California OAH special education order · November 18, 2016
Order to Show Cause and Setting Continued Prehearing Conference
OAH Case No. 2016070938, 2016070115 · ALJ Rebecca Freie
OAH ordered Student to show cause why her complaint should not be dismissed for failure to prosecute after Mother filed no prehearing conference statement and did not appear at the prehearing conference.
This case went to decision
Student v. Soledad Unified School District (consolidated): Soledad Unified may not implement its September 2016 IEP without consent and must fund 25 hours of math tutoring. (2017)
Summary
The prehearing conference in these consolidated cases went forward on Soledad's case only. Mother did not file a prehearing conference statement and could not be reached when the ALJ called with a Spanish interpreter, even after a callback 15 minutes later. On its own motion, OAH continued the prehearing conference for Student's case to November 28, 2016. It ordered Student to show cause at that conference why her complaint should not be dismissed for failure to participate, prosecute, or advance the matter.
Why it matters
Parents who represent themselves must file prehearing conference statements and be available for scheduled OAH calls, because missing them can put their own complaint at risk of dismissal even when the district's case moves forward. OAH did make efforts to reach a Spanish-speaking parent, including a clerk's reminder call and an interpreter, before taking this step.
People named in the order
- Rebecca Freie, Administrative Law Judge
- Luis Garibay, Spanish interpreter
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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016070938 v.
SOLEDAD UNIFIED SCHOOL DISTRICT,
SOLEDAD UNIFIED SCHOOL DISTRICT, OAH Case No. 2016070115 v.
PARENT ON BEHALF OF STUDENT. ORDER TO SHOW CAUSE AND
SETTING CONTINUED PREHEARING
CONFERENCE
On June 30, 2016, Soledad Unified School District filed a request for due process hearing (complaint) naming Student. On July 15, 2016, Student filed her own complaint.
The matters were consolidated following a telephonic prehearing conference on September 12, 2016, attended by Mother and two Soledad representatives.
On October 4, 2016, Soledad filed a motion to amend its complaint, and on October 17, 2016, Mother filed a notice of non-opposition to Soledad’s motion to amend its complaint. OAH granted Soledad’s motion to amend. A new scheduling order was issued on October 18, 2016, setting a prehearing conference for the consolidated cases of November 18, 2016, at 3:00 p.m. This scheduling order was not translated into Spanish, but it is a standard order, and OAH had previously issued translated scheduling orders in July 2016, following the receipt of the initial complaints of both parties.
The scheduling order called for the parties to file written prehearing conference statements at least three business days prior to the prehearing conference. Soledad filed its PHC statement on November 14, 2016. On November 17, 2016, a Spanish-speaking OAH clerk telephoned Mother and left a message that OAH had not received a PHC statement from her.
At 3:00 p.m., on November 18, 2016, Administrative Law Judge Rebecca Freie telephoned Mother. A Spanish interpreter, Luis Garibay, was also on the telephone.
Someone other than Mother answered the telephone and said that she was unavailable. It was explained that this was the time for the PHC, and the ALJ would call back in 15 minutes to convene the PHC. When the ALJ placed the second telephone call fifteen minutes later, there was no answer. The ALJ left a voicemail via the interpreter explaining that the PHC would proceed as to Soledad’s case, and an order to show cause hearing would be set to determine whether Student’s complaint should be dismissed due to Mother’s failure to appear. The PHC was then conducted with Soledad’s representative as to Soledad’s case only.
Student’s failure to file a PHC statement for the November 18, 2016 PHC, and her failure to appear on that date suggests that Student does not intend to proceed to hearing on her own complaint. Therefore, the ALJ issues the following Order:
1. The PHC pertaining to Student’s case is continued to November 28, 2016,
at 3:00 p.m.
2. Student is ordered to show cause at the PHC on November 28, 2016, at 3:00
p.m., as to why her complaint should not be dismissed for failure to participate, prosecute, or advance the matter. Should Student provide adequate justification on the order to show cause, the PHC concerning Student’s case will proceed at that time.
DATE: November 18, 2016
REBECCA FREIE
Administrative Law Judge Office of Administrative Hearings