California OAH special education order · October 3, 2022
Order Following Prehearing Conference for Hearing by Videoconference and Setting Hearing on Order to Show Cause
OAH Case No. 2022080663, 2022070154 · ALJ Christine Arden
OAH set an order to show cause on dismissing Student's complaint and shifting OAH's prehearing conference costs. Student's attorney filed no PHC statement and did not appear, and no dismissal had been filed despite a reported settlement.
Summary
Student's attorney, Michael Stoller, did not file a prehearing conference statement or appear at the PHC, and OAH could not reach him by phone. The District's attorney reported that the parties had signed a settlement and dismissed the District's own complaint on the record, but OAH had no request to dismiss Student's complaint. The ALJ set an order to show cause hearing for October 7, 2022, on why Student's complaint should not be dismissed and why OAH's costs for the PHC should not be shifted to Student and counsel. The ALJ also required a sworn explanation by October 6 and kept the October 11 hearing date.
Why it matters
Settling a case does not end it at OAH until a dismissal is filed. An attorney who skips required filings and appearances on the assumption the case is over can face cost-shifting even if a dismissal is filed later.
Key authority cited
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
People named in the order
- Christine Arden, Administrative Law Judge
- Michael Stoller, Student's attorney
- Patrick Balucan, District's attorney
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 INVOLVING:
PARENT ON BEHALF OF STUDENT,
and
LOS ANGELES UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2022080663
OAH CASE NUMBER 2022070154
ORDER FOLLOWING PREHEARING CONFERENCE FOR
HEARING BY VIDEOCONFERENCE AND SETTING HEARING
ON ORDER TO SHOW CAUSE
OCTOBER 03, 2022
On October 3, 2022, Administrative Law Judge Christine Arden, Office of Administrative Hearings, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH. The prehearing conference is called a PHC.
No one appeared on behalf of Student. Patrick Balucan, Attorney at Law, appeared on behalf of Los Angeles Unified School District. The PHC was recorded.
Based upon discussion with the parties, the ALJ issues the following order:
When attorney Stoller did not appear at the PHC, the ALJ attempted to contact Student’s attorney, Michael Stoller, by calling the phone number listed as attorney Stoller’s phone number on Student’s complaint. A message on the phone number stated no one was available to take the call and it was not possible to leave a voice mail message. Attorney Balucan stated that the phone number on the complaint was the only phone number Balucan had for attorney Stoller.
Balucan stated that the parties had reached a settlement of both Student’s issues and Los Angeles Unified School District’s issue, and that the parties had executed a settlement agreement. Balucan was unaware if requests for dismissal had been filed with OAH by either party. No request for dismissal of either Student’s complaint or Los Angeles Unified School District’s complaint appeared in OAH’s file in this matter as of the time the OAH commenced. Balucan dismissed Los Angeles Unified School District’s complaint on the record.
ORDER TO SHOW CAUSE WAS SET
Student’s attorney of record failed to file a PHC statement with OAH before the PHC and to appear at the PHC even though no request for dismissal was filed with OAH by 1:00 PM on October 3, 2022. Therefore, the ALJ set a hearing on an Order to Show Cause, called an OSC, for October 7, 2022, at 1:00 PM, why Student’s complaint should not be dismissed, and why OAH’s costs for holding the PHC should not be shifted to Student and Student’s attorney. Student should file a statement under penalty of perjury with OAH stating why attorney Stoller failed to timely file a PHC statement and appear at the PHC by noon on October 6, 2022. The OSC will proceed on the fee shifting issue, even if Student files a request for dismissal of Student’s complaint before October 7, 2022. If the ALJ does not dismiss Student’s complaint at the hearing on the OSC, the PHC on Student’s case will proceed immediately following the hearing on the
OSC.
The hearing on Student’s complaint was not continued.
HEARING DATES, TIMES, AND LOCATION
DUE PROCESS HEARING
The hearing will take place on October 11, 2022, through October 13, 2022, and continue day to day at the discretion of the ALJ. The hearing shall begin at 9:30 AM each day and generally end at 3:30 PM, unless otherwise ordered. Additional hearing dates will be discussed with the ALJ during the hearing.
HEARING LOCATION
OAH is authorized to conduct due process hearings by videoconference or telephone. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) OAH will conduct the due process hearing by videoconference using the Zoom application. Unless otherwise ordered, participants are required to appear by videoconference using computer or device with video capability and Zoom.
The parties shall immediately notify all potential witnesses of the hearing dates and shall subpoena witnesses, if necessary, to ensure that the witnesses will appear to testify. A party’s failure to notify or subpoena a witness to testify will not be considered good cause to continue the hearing. Instructions for issuing and responding to subpoenas and optional forms for subpoenas can be found on the website at https://www.dgs.ca.gov/OAH/Case-Types/Special- Education/Forms/Subpoenas?search=special%20education%20subpoena.
FAILURE TO COMPLY
The failure to comply with this Order may result in the exclusion of evidence or other sanctions.
ORDER INCLUDES ALL RULINGS
This Order includes all rulings made at the prehearing conference. Any discussion and conversation not referenced in this Order is not binding on the ALJ conducting the hearing and may not be relied upon by the parties. The parties should be aware that, at hearing, the ALJ conducting the hearing has discretion to reconsider any part of this Order.
IT IS SO ORDERED.
Christine Arden Administrative Law Judge Office of Administrative Hearings