California OAH special education order · November 9, 2018
Order to Show Cause Why Student Should Not Be Ordered to Pay Expenses
OAH Case No. 2018070687 · ALJ Peter Paul Castillo
OAH ordered Student's attorney to show cause why he should not pay OAH's mediator and travel costs after he failed to appear at a mediation he had requested and agreed to.
Summary
OAH had set an October 30, 2018 mediation at the parties' joint request, and the mediator traveled to the District's office. Neither Student nor Student's attorney, George Crook, appeared, and Mr. Crook said he did not have the mediation on his calendar. On its own motion, OAH ordered Student to file a written response by November 19, 2018 explaining why Mr. Crook should not pay OAH's costs for the mediation, including travel expenses and the cost of the order to show cause. OAH also set a telephonic hearing for November 26, 2018.
Why it matters
Missing a mediation you asked for can lead OAH to shift its costs to the attorney, even when the cause is a calendaring mistake. Families and advocates should confirm every OAH date in writing and on their calendars.
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
- George Crook, Student's attorney
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. 2018070687 v. ORDER TO SHOW CAUSE WHY
STUDENT SHOULD NOT BE
LOS ANGELES UNIFIED SCHOOL ORDERED TO PAY EXPENSES
DISTRICT.
On July 16, 2018, Student filed with the Office of Administrative Hearings a request for a due process hearing naming Los Angeles Unified School District. On August 22, 2018, OAH granted the parties’ joint request for continuance, setting a mediation for 9:00 a.m., on October 30, 2018.
On October 30, 2018, the assigned mediator traveled to the Los Angeles Unified’s office.
Student and Student’s attorney, George Crook, did not appear for the mediation. When contacted as to his absence, Mr. Crook replied that he did not have the mediation on his calendar.
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 is ordered to show cause why Student’s attorney, George Crook, should not be required to pay OAH’s costs as to the October 30, 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 November 19, 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 asking for and 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 October 30, 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 November 26, 2018, at 11:00 a.m. Failure of Student’s representative to appear telephonically at the order to show cause hearing on November 26, 2018, may result in additional sanctions.
ORDER
1. An Order to Show Cause as to Why Student Should Not be Ordered to Pay
Expenses is hereby issued. Student must file a response no later than 5:00 p.m. on Monday, November 19, 2018.
2. A telephonic order to show cause hearing shall be convened at 11:00 a.m. on
Monday, November 26, 2018.
IT IS SO ORDERED.
DATE: November 09, 2018
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings