California OAH special education order · May 20, 2019
Order Following Prehearing Conference and Consolidating Cases
OAH Case No. 2019050656, 2019040589 · ALJ Penelope S. Pahl
OAH consolidated Student's case with San Mateo's case over the District's opposition, because both challenge the same August 2018 IEP and share witnesses, and the District showed no real prejudice.
Summary
Student moved to consolidate his newly filed complaint with San Mateo's earlier-filed case, which asked OAH to find the August 2018 IEP offered a FAPE. San Mateo opposed. It argued it would keep paying private school tuition during delay, and that witnesses might be unavailable during July summer holidays. San Mateo later admitted Parents, not the District, were paying the tuition. OAH found the cases share common questions of law and fact and many of the same witnesses. It also held that summer break alone does not show witness unavailability, so it granted consolidation, vacated the District's hearing dates, and made Student's case the primary case.
Why it matters
A district's earlier-filed case does not lock in a faster hearing date when a parent files related claims, and vague claims of summer witness unavailability will not defeat consolidation without specific evidence. Parents who get counsel late can still have their claims heard together with the district's case.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
People named in the order
- Gina Beltramo, Attorney
- Evan Goldsen, 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. 2019050656 v. ORDER FOLLOWING PREHEARING
CONFERENCE AND
SAN MATEO UNION HIGH SCHOOL CONSOLIDATING CASES
DISTRICT.
SAN MATEO UNION HIGH SCHOOL
DISTRICT. OAH Case No. 2019040589 v.
PARENT ON BEHALF OF STUDENT.
On May 17, 2019, a telephonic prehearing conference was held before Administrative Law Judge Penelope Pahl, Office of Administrative Hearings. Gina Beltramo Attorney at Law, appeared on behalf of Student. Evan Goldsen, 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. Motion to Consolidate. At the time of the Prehearing Conference, Student’s
motion to consolidate was considered. Counsel for San Mateo opposed the motion orally.
This case was filed on April 15, 2019. At a prehearing conference convened on Monday, April 29, 2019, the case was continued to allow Student to acquire representation.
On May 14, 2019, Student filed notice of representation accompanied by a complaint and a motion to consolidate his case with this District filed case. As the Student’s case requires the observation of a resolution period, if consolidated, the dates for San Mateo’s case would be vacated and the cases would follow the timeline for Student’s case.
San Mateo opposed the consolidation on the grounds that the district would suffer prejudice in the form of continued payment of Student’s private school tuition. San Mateo further argued that consolidation would make it difficult to ensure witnesses, who are available for the currently scheduled hearing dates, will be available for the July hearing dates scheduled in Student’s case. San Mateo’s counsel noted that San Mateo High School District has summer holidays in July.
Student argued that San Mateo High was not financially prejudiced because Parents were paying the private school tuition themselves. The parties were given the opportunity to present confirmation of the source of the payments for Student’s private school tuition prior to the ruling being issued on this motion. In a later filing, San Mateo acknowledged their error in asserting it was paying for Student’s private school tuition.
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); Code of Civ. Proc., § 1048, subd. (a).) Consolidation, however, is not mandatory.
In this instance, District’s case has been pending only since April 15, 2019. Parents have only recently acquired counsel. The evidence submitted by the parties indicates that Parents have been paying tuition for Student’s private school, not district. Additionally, the commencement of a school’s summer holidays does not constitute a basis for determining prejudice to a school district as to witness availability absent specific evidence of the unavailability of a particular witness due to prepaid travel plans, or other good cause. In this case, Student’s case contests that the Individual Education Program San Mateo Union High School District offered to Student in August of 2018 provided Student with a free, appropriate public education. District’s case asks OAH to evaluate whether the August 2018 IEP offered Student a FAPE. The cases involve common questions of law and fact, and while the determinations result in different remedies, the witnesses and evidence are going to be identical in many instances. Student also raises issues of failure to assess in all areas of disability and failure to properly assess, as well as denial of parental participation in the IEP process during the same school year. Adjudication of these issues will require testimony from many of the same witnesses who will testify about the August 2018 FAPE offer.
Having considered the balance of the equities on both sides and the judicial economy of combining the cases, Student’s motion to consolidate is GRANTED.
2. Hearing Dates
a. All previously scheduled dates in San Mateo’s case, OAH case number
2019040589 are hereby VACATED.
b. The case shall proceed on the dates stated in the Scheduling Order
issued in Student’s case, OAH case number 2019050656, which is designated the primary case.
c. 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 Student’s case, OAH Case Number 2019050656.
3. Other Prehearing Matters Deferred. All other prehearing matters for the
consolidated cases are deferred to the prehearing conference scheduled in Student’s case, OAH case number 2019050656.
4. Settlement. The parties are encouraged to continue working together
to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.
IF A FULL AND FINAL WRITTEN SETTLEMENT AGREEMENT IS REACHED
AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL LEAVE A
VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-6035. THE
PARTIES SHOULD ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR
PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY. THE
PARTIES SHOULD SIMULTANEOUSLY EMAIL THE SIGNATURE PAGE OF THE
SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE OAH
AT https://www.applications.dgsapps.dgs.ca.gov/oah/oahsftweb . IFTHE SETTLEMENT IS
SUBJECT TO BOARD APPROVAL, THE LETTER SHALL CONTAIN THE DATE ON
WHICH THE BOARD IS SCHEDULED TO CONSIDER THE SETTLEMENT
AGREEMENT.
Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ.
IT IS SO ORDERED.
DATE: May 20, 2019
PENELOPE S. PAHL
Administrative Law Judge Office of Administrative Hearings