS ANGELES UNIFIED SCHOOL ORDERED TO PAY EXPENSES

DISTRICT.

On May 10, 2016, Student filed a request for a due process hearing with the Office of Administrative Hearings naming Los Angeles Unified School District. On June 14, 2016, OAH granted the parties joint request for a continuance, setting the mediation for 9:00 a.m., on July 6, 2016. On June 29, 2016, OAH confirmed the mediation with both parties.

On July 6, 2016, the assigned mediator traveled to the District’s office, and was informed by District upon her arrival that counsel for Student, Soo Yun, had canceled the mediation and informed District, which contacted OAH at approximately 8:00 a.m. about the canceled mediation.

APPLICABLE LAW

Under certain circumstances, an administrative law judge presiding over a special education proceeding is authorized to shift expenses from one party to another, or to OAH.

(Gov. Code, §§ 11405.80, 11455.30; Cal. Code. Regs., tit. 5, § 3088; see Wyner ex rel.

Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026, 1029 [“Clearly, [California Code of Regulations] § 3088 allows a hearing officer to control the proceedings, similar to a trial judge.”].) A party may be order to pay expenses of a party, or OAH as a result of “bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. . . . ” (Cal. Code Regs. tit. 5, § 3088, subd. (a).) A party may also be ordered to pay costs for failure or refusal, without substantial justification, to comply with an order of the presiding officer. (Govt. Code § 11455.10.) Only the ALJ presiding at the hearing may place expenses at issue. (Cal. Code. Regs., tit. 5, § 3088, subd. (b).)

ORDER TO SHOW CAUSE

Student’s counsel apparently contacted District to cancel the mediation, but did not contact OAH, which caused the assigned mediator to unnecessarily travel to the District’s offices. Therefore, Student is ordered to show cause why Student’s counsel should not be required to pay OAH’s costs as to the July 6, 2016 mediation, which includes OAH travel expenses related to the mediation. Student is ordered to file a written response with OAH by no later than 5:00 p.m. on July 13, 2016, by facsimile transmission to (916) 376-6319.

A copy of the response shall be served upon District. District is not expected to file a written response.

Student’s response shall address why Student’s legal counsel did not contact OAH to inform OAH of the canceled mediation when Student’s legal counsel informed District of the canceled. Student’s written response shall address why OAH should not order Student to pay OAH’s expenses for sending a mediator to the scheduled July 6, 2016 mediation and OAH travel expenses related to this mediation, and for this order to show cause.

The order to show cause hearing shall take place telephonically on July 15, 2016, at 11:00 a.m. Failure of Student’s representative to appear telephonically at the order to show cause hearing on July 15, 2016, may result in additional sanctions.

ORDER

1. An Order to Show Cause as to Why Student Should be Ordered to Pay Expenses

is hereby issued. Student must file a response no later than 5:00 p.m. on Wednesday, July 13, 2015.

2. A telephonic order to show cause hearing shall be convened at 11:00 a.m. on

Friday, July 15, 2016.

DATE: July 6, 2016

PETER PAUL CASTILLO

Presiding Administrative Law Judge Office of Administrative Hearings