California OAH special education order · February 8, 2013
Order Denying Second Request for Continuance
OAH Case No. 2012110566 · ALJ Robert Helfand
OAH denied COE's second continuance request because COE's own failure to get the required juvenile court order caused it not to receive the subpoenaed records.
This case went to decision
Student v. San Diego County Office of Education: San Diego County Office of Education must find and implement a residential placement for a detained student; OT violation also found. (2013)
Summary
COE asked for a second continuance, saying it had not received documents it had subpoenaed. Student opposed. Student argued that COE never got the order from the Presiding Judge of the Juvenile Court needed to release the records, and that Student had already produced some documents along with privilege logs for the ones withheld. OAH denied the request because the missing records were COE's own fault, kept the February 11, 2013 hearing date, and said the ALJ would review document production and examine the privilege-logged documents privately (in camera) on the first day of hearing.
Why it matters
A party cannot get a continuance for missing evidence when its own lack of diligence caused the problem, such as failing to get a required juvenile court order before subpoenaing records. Disputes over withheld documents can be handled at hearing through the ALJ's private (in-camera) review instead of delaying the case.
Key authority cited
- 34 C.F.R. § 300.515(a), (c)
- 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
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, OAH CASE NO. 2012110566
v. ORDER DENYING SECOND
REQUEST FOR CONTINUANCE
COUNTY OF SAN DIEGO OFFICE OF
EDUCATION.
On February 4, 2013,County of San Diego Office of Education (COE) filed a second request to continue the dates in this matter on grounds that COE had not received various documents which were subject to subpoenas duces tecum (SDT). On February 7, 2013, Parent, on behalf of Student (Student), opposed the request based upon grounds that COE had failed to properly obtain a required order permitting release of the records from the Presiding Judge of the Juvenile Court. Additionally, Student had obtained records which were subject to the SDT’s and had produced several of the documents and had produced privilege logs of those documents it had withheld.
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).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is DENIED as the failure to obtain the records sought by its SDTs was the failure of the COE to obtain the required court order.. The due process hearing will commence as scheduled on Monday, February 11, 2013 at 1:30 p.m.at the offices of the COE located at 6401 Linda Vista Road, San Diego, CA 92111.
On the first day of the hearing, the Administrative Law Judge (ALJ) will review the status of production of documents as to the SDT’s and conduct an in-camera review of documents which are listed in Student’s privilege logs.
IT IS SO ORDERED.
Dated: February 08, 2013 /s/
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings