California OAH special education order · April 3, 2023
Order Discharging Order to Show Cause Concerning Failure to Appear at Prehearing Conference
OAH Case No. 2023020646 · ALJ Charles Marson
OAH discharged its order to show cause over Student's attorney missing the prehearing conference, finding the mix-up over Zoom invitations was at worst negligent and did not justify dismissal or sanctions.
Summary
No one appeared for Student at the March 27, 2023 prehearing conference, so OAH ordered Student's attorney to show cause. Declarations from attorneys in Ms. Bayne's firm explained what happened. The Zoom invitation went only to Ms. Bayne and was not forwarded to Ms. Williams, who was assigned to appear. Ms. Williams mistakenly logged into a different matter's prehearing conference scheduled at the same time. OAH found the errors were at worst negligent, did not warrant dismissal for failure to prosecute or other sanctions, and discharged this part of the order to show cause. A separate order will address the second issue: repeated failure to include a concise statement of issues.
Why it matters
A missed hearing caused by an honest calendaring or email mix-up, explained promptly by sworn declarations, is unlikely to lead to dismissal or sanctions. Firms should file Participant Information Forms so OAH sends invitations directly to the attorney who will appear.
People named in the order
- Ms. Bayne, Student's attorney
- Robert Burgermeister, Attorney in Student's counsel's firm; declarant
- Lynda D. Williams, Attorney in Student's counsel's firm; declarant
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.
YUBA CITY UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2023020646
ORDER DISCHARGING ORDER TO SHOW CAUSE
CONCERNING FAILURE TO APPEAR AT PREHEARING
CONFERENCE
April 3, 2023 On March 22, 2023, Student filed a prehearing conference statement in this matter. On March 23, 2023, Yuba City filed a motion to strike Student’s statement on the ground that it did not contain the concise statement of issues required by OAH’s Scheduling Order defining the requirements for prehearing conference statements. On March 27, 2023, Student filed an opposition to the motion. However, no one appeared for Student at the prehearing conference, called a PHC, which started as scheduled at 10:00 a.m. on March 27, 2023.
On March 27, 2023, OAH issued an Order to Show Cause requiring a response from Student’s attorney on two subjects. One was the apparent repeated disregard by Student’s attorney of OAH’s pleading requirement for a concise statement of issues in a PHC statement. That issue will be addressed in a separate order. The other subject concerned Student’s attorney’s failure to appear at the PHC, which is addressed here.
On March 28, 2023, Student filed a return to the Order to Show Cause supported by the declarations of Robert Burgermeister and Lynda D. Williams, attorneys in Ms.
Bayne’s firm. Taken together, those declarations offer an explanation of Student’s failure to appear at the PHC that is adequate to excuse Student’s attorney from having the matter dismissed for the failure to diligently prosecute.
By March 24, 2023, the only attorney who had appeared for Student on any pleading was Ms. Bayne, and she had not filed the Participant Information Form required for the upcoming March 27, 2023 PHC. OAH therefore sent the digital invitation to the Zoom meeting that would host the PHC by email to Ms. Bayne but not to anyone else in her office. According to Ms. Williams, she had been assigned the duty of appearing at the PHC in this matter, but was also assigned to a PHC in a different matter at the same time in Student v. Westlake Charter School, OAH No. 2023020674.
The only Zoom invitation she received concerned the Westlake matter. Ms. Williams declares that “I was not aware of any other emails from OAH for the purpose of attendance at a PHC for March 27, 2023 at 10:00 a.m.”
Ms. Williams briefly mistook the invitation to the Westlake PHC as the invitation to the PHC in this matter, and logged into the Westlake PHC only to realize her error at about 10:17 a.m. She then excused herself and attempted to log on to the PHC in this matter, but that PCH had already concluded. In short, the invitation sent to Ms. Bayne in this matter was not forwarded to Ms. Williams in time for her to use it to attend the March 27, 202310:00 a.m. PHC in this case.
These errors are at worst negligent. They do not rise to the level of conduct that could justify dismissal of the matter for failure to prosecute it, or for other sanctions.
Accordingly, the Order to Show Cause is discharged insofar as it addresses Student’s failure to appear at the PHC, and no further action will be taken concerning that issue.
IT IS SO ORDERED.
Charles Marson Administrative Law Judge Office of Administrative Hearings