California OAH special education order · May 2, 2013
Order Denying Student's Request for Continuance Without Prejudice
OAH Case No. 2013040629 · ALJ Richard T. Breen
OAH denied Student's request to push the District-filed hearing to late June or July because Student did not prove counsel was unavailable, and one expert's short testimony could be handled other ways.
This case went to decision
Student v. Santa Monica-Malibu Unified School District (consolidated): Santa Monica-Malibu Unified must reimburse Summit View tuition, tutoring and mileage; district's assessment upheld and IEE denied. (2013)
Summary
Student asked to continue the hearing in this District-filed case to late June or mid-July 2013, saying Student's expert and counsel were unavailable. District opposed any delay past the end of the school year on June 11, 2013, because it could not guarantee its witnesses after that date, though it agreed to a short continuance before then. OAH denied the request. It found the declarations did not show counsel was unavailable every day until late June, and that one expert's few hours of testimony, which might even be taken by phone, did not justify delaying the whole hearing 45 days or more. The denial was without prejudice, so the parties could agree on dates at the prehearing conference that finished District's witnesses before June 11, and the hearing ALJ could decide how to take the expert's testimony.
Why it matters
A continuance request needs specific evidence, such as declarations showing counsel is unavailable on each date in question, not just an email stating preferred dates. OAH will look for other ways to fit in one witness, such as telephone testimony, before delaying an entire hearing.
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:
SANTA MONICA-MALIBU UNIFIED OAH CASE NO. 2013040629
SCHOOL DISTRICT,
ORDER DENYING STUDENT’S
v. REQUEST FOR CONTINUANCE
WITHOUT PREJUDICE
PARENT ON BEHALF OF STUDENT.
On April 25, 2013, Student filed a motion to continue the hearing in this matter to either the last two weeks of June 2013, or the second week of July 2013. The reasons given were unavailability of Student’s expert and Student’s counsel. On May 1, 2013, District filed an opposition, stating that it was not opposed to a short continuance to dates prior to the end of the school year on June 11, 2013, but opposing further continuances on the ground of difficulty of guaranteeing District witnesses. Student filed a reply to the opposition on May 1, 2013.
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 prehearing conference and hearing dates are confirmed and shall proceed as calendared. District’s right to proceed as the petitioning party with the burden of proof must be weighed against Student’s hearing rights to counsel and to present evidence.
Here, Student’s motion was not supported by specific evidence of the unavailability of counsel. While the exhibits contained an email expressing a preference for dates, the supporting declarations did not specifically establish counsel’s unavailability for every day until the last two weeks of June. Similarly, Student’s motion did not demonstrate good cause to delay the entire hearing just for the testimony of one witness whose testimony should not require more than a few hours and could potentially even be taken telephonically. Given that District has indicated a willingness to agree to a short continuance based on the availability of its witnesses prior to June 11, 2013, it is not reasonable to delay District’s hearing for 45 days or more based on the limited availability of one Student witness, whose testimony would not require a full day.
Accordingly, Student’s motion is denied without prejudice to the parties discussing mutually agreed dates for the hearing at the PHC that would result in all District witness testimony being taken prior to June 11, 2013, and at the discretion of the hearing ALJ, a way to obtain the testimony of Student’s expert.
IT IS SO ORDERED.
Dated: May 02, 2013 /s/
RICHARD T. BREEN
Presiding Administrative Law Judge Office of Administrative Hearings