California OAH special education order · May 7, 2014

Order Denying Student's Request for Continuance

OAH Case No. 2014031002 · ALJ Richard T. Breen

OAH denied Parent's request for a second continuance to find an attorney, finding Parent had already had enough time after earlier delays and showed no good cause.

Denied Scheduling and continuances

This case went to decision

Kern High School District v. Student: Kern High School District may conduct a triennial reassessment without parental consent; Mother's residency-based motion to dismiss denied. (2014)

Summary

Student's Mother asked for a second continuance of the District-filed due process case. She said the one attorney she contacted was too busy and she needed more time to find a lawyer. District opposed, arguing she had already had enough time. OAH denied the request and kept all dates. It noted the case had already been delayed because Mother missed a prehearing conference and to give her time to find counsel, so she had had adequate time to find an attorney or prepare for hearing.

Why it matters

Continuances are disfavored in special education cases. A parent who needs more time to find a lawyer should act quickly, because OAH may refuse further delays after one extension has already been given.

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 self-represented parent finding an attorney district-filed case

Order details

OAH case number: 2014031002
Order date: May 7, 2014
Order type: Scheduling and continuances
Ruling: Denied
Administrative law judge: Richard T. Breen
Moving party: Student
Case filed by: District
Education agency: Kern High School District
Student's counsel: Parent (self-represented)
District's counsel: Not stated
Official order: OAH PDF

Orders in this case

April 14, 2014: Order Continuing Pre-Hearing Conference and Order to Show Cause Why the PHC and Due Process Hearing
April 18, 2014: Order Following Prehearing Conference and Continuing Pre-Hearing Conference and Due Process Hearing
April 24, 2014: Order Denying Student's Peremptory Challenge
May 7, 2014: Order Denying Student's Request for Continuance
May 12, 2014: PHC order sets May 20, 2014 hearing on assessment without consent; Parent's PHC statement deadline extended. (PDF)
Decision (2014-06-20)

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:

KERN HIGH SCHOOL DISTRICT, OAH CASE NO. 2014031002

v. ORDER DENYING STUDENT’S

REQUEST FOR CONTINUANCE

PARENT ON BEHALF OF STUDENT.

On May 6, 2014, Student’s Mother requested a second continuance on the ground she had contacted one attorney, who was too busy to represent Student and thus, was requesting more time to find an attorney. District opposed the request on the ground that Mother already had been given adequate time to find an attorney.

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. All prehearing conference and hearing dates are confirmed and shall proceed as calendared. Student’s Mother has not shown good cause for any further continuances. This matter was filed on March 27, 2014. The proceedings have already been delayed, both because Mother did not attend a prehearing conference and to give Mother time to attempt to find an attorney. Student’s Mother has had adequate to time to either find an attorney or prepare for hearing, such that there is not good cause for a further continuance.