California OAH special education order · May 3, 2013
Order Denying Request for Continuance
OAH Case No. 2013010033, 2012120631 · ALJ Bob N. Varma
OAH denied a joint request to continue consolidated cases for global settlement talks because the planned mediation was not an IDEA mediation, no court had stayed OAH, and a September date was too long.
This case went to decision
Student v. Fresno Unified School District (consolidated): Fresno Unified's assessments upheld and parents' IEP claims denied, but its four-school placement offer cannot be implemented. (2013)
Summary
Student asked to continue these consolidated matters because the parties planned a May 20, 2013 mediation in their other, non-OAH legal proceedings and hoped to settle everything there. District joined the request, but only if new hearing dates were set in September 2013 because of its May calendar and expected trouble getting witnesses over the summer. OAH denied the request and kept all dates as calendared. It reasoned that the mediation was not a special education mediation and OAH was not running it, no superior or federal court had stayed OAH's proceedings, and pushing the hearing to September would put a decision about 10 months after the December 2012 filings, which conflicts with the requirement for a speedy resolution.
Why it matters
Even when both sides agree, OAH may refuse a continuance for settlement talks happening in other forums, especially a long one, because special education cases must be resolved quickly. Parties should be ready to go to hearing on the scheduled dates unless they show specific good cause.
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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013010033
v.
FRESNO UNIFIED SCHOOL DISTRICT,
FRESNO UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2012120631
v.
PARENT ON BEHALF OF STUDENT. ORDER DENYING REQUEST FOR
CONTINUANCE
On April 30, 2013, Parent, on behalf of Student (Student), filed a request to continue these consolidated matters on the grounds that the parties have agreed to enter into negotiations to possibly reach a global settlement of all currently pending actions between the parties. On May 2, 2013, the Fresno Unified School District (District) filed a response in which it joined in Student’s request, to the extent that any new due process hearing dates be set in September 2013, thereby providing relief for District’s calendar in May 2013, wherein District has other matters pending, and relief during the summer break, wherein District anticipates difficulty in securing witnesses.
According to the numerous filings in these consolidated special education matters, the parties are engaged in multiple legal proceedings, outside of the matters before the Office of Administrative Hearings (OAH), that involve, in one form or another, the parties ongoing dispute over discipline of Student and Student’s educational placement. According to the current filings, the parties have agreed to a mediation session on May 20, 2013, in the non- OAH matters, wherein they intend to also reach resolution on the OAH matters.
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. All hearing dates and timelines shall proceed as calendared. The May 20, 2013 mediation is not a special education mediation, pursuant to the Individuals with Disabilities Education Act. OAH is not conducting the mediation. There is no court order from a superior or federal court staying OAH’s proceedings while the parties participate in the May 20, 2013 mediation. 1 These matters were filed in December 2012. District requests a continuance that would place the matter into September of 2013, nine months after filing. Any written decision would not be issued until approximately 10 months after filing. Such a delay is not in keeping with the mandate for a speedy resolution. Accordingly, the request to continue is denied.
IT IS SO ORDERED.
Dated: May 3, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings It is unclear whether such an order would be binding upon OAH, and no finding is made as to the effect of such an order.