California OAH special education order · July 10, 2014

Order Denying Request for Continuance

OAH Case No. 2013090347 · ALJ Joy Redmon

OAH denied the parties' joint request to continue the hearing. Observing Student for settlement talks was not needed for hearing, witnesses were only 'difficult to confirm,' and the case had been pending ten months.

Denied Scheduling and continuances

This case went to decision

Student v. Pajaro Valley Unified School District: Pajaro Valley Unified must reimburse Chartwell tuition and mileage for a late IEP meeting and a missing general education teacher; other claims denied. (2014)

Summary

Student and Pajaro Valley jointly asked to continue the August 26, 2014 hearing. They wanted to observe Student at a non-public school starting August 25 as part of settlement talks, and said the school's witnesses were hard to confirm during the first week of school. OAH found no good cause. The observation was part of settlement, not the hearing, and the witnesses were not shown to be unavailable. The case had also been pending nearly a full school year, against the IDEA's call for speedy resolution.

Why it matters

Even a joint, stipulated continuance request can be denied, especially in an older case. Parties should show that witnesses are truly unavailable, not just hard to schedule, and should not rely on ongoing settlement talks alone as good cause.

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)

Topics

continuance good cause joint request settlement negotiations witness availability non-public school

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. 2013090347 v. ORDER DENYING REQUEST FOR

CONTINUANCE

PAJARO VALLEY UNIFIED SCHOOL

DISTRICT.

Student filed a request for a due process hearing on September 11, 2013, with the Office of Administrative Hearings naming the Pajaro Valley Unified School District (Pajaro Valley). On July 9, 2014, the parties filed a joint request to continue this matter. The request is based upon continued settlement negotiations and Student’s potential difficulty in confirming witnesses from a non-public school because the hearing is scheduled to begin during the first week of school. This matter is set to proceed to hearing on August 26, 2014.

APPLICABLE LAW

A due process hearing must be conducted and a decision rendered within 45 days of receiving 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 changes in a case resulting in it not being 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).)

DISCUSSION

The parties assert good cause exists to continue this matter to observe Student in a non-public school that does not commence until August 25, 2014, as part of their ongoing settlement negotiations. The request goes on to assert that Student’s non-public school witnesses are difficult to confirm because the hearing is set to commence during the first week of school. Good cause does not exist to continue this matter.

The request asserts that observing Student is part of on-going settlement discussion and not required for the due process hearing. Additionally, the request indicates that Student’s witnesses are “difficult to confirm” not that they are unavailable. Moreover, nearly an entire school year has passed since this matter was filed ten months ago. The Individuals with Disabilities Education Act calls for a speedy resolution to due process complaints. The farther removed from the IDEA’s anticipated timelines the more removed from the underlying purpose of the law. In this case, the need to proceed to hearing is outweighed by the reasons given for the request to continue the matter.

ORDER

1. The joint request to continue the matter is denied.

2. All dates to remain on calendar as scheduled.

IT IS SO ORDERED.

DATE: July 10, 2014

/S/

JOY REDMON

Administrative Law Judge Office of Administrative Hearings