California OAH special education order · June 14, 2013
Order Granting Request for Continuance and Setting Mediation, Prehearing Conference and Due Process Hearing
OAH Case No. 2013031143 · ALJ Bob N. Varma
OAH granted a joint continuance because Parents need to attend the hearing and the parties want mediation, but warned both sides that repeating a false claim about mediator unavailability could bring sanctions.
Summary
District asked to continue the hearing dates, and Student joined the request. OAH found good cause based on Parents' right to attend the hearing and the parties' request for mediation, vacated all dates, and set mediation for July 2, 2013, a prehearing conference for August 30, 2013, and hearing for September 9-12, 2013. OAH also found false the parties' repeated claim that mediation on June 10, 2013 failed because OAH had no mediator. OAH said it never received a request for that date. It warned that if the claim is made again, it may issue an order to show cause why both parties should not be sanctioned.
Why it matters
Even a joint continuance request can draw a sanctions warning if it misstates facts. Parties should describe their scheduling history to OAH accurately, especially after OAH has already corrected the record.
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(c)
- Cal. Rules of Court, rule 3.1332(d)
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. 2013031143
v. ORDER GRANTING REQUEST FOR
CONTINUANCE AND SETTING
SANTA CRUZ CITY SCHOOL DISTRICT. MEDIATION, PREHEARING
CONFERENCE AND DUE PROCESS
HEARING
On June 13, 2013, the Santa Cruz School District (District) filed a request to continue the dates in this matter on various grounds. On June 13, 2013, Student joined in District’s request. Of the multiple grounds listed by District for the request, the right of Parents to be present at the due process hearing, and the parties request for mediation, are grounds deemed to establish good cause for the continuance.
In District’s request for a continuance, District contends that the parties have previously attempted to participate in mediation on June 10, 2013, but they were unable to do so because the Office of Administrative Hearings (OAH) did not have a mediator available.
This assertion has been raised by the parties in a prior continuance request and is false.
On April 29, 2013, OAH received a request for mediation on June 3, 2013. That request was denied on April 30, 2013, because the parties had failed to establish good cause for the calendaring of a Monday mediation, a day on which OAH does not regularly conduct mediations. OAH has never received a request for mediation on June 10, 2013, another Monday. This was pointed out to the parties in an order on May 10, 2013, regarding the parties’ last continuance request. The parties are hereby put on notice to stop misrepresenting the facts. If this misrepresentation is made again, the undersigned may issue an order to show cause why sanctions should not be ordered on both parties.
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:
Granted. All dates are vacated. This matter will be set as follows:
Mediation: July 2, 2013, at 9:30 AM Prehearing Conference: August 30, 2013, at 1:00 PM Due Process Hearing: September 9 – 12, 2013, beginning at 1:30 PM on September 9, 2013, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
IT IS SO ORDERED.
Dated: June 14, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings