California OAH special education order · July 13, 2017

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

OAH Case No. 2017050757 · ALJ Peter Paul Castillo

OAH ordered Student's counsel to show cause why she should not pay OAH's mediator travel costs. She canceled a mediation by emailing the District but never told OAH, so the mediator traveled for nothing.

Order to show cause issued Sanctions and cost-shifting

Summary

The night before a scheduled mediation, Student's attorney emailed the District to cancel it but did not notify OAH. The assigned mediator traveled to the District's office anyway. On its own motion, OAH issued an order to show cause why Student's counsel should not pay OAH's expenses for the mediation, including travel costs and the costs of the order to show cause. Student had to file a written explanation by July 18, 2017, and attend a telephonic hearing on July 21, 2017. The order warned that failing to appear could bring more sanctions.

Why it matters

When a party cancels a mediation or hearing, it must notify OAH directly, not just the other side. Failing to do so can make the attorney personally responsible for OAH's wasted expenses.

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 mediation cancellation expense shifting attorney conduct oah costs

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. 2017050757 v. ORDER TO SHOW CAUSE WHY

STUDENT SHOULD NOT BE

LOS ANGELES UNIFIED SCHOOL ORDERED TO PAY EXPENSES

DISTRICT.

On May 15, 2017, Student filed a request for a due process hearing with the Office of Administrative Hearings naming Los Angeles Unified School District. On June 28, 2017, OAH granted the parties joint request for a continuance, setting the mediation for 1:30 p.m., on July 13, 2017. On July 5 and 6, 2017, OAH confirmed the mediation with both parties.

On July 13, 2017, the assigned mediator traveled to the District’s office, and was informed by District upon his arrival that counsel for Student, Elizabeth Curtis, had emailed District the evening of July 12, 2017, to cancel the mediation, but did not contact OAH to cancel the 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 13, 2017 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 18, 2017, 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 13, 2017 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 21, 2017, at 2:00 p.m. Failure of Student’s representative to appear telephonically at the order to show cause hearing on July 21, 2017, 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 18, 2017.

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

Friday, July 21, 2017.

DATE: July 13, 2017

PETER PAUL CASTILLO

Presiding Administrative Law Judge Office of Administrative Hearings