California OAH special education order · May 18, 2020
Order Following Prehearing Conference and Order to Show Cause as to Why Parties Should Not Pay Expenses and Matter Should Not Be Dismissed for Inactivity
OAH Case No. 2020010118 · ALJ Cararea Lucier
OAH ordered both Student and Fontana to show cause why they should not pay OAH's expenses after neither appeared at the prehearing conference, and ordered Student to show cause why the case should not be dismissed.
Summary
The parties had jointly asked for a May 18, 2020 prehearing conference. On the morning of the conference, Fontana asked to continue it because the case had settled and signatures were being gathered. Neither side appeared, and Student had not filed a prehearing conference statement. On its own motion, OAH continued the conference to May 22 and the hearing to June 2–4, ordered Student to show cause why the case should not be dismissed for failure to prosecute, and ordered both parties to show cause why they should not pay OAH's expenses for failing to appear.
Why it matters
A pending settlement does not excuse a party from appearing at a scheduled conference or filing required statements until OAH actually grants a continuance or dismissal. Both families and districts can face expense-shifting and dismissal for skipping OAH dates.
Key authority cited
- Gov. Code, § 11405.80
- Gov. Code, § 11455.30
- Gov. Code, § 11455.10
- Cal. Code Regs., tit. 5, § 3088
- Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026
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.
FONTANA UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020010118
ORDER FOLLOWING PREHEARING CONFERENCE AND
ORDER TO SHOW CAUSE AS TO WHY PARTIES SHOULD
NOT PAY EXPENSES AND MATTER SHOULD NOT BE
DISMISSED FOR INACTIVITY
MAY 18, 2020
On January 3, 2020, Student filed a request for due process hearing, naming Fontana Unified School District. On January 27, 2020, the parties filed a joint request for a continuance. The parties specifically requested a prehearing conference date of May 18, 2020, at 1:00 PM and a due process hearing to convene on May 27, 2020. On January 28, 2020, OAH granted the parties’ request. On May 18, 2020, at 8:50 AM, Fontana filed a request to continue the prehearing conference because the parties had resolved this matter and were obtaining signatures to the agreement.
On May 18, 2020, a video prehearing conference, referred to as a PHC, was held before Administrative Law Judge Cararea Lucier, Office of Administrative Hearings.
There was no appearance on behalf of Student, his Parents, or Fontana Unified School District. Student did not file a prehearing conference statement prior to the PHC. The PHC was recorded.
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).)
The ALJ issued the following order:
1. Prehearing Conference. The video PHC is continued to Friday, May 22,
2020, at 1:00 PM.
2. Continuance of Due Process Hearing. The hearing is continued to June 2,
2020, through June 4, 2020.
3. Order to Show Cause. Student is ordered to show cause at the video PHC
on Friday, May 22, 2020, as to why this matter should not be dismissed for failure to participate, prosecute, or advance the matter. Student is further ordered to file a prehearing conference statement by noon on Wednesday, May, 20, 2020, if the matter is not dismissed by then.
4. Fontana and Student are both ordered to show cause at the video PHC
on Friday, May 22, 2020, as to why they should not be ordered to pay OAH’s expenses for their respective failures to appear at the video PHC of May 18, 2020. Fontana and Student must file a response no later than 5:00 PM on Thursday, May 21, 2020.
IT IS SO ORDERED.
Cararea Lucier Administrative Law Judge Office of Administrative Hearings