California OAH special education order · September 13, 2013

Order Denying Motion for a Continuance, Without Prejudice

OAH Case No. 2013080449 · ALJ Peter Paul Castillo

OAH denied CCCOE's continuance request without prejudice because counsel's claimed conflict, a child's medical appointment, was not backed by a sworn declaration explaining when it was scheduled and why the request came late.

Denied without prejudice Scheduling and continuances

This case went to decision

Student v. Contra Costa County Probation Department: Contra Costa County Probation must fund one hour of tutoring for one day it blocked instruction; other claims denied. (2013)

This case went to decision

Student v. Contra Costa County Probation Department: ALJ rules OAH has jurisdiction over Contra Costa County Probation only when it blocks wards on security status from all CCCOE instruction. (2013)

Summary

CCCOE asked to continue the September 24 to 26, 2013 hearing dates because its attorney, Jennifer Rowe Gonzalez, had a medical appointment for her child on September 24. The Probation Department joined the request, and Student did not respond. OAH denied the request without prejudice and kept all dates as calendared. The request had no declaration under penalty of perjury stating when the appointment was made or why the district did not ask sooner after the August scheduling orders. OAH said CCCOE could refile with that declaration.

Why it matters

Continuances are disfavored in special education cases. A request based on counsel's unavailability should include a sworn declaration explaining the conflict and why the request was not made promptly after the hearing was scheduled.

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)

People named in the order

  • Jennifer Rowe Gonzalez, Counsel for Contra Costa County Office of Education

Topics

continuance good cause counsel unavailability declaration juvenile probation

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. 2013080449

v. ORDER DENYING MOTION FOR A

CONTINUANCE, WITHOUT

CONTRA COSTA COUNTY OFFICE OF PREJUDICE

EDUCATION AND CONTRA COSTA

COUNTY PROBATION DEPARTMENT.

On September 12, 2013, Contra Costa County Office of Education (CCCOE) filed with the Office of Administrative Hearings (OAH) a request to continue the dates in this matter based upon Jennifer Rowe Gonzalez, counsel for CCCOE not being available for the dates currently set for hearing, September 24, 25 and 26, 2013. On September 12, 2013, Contra Costa County Probation Department joined CCCOE’s request. Student has not filed a response to the continuance request.

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 Without Prejudice. All prehearing conference and hearing dates are confirmed and shall proceed as calendared. On August 28, 2013, OAH calendared this case and OAH Case Nos. 2013080462 and 2013080471 for the same three days of hearing as they involved common questions of facts and law. Previously, each case was set for one day, September 24, 25 and 26, 2013, respectively, pursuant to the August 15, 2013 scheduling orders. CCCOE’s continuance request is based on Ms. Rowe Gonzalez’s unavailability for a medical appointment for her child for September 24, 2013. However, CCCOE’s continuance request does not include a declaration under penalty of perjury from Ms. Rowe Gonzalez’s as to when this medical appointment was scheduled and why the continuance request was not made closer to the August 15, 2013 or August 28, 2013 scheduling orders. Accordingly, CCCOE’s continuance request is denied without prejudice as CCCOE may resubmit with motion with the required declaration from Ms. Rowe Gonzalez.

IT IS SO ORDERED.

Dated: September 13, 2013 /s/

PETER PAUL CASTILLO

Administrative Law Judge Office of Administrative Hearings