California OAH special education order · November 6, 2023

Order Following Order to Show Cause Hearing as to Why Matter Should Not Be Dismissed for Failure to Prosecute

OAH Case No. 2023090566 · ALJ Sabrina Kong

OAH dismissed Student's case without prejudice after Student's attorney skipped the prehearing conference, ignored an order to explain, and missed the show cause hearing; the ALJ chose not to impose costs or sanctions.

Ruling Sanctions and cost-shifting

Summary

Student's attorney, Leon Ozeran, did not file a prehearing conference statement and did not appear at the October 30, 2023 prehearing conference. The ALJ set an order to show cause hearing. She ordered him to explain in writing why the case should not be dismissed and why he should not pay OAH's costs. He filed nothing and did not appear at the November 6, 2023 hearing, so OAH dismissed the case without prejudice for failure to prosecute. The ALJ used her discretion not to shift costs or sanction the attorney.

Why it matters

If a family's attorney misses required filings and hearings, OAH can dismiss the family's case. Families should stay in touch with counsel and track deadlines. Because the dismissal was without prejudice, the claims may be refiled, subject to the statute of limitations.

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

  • Sabrina Kong, Administrative Law Judge
  • Leon Ozeran, Student's attorney
  • Angela Gordon, Lancaster School District's attorney

Topics

failure to prosecute order to show cause dismissal without prejudice attorney nonappearance sanctions declined prehearing conference

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:

PARENT ON BEHALF OF STUDENT,

v.

LANCASTER SCHOOL DISTRICT.

OAH CASE NUMBER 2023090566

ORDER FOLLOWING ORDER TO SHOW CAUSE HEARING

AS TO WHY MATTER SHOULD NOT BE DISMISSED FOR

FAILURE TO PROSECUTE

NOVEMBER 6, 2023

On November 6, 2023, Administrative Law Judge Sabrina Kong, Office of Administrative Hearings, held an Order to Show Cause hearing by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH.

Student’s attorney of record, Leon Ozeran, did not appear. Attorney Angela Gordon appeared on Lancaster School District’s, called Lancaster, behalf. The Order to Show Cause hearing was recorded.

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).)

Student filed a due process hearing request, called a complaint, on September 20, 2023. On September 21, 2023, OAH sent a Scheduling Order Setting Telephonic Prehearing Conference and Due Process Hearing and General Orders to the parties. A prehearing conference is called a PHC. The Scheduling Order ordered the parties to file PHC statements stating a concise statement of the issues raised in the complaint that remain to be decided at the due process hearing and to appear at 1:00 PM on October 30, 2023 for a PHC.

Attorney Ozeran did not file a PHC statement and did not appear for the October 30, 2023, 1:00 PM PHC. On October 31, 2023, the undersigned ALJ issued an Order To Show Cause hearing for November 6, 2023, and continued the PHC and hearing dates. The ALJ also ordered Attorney Ozeran to file a written statement with OAH by November 1, 2023, explaining why Student’s complaint should not be dismissed for the failure to participate, prosecute and/or advance this matter, and why Attorney Ozeran should not be ordered to pay OAH’s costs incurred in connection with his non- appearance at the October 30, 2023 PHC.

Attorney Ozeran did not file any documents on November 1, 2023, to explain why he failed to prosecute and advance this matter. He also did not appear at the November 6, 2023 Order to Show Cause hearing. Therefore, this case is dismissed without prejudice because of Attorney Ozeran’s failure to participate, prosecute and/or advance this matter. The undersigned ALJ exercised discretion in not shifting costs and/or sanctioning Attorney Ozeran for his failure to comply with OAH’s Orders.

IT IS SO ORDERED.

Sabrina Kong Administrative Law Judge Office of Administrative Hearings