California OAH special education order · April 13, 2015

Order Following Prehearing Conference, Continuing Prehearing Conference and Hearing

OAH Case No. 2014110367 · ALJ Clifford H. Woosley

OAH refused District's request to push the hearing to September 2015 but granted a short continuance to June 2015 because District had retained new counsel, warning that no further continuances would be granted.

Granted in part Scheduling and continuances

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 changed attorneys shortly before the April 2015 hearing and asked to continue the hearing to September 1, 2015. OAH had already denied two such requests, and Student opposed them. At the prehearing conference, the ALJ found that the late substitution of counsel was not good cause for a five-month delay, which would mean a decision a year or more after the complaint was filed. The ALJ found good cause for a short continuance, reset the hearing to June 2–4, 2015, warned that District must produce its employee witnesses on time during the last week of school, and said no further continuance would be granted absent extraordinary circumstances.

Why it matters

A district's late switch to new lawyers does not justify a long delay of a student's hearing. OAH may allow only a brief continuance and will hold the district to producing its witnesses on time.

People named in the order

Leah Smith, Former attorney for District
Sharon A. Watt, Substituted hearing counsel for District
Peter Paul Castillo, Presiding Administrative Law Judge

Topics

continuance substitution of counsel good cause hearing delay witness availability

Order details

OAH case number: 2014110367
Order date: April 13, 2015
Order type: Scheduling and continuances
Ruling: Granted in part
Administrative law judge: Clifford H. Woosley
Moving party: District
Case filed by: Student
Education agency: Garvey School District
Student's counsel: Carolyn J. Olson Gross
District's counsel: Geoffrey R. Winterowd; Sharon A. Watt
Official order: OAH PDF

Orders in this case

November 17, 2014: Joint continuance granted; mediation February 3, PHC February 23, hearing reset to March 3, 2015. (PDF)
November 18, 2014: Alhambra Unified dismissed as a party at Student's request; case continues against Garvey School District. (PDF)
February 5, 2015: Joint continuance granted; mediation March 19, PHC April 13, hearing reset to April 21, 2015. (PDF)
April 8, 2015: Order Denying Request for Continuance
April 10, 2015: Order Denying Request for Continuance
April 13, 2015: Order Following Prehearing Conference, Continuing Prehearing Conference and Hearing
April 14, 2015: Order Denying District's Motion to Consolidate
May 22, 2015: Order Following Prehearing Conference
Decision (2015-08-05)

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 FOLLOWING PREHEARING

CONFERENCE, CONTINUING

GARVEY SCHOOL DISTRICT. PREHEARING CONFERENCE AND

HEARING

On April 13, 2015, a telephonic prehearing conference was held before Administrative Law Judge Clifford H. Woosley, Office of Administrative Hearings.

Attorney Carolyn J. Olson Gross appeared on behalf of Student. Attorney Geoffrey R.

Winterowd appeared on behalf of Garvey School District. The PHC was recorded.

District’s Request for a Third Continuance Student filed this matter on October 30, 2014. Attorney Leah Smith initially represented District. On November 17, 2014, OAH granted the parties’ joint request for a continuance. On February 5, 2015, OAH granted the second joint 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. On April 3, 2015, attorney Sharon A. Watt substituted in as District’s legal counsel. On April 7, 2015, attorney Watt requested continuance of the hearing to September 1, 2015, based upon her late substitution and impacted calendar. OAH denied District’s continuance on April 8, 2015, because District did not establish good cause for a continuance.

On April 10, 2015, District filed another continuance request, providing additional information why Ms. Watt is unavailable until September 1, 2015. OAH denied this request, noting that Ms. Watt’s late substitution is not good cause for continuing the hearing to September 1, 2015, with a decision being issued a year or more after the complaint’s filing.

Presiding Judge Peter Paul Castillo indicated that Ms. Watt may request a short continuance at the scheduled April 13, 2015 prehearing conference. 1 Attorney Winterowd renewed District’s request for a continuance. ALJ Woosley listened to the argument of the parties’ counsel.

Student filed oppositions to both of District’s requests for continuance. However, OAH denied the continuance requests before the oppositions were received.

District has not demonstrated good cause for a continuance of hearing to September 2015, but has shown good cause for a short continuance because of the retention of new counsel. The parties were given time to discuss new hearing dates before the end of the 2014-2015 school year.

The parties indicated that the only possible dates that are workable their respective calendars are in the last week of District’s school year. District could not agree to earlier dates because the District’s counsel for hearing, Ms. Sharon Watt, is on vacation until April 28, 2015. ALJ Woosley cautioned Mr. Winterowd that District will be expected to produce its employees as witnesses on a timely basis, despite the hearing being in the last week of school.

Absent extraordinary circumstances, no further continuance will be granted.

Therefore, good cause appearing for a continuance, the prehearing conference and hearing are continued as follows:

Prehearing Conference: May 22, 2015, at 1:00 PM.

Due Process Hearing: June 2, 3, and 4, 2015, commencing at 9:00 AM, except for the first day, which will commence at 9:30 AM. The hearing shall continue day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge. The hearing shall take place at Garvey School District, 2730 N. Del Mar Ave., Rosemead, CA 91770.