California OAH special education order · February 5, 2014
Order Denying Request for Continuance, Without Prejudice
OAH Case No. 2013110175 · ALJ Elsa H. Jones
OAH denied Student's opposed request for a 90-day continuance to accommodate newly retained counsel, finding no good cause, but signaled it would grant a continuance of up to 30 days.
This case went to decision
Burbank Unified School District v. Student: Burbank Unified may place a 9-year-old with autism at Five Acres therapeutic nonpublic school without parental consent. (2014)
Summary
Student asked to continue the prehearing conference and hearing for 90 days because a newly retained attorney needed preparation time and had scheduling conflicts, and District opposed. OAH denied the request without prejudice. The case had been pending since November 2013 and had already been continued twice, and new counsel knew the March 2014 hearing dates when she agreed to take the case. OAH said it would consider a continuance of no more than 30 days so counsel could review records, and invited Student to re-submit the request after conferring with District on dates.
Why it matters
Hiring a lawyer late in a case does not by itself justify a long continuance, because continuances are disfavored. Families should retain counsel early and confer with the district on proposed dates before asking OAH for a delay.
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:
BURBANK UNIFIED SCHOOL OAH CASE NO. 2013110175
DISTRICT,
ORDER DENYING REQUEST FOR
v. CONTINUANCE, WITHOUT
PREJUDICE
PARENT ON BEHALF OF STUDENT.
On February 4, 2014, Parent and Student (collectively, Student) filed a request to continue the prehearing conference and due process hearing dates in this matter for 90 days, based upon Student’s recent retention of any attorney who requires 90 days to prepare for the case and who also has prior scheduling conflicts. On February 4, 2014, Burbank Unified School District (District) opposed the request, contending that Student’s request does not demonstrate good cause.
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.
First, this matter has been pending since November, 2013, and has been continued twice before, once by operation of law when District filed an amended complaint, and once by way of stipulation between the parties. Under these circumstances, Student has had plenty of time to retain counsel since the filing of this matter. Second, new counsel obviously had notice of the currently scheduled hearing dates of March 25 through March 27, 2014, when she agreed, however tentatively, to represent Student.
District is correct that Student has not shown good cause to justify a 90-day continuance of the matter. However, OAH is inclined to grant a short continuance of the hearing of no more than 30 days from the currently scheduled hearing dates to permit Student’s counsel time to obtain and review Student’s records and to resolve any scheduling conflicts. Therefore, Student’s request is denied without prejudice.
Student may re-submit his request to continue after Student attempts, in good faith, to discuss and confer with the District regarding possible prehearing conference and hearing dates that fall within the time frame set forth in this Order. Forms are available on the OAH website that illustrate the procedure. Trial setting conferences are set only in unusual cases. If the parties are unable to agree on hearing dates, Student may re-submit his request to continue and request OAH to select dates that fall within the time frame set forth in this Order.
IT IS SO ORDERED.
Dated: February 5, 2014 /s/
ELSA H. JONES
Acting Presiding Administrative Law Judge Office of Administrative Hearings