California OAH special education order · March 7, 2018

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

OAH Case No. 2018020416, 2018010287 · ALJ Peter Paul Castillo

OAH ordered Student's attorney to show cause why he should not pay OAH's mediation and travel costs after he missed a mediation he had agreed to, saying he forgot the date.

Order to show cause issued Sanctions and cost-shifting

Summary

Student's attorney, Paul Hefley, did not appear at the March 7, 2018 mediation. The District, Parent, and an OAH mediator who had traveled to the District's office were all present. Hefley said he did not realize the mediation was that day, and OAH canceled it. On its own motion, OAH ordered Student to explain in writing by March 14, 2018 why Hefley should not pay OAH's costs for the mediation, the mediator's travel, and the order to show cause, and set a telephonic hearing for March 19, 2018.

Why it matters

Missing an agreed mediation date because it was not calendared can make an attorney pay OAH's costs, including the mediator's travel. Families should confirm that their attorney has calendared every mediation and hearing date.

Key authority cited

  • Cal. Code Regs., tit. 5, § 3088
  • Gov. Code, § 11405.80
  • Gov. Code, § 11455.30
  • Gov. Code, § 11455.10
  • Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026

People named in the order

  • Paul Hefley, Student's attorney

Topics

order to show cause expense shifting mediation attorney nonappearance calendaring error

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 Consolidated Matters of:

CARLSBAD UNIFIED SCHOOL OAH Case No. 2018020416

DISTRICT,

v.

PARENT ON BEHALF OF STUDENT,

PARENT ON BEHALF OF STUDENT, OAH Case No. 2018010287 v. ORDER TO SHOW CAUSE WHY

STUDENT SHOULD NOT BE

CARLSBAD UNIFIED SCHOOL ORDERED TO PAY EXPENSES

DISTRICT.

On January 9, 2018, Student filed with the Office of Administrative Hearings request for a due process hearing naming Carlsbad Unified School District. On February 8, 2018, District filed with OAH a complaint naming Student. On February 20, 2018, OAH consolidated the two matters. On February 21, 2018, OAH granted the parties joint request for continuance, setting the mediation for 9:30 a.m., on March 7, 2018.

On March 7, 2018, the assigned mediator traveled to the District’s office. The District’s attorney and representative and Student’s Parent were present at 9:30 a.m., for the mediation. Student’s attorney, Paul Hefley, did not appear for the mediation. Mr. Hefley was contacted and stated that he did not realize that the mediation was scheduled for that day, and stated that he could make the mediation in a few hours. OAH subsequently canceled 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 attorney apparently did not calendar or forgot about the mediations date, which caused the assigned mediator to unnecessarily travel to the District’s office.

Therefore, Student is ordered to show cause why Student’s attorney, Mr. Hefley, should not be required to pay OAH’s costs as to the March 7, 2018 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 March 14, 2018. 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 attorney did not appear at the mediation despite to agreeing to the mediation date in the continuance request. Student’s written response shall address why OAH should not order Student to pay OAH’s expenses for sending a mediator to the scheduled March 7, 2018 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 March 19, 2018, at 11:00 a.m. Failure of Student’s representative to appear telephonically at the order to show cause hearing on March 19, 2018, 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, March 14, 2018.

2. A telephonic order to show cause hearing shall be convened at 11:00 a.m. on

Monday, March 19, 2018.

DATE: March 7, 2018

PETER PAUL CASTILLO

Presiding Administrative Law Judge Office of Administrative Hearings