California OAH special education order · April 19, 2021

Order of Case Reassignment and Show Cause Regarding Failure to Comply With PHC Order

OAH Case No. 2021010652 · ALJ Peter Paul Castillo

OAH reassigned the case and ordered both sides' attorneys to show cause why they should not pay OAH's costs for failing to file electronic exhibits five business days before hearing, as the PHC Order required.

Order to show cause issued Sanctions and cost-shifting

Summary

On its own motion, OAH found that neither Student nor Gilroy had filed electronic copies of their exhibits by the deadline in the PHC Order, which was five business days before the April 20, 2021 hearing. OAH ordered both parties to explain in writing, by 5:00 PM on April 19, 2021, why their attorneys should not pay OAH's costs for any delay in the hearing and any ALJ preparation time lost. OAH set a telephonic order to show cause hearing for April 20, 2021, and warned that failing to appear could bring more sanctions. The order also reassigned the hearing to ALJ Sabrina Kong.

Why it matters

Exhibit-filing deadlines in a prehearing conference order are enforceable, and missing them can expose attorneys personally to cost-shifting sanctions. Both sides should calendar and meet exhibit upload deadlines.

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

People named in the order

  • Joshua Cruz, Student's attorney
  • Jeffrey Maisen, Gilroy's attorney
  • Sabrina Kong, Administrative Law Judge (assigned to hearing)
  • Peter Paul Castillo, Presiding Administrative Law Judge

Topics

order to show cause sanctions exhibits prehearing conference order case reassignment cost shifting

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:

PARENTS ON BEHALF OF STUDENT,

v.

GILROY UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2021010652

ORDER OF CASE REASSIGNMENT AND SHOW CAUSE

REGARDING FAILURE TO COMPLY WITH PHC ORDER

APRIL 19, 2021

On January 25, 2021, Student filed a request for due process hearing, complaint, naming Gilroy Unified School District. The Office of Administrative Hearings, referred to as OAH, granted Gilroy’s continuance request on March 8, 2020, setting the hearing to commence on April 20 through 22, 2021, with a Prehearing Conference, referred to as PHC, on April 9, 2021. OAH convened the PHC on April 9, 2021, and the April 12, 2021 PHC Order summarized what the parties discussed at the PHC.

APPLICABLE LAW

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).)

DISCUSSION

The PHC Order explicitly informed the parties that “[e]lectronic copies of exhibits filed with OAH shall be filed by 5:00 PM at least five business days before the first day of hearing. Please refer to the General Order OAH issued with the Scheduling Order that contains the Order Setting Procedures for Filing Exhibits Electronically.” To date, neither party has complied with this provision of the PHC Order.

Therefore, Student and Gilroy are ordered to show cause why Student’s attorney, Joshua Cruz, and Gilroy’s attorney, Jeffrey Maisen, should not be required to pay OAH’s costs as to any possible delay to the hearing scheduled to commence on April 20, 2021, which Administrative Law Judge hearing preparation time and delays in the commencement of the hearing, caused by the parties’ failure to timely load their proposed exhibits. Student and Gilroy are ordered to file a written response with OAH by no later than 5:00 PM on April 19, 2021. A copy of the response shall be served upon the opposing party. The Order to Show Cause will be discussed at the commencement of the hearing on April 20, 2021, with a written order to follow. Failure of Student’s and/or Gilroy’s representative to appear telephonically at the order to show cause hearing on April 20, 2021, may result in additional sanctions.

ORDER

1. Hearing is now assigned to Administrative Law Judge Sabrina Kong.

2. An Order to Show Cause as to Why Student and/or Gilroy Should be

Ordered to Pay Expenses is hereby issued. Student and Gilroy must file a response no later than 5:00 PM on Monday, April 19, 2021.

3. A telephonic order to show cause hearing shall be convened at 9:30 AM

on Tuesday, April 20, 2021.

IT IS SO ORDERED.

Peter Paul Castillo Presiding Administrative Law Judge Office of Administrative Hearings