California OAH special education order · July 7, 2017
Order Discharging Order to Show Cause and Continuing Prehearing Conference and Hearing
OAH Case No. 2017050854 · ALJ Rebecca Freie
OAH discharged an order to show cause against Student's attorney for missing a prehearing conference after she showed her answering service was closed and fixed the problem.
Summary
OAH held an order to show cause hearing because Student's attorney did not appear for the July 3, 2017 prehearing conference. She explained that her answering service's office was closed that day, so the call was never forwarded to her, and she gave OAH her cell phone number as a backup. OAH accepted this and discharged the order to show cause. Oakland's board had approved a settlement, but the agreement was not yet fully signed, so OAH found good cause to move the prehearing conference to July 14 and the hearing to July 18, 2017, so the settlement could be finalized and the case dismissed.
Why it matters
Missing an OAH call can lead to an order to show cause, but a credible explanation and concrete steps to prevent a repeat can resolve it without sanctions. Parties should also wait for a fully signed settlement agreement before dismissing a case.
Key authority cited
- 34 C.F.R. § 300.515(a), (c)
- Ed. Code § 56502, subd. (f)
- Ed. Code § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332
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. 2017050854 v. ORDER DISCHARGING ORDER TO
SHOW CAUSE AND CONTINUING
OAKLAND UNIFIED SCHOOL PREHEARING CONFERENCE AND
DISTRICT. HEARING
On July 7, 2017, an order to show cause hearing was held to address Student’s attorney’s failure to appear for a prehearing conference on July 3, 2017. The order to show cause hearing was held with Student’s attorney, Maggie Roberts, in attendance. Ms. Roberts explained that in addition to the information included in the declaration she filed on July 5, 2017, she discovered that the office of the answering service that answers her telephone was closed on July 3, 2017, which is why no one answered the telephone and forwarded the PHC call to her. She has taken steps to remedy that situation, including providing her personal cell phone number to be added to her profile with OAH so that number can be called in the event that her business telephone is not answered. Accordingly, the order to show cause is discharged.
Following the order to show cause hearing the PHC was convened with Ms. Roberts appearing on behalf of Student, and Lenore Silverman, Attorney at Law appearing on behalf of Oakland Unified School District. Oakland confirmed that the parties have a written settlement agreement that was approved by Oakland’s Board of Education on June 28, 2017. However, it appears that the two board members who must sign the agreement on Oakland’s behalf have failed to do so. Without a copy of that fully executed agreement, Student is reluctant to file a request for dismissal of this matter. The parties agreed that if the PHC was continued to July 14, 2017, and the hearing continued from July 11, 2017, to July 18, 2017, the settlement agreement would be fully executed, and Student would dismiss this matter.
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:
Prehearing Conference: July 14, 2017, at 1:00 p.m.
Due Process Hearing: July 18, 19, and 20, 2017, beginning at 9:30 a.m. on July 18, 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: July 7, 2017
REBECCA FREIE
Administrative Law Judge Office of Administrative Hearings