California OAH special education order · November 2, 2018
Order to Show Cause Why Case Should Not Be Dismissed
OAH Case No. 2018090670 · ALJ Tiffany Gilmartin
OAH ordered Student to explain by November 5, 2018 why Parent missed the prehearing conference and why the case should not be dismissed for failure to prosecute.
This case went to decision
Student v. Fremont Union High School District: Fremont Union High must provide door-adjacent curb-to-curb transportation inside a gated complex and reimburse the family's mileage. (2018)
Summary
Parent, representing Student, did not answer three phone calls from the ALJ at the scheduled November 2, 2018 prehearing conference. The ALJ held the conference with Fremont's attorney only and did not review the issues, because it is Student's job to present and clarify them. On its own motion, OAH ordered Student to file a written response by noon on November 5, 2018. The response must explain the missed conference and why the case should not be dismissed for failure to prosecute.
Why it matters
Parents who file their own due process cases carry the burden of proof and must take part in scheduled conferences. Missing a prehearing conference, even while a continuance motion is pending, can put the whole case at risk of dismissal.
Key authority cited
- Ed. Code § 56502, subd. (f)
- Ed. Code § 56505, subd. (f)(3)
People named in the order
- Joanna Powell, Attorney for Fremont Union High School District
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. 2018090670 v. ORDER TO SHOW CAUSE WHY
CASE SHOULD NOT BE DISMISSED
FREMONT UNION HIGH SCHOOL
DISTRICT.
On September 18, 2018, Student filed a request for due process with the Office of Administrative Hearings naming Fremont Union High School District. A scheduling order was issued on September 20, 2018 identifying November 2, 2018 at 3:00 p.m. as the date and time of the prehearing conference. The due process hearing was originally scheduled for hearing on November 13, 2018. Student is represented by Parent. Fremont is represented by Joanna Powell, attorney at law.
On November 2, 2018, Fremont filed a motion to continue the prehearing conference and the due process hearing. Student filed an opposition the same day. No ruling was made on the motion to continue prior to the PHC commencing.
At 3 p.m. on November 2, 2018, the undersigned called Parent at the number Parent provided OAH on November 2, 2018. The undersigned left a message for Parent and directed Parent to contact the assigned case manager and left the case manager’s direct phone number. The undersigned made two additional attempts to reach Parent at 3:05 p.m. and 3:10 p.m. each time leaving a voicemail advising Parent of this ALJ’s attempts to reach them.
The ALJ convened the PHC with Ms. Powell. Because Student filed this request for hearing, the ALJ deemed it inappropriate to review the issues in the case, because it is Student’s obligation to present and clarify his issues.
ORDER TO SHOW CAUSE
A due process hearing must be conducted and a decision rendered within 45 days following a 30-day resolution period, after receipt of the due process notice, in the absence of an extension. (Ed. Code §§ 56502, subd. (f), and 56505, subd. (f)(3).) Given the short time frames applicable to this case; it is critical that the parties follow orders issued by OAH and participate in advancing the matter to hearing. The burden of proof in this case is on Student. Student will be provided an opportunity to establish if he intends to go forward with this case.
Student is ordered to file a written response with OAH by no later than noon on November 5, 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 Parent did not appear at the scheduled prehearing conference. Failure to submit a written response may result in Student’s case being dismissed for failure to prosecute.
ORDER
1. Student shall submit a written response to this Order explaining the failure to
appear at the prehearing conference and further explaining why the matter should not be dismissed for failure to prosecute.
2. Failure to provide the written response described above may result in Student’s
case being dismissed.
DATE: November 2, 2018
TIFFANY GILMARTIN
Administrative Law Judge Office of Administrative Hearings