California OAH special education order · May 28, 2014

Order Granting Request for Continuance and Setting Prehearing Conference and Due Process Hearing

OAH Case No. 2014041135 · ALJ Bob N. Varma

OAH granted Oakland's contested request to continue the hearing to September 2014 because a key district witness was unavailable, a showing supported by her sworn declaration.

Granted Scheduling and continuances

This case went to decision

Student v. Oakland Unified School District: Oakland Unified must provide 32 hours of compensatory instruction for missed placement and summer days; transportation claim denied. (2014)

Summary

Oakland asked OAH to continue the due process hearing because a key witness was unavailable, and it supported the request with the witness's sworn declaration. Student agreed to a one-day continuance but opposed any longer delay. There had been no prior continuances. OAH found good cause, vacated all dates, and reset the prehearing conference to September 8, 2014 and the hearing to September 16, 2014.

Why it matters

Continuances are disfavored, but the unavailability of an essential witness, documented by a sworn declaration, can justify a months-long delay over a parent's objection, especially when there have been no prior continuances.

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 witness unavailability good cause hearing delay scheduling

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. 2014041135

v. ORDER GRANTING REQUEST FOR

CONTINUANCE AND SETTING

OAKLAND UNIFIED SCHOOL PREHEARING CONFERENCE AND

DISTRICT AND TOBIN WORLD II. DUE PROCESS HEARING

On May 23, 2014, the Oakland Unified School District (Oakland) filed a request to continue the due process hearing in this matter on the grounds of unavailability of a key witness. The request was accompanied by a sworn declaration by the witness as to her unavailability. On May 27, 2014, Student filed an opposition to Oakland’s request. Student agreed to a one day continuance, but opposed any further continuance, despite continued unavailability of Oakland’s witness. There have been no prior continuances in this matter.

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:

Granted. All dates are vacated. This matter will be set as follows:

Prehearing Conference: September 8, 2014, at 3:00 PM Due Process Hearing: September 16, 2014, at 9:30 AM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.