California OAH special education order · January 4, 2019
Order Following Prehearing Conference; Order for No Sanctions; Order Granting Motion to Amend
OAH Case No. 2018120555 · ALJ Rommel P. Cruz
OAH declined to sanction both sides for missing a prehearing conference and failing to file statements, finding the lapses inadvertent, and granted Capistrano's unopposed motion to amend its complaint.
Summary
Neither Student nor Capistrano appeared at the December 31, 2018 telephonic prehearing conference, and neither filed a prehearing conference statement. OAH ordered both sides to show cause why they should not be sanctioned. At the rescheduled conference, the district's attorney apologized and explained she was out of the office without support staff. Student's newly retained attorney explained that Parents had not understood what a prehearing conference was or what they had to do, so OAH found the oversights inadvertent and imposed no sanctions. OAH also granted Capistrano's timely, unopposed motion to amend its complaint, which resets all hearing timelines as of the order date.
Why it matters
Missing a prehearing conference or skipping the prehearing statement can lead to an order to show cause and possible expense-shifting. Promptly accepting responsibility and showing the lapse was inadvertent can avoid sanctions. Parents who represent themselves should learn what a prehearing conference requires.
Key authority cited
- Cal. Code Regs., tit. 5, § 3088
- Gov. Code, § 11455.30
- Gov. Code, § 11405.80
- Gov. Code, § 11455.10
- Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026
- 20 U.S.C. § 1415(c)(2)(E)
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:
CAPISTRANO UNIFIED SCHOOL OAH Case No. 2018120555
DISTRICT,
ORDER FOLLOWING PREHEARING
v. CONFERENCE; ORDER FOR NO
SANCTIONS; ORDER GRANTING
PARENTS ON BEHALF OF STUDENT. MOTION TO AMEND
On January 4, 2019, a telephonic prehearing conference was held before Administrative Law Judge Rommel P. Cruz, Office of Administrative Hearings.
Melissa Hatch, Attorney at Law, appeared on behalf of Capistrano Unified School District.
Tony Nguyen, Attorney at Law, appeared on behalf of Student. The PHC was recorded.
Based upon discussion with the parties, the ALJ issues the following order:
1. Order to Show Cause. On December 31, 2018, Student and Capistrano failed
to appear for a telephonic prehearing conference. In addition, parties failed to file prehearing conference statements. OAH rescheduled the prehearing conference and ordered the parties to appear to show good cause as to why they should not be sanctioned for failing to file a prehearing conference statement and failing to appear for the telephonic prehearing conference.
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).)
Ms. Hatch accepted full responsibility for her failure to appear for the December 31, 2018 PHC, explaining she was out of the office, had no support staff, and neglected to provide OAH with a number to reach her that day. Ms. Hatch sincerely apologized for the oversight.
Mr. Nguyen was retained by Parents following the December 31, 2018 PHC and he explained that Parents were unclear as to the nature and purpose of a PHC and their responsibilities.
The parties took full responsibility for their failure to appear on December 31, 2018 PHC, and their oversight was inadvertent. Accordingly, OAH will not sanction the parties for their failure to appear telephonically for the December 31, 2018 PHC.
2. Motion to Amend Complaint. On December 12, 2018, Capistrano filed a Due
Process Hearing Request (complaint) with the Office of Administrative Hearings. On December 27, 2018, Capistrano filed a Motion to Amend the Due Process Hearing Request (amended complaint). At the PHC, Student did not object to the motion.
An amended complaint may be filed when either (a) the other party consents in writing and is given the opportunity to resolve the complaint through a resolution session, or (b) the hearing officer grants permission, provided the hearing officer may grant such permission at any time more than five (5) days prior to the due process hearing. (20 U.S.C.
§1415(c)(2)(E)(i).) The filing of an amended complaint restarts the applicable timelines for the due process hearing. (20 U.S.C. §1415(c)(2)(E)(ii).)
The motion to amend is timely and is granted. The amended complaint shall be deemed filed on the date of this order. All applicable timelines shall be reset as of the date of this order. OAH will issue a scheduling order with the new dates.
IT IS SO ORDERED.
DATE: January 4, 2019
ROMMEL P. CRUZ
Administrative Law Judge Office of Administrative Hearings