California OAH special education order · December 2, 2013
Order Following Pre-Hearing Conference
OAH Case No. 2013071304, 2013040881 · ALJ Judith L. Pasewark
OAH continued the consolidated hearing to January 27, 2014, over the District's opposition, because Student's attorney withdrew shortly before hearing. OAH warned that no further continuances would be granted.
This case went to decision
Student v. Newport-Mesa Unified School District (consolidated): Newport-Mesa Unified's triennial assessment and special day class IEP offer upheld; district may implement IEP without parental consent. (2014)
Summary
Student's attorney withdrew in November 2013, and Parent asked for a continuance so she could find new counsel. The District opposed because its case had been pending since April 2013. Parent did not attend the prehearing conference. The ALJ found that losing representation shortly before hearing was good cause, reset the hearing to January 27, 2014, set a new prehearing conference for January 10, 2014, ordered Parent to give OAH a daytime phone number, and warned that no further continuances would be granted, including for failure to find counsel.
Why it matters
Losing an attorney right before hearing can justify one continuance, even over the district's objection. However, OAH may make clear that failing to find new counsel will not support further delay, so families should be ready to proceed on their own if needed.
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. 2013071304
v.
NEWPORT-MESA UNIFIED SCHOOL
DISTRICT,
NEWPORT-MESA UNIFIED SCHOOL OAH CASE NO. 2013040881
DISTRICT,
v.
ORDER FOLLOWING PRE-HEARING
PARENT ON BEHALF OF STUDENT. CONFERENCE
On December 2, 2013, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Judith L. Pasewark, Office of Administrative Hearings (OAH). Debra Ferdman, Attorney at Law, appeared on behalf of Newport Mesa Unified School District (District). Parent on behalf of Student (Mother) did not appear on behalf of Student (Student). Mother notified OAH she would not be available for the PHC. Further, Mother has not provided OAH with her telephone number. The PHC was not recorded.
Based on discussion of the parties, the ALJ issues the following order:
1. Hearing Dates, Times, and Location. On November 2, 2013, Student’s
attorney withdrew from representing Student in this matter. On November 2, 2013, via FAX, Mother requested a continuance to seek new legal counsel for Student. The District opposed this request, as the District’s matter has been pending since April 2013. Student’s loss of representation shortly before hearing represents good cause for continuance.
The hearing is continued and shall take place on January 27, 28, 29, 30, and February 6, 2014, and continue day to day, Monday through Thursday as needed at the discretion of the ALJ. The hearing shall begin each day at 9:30 a.m. and end at 4:30 p.m., with the exception of the first day of hearing, on which day the hearing shall begin at 1:30p.m., unless otherwise ordered. The hearing shall take place at the District’s offices located at 220 23rd Street, Costa Mesa, CA 92627.
A telephonic prehearing conference shall take place on January 10, 2014, at 1:00 p.m. The District is not required to file a new Prehearing Conference Statement unless changes are made to the briefs already filed with OAH. Mother is ordered to provide OAH with a telephone number at which she can be reached during business hours. OAH shall initiate the telephone call.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.
A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.
The parties are notified that no further continuances shall be granted. Further, failure to obtain legal counsel who can appear for the hearing as scheduled shall not be good cause for continuance.
2. Settlement. The parties are encouraged to continue working together to reach
an agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.
IF A FULL AND FINAL WRITTEN SETTLEMENT AGREEMENT IS REACHED
AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL LEAVE A
VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-6035. THE
PARTIES SHOULD ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR
PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY. THE
PARTIES SHOULD SIMULTANEOUSLY FAX THE SIGNATURE PAGE OF THE
SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE OAH AT
THE FAXINATION LINE at 916-376-6319.
Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages the evening prior to the hearing or the morning of the hearing.
3. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
Dated: December 02, 2013 /s/
JUDITH PASEWARK
Administrative Law Judge Office of Administrative Hearings