California OAH special education order · October 21, 2013
Order Following Prehearing Conference and Granting Continuance
OAH Case No. 2013090883 · ALJ Peter Paul Castillo
OAH granted Student's continuance over the District's opposition because Student's attorney had a prior scheduling conflict with the original hearing date, resetting hearing to November 2013.
This case went to decision
Clovis Unified School District v. Student: Clovis Unified's 2013 IEP offer for an eighth grader with intellectual disability, as revised by prior written notice, upheld as FAPE. (2013)
Summary
At a prehearing conference in the District's due process case, Student asked to continue the October 24, 2013 hearing. Student said counsel Yvette Sterling never received the scheduling order and had a prior commitment on that date. The District opposed. The ALJ found good cause based on counsel's scheduling conflict, continued the prehearing conference to November 4, 2013, set hearing for November 12–14 and 20–21, 2013 at the District's offices, and set deadlines for prehearing conference statements.
Why it matters
A genuine scheduling conflict for counsel can be good cause for a continuance even over the other side's opposition. The order also warns that a witness will not count as unavailable if the party failed to notify or subpoena them.
Key authority cited
- 34 C.F.R. § 300.515(a)
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)(3)
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:
CLOVIS UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2013090883
v. ORDER FOLLOWING PREHEARING
CONFERENCE AND GRANTING
PARENT ON BEHALF OF STUDENT. CONTINUANCE
On October 18, 2013, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Peter Paul Castillo, Office of Administrative Hearings (OAH). Barbara Ransom, Attorney at Law, appeared on behalf of Student. Karen Samman, Attorney at Law, appeared on behalf of the Clovis Unified School District (District). The PHC was recorded.
Based on discussion with the parties, the ALJ issues the following order:
1. Student’s Request for a Continuance. On October 17, 2013, Student made a
request for a continuance, which asserted that Student’s counsel, Yvette Sterling, never received a copy of the scheduling order and has a previous commitment for the hearing date of October 24, 2013. The District opposed 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. (34 C.F.R. § 300.515(a) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3).) Speedy resolution of the due process hearing is mandated by law and continuance of the hearing may be granted only upon a showing of good cause. (Ed.
Code, § 56505, subd. (f)(3).)
Student established good cause for a continuance due to the scheduling conflict that Ms. Sterling has with the initially set hearing date. Therefore, the PHC and the due process hearing are continued. The PHC shall take place on November 4, 2013, at 1:00 p.m., 1 and the due process hearing shall take place on November 12 through 14, 2013, and November 20 and 21, 2013. The hearing shall begin at 9:00 a.m. and end at 5:00 p.m., except for November 12, 2013, when the hearing shall begin at 1:30 p.m., unless otherwise ordered.
Student’s PHC statement is due to OAH and the opposing party by 5:00 p.m. on October 30, 2013, and the District need not file an additional PHC statement and any amendment is due at the same time as Student’s PHC statement.
The hearing shall take place at the District’s offices, located at 1680 David E. Cook Way, Clovis, California 93611. 2 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.
2. Settlement. The parties are encouraged to continue their attempts 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. If a settlement is reached five business days or fewer before the due process hearing is scheduled to begin, the parties shall, in addition, immediately inform OAH of that fact by telephone at (916) 263-0880. 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. IF A FULL AND
FINAL SETTLEMENT IS REACHED AFTER 5:00 P.M. ON THE LAST BUSINESS DAY
PRIOR TO HEARING, THE PARTIES SHALL LEAVE A VOICEMAIL MESSAGE
REGARDING THE SETTLEMENT AT (916) 274-6035, AND SHALL ALSO LEAVE
CELLULAR PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY.
The ALJ will check for messages the evening prior to the hearing and 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: October 21, 2013 /s/
PETER PAUL CASTILLO
Administrative Law Judge Office of Administrative Hearings At a minimum for the hearing, the room shall have separate tables capable of being moved into a courtroom configuration, as follows: (1) one table for Student’s representatives;
(2) one table for the District’s representatives; (3) one table for the ALJ with a nearby electrical outlet; and (4) one witness table. The District shall ensure that all parties and the ALJ have drinking water and tissue available to them.