California OAH special education order · April 20, 2015

Order Granting Request for Continuance and Setting New Hearing Dates

OAH Case No. 2015010798 · ALJ Caroline A. Zuk

OAH granted Student's opposed request for a short continuance because a scheduled medical procedure conflicted with the hearing, but held that Student's search for an attorney was not good cause.

Granted Scheduling and continuances

This case went to decision

Del Mar Union School District v. Student: Del Mar Union's interim class nurse and 1:1 aide were comparable to a transfer student's prior one-to-one nurse, ALJ rules. (2015)

Summary

Student asked to continue the hearing for two reasons: a medical procedure (an MRI at UCLA) scheduled during the hearing week, and an ongoing search for an attorney. District opposed, arguing the procedure date was tentative and the treatment was brief. OAH granted the continuance because of the medical conflict and reset the hearing to begin April 27, 2015. It found that looking for a lawyer was not good cause, because Student had had ample time to find representation.

Why it matters

A documented medical conflict can justify a short delay. Waiting to find a lawyer generally will not, so families should look for counsel early in the case.

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

continuance good cause medical conflict attorney search self-represented

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:

DEL MAR UNION SCHOOL DISTRICT, OAH Case No. 2015010798 v. ORDER GRANTING REQUEST FOR

CONTINUANCE AND SETTING NEW

PARENT ON BEHALF OF STUDENT HEARING DATES

On April 17, 2015, Student filed a request to continue the dates in this matter based upon Student’s medical treatment (MRI) at UCLA, currently scheduled for April 21, 2015, which conflicts with one of the hearing dates, and Student’s search for an attorney to represent him at hearing. On April 20, 2015, District opposed the request based upon the apparent tentativeness of the date for Student’s treatment, and the limited duration of the treatment.

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:

Granted. All dates are vacated. The motion is granted, because of the calendar conflict due to Student’s medical treatment during the week of April 20, 2015.

However, Student’s search for representation at the hearing does not constitute good cause to continue, because Student has had ample time to obtain representation. This matter will be set as follows:

Due Process Hearing: April 27 at 1:30 p.m., April 28 and 29, 2015 at 9:00 a.m., continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.