California OAH special education order · January 14, 2021
Order Granting Motion to Consolidate and Denying Motion to Continue as Moot
OAH Case No. 2021010304, 2020050609 · ALJ Marlo Nisperos
OAH consolidated Student's two cases against Glendale over the district's objection because both involve the same IEPs and evidence, and denied Student's continuance request as moot.
This case went to decision
Student v. Glendale Unified School District: Glendale Unified denied FAPE through flawed behavior assessments, plans, and missing math goal; ordered 41 hours of instruction and expert observation. (2021)
Summary
Student asked OAH to combine a case pending since May 2020 with a new case filed in January 2021. Student also asked to continue the first case's hearing because counsel was ill. Glendale objected to both, arguing it had a right to a timely resolution of the first case. OAH granted consolidation because both cases concern Student's IEP for the 2019-2020 and 2020-2021 school years and would use the same witnesses and evidence. It made the newer case primary and denied the continuance as moot, warning that further delay is strongly disfavored because the first case had been pending more than seven months.
Why it matters
Filing a new case and moving to consolidate can reset hearing dates and the 45-day decision timeline, even over the other side's objection. OAH signaled it will strongly resist any further delay once cases have been pending a long time.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
- 34 C.F.R. § 300.515(a), (c)
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
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 MATTERS OF:
PARENT ON BEHALF OF STUDENT,
v.
GLENDALE UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2021010304
and
PARENT ON BEHALF OF STUDENT,
v.
GLENDALE UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2020050609
ORDER GRANTING MOTION TO CONSOLIDATE AND
DENYING MOTION TO CONTINUE AS MOOT
JANUARY 14, 2021
On May 20, 2020, Student filed with the Office of Administrative Hearings a Request for Due Process Hearing in OAH case number 2020050603, Student’s First Case, naming Glendale Unified School District. Student filed an amended complaint in Student’s First Case on October 12, 2020.
On January 11, 2021, Student filed a Request for Due Process Hearing in OAH case number 2021010304, Student’s Second Case, naming Glendale Unified School District.
On January 11, 2021, Student filed a Motion to Consolidate Student’s First Case with Student’s Second Case. Student filed a Motion to Continue on January 11, 2021, to continue the due process hearing date set in Student’s First Case, OAH case number 2020050609 based on counsel being unavailable due to illness.
On January 13, 2021, Glendale filed an objection to consolidation on the ground that Glendale has a right to a timely resolution of Student’s First Case. Glendale filed an objection to Student’s Motion to Continue on January 13, 2021.
CONSOLIDATION
No statute or regulation specifically provides a standard to be applied in deciding a motion to consolidate special education cases. However, OAH will generally consolidate matters that involve the same parties, a common question of law and/or fact, 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].)
Here, Student’s First and Second Cases involve a common question of law or fact, specifically, Student’s individualized education program, called IEP, in effect during the 2019-2020 and 2020-2021 school years. In addition, consolidation furthers the interests of judicial economy because the same witnesses and evidence would be presented in each hearing. Accordingly, consolidation is granted.
CONTINUANCE USE IF CONTINUANCE REQUESTED
A due process hearing must be conducted, and a decision rendered, within 45 days of receipt of the due process notice, unless an extension is granted for good cause. (34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. OAH considers all relevant facts and circumstances in determining whether good cause exists to grant an extension. (See Cal. Rules of Court, rule 3.1332(d).)
Student’s Motion to Continue the due process hearing is moot as granting consolidation results in vacating the currently scheduled hearing dates. Student’s Second Case is designated as primary. Student’s First Case has been pending for more than seven months. An additional delay in the consolidated matter is strongly disfavored. Accordingly, the consolidated matter shall proceed on the dates currently set in Student’s Second Case.
ORDER
1. Student’s Motion to Consolidate is granted.
2. Student’s Second Case is designated as the primary case. All dates
previously set in Student’s First Case, OAH case number 2020050609, are vacated.
3. Student’s Motion to Continue is denied as moot. The consolidated
matters shall proceed on the dates previously set for hearing in the Primary Case, OAH case number 2021010304.
4. 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 Primary Case, OAH case number 2021010304.
IT IS SO ORDERED.
Marlo Nisperos Administrative Law Judge Office of Administrative Hearings