California OAH special education order · September 29, 2014

Order Granting Request for Continuance of Hearing Dates

OAH Case No. 2014080281 · ALJ Robert Martin

OAH granted Student's opposed request to move two hearing days because Student's lead counsel had another OAH hearing set on those dates after the prehearing conference.

Granted Scheduling and continuances

This case went to decision

Student v. California School for the Deaf, Riverside et al.: Moreno Valley Unified and California School for the Deaf, Riverside, win deaf student's triennial speech and language assessment claim. (2015)

This case went to decision

Student v. Long Beach Unified School District: Long Beach Unified denied FAPE by taking seven months to contract for an agreed auditory processing assessment; staff training ordered. (2014)

Summary

Student asked OAH to vacate the October 1 and 2, 2014 hearing dates because Student's attorney, Tania Whiteleather, had been set for another OAH hearing on those days. Long Beach Unified opposed. It argued that Student had not raised the conflict at the September 22 prehearing conference and had not explained why co-counsel Lisa Malstem could not cover those days. OAH took official notice that the other hearing was scheduled on September 23, after the prehearing conference. It found good cause to move the two days to the end of the hearing so lead counsel could attend every day, even though Student gave no declaration about co-counsel. OAH also ordered both parties to provide an hour-by-hour witness schedule.

Why it matters

OAH may grant a disputed continuance when a scheduling conflict arose after the prehearing conference and was not the party's fault, even if co-counsel exists. Families should still raise conflicts promptly and back up requests with a declaration.

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)

Topics

continuance good cause attorney scheduling conflict hearing dates co-counsel

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. 2014080281

v. ORDER GRANTING REQUEST FOR

CONTINUANCE OF HEARING

LONG BEACH UNIFIED SCHOOL DATES

DISTRICT.

This matter is presently scheduled to be heard on September 30, 2014, and October 1, 2, 7 and 8, 2014, continuing day-to-day thereafter at the discretion of the administrative law judge. On September 24, 2014, Student filed a request to vacate the hearing dates of October 1 and 2, 2014, and continue them to later dates, on grounds that Student’s counsel, Tania Whiteleather, Esq., has another matter, OAH case number 2014040069, that has been set for hearing on October 1 and 2, 2014. On September 26, 2014, Long Beach Unified School District filed an opposition to Student’s request on grounds that Student failed to show good cause for Student’s failure to raise the conflict in hearing dates at the September 22, 2014 prehearing conference in this matter, and on grounds that Student failed to explain why co- counsel Lisa Malstem, Esq. could not represent Student on October 1 and 2, 2014.

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. Official notice is taken that OAH set the October 1 and 2, 2014 hearing dates in matter 2014040069 on September 23, 2014, after the PHC in this matter, and that good cause existed to specify those dates. Although Student did not submit a declaration explaining why co-counsel Ms. Malstem could not present Student’s case on October 1 and 2, 2014, the ALJ finds good cause exists to exercise discretion to reschedule those two hearing dates at the end of the hearing to permit Student’s hearing counsel for the PHC, Ms.

Whiteleather, to attend all days of the hearing.

Granted. The hearing dates of October 1 and 2, 2014 are vacated. The hearing shall take place on September 30, 2014, from 9:30 a.m. to 5:00 p.m., and continuing on October 7, 8, 9 and 13, 2014, from 9:00 a.m. to 5:00 p.m. On October 7, 2014, before the first witness for that day testifies, the parties shall provide the ALJ with one detailed hour- by-hour schedule of all witnesses expected to testify at the remaining hearing days, which list shall also include an estimate of time for each party’s direct and cross-examination.