California OAH special education order · October 17, 2022
Orders Following Prehearing Conference, to Show Cause as to Why Matter Should Not Be Dismissed for Inactivity and Why Costs Should Not Be Shifted
OAH Case No. 2022070098 · ALJ Brian Krikorian
OAH ordered Student and Student's counsel to show cause why the case should not be dismissed and costs shifted after no one appeared for Student at the prehearing conference.
Summary
Student's side did not appear at the October 17, 2022 prehearing conference. The ALJ waited and tried to reach Student's counsel by phone, but got no answer. OAH found Student had not diligently pursued the case and continued the prehearing conference to October 31, 2022 and the hearing to November 8, 2022. It ordered Student and counsel to explain in writing by October 28, 2022 why the case should not be dismissed and why costs should not be shifted to Student. The order will be vacated if a notice of settlement with signature pages or a request for dismissal is filed before that date.
Why it matters
Missing a prehearing conference without notice can put a family's case at risk of dismissal and expose the family or its attorney to cost-shifting. Parents should make sure counsel attends every scheduled conference or files a timely request to continue.
Key authority cited
- 20 U.S.C. § 1415(f)(1)(B)(ii)
- 34 C.F.R. § 300.51
- Ed. Code, § 56502, subd. (f)
People named in the order
- Austin Jones, Counsel for Hemet Unified School District
- Brian Krikorian, Administrative Law Judge
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:
PARENTS ON BEHALF OF STUDENT,
v.
HEMET UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2022070098
ORDERS FOLLOWING PREHEARING CONFERENCE, TO
SHOW CAUSE AS TO WHY MATTER SHOULD NOT BE
DISMISSED FOR INACTIVITY AND WHY COSTS SHOULD
NOT BE SHIFTED
OCTOBER 17, 2022
On July 1, 2022, Student filed a request for a due process hearing, referred to as a complaint. The parties filed a joint request for continuance and mediation on August 4, 2022. The Office of Administrative Hearings, referred to as OAH, set a prehearing conference, referred to as a PHC, for October 17, 2022 and hearing dates of October 25, 26 and 27, 2022.
If the parent and local education agency have not resolved the due process complaint within 30 days of the receipt of the complaint, OAH is required to issue a decision within the next 45 days, unless a continuance is granted for good cause.
(20 U.S.C. § 1415(f)(1)(B)(ii); 34 C.F.R. § 300.51; Ed. Code, § 56502, subd. (f).)
On October 17, 2022, a PHC was commenced at 10:00 AM. Austin Jones appeared on behalf of Hemet Unified School District. Student made no appearance.
The Administrative Law Judge, referred to as the ALJ, trailed the matter until 10:15 AM.
During the Zoom session, the ALJ contacted Student’s counsel by phone but did not receive a response. The parties waited until 10:18 before going on the record.
Here, Student has not diligently pursued this matter and has not appeared at the PHC. The PHC is continued to October 31, 2022, at 10:00 AM, and the hearing in this matter is continued to November 8, 2022, commencing at 9:30 AM.
Student and counsel for Student are ordered to show cause in writing no later than October 28, 2022, at noon as to why this matter should not be dismissed and why costs should not be shifted to Student due to the non-appearance at the PHC. The parties must be prepared to set dates for a prehearing conference and due process hearing if they demonstrate that the matter should not be dismissed.
If a Notice of Settlement with signature pages, or a request for dismissal, is filed before October 28, 2022, then this order shall be vacated.
IT IS SO ORDERED.
Brian Krikorian Administrative Law Judge Office of Administrative Hearings