California OAH special education order · October 10, 2014

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

OAH Case No. 2014080072 · ALJ Peter Paul Castillo

OAH granted Student's continuance over the District's opposition because Student's newly retained counsel was committed to another hearing whose dates depended on a specialized interpreter's availability.

Granted Scheduling and continuances

This case went to decision

Student v. Goleta Union School District (consolidated): Goleta Union need not fund a $6,000 neuropsychological IEE above its SELPA cost criteria; parent's delay claim denied. (2015)

Summary

Student asked to continue the hearing dates after recently hiring counsel, Ms. Whiteleather, who was unavailable. The District opposed, pointing to an earlier continuance and the possible unavailability of a District witness on maternity leave. OAH found good cause because counsel was in a Riverside hearing whose dates depended on a specialized interpreter's availability. OAH vacated all dates and reset the prehearing conference to January 5, 2015, and the hearing to begin January 12, 2015.

Why it matters

Even over a district's objection and after an earlier continuance, a parent who newly hires an attorney can get a continuance when that attorney has a real scheduling conflict that cannot be avoided.

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), (d)

People named in the order

  • Ms. Whiteleather, Student's counsel
  • Peter Paul Castillo, Presiding Administrative Law Judge

Topics

continuance good cause attorney unavailability new counsel district-filed case

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:

GOLETA UNION SCHOOL DISTRICT, OAH CASE NO. 2014080072

v. ORDER GRANTING REQUEST FOR

CONTINUANCE AND SETTING

PARENT ON BEHALF OF STUDENT. PREHEARING CONFERENCE AND

DUE PROCESS HEARING

On October 6, 2014, Student filed with the Office of Administrative Hearings a request to continue the dates in this matter based upon Student’s recent retention of legal counsel, and Ms. Whiteleather’s unavailability. On October 7, 2014, Goleta Union School District opposed the request based upon the previous granting of a continuance by OAH and possible unavailability of a District witness due to maternity leave.

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. Student has established good cause for a continuance as Ms. Whiteleather is participating in a hearing in Riverside in which the dates for hearing were incumbent on the availability of a specialized interpreter. This matter will be set as follows:

Prehearing Conference: January 5, 2015, at 1:00 PM Due Process Hearing: January 12, 2015, at 1:30 PM, January 13 – 15, 2015, at 9:00 AM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.

IT IS SO ORDERED.

DATE: October 10, 2014

/ S/

PETER PAUL CASTILLO

Presiding Administrative Law Judge Office of Administrative Hearings