California OAH special education order · April 18, 2014

Corrected Order Following Prehearing Conference, Denying Request for Continuance and Continuing Prehearing Conference

OAH Case No. 2014030356 · ALJ Rebecca Freie

OAH denied Student's request to continue the hearing for lack of good cause, continued only the prehearing conference, and warned of a sanctions hearing against Student's counsel if no PHC statement was filed.

Ruling Prehearing conference orders

Summary

Student's counsel filed a continuance request on OAH's joint-request form, but only Student's counsel signed it and it gave no reason. Student had also not filed a prehearing conference statement or a motion to amend the complaint. OAH denied the continuance because good cause was not shown. The ALJ, on her own motion, continued only the prehearing conference to April 21, 2014. She ordered Student to file a PHC statement by 5:00 p.m. that same day and warned that failing to do so would lead to an order to show cause hearing on sanctions against Student's counsel.

Why it matters

OAH disfavors continuances and will deny one that gives no reason, even when the parties cannot agree on dates. Failing to file required prehearing documents can expose counsel to sanctions.

Key authority cited

  • 34 C.F.R. § 300.515
  • 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

continuance denied good cause prehearing conference statement sanctions warning order to show cause

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. 2014030356

v. CORRECTED ORDER FOLLOWING

PREHEARING CONFERENCE,

OAKLAND UNIFIED SCHOOL DENYING REQUEST FOR

DISTRICT. CONTINUANCE AND CONTINUING

PREHEARING CONFERENCE 1

On April 18, 2014, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Rebecca Freie, Office of Administrative Hearings (OAH). Betsy Brazy and LaJoyce Porter, Attorneys at Law, appeared on behalf of Student.

Lenore Silverman and Alejandra Leon, Attorneys at Law, appeared on behalf of Oakland Unified School District (District). The PHC was recorded.

On April 3, 2014, Student’s counsel submitted to OAH a copy of a letter sent by Ms.

Brazy to Ms. Silverman indicating that Student was preparing an amended complaint and would not be participating in mediation that was scheduled for April 10, 2014. District filed its PHC statement on April 15, 2014. On April 17, 2014, Student filed a request for continuance on OAH Form 80, which is intended to be used when making a joint request for continuance, asking that OAH set new hearing dates, indicating that the parties could not agree on dates. The form was filed by Ms. Brazy only. No reason was given for why the request for continuance was being made. Student did not file a PHC statement with OAH, nor has any motion to amend the complaint with a proposed amended complaint been filed with OAH.

Based on discussion of the parties, the ALJ issues the following order:

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 The previously issued order had the word “DRAFT” preceding the heading “BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS.” There are no substantive changes to this order.

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 continuance and considered all relevant facts and circumstances as discussed by the parties. The request for continuance is denied because good cause was not shown. However, in order to permit Student to file a PHC statement so that a meaningful PHC can be held, the ALJ is continuing, sua sponte, the PHC only.

Student is order to file a PHC statement with OAH and transmit a copy to District no later than 5:00 p.m. on April 18, 2014, Prehearing Conference: April 21, 2014, at 11:00 a.m.

Failure of Student to file a PHC statement with OAH by 5:00 p.m. on April 18, 2014, and transmit same simultaneously to District will result in an Order to Show Cause Hearing Regarding Sanctions Against Student’s Counsel to be set.

IT IS SO ORDERED.

DATE: April 18, 2014 /s/

REBECCA FREIE

Administrative Law Judge Office of Administrative Hearings