California OAH special education order · August 23, 2013

Order Following Prehearing Conference and Partially Granting Continuance of Due Process Hearing

OAH Case No. 2012100242, 2012100291 · ALJ Charles Marson

OAH granted Student only a brief continuance over District's opposition. Newly retained counsel needed time to prepare, which slightly outweighed District's prejudice. Hearing reset to September 10, 2013.

Granted in part Scheduling and continuances

This case went to decision

Student v. Fresno Unified School District (consolidated): Fresno Unified must fund 55 months of individualized compensatory education through EvoLibri for a 22-year-old denied FAPE for 39 months. (2014)

Summary

Student's new attorney appeared the business day before the August 26, 2013 hearing. He moved for a continuance because he was unprepared, and the District opposed. At a telephonic prehearing conference, ALJ Marson found good cause only for a short delay so new counsel could prepare, reasoning that the family's need for prepared counsel slightly outweighed the District's prejudice. The hearing was reset to September 10, 2013, and the ALJ warned that no further continuances would be granted without compelling circumstances, which do not include disagreements between counsel and client.

Why it matters

Changing attorneys on the eve of hearing may earn a short delay, but OAH disfavors continuances and may refuse more. Families should retain counsel early, and new counsel should expect a tight preparation window.

Key authority cited

  • 34 C.F.R. § 300.515
  • Ed. Code, § 56502, subd. (f)
  • Ed. Code, § 56505, subd. (f)(3)
  • Cal. Code Regs., tit. 1, § 1020
  • Cal. Rules of Court, rule 3.1332

Topics

continuance substitution of counsel good cause hearing dates consolidated case

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 of:

PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2012100242

v.

FRESNO UNIFIED SCHOOL DISTRICT,

FRESNO UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2012100291

v.

PARENT ON BEHALF OF STUDENT. ORDER FOLLOWING PREHEARING

CONFERENCE AND PARTIALLY

GRANTING CONTINUANCE OF DUE

PROCESS HEARING

On August 23, 2013, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Charles Marson, Office of Administrative Hearings (OAH). Roger A. Greenbaum, Attorney at Law, appeared on behalf of Parent and Student.

Sang-Jin Nam and Melody A. Hawkins, Attorneys at Law, appeared on behalf of the Fresno Unified School District (District). The PHC was recorded.

Based on discussion of the parties, the ALJ issues the following order:

1. Motion for Continuance.

The due process hearing in this matter is now scheduled to begin on Monday, August 26, 2013. Late on Thursday, August 22, 2013, Student filed a notice that she is now represented by Mr. Greenbaum, and Mr. Greenbaum filed a motion for a continuance on the ground that he is unprepared to go to hearing on Monday. On August 23, 2013, the District filed an opposition to the motion. This PHC was convened by OAH to hear argument and rule on the motion.

A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (See Cal. Rules of Court, rule 3.1332(c).) OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance;

and any other relevant fact or circumstance. (See Cal. Rules of Court, rule 3.1332(d).)

From the moving and opposing papers and the arguments of counsel it appears that there is good cause only for a brief continuance so that Student’s new counsel may prepare for hearing. The need for Student and Parent to be represented by counsel who is prepared slightly outweighs the District’s showing of prejudice. No further continuances will be granted without a showing of compelling circumstances. Those circumstances do not include any disagreements between counsel and their clients.

The present hearing dates are vacated. The hearing will begin at 9:30 a.m. on September 10, 2013, and continue on September 11, 12, and 13, 2013, and from day to day, Monday through Thursday, as needed in the discretion of the ALJ.

2. Order Following PHC filed June 7, 2013. The Order Following PHC filed on

June 7, 2013 governs this matter in all respects except as set forth above.

IT IS SO ORDERED.

Dated: August 23, 2013 /s/

CHARLES MARSON

Administrative Law Judge Office of Administrative Hearings