California OAH special education order · July 13, 2015

Order Denying Motion to Continue

OAH Case No. 2015021006 · ALJ Alexa J. Hohensee

OAH denied Charter School's request to delay the hearing 60 days over summer witness burdens because it gave no sworn declaration or other evidence that witnesses were unavailable.

Denied Scheduling and continuances

This case went to decision

Student v. Aveson Charter Schools et al.: Aveson charter schools must give staff 40 hours of training after a flawed 2012 assessment and IEP meeting; other claims denied. (2015)

Summary

Charter School asked to move the July 28, 2015 hearing 60 days to September 29, 2015. It argued its sites are closed for summer and it would be hard to arrange for 14 current or former employees on Student's witness list to appear. Student opposed, saying Charter School could subpoena the witnesses. OAH denied the request because Charter School offered no sworn declaration or other admissible evidence that any witness was unavailable, so it did not show good cause.

Why it matters

Summer break alone does not justify delaying a due process hearing. A party seeking a continuance must back up witness unavailability with sworn evidence, and parents can point out that witnesses can be subpoenaed.

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 witness availability summer break charter school

Order details

OAH case number: 2015021006
Order date: July 13, 2015
Order type: Scheduling and continuances
Ruling: Denied
Administrative law judge: Alexa J. Hohensee
Moving party: Charter School
Case filed by: Student
Education agency: Aveson School of Leaders, Aveson Global Leadership Academy (Charter School)
Student's counsel: Not stated
District's counsel: Not stated
Official order: OAH PDF

Orders in this case

March 25, 2015: Joint continuance granted; mediation April 16, PHC May 11, hearing reset to May 19-21, 2015. (PDF)
May 1, 2015: Joint second continuance granted; mediation May 7, hearing reset to June 8-11, 2015. (PDF)
May 18, 2015: Order Following Prehearing Conference
June 1, 2015: Unopposed motion to amend granted; timelines reset as of June 1, 2015, and prior dates vacated. (PDF)
July 13, 2015: Order Denying Motion to Continue
July 20, 2015: Order Following Prehearing Conference
July 22, 2015: Unopposed second amendment granted; new respondent added; timelines reset as of July 22, 2015. (PDF)
September 16, 2015: Order Denying Request for Continuance and Confirming Prehearing Conference and Due Process Hearing D
September 18, 2015: Order Following Prehearing Conference
October 19, 2015: Order Granting Student's Motion to Admit Student's Exhibit S27 Into Evidence
Decision (2015-12-07)

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. 2015021006 v. ORDER DENYING MOTION TO

CONTINUE

AVESON SCHOOL OF LEADERS,

AVESON GLOBAL LEADERSHIP

ACADEMY (CHARTER SCHOOL).

On July 9, 2015, Aveson School of Leaders and Aveson Global Leadership Academy (collectively Charter School) filed a motion to continue the hearing in this due process proceeding 60 days to September 29, 2015. On July 13, 2015, Student filed opposition.

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).)

Charter School’s motion contends that the current hearing date of July 28, 2015, which was set by OAH after Student filed an amended due process hearing request, occurs when Charter School’s sites are closed. Charter School asserts that it would be burdensome during summer break to arrange the appearance of the 14 persons on Student’s witness list who are current or former employees of Charter School. Student’s opposition contends that witnesses can be subpoenaed by Charter School.

Charter School’s motion is not supported by a sworn declaration or other admissible evidence of witness unavailability. Therefore, Charter School fails to establish good cause for a continuance and its motion to continue is denied.