California OAH special education order · April 8, 2015
Order Denying Request for Continuance
OAH Case No. 2014110367 · ALJ Peter Paul Castillo
OAH denied District's request to push the hearing to September 2015. A late change of District's attorney was not good cause in a case already filed in October 2014 and continued twice.
This case went to decision
Student v. Garvey School District: Garvey School District prevails; it had no duty to place or provide home instruction before learning the student left Alhambra. (2015)
Summary
District's newly substituted attorney asked OAH to move the April 2015 hearing dates to September 1, 2015, because she had only just taken over the case. Student did not respond. OAH denied the request and confirmed all prehearing conference and hearing dates. It found that the late substitution of counsel was not good cause, especially since the case was filed in October 2014, had already been continued twice, and would be nearly a year old by decision. OAH said it would consider a brief continuance, to be discussed at the April 13, 2015 prehearing conference, if Student agrees.
Why it matters
Hiring a new attorney late in a case does not by itself justify a long delay, because continuances are disfavored under the 45-day timeline. A district cannot use a change of counsel to stall a parent's hearing, particularly after earlier continuances.
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
- Leah Smith, Former attorney for District
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. 2014110367
v. ORDER DENYING REQUEST FOR
CONTINUANCE
GARVEY SCHOOL DISTRICT.
On April 7, 2015, Sharon A. Watt, attorney for Garvey School District, filed a request with the Office of Administrative Hearings to continue the dates for hearing in this matter until September 1, 2015, based upon her recent substitution as legal counsel for District.
Student has not submitted a response.
Student filed this matter on October 30, 2014. On November 10, 2014, attorney Leah Smith, on behalf of District, filed a notice of representation. On November 17, 2014, Ms. Smith joined Student’s attorney in requesting a continuance of this matter, which OAH granted. On February 4, 2015, Ms. Smith and Student’s legal counsel filed a second continuance request due to delays in finalizing independent evaluations. On February 5, 2015, OAH granted the second continuance request and set the matter for hearing for April 21, 22 and 23, 2015, with the Prehearing Conference scheduled for 1:00 p.m., on April 13, 2015. Ms. Watt sent notification of substitution of District’s legal counsel on April 3, 2015, and attempted to work with Student’s legal counsel on obtaining a continuance in this matter, but received no response.
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. Ms. Watt’s late substitution of legal counsel does not constitute good cause for a continuance of this matter, especially until September 1, 2015, as this matter was filed on October 30, 2014, and nearly a year would have elapsed if this matter went to hearing and a decision issued. OAH will consider a brief continuance, which the parties may discuss at the April 13, 2015 PHC, if Student agrees.
IT IS SO ORDERED.
DATE: April 8, 2015
/S/
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings