California OAH special education order · May 7, 2014

Order Denying District's Request for Continuance

OAH Case No. 2014040078 · ALJ Richard T. Breen

OAH denied District's opposed continuance request because two claimed conflicts fell on Fridays, when no hearing was set, and the other conflicts were not shown to take up full days.

Denied Scheduling and continuances

This case went to decision

Student v. Bellflower Unified School District: Bellflower Unified prevails on all claims over speech assessments, communication goals, and placement for a kindergartner with autism. (2014)

Summary

District asked to continue the prehearing conference and hearing, citing activities on May 23, 27, 29, and 30, 2014, after an earlier joint request was denied because the parties had not agreed on dates. Student opposed. Student said two of the dates were Fridays, when the hearing would be dark, and the other conflicts gave no specific times or durations. OAH denied the request for lack of good cause. It noted that District's own request showed it was available on other hearing days, that scheduling needs could be handled at the prehearing conference, and that District's refusal to agree to summer dates also supported keeping the schedule.

Why it matters

OAH disfavors continuances and expects specific, documented conflicts. Vague claims of unavailability, or conflicts on days the hearing is not even scheduled, will not delay a hearing. A party that refuses to agree to alternative dates weakens its own request.

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)

People named in the order

Richard T. Breen, Presiding Administrative Law Judge

Topics

continuance good cause hearing schedule attorney availability 45-day timeline

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. 2014040078

v. ORDER DENYING DISTRICT’S

REQUEST FOR CONTINUANCE

BELLFLOWER UNIFIED SCHOOL

DISTRICT.

On May 6, 2014, District filed a request to continue the prehearing conference and hearing to dates convenient to OAH on the ground that District and its counsel had activities scheduled at unspecified times and durations on May 23, 27, 29, and 30, 2014. A previous request for continuance submitted by both parties was denied because the parties had not agreed on dates. On May 7, 2014, Student opposed District’s request on the ground that District had not shown good cause because some of the days District listed are Fridays, when the hearing would be dark anyway, and the other conflicts were not supported by specific times or durations. In addition, Student noted that District was unwilling to stipulate to hearing dates in the summer.

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. District has not made a showing of good cause for a continuance. As was clear from the OAH scheduling order, the matter was scheduled to proceed on Mondays through Thursdays only, such that no conflict is presented by Friday May 23 or Friday May 30. Similarly, District has not demonstrated that any other alleged conflict with its counsel’s schedule is for the full day on May 27 or May 29, the remaining dates District claims unavailability. Even so, by its request, District has demonstrated that it is available on May 22, 26, and 28, 2014, for full days. Thus, there is no reason the hearing cannot proceed and any specific scheduling requests by District’s counsel can be addressed at the prehearing conference. Finally, although nothing in the IDEA provides for suspension of hearings during the summer months when school is out, District’s unwillingness to stipulate to dates in the summer also demonstrates that the hearing must proceed as scheduled.