California OAH special education order · July 14, 2017
Order to Show Cause Why Los Angeles Unified School District Should Not Be Ordered to Pay Expenses
OAH Case No. 2017050757 · ALJ Peter Paul Castillo
OAH ordered Los Angeles Unified to show cause why it should not pay OAH's mediation costs after its representative canceled a mediation with Student's counsel but never told OAH.
Summary
After a mediator traveled to the District's office for a scheduled July 13, 2017 mediation, OAH learned the session had been canceled the evening before without notice to OAH, and it first issued an order to show cause to Student's counsel. Student's counsel responded with declarations and emails showing that District representative Ernie Campos had asked to cancel the mediation late on July 12, and that there was confusion over who would notify OAH. OAH then ordered the District to explain in writing, by July 18, 2017, why it should not pay OAH's mediator and travel expenses and the costs of the order to show cause. A telephonic hearing was set for July 21, 2017, and OAH warned that failing to appear could lead to more sanctions.
Why it matters
Whoever asks to cancel a mediation should make sure OAH is told directly, not just the other side, or that party may have to pay OAH's wasted costs. A quick response with documents can shift a sanctions inquiry away from the party first blamed.
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
- Elizabeth Curtis, Student's counsel
- Ernie Campos, District representative
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. 2017050757 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 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. On July 13, 2017, OAH issued an order to show cause as to Student regarding Student’s counsel conduct.
On July 13, 2017, Student’s counsel responded, which included a declaration from counsel and copies of emails between her and District, and a declaration from her assistant, which show that the District representative, Ernie Campos, contacted Ms. Curtis’ office the late afternoon of July 12, 2017, to cancel the mediation for the next day. In the subsequent email chain that occurred after 5:00 p.m., there appeared to be some confusion as to who would cancel the mediation scheduled for the next day.
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 representative apparently contacted Student’s counsel 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 13, 2017 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 18, 2017, 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’s representative did not contact OAH to inform OAH of the canceled mediation when District’s representative informed Student’s legal counsel of the request to cancel the 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 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 Districts 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 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 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 14, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings