California OAH special education order · October 18, 2013
Order Granting Request for Continuance and Setting Prehearing Conference and Due Process Hearing
OAH Case No. 2013090251 · ALJ Timothy L. Newlove
OAH granted the District's request, over Parent's opposition, to continue the initially scheduled hearing because its witnesses were unavailable, resetting the hearing to January 21, 2014.
This case went to decision
Student v. Val Verde Unified School District: Val Verde Unified delayed an assessment waiting for a second divorced parent's consent, but no FAPE denial was found; all claims denied. (2014)
Summary
The District asked OAH to continue and reset the initially scheduled hearing dates because its witnesses were unavailable, and Parent filed an opposition. OAH granted the request. It explained that it generally continues initially scheduled dates when they are inconvenient to a party, and that the District has a right to have its witnesses attend the hearing. All dates were vacated, with a prehearing conference set for January 10, 2014 and the hearing set to begin January 21, 2014.
Why it matters
A parent's objection is often not enough to stop OAH from moving the first hearing dates it sets, especially when the district cites witness unavailability. Parents should expect that initially scheduled dates may move and plan their own witnesses and timelines with that in mind.
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:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013090251
v. ORDER GRANTING REQUEST FOR
CONTINUANCE AND SETTING
VAL VERDE UNIFIED SCHOOL PREHEARING CONFERENCE AND
DISTRICT. DUE PROCESS HEARING
On October 17, 2013, the Val Verde Unified School District, through counsel, submitted to the Office of Administrative Hearings (OAH) a request to continue and reset the initially scheduled hearing dates in the case, based upon witness unavailability. On October 18, 2013, Parent, on behalf of Student, filed an opposition to this 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: Granted. OAH generally will continue initially scheduled hearing dates, in the event that the dates are inconvenient to one or more parties. In addition, the District has the right in a special education administrative matter to have its witnesses attend the hearing.
All dates are vacated. This matter will be set as follows:
Mediation: To be determined by the parties.
Prehearing Conference: 01/10/2014, at 10:00 a.m.
Due Process Hearing: 01/21/2014, at 1:30 p.m.; 01/22/2014; 01/24/2014, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
IT IS SO ORDERED.
Dated: October 18, 2013 /s/
TIMOTHY L. NEWLOVE
Presiding Administrative Law Judge Office of Administrative Hearings