California OAH special education order · April 10, 2015
Order Denying Request for Continuance
OAH Case No. 2014110367 · ALJ Peter Paul Castillo
OAH denied District's renewed request to push the hearing to September 2015 because a late change of District attorneys and new counsel's conflicts were not good cause.
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
After its new attorney substituted in shortly before the April 2015 hearing, District asked a second time to continue the hearing until September 1, 2015. OAH had already denied the first request, and it presumed Student still opposed. OAH denied this request too. It found that the late substitution of counsel and the new attorney's scheduling conflicts were not good cause, because the hearing dates had been set since February and the case, filed in October 2014, would take nearly a year to decide. OAH said it would consider a brief continuance at the prehearing conference if Student agreed.
Why it matters
A district cannot get a long delay just by changing attorneys shortly before hearing. Parents who oppose a continuance can rely on the 45-day timeline and on how long the case has already been pending.
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
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.
OAH denied District’s continuance on April 8, 2015, as District did not establish good cause for a continuance. 1 The order stated that OAH would consider a brief continuance, which could be discussed at the April 13, 2015 Prehearing Conference.
On April 10, 2015, District filed another continuance request. In this request, Ms. Watt provided additional information why she is not available for hearing in this matter until September 1, 2015.
Student responded for the record after OAH issued the April 8, 2015 order that Student opposed District’s continuance request. Student has not responded to the April 10, 2015 request, but OAH presumes that Student still opposes the granting of continuance for the reasons stated in the April 8, 2015 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 on the requested dates and a decision issued.
Further, the stated conflicts in District’s motion do not constitute good cause for a continuance as this matter has been set for hearing on the current dates since February 5, 2015. 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 10, 2015
/S/
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings