California OAH special education order · February 27, 2015

Order Following Prehearing Conference, Granting Motion to Continue and Setting Prehearing Conference and Hearing Dates

OAH Case No. 2015020590 · ALJ Margaret M. Broussard

OAH granted Student's first request for a short continuance over Antioch's opposition, finding good cause because Student's expert witness was unavailable for the scheduled hearing week.

Granted Prehearing conference orders

This case went to decision

Student v. Antioch Unified School District: Antioch Unified must assess student's health after failing to answer a January 2015 assessment request; home/hospital claim denied. (2015)

Summary

At the prehearing conference in Antioch's due process case, Student asked for a short continuance so Student's counsel could consult an expert and arrange for the expert to testify, because the expert was not available the week the hearing was set. Antioch opposed. This was the first continuance request. The ALJ found good cause, vacated all dates, and reset the prehearing conference to March 23, 2015 and the hearing to April 1, 2 and 7, 2015.

Why it matters

Continuances are disfavored, but a first, short request that lets a family secure an expert witness can show good cause even when the district objects. Parents responding to a district-filed case should raise expert availability problems promptly.

Key authority cited

  • 34 C.F.R. § 300.515(a)
  • Ed. Code § 56502(f)
  • Ed. Code § 56505(f)(3)
  • Cal. Code Regs., tit. 1, § 1020
  • Cal. Rules of Court, rule 3.1332

Topics

continuance good cause expert witness prehearing conference district-filed case

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:

ANTIOCH UNIFIED SCHOOL DISTRICT, OAH Case No. 2015020590 v. ORDER FOLLOWING PREHEARING

CONFERENCE, GRANTING MOTION

PARENT ON BEHALF OF STUDENT. TO CONTINUE AND SETTING

PREHEARING CONFERENCE AND

HEARING DATES

This matter is currently set for hearing beginning on March 2, 2015. On February 23, 2015, a telephonic prehearing conference was held before Administrative Law Judge Margaret M. Broussard, Office of Administrative Hearings. David Mishook, Attorney at Law, appeared on behalf of Antioch Unified School District. Nicole Hodge Amey, Attorney at Law, appeared on behalf of Student. The PHC was recorded.

Based on discussion with the parties, the ALJ issues the following orders:

1. Motion for Continuance: At the prehearing conference, Student made a

motion to continue this matter for a short time to allow her time to consult with an expert and arrange for the expert to appear at hearing as a witness. The expert is not available next week, when the hearing is currently scheduled. Antioch opposed the request for continuance.

This is the first request for a continuance in this matter.

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. (34 C.F.R. § 300.515(a); Ed.

Code, §§ 56502, subd. (f), 56505, subd. (f)(3).) Speedy resolution of the due process hearing is mandated by law and continuance of the hearing may be granted only upon a showing of good cause. (Ed. Code, § 56505, subd. (f)(3).) In ruling upon a motion for continuance, OAH is guided by the provisions found within the Administrative Procedure Act and the California Rules of Court that concern motions to continue. (Cal. Code Regs., tit. 1, § 1020;

Cal. Rules of Court, rule 3.1332 .) Generally, continuances of matters are disfavored. (Cal.

Rules of Court, rule 3.1332(c).)

Based on good cause shown, the request for continuance is granted. All dates are vacated and the matter is scheduled as follows:

Prehearing Conference: March 23, 2015, at 1:00 p.m.

Hearing 1: April 1, 2 and 7, 2015. The hearing will start at 1:30 p.m. on April 1 and at 9:00 a.m. on all other days, and continue thereafter, day to day, Monday through Thursday as needed in the discretion of the ALJ.

2. Notice to Witnesses: The parties shall immediately notify all potential

witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.

3. Other Matters: All other matters relevant to preparing for hearing, including

clarification of issues and identification of witnesses and exhibits, will be addressed at the next PHC.

4. Settlement: Dates for hearing will not be cancelled until a letter of

withdrawal, or a request for dismissal with the signature page of the signed agreement has been received by OAH. In the event a settlement agreement is executed subject to board approval, the parties may request to continue the hearing and set a telephonic status conference call following the date anticipated for board approval. The parties should otherwise plan to attend the scheduled PHC and the hearing unless different arrangements have been agreed upon by the assigned ALJ or ordered by OAH.

IT IS SO ORDERED.

DATE: February 27, 2015

/ S/

MARGARET BROUSSARD

Administrative Law Judge Office of Administrative Hearings During the PHC, this matter was originally set for March 31 and April 1 and 2,

2015. However, March 31, 2015 is a state holiday and that day is not available for hearing.