California OAH special education order · August 15, 2024
Order Vacating Order to Show Cause
OAH Case No. 2024070649 · ALJ Penelope S. Pahl
OAH declined to shift costs to Student's counsel for missing an expedited prehearing conference, finding it an honest error after counsel apologized, took responsibility, and changed office practices.
Summary
After Student's counsel failed to appear at the August 5, 2024 prehearing conference on the expedited portion of the case, OAH issued an order to show cause why costs should not be shifted to counsel. Counsel filed a response with a sincere apology, a full explanation of the scheduling error, and a description of new practices to prevent it from happening again, and Mojave did not reply. The ALJ found counsel had taken responsibility, was not known to habitually miss appearances, and had made an honest error. OAH did not shift costs and vacated the order to show cause hearing set for August 16, 2024.
Why it matters
A prompt, candid response that takes personal responsibility and shows concrete corrective steps can lead OAH to drop a cost-shifting order to show cause after a missed appearance. Counsel's track record before OAH also mattered.
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.
MOJAVE UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2024070649
ORDER VACATING ORDER TO SHOW CAUSE
AUGUST 15, 2024
On July 18, 2024, Student, through his attorney, filed a request for due process, also called a complaint, with the Office of Administrative Hearings, called OAH, naming Mojave Unified District as respondent. The case asserted both expedited and non- expedited claims. On August 5, 2024, Student’s counsel failed to appear for the prehearing conference on the expedited portion of the case, and an order to show cause as to why costs should not be shifted to Student’s counsel was issued. A hearing was scheduled for Friday, August 16, 2024, at 9:30 to address the order to show cause.
On August 9, 2024, Student’s counsel filed a response to the order to show cause.
OAH received no reply to Student’s counsel’s response from Mojave.
Student’s response to the order to show cause included a sincere apology, a complete explanation for the error and information regarding how Student’s counsel personally, and his firm in general, had changed practices to avoid the occurrence of a similar scheduling error in the future. Student’s counsel emphasized his acknowledgment of personal responsibility for the failure to appear, despite the explanation for how it occurred. Student’s counsel also stated that, upon notification of his failure to appear he immediately called and apologized to Mojave’s counsel.
Student’s counsel has adequately taken responsibility for the failure to appear.
Student’s counsel, who regularly represents clients before this tribunal, is not known to habitually miss scheduled appearances. This appears to have been an honest error on counsel’s part. Costs will not be shifted. The hearing on the Order to Show Cause, scheduled for 9:30 am on Friday August 16, 2024, is vacated.
IT IS SO ORDERED.
Penelope S. Pahl Administrative Law Judge Office of Administrative Hearings