California OAH special education order · October 5, 2018
Order Granting Motion to Consolidate
OAH Case No. 2018100028, 2018080080 · ALJ Sabrina Kong
OAH granted San Marcos' unopposed motion to consolidate its case with Student's earlier case because both involve overlapping time periods, common witnesses, and common documents. It made San Marcos' case the primary case.
This case went to decision
Student v. San Marcos Unified School District: San Marcos Unified prevails on all claims; move of autistic seven-year-old to moderate/severe special day class upheld. (2019)
Summary
San Marcos filed its own due process complaint asking OAH to find that Student's December 2017 IEP, as amended in 2018, offered a FAPE and could be implemented without parental consent. It also moved to consolidate that case with Student's earlier complaint challenging FAPE from August 2016 to August 2018. Student did not oppose. OAH granted consolidation because the cases overlap in time, witnesses, and evidence. It vacated all dates in Student's case and made San Marcos' case the primary case, with the 45-day decision timeline running from San Marcos' filing date.
Why it matters
When a district files its own case and consolidates it with a parent's earlier case, the parent's previously set hearing dates can be vacated and the timeline reset to the district's filing. Parents should state their scheduling preferences when responding to a consolidation motion.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
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 Consolidated Matter of:
SAN MARCOS UNIFIED SCHOOL OAH Case No. 2018100028
DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.
PARENT ON BEHALF OF STUDENT,
OAH Case No. 2018080080 v.
ORDER GRANTING MOTION TO
SAN MARCOS UNIFIED SCHOOL CONSOLIDATE
DISTRICT.
On August 2, 2018, Student filed a due process hearing request in this matter with Office of Administrative Hearings, in case number 2018080080 (Student’s Case) naming the San Marcos Unified School. On September 28, 2018, San Marcos filed a due process hearing request with OAH in case number 2018100028 (San Marcos’ Case), naming Student.
On September 28, 2018, San Marcos also filed a motion to consolidate Student’s and San Marcos’ cases. On October 4, 2018, Student filed a response that did not oppose San Marcos’ consolidation motion. Neither party discussed whether they wished to keep the previously continued dates in Student’s Case, or the later dates in San Marcos’ Case.
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].)
Student’s Case involved whether San Marcos offered Student a free appropriate public education from August 1, 2016 to August 2, 2018. San Marcos’ Case involved whether the December 5, 2017 individualized education program, as modified on March 15, 2018, March 23, 2018 and June 13, 2018 offered Student a FAPE and requested that OAH order San Marcos to implement such IEP without parental consent. Because both cases involve an overlapping time period, testimony would involve common witnesses testifying such as Parents as well as some of San Marcos’ witnesses, and common documentary evidence at least with respect to the overlapping period. Consolidation furthers the interests of judicial economy because one ALJ will hear both cases involving similar documentary evidence and some of the same witnesses. Accordingly, consolidation is granted.
ORDER
1. San Marcos’ motion to consolidate is granted.
2. All dates previously set in OAH Case Number 2018080080, Student’s Case are
vacated.
3. The 45-day timeline for issuance of the decision in the consolidated cases shall
be based on the date of the filing of the complaint in OAH Case Number 2018100028, San Marcos’ Case.
4. The prehearing conference, and due process hearing dates will be according to
the San Marcos’ Case which are as follows:
Prehearing conference: October 15, 2018, at 10:00 a.m.
Due process hearing: October 23, and October 24, 2018 continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at San Marcos located at 225 Pico, Avenue, Suite 250, San Marcos, CA 92069. The hearing shall begin at 9:30 a.m. and end at 5:00 p.m. on the first day of the hearing and shall begin at 9:00 a.m. all other days, and end at 4:30 p.m., unless otherwise ordered. The hearing shall continue day to day thereafter, Monday through Thursday, at the discretion of the ALJ.
5. The primary case shall be San Marcos’ Case, and the parties shall use the
consolidated caption for all filings after this date.
IT IS SO ORDERED.
DATE: October 5, 2018
SABRINA KONG
Administrative Law Judge Office of Administrative Hearings