California OAH special education order · August 21, 2017
Order Denying Motion to Consolidate and Motion to Continue
OAH Case No. 2017060787 · ALJ Theresa Ravandi
OAH denied Student's motions to consolidate and to continue. The cases shared only one overlapping issue, and needing more time for an independent evaluation is not good cause for a continuance.
This case went to decision
Orinda Union School District v. Student: Orinda Union's mental health assessment was appropriate; family is not entitled to an independent assessment at public expense. (2017)
Summary
Orinda filed a due process case to defend its May 2017 educationally related mental health services evaluation, and the hearing was set for August 22, 2017. A week before that hearing, Student filed her own case covering FAPE claims for the 2015-2016 and 2016-2017 school years. She moved to consolidate the two cases or, if consolidation was denied, to continue the hearing to October 16, 2017 because her expert had not yet assessed her. Over Orinda's objection, OAH denied both requests: Student's only overlapping issue, whether Orinda unreasonably delayed in filing to defend its assessment, is an affirmative defense that will be decided in the District's case anyway, consolidation would greatly expand the issues, and needing extra time to finish an independent evaluation is not good cause for a continuance.
Why it matters
Parents cannot count on folding broader FAPE claims into a district's narrow assessment-defense case, especially when they file on the eve of hearing. Waiting for a private expert to finish an assessment will not by itself justify delaying the district's hearing.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)
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:
ORINDA UNION SCHOOL DISTRICT, OAH Case No. 2017060787 v. ORDER DENYING MOTION TO
CONSOLIDATE AND MOTION TO
PARENT ON BEHALF OF STUDENT. CONTINUE
On June 16, 2017, Orinda Union School District filed with the Office of Administrative Hearings a Request for Due Process Hearing in OAH case number 2017060787 (District’s Case), naming Parent on behalf of Student. This matter is pending hearing on August 22, 2017.
On August 15, 2017, Student filed a Request for Due Process Hearing in OAH case number not yet assigned (Student’s Case), naming Orinda.
On August 15, 2017, Student filed a Motion to Consolidate Student’s Case with District’s Case. In the event OAH denies the request to consolidate, Student is seeking a continuance of the due process hearing to October 16, 2017 as her expert has not yet assessed Student.
On August 18, 2017, Orinda filed an objection to consolidation on the ground that Student’s motion is untimely; the one similar issue identified by Student is necessarily included within the District-filed case; and consolidation would result in an undue expansion of the District’s Case. Orinda opposes a continuance as it has prepared for hearing and would suffer prejudice, and Student has failed to establish good cause.
APPLICABLE LAW AND DISCUSSION
Consolidation Although no statute or regulation specifically provides a standard to be applied in deciding a motion to consolidate special education cases, OAH will generally consolidate matters that involve: a common question of law and/or fact; the same parties; and when consolidation of the matters furthers the interests of judicial economy by saving time or preventing inconsistent rulings. (See Gov. Code, § 11507.3, subd. (a) [administrative proceedings may be consolidated if they involve a common question of law or fact]; Code of Civ. Proc., § 1048, subd. (a) [same applies to civil cases].)
Here, Student’s Case identifies numerous substantive and procedural issues of Orinda’s alleged failure to provide Student a free appropriate public education during the 2015-2016 and 2016-2017 school years, including extended school years. Student identifies one issue that overlaps with the issue raised by Orinda in District’s Case, namely whether Orinda unreasonably delayed in filing a complaint to defend its May 2017 educationally related mental health services evaluation. Orinda seeks to defend the appropriateness of this evaluation and obtain an order that Student is not entitled to an independent educational evaluation in the area of mental health.
Student’s Case includes one issue that is an affirmative defense to the issue identified by Orinda. As such, whether Orinda unreasonably delayed in filing its complaint to defend its assessment will necessarily be determined at the hearing on District’s Case. Further, consolidating the two matters would result in a substantial expansion of the issues.
Consolidation will not further the interests of judicial economy, as the two matters do not involve sufficiently common questions of law or fact.
Continuance A due process hearing must be held, and a decision rendered, within 45 days of receipt of the complaint, unless a continuance is granted for good cause. (Ed. Code, §§ 56502, subd. (f) & 56505, subd. (f)(1)(C)(3).)
Student’s motion to continue the hearing fails to demonstrate good cause for a continuance, based on Student’s expert not having assessed Student. Needing additional time to complete an independent evaluation does not constitute good cause for a continuance.
ORDER
1. Student’s Motion to Consolidate is denied.
2. Student’s Motion to Continue is denied. All dates previously set for hearing in
this matter shall remain as scheduled.
IT IS SO ORDERED.
DATE: August 21, 2017
THERESA RAVANDI
Administrative Law Judge Office of Administrative Hearings