California OAH special education order · September 23, 2013

Order Denying Request for Continuance

OAH Case No. 2013080189 · ALJ Timothy L. Newlove

OAH denied Student's day-before-hearing continuance request because wanting to amend a complaint in a separate case is not good cause, and the District is entitled to a speedy hearing on its own case.

Denied Scheduling and continuances

This case went to decision

San Dieguito Union High School District v. Student: San Dieguito Union High School District's speech and PT assessments and nonpublic school IEP offer upheld; no IEEs owed. (2013)

Summary

The day before the hearing in the District's due process case, Parent on behalf of Student asked OAH to continue the hearing. The goal was to allow time to file an amended complaint in Student's separate case against the District (OAH Case No. 2013090062). The District opposed. OAH denied the request. It reasoned that Student can amend the other complaint at any time, and those issues may not match the District's case. The request also came only a day before hearing, and the District is entitled to a speedy resolution of its case.

Why it matters

Continuances are disfavored, and last-minute requests rarely succeed. Parents should not expect a district-filed hearing to be delayed so they can amend their own separate case. Any request to continue or consolidate should be raised early.

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), (d)

Topics

continuance good cause district-filed case amended complaint timing

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:

SAN DIEGUITO UNION HIGH SCHOOL OAH CASE NO. 2013080189

DISTRICT,

ORDER DENYING REQUEST FOR

v. CONTINUANCE

PARENT ON BEHALF OF STUDENT.

On September 23, 2013, a day before the hearing in this matter is scheduled to start, Parent on behalf of Student, filed with the Office of Administrative Hearings (OAH) a request to continue the hearing, in order to have time to file an amended pleading in OAH Case No. 2013090062, a case involving Student versus the San Dieguito Union High School District. On the same day, counsel for the District filed with OAH an opposition to the request for continuance.

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. Here, the request to continue the hearing dates in this case, based upon the desire by Student to file an amended pleading in another case, does not constitute good cause for a continuance, since Student has the right to file an amended pleading in his administrative matter at any time, and the issues raised in the amended pleading may or may not align with the issues set forth in the District’s case. Moreover, the continuance request comes a day before the hearing starts in the District matter, and, under special education law, the District is entitled to a speedy resolution of its case. Accordingly, Student’s request for a continuance is denied.

IT IS SO ORDERED.

Dated: September 23, 2013 /s/

TIMOTHY L. NEWLOVE

Presiding Administrative Law Judge Office of Administrative Hearings