California OAH special education order · January 8, 2015
Order Denying Request for Continuance
OAH Case No. 2014080602 · ALJ Margaret Broussard
OAH denied the districts' opposed request to continue the hearing. The districts cited a pending motion to dismiss and a wish to mediate, but Student opposed and the case already had several continuances.
This case went to decision
Student v. Fortuna Union High School District et al.: Fortuna Union High School District is the district of residence for an adult student with autism living elsewhere, ALJ rules. (2014)
Summary
Fortuna and Kelseyville asked to continue the hearing dates because their motion to dismiss was still pending and they wanted to mediate. Student opposed the request and did not want to mediate. The case was filed in August 2014 and had already had several continuances and a separate residency hearing. OAH found no good cause and confirmed all prehearing conference and hearing dates.
Why it matters
A pending motion to dismiss, or one side's wish to mediate, is not by itself good cause to delay a hearing, especially when the parent objects and the case has already been continued several times. Parents can oppose continuances and decline mediation to keep their case moving.
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
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. 2014080602 v. ORDER DENYING REQUEST FOR
CONTINUANCE
FORTUNA UNION HIGH SCHOOL
DISTRICT AND KELSEYVILLE UNIFIED
SCHOOL DISTRICT.
On January 6, 2015, Fortuna Union High School District and Kelseyville Unified School District filed a request to continue the dates in this matter. Fortuna and Kelseyville requested the continuance because a motion to dismiss was pending and Fortuna and Kelseyville wished to participate in mediation. This case was filed on August 11, 2014. The Office of Administrative Hearings has granted several continuances and held a bifurcated residency hearing in this case.. Student opposed the continuance request and does not wish to participate in mediation.
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).) The Office of Administrative Hearings 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.
IT IS SO ORDERED.
DATE: January 8, 2015
/S/
MARGARET BROUSSARD
Administrative Law Judge Office of Administrative Hearings