California OAH special education order · January 29, 2015
Order Denying Request for Continuance
OAH Case No. 2015010039 · ALJ Bob N. Varma
OAH denied Student's request to continue the prehearing conference and hearing dates without prejudice because the request was never served on Castro Valley.
This case went to decision
Student v. Castro Valley Unified School District (consolidated): Castro Valley Unified must reimburse $23,841.96 of private boarding school costs; ALJ finds residential placement was not needed. (2015)
Summary
Parent, on behalf of Student, asked OAH to continue the prehearing conference and due process hearing dates. OAH denied the request without prejudice because nothing showed it had been served on Castro Valley, and all motions must be sent to the other party at the same time they are sent to OAH. Student was ordered to serve the request and give OAH proof of service. After that, the parties may file a joint request, or OAH will treat Student's request as a contested motion. All mediation, prehearing conference, and hearing dates stay on the calendar.
Why it matters
Any motion to OAH, including a simple continuance request, must be served on the district at the same time, or OAH will not rule on it. Parents should serve the district, keep proof of service, and try to file a joint request when both sides agree to move dates.
Key authority cited
- 34 C.F.R. § 300.515
- 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. 2015010039 v. ORDER DENYING REQUEST FOR
CONTINUANCE
CASTRO VALLEY UNIFIED SCHOOL
DISTRICT.
On January 22, 2015, Parent, on behalf of Student, filed a request to continue the prehearing conference and due process hearing dates in this matter. There is no indication that Student’s request was served upon the Castro Valley Unified School District.
Furthermore, there is no indication that Student is requesting to either continue or cancel the currently scheduled February 4, 2015 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. OAH requires all motions filed with OAH be served upon the other party. Here Student’s request to continue dates is a motion and should be served upon Castro Valley. “Service” means sending the document to the other party at the same time as it is sent to OAH.
Student is ordered to serve the request for continuance upon Castro Valley and provide some proof to OAH that the request was served. After service, the parties may agree that they both want a continuance, in which case, the parties can submit a joint request for continuance. If a joint request is filed, OAH will consider and rule upon it. If the parties cannot agree, then OAH will consider and rule upon Student’s request as a contested motion. Furthermore, the parties have not confirmed the February 4, 2015 mediation. Accordingly, Student’s request to continue is denied without prejudice and may be resubmitted after Student has served Castro Valley. All mediation, prehearing conference and hearing dates are confirmed and shall proceed as calendared. 1
IT IS SO ORDERED.
DATE: January 29, 2015
/ S/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings While the date for mediation on February 4, 2015, remains on the calendar, mediation is voluntary. Either party may cancel mediation with written notice to OAH.