California OAH special education order · November 8, 2019
Order Following Order to Show Cause
OAH Case No. 2019070533 · ALJ Rita Defilippis
OAH declined to dismiss Student's complaint or shift costs after Student's counsel missed a prehearing conference, finding no bad faith because she misjudged how long a settlement would take to finalize.
Summary
OAH issued an order to show cause why Student's complaint should not be dismissed after Student's counsel failed to appear at a prehearing conference. Counsel filed a declaration saying she had expected a settlement agreement to be signed before the conference and misjudged the timing. San Jose did not respond and did not ask for costs. The ALJ found no bad faith or frivolous tactics meant to cause delay, so there was no dismissal and no cost shifting. Counsel was warned that she must follow OAH scheduling orders at all times.
Why it matters
Missing a prehearing conference can put a family's case at risk of dismissal and expense-shifting. Pending settlement talks do not excuse a missed appearance, though a prompt, credible explanation may lead OAH to treat it as a one-time lapse.
Key authority cited
- Gov. Code, § 11455.30
- Gov. Code, § 11405.80
- Cal. Code Regs., tit. 5, § 3088
- Code Civ. Proc., § 128.5
- Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026
- West Coast Development v. Reed (1992) 2 Cal.App.4th 693
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,
v.
SAN JOSE UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2019070533
ORDER FOLLOWING ORDER TO SHOW CAUSE
On November 4, 2019, the undersigned issued an order to show cause why Student’s complaint should not be dismissed for failure to appear at a prehearing conference scheduled the same day. On November 6, 2019, Student’s counsel filed a declaration explaining that she had misjudged the time needed to execute a settlement agreement which she expected to be finalized before the prehearing conference. This misjudgment resulted in her being unavailable for the prehearing conference. San Jose did not provide a response to the order to show cause.
APPLICABLE LAW
A failure to appear may result in dismissal of a complaint. Additionally, in certain circumstances, an administrative law judge, known as the ALJ, presiding over a special education proceeding is authorized to shift expenses from one party to another, or to the Office of Administrative Hearings. (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.”].) Only the ALJ presiding at the hearing may place expenses at issue. (Cal. Code. Regs., tit. 5, § 3088, subd. (b).)
Expenses may be ordered to be reimbursed either to OAH or to another party.
With approval from the General Counsel of the California Department of Education, the ALJ presiding over the hearing may “order a party, the party’s attorney or other authorized representative, or both, to pay reasonable expenses, including costs of personnel” to OAH (as the entity that is responsible for conducting due process hearings) 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, subds. (a) & (e); see Gov. Code, § 11455.30, subd. (a).) An ALJ presiding over a hearing may, without first obtaining approval from the California Department of Education, “order a party, the party’s attorney or other authorized representative, or both, to pay reasonable expenses, including attorney’s fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Gov. Code, § 11455.30, subd. (a); Cal. Code. Regs., tit. 5, § 3088, subd. (a).) An order to pay expenses is enforceable in the same manner as a money judgment or by seeking a contempt of court order. (Gov. Code, § 11455.30, subd. (b).)
“Actions or tactics” is defined as including, but not limited to, making or opposing motions or filing and serving a complaint. (Gov. Code, §11455.30, subd. (a);
Code Civ. Proc., § 128.5, subd. (b)(1).) Filing a complaint without serving it on the other party is not within the definition of “actions or tactics.” (Ibid.) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.
(Gov. Code, § 11455.30, subd. (a); Code Civ. Proc., § 128.5, subd. (b)(2).) A finding of “bad faith” does not require a determination of evil motive, and subjective bad faith may be inferred. (West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 702.)
DISCUSSION
In the present matter, San Jose did not request a shifting of costs. The declaration also establishes that Student’s counsel did not engage in bad faith actions or frivolous tactics solely intended to cause unnecessary delay. Therefore, Student’s failure to appear will not result in dismissal of Student’s complaint or cost shifting in this instance. OAH will consider this a one-time occurrence. Student’s counsel is put on notice that she is expected to follow OAH scheduling orders at all times.
IT IS SO ORDERED.
DATED: November 8, 2019 Rita Defilippis Administrative Law Judge Office of Administrative Hearings