California OAH special education order · August 21, 2017
Order Granting Request for Continuance and Setting Prehearing Conference and Hearing Dates; Representation of Father
OAH Case No. 2017050096 · ALJ Peter Paul Castillo
OAH granted Student's continuance and set a bifurcated jurisdiction hearing on written briefs. It treated Father as represented by his law firm's attorney and declined to require service by fax or email.
This case went to decision
Student v. Los Alamitos Unified School District: Los Alamitos Unified wins dismissal after one divorced parent with joint custody revoked consent to special education. (2017)
Summary
At an August 7, 2017 prehearing conference, ALJ Judith Pasewark granted Student's continuance request and bifurcated the case so that OAH's jurisdiction would be decided first. This written order sets that issue for decision on declarations and briefs, with a decision due by October 18, 2017, and resets the full hearing to October 31, 2017. Counsel for Student's Mother had asked for clarification on whether she could communicate directly with Student's Father, who is an attorney. OAH ruled that Father is represented by attorney Scott P. Burst of his own firm unless Father files an amended notice saying he represents Student himself. OAH also denied Mother's counsel's request to require Father's firm to serve papers by fax or email, because the regulations allow service by regular mail.
Why it matters
When a parent is an attorney, the notice of representation controls who the other parties may contact directly, so it should be stated clearly. OAH cannot require a party to serve papers electronically when regular mail is permitted.
Key authority cited
- 34 C.F.R. § 300.515
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Code Regs., tit. 5, § 3083, subd. (b)
- Cal. Rules of Court, rule 3.1332
People named in the order
- Judith Pasewark, Administrative Law Judge who held the prehearing conference
- Scott P. Burst, Attorney representing Student's Father
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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017050096 v. ORDER GRANTING REQUEST FOR
CONTINUANCE AND SETTING
LOS ALAMITOS UNIFIED SCHOOL PREHEARING CONFERENCE AND
DISTRICT. HEARING DATES;
REPRESENTATION OF FATHER
On August 7, 2017, Administrative Law Judge Judith Pasewark held a prehearing conference in this matter granted Student’s continuance request, and also bifurcated the matter to hear and determine first the Office of Administrative Hearings’ jurisdiction over this matter. A complete prehearing conference order will be issued subsequently as ALJ Pasewark is presently not able to draft the order, and will be issued upon her return.
On August 18, 2017, 2017, counsel for Student’s Mother requested clarification as to her ability to communicate with Student’s Father, who is also an attorney and whose law firm has been retained to represent Father. Further, counsel for Student’s Mother requested that Student’s Father serve counsel for Student’s Mother by fax or email and not mail.
As to representation of Student’s Father, the May 11, 2017 notice of representation states that Father’s law firm will represent Father, without naming a particular attorney in the firm, signed by attorney Scott P. Burst of the firm. Subsequently, Mr. Burst has filed all pleadings in this matter. As such, OAH will consider Father on behalf of Student being represented by Mr. Burst from Father’s law firm and if Father wishes to represent Student in this matter and make appearances he shall file an amended notice of representation that states so explicitly so counsel for Student’s Mother and Los Alamitos Unified School District know if they can communicate directly with Student’s Father in this matter, and not Mr. Burst.
As to the issue of service of documents by Father’s law office, California Code of Regulations, Title 5, Section 3083, subdivision (b), permits a party to serve document on other parties and OAH by regular mail. Therefore, OAH cannot order Student’s Father’s law firm to serve the other parties by fax or email.
A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R.
§ 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (See Cal. Rules of Court, rule 3.1332(c).) OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance;
and any other relevant fact or circumstance. (See Cal. Rules of Court, rule 3.1332(d).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Granted. All dates are vacated. This matter will be set as follows:
The bifurcated matter will be heard on September 26, 2017, by way of declaration and written briefs. All written briefs and declarations shall be served and received by OAH and the other parties by 5:00 p.m., on September 26, 2017, and objections to evidence shall be served and received by OAH and the other parties by 5:00 p.m., on September 29, 2017.
OAH will issue a decision by October 18, 2017. The remaining portion of the hearing shall be heard as follows:
Prehearing Conference: October 23, 2017, at 10:00 AM Due Process Hearing: October 31, 2017, at 9:30 AM, November 1 and 2, 2017, at 9:00 AM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify. A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.
IT IS SO ORDERED.
DATE: August 21, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings