California OAH special education order · July 6, 2016

Order to Show Cause Why Los Angeles Unified School District Should Not Be Ordered to Pay Expenses

OAH Case No. 2016060201 · ALJ Peter Paul Castillo

OAH ordered Los Angeles Unified to show cause why it should not pay OAH's mediation and travel costs after it canceled a mediation with Student but never told OAH.

Order to show cause issued Sanctions and cost-shifting

Summary

A mediation was set for July 6, 2016. On that day the OAH mediator traveled to the District's office and learned that the District had canceled the mediation with Student but forgot to notify OAH. On its own motion, OAH ordered the District to file a written response by July 13, 2016, explaining why it should not pay OAH's expenses for sending the mediator, the related travel, and the order to show cause. A telephonic hearing on the order to show cause was set for July 15, 2016, and OAH warned that failing to appear could lead to more sanctions.

Why it matters

A party that cancels a scheduled mediation must tell OAH, not just the other side. Failing to do so can expose a district or parent to paying OAH's wasted costs under Section 3088 and the Government Code.

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

Topics

order to show cause expense shifting mediation cancellation sanctions notice to oah

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. 2016060201 v. ORDER TO SHOW CAUSE WHY

LOS ANGELES UNIFIED SCHOOL

LOS ANGELES UNIFIED SCHOOL DISTRICT SHOULD NOT BE

DISTRICT. ORDERED TO PAY EXPENSES

On May 25, 2016, Student filed a request for a due process hearing with the Office of Administrative Hearings naming Los Angeles Unified School District. On June 23, 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 contacted District that she was running a few minutes late. District informed the mediator that District had canceled the mediation, but forgot to notify OAH 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

District apparently contacted Student to cancel the mediation, but did not contact OAH, which caused the assigned mediator to unnecessarily travel to the District’s offices.

Therefore, District is ordered to show cause why District 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. District 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 Student. Student is not expected to file a written response.

District’s response shall address why District did not contact OAH to inform OAH of the canceled mediation when District informed Student of the canceled mediation. District’s written response shall address why OAH should not order District 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 2:00 p.m. Failure of District’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 District Should be Ordered to Pay Expenses

is hereby issued. District 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 2:00 p.m. on

Friday, July 15, 2016.

DATE: July 6, 2016

PETER PAUL CASTILLO

Presiding Administrative Law Judge Office of Administrative Hearings