California OAH special education order · September 18, 2015

Order Denying Request for Continuance

OAH Case No. 2015070319 · ALJ Margaret Broussard

OAH denied Student's unopposed continuance request because a new IEP held after the complaint was filed is not at issue, and delay just to serve related documents is not good cause.

Denied Scheduling and continuances

This case went to decision

Student v. Fresno Unified School District: Fresno Unified prevails on all claims by a high schooler with a learning disability; one procedural violation found harmless. (2015)

Summary

Student asked to push the hearing to September 28, 2015 so he could serve Fresno with evidence about a September 15, 2015 IEP meeting that he believed did not offer appropriate services. Fresno did not oppose, but it did not agree that the new IEP was relevant. OAH denied the request. The new IEP was not in the original complaint and the complaint had not been amended, so it is not at issue. Student may serve the documents and ask to admit them at hearing, where the ALJ will rule on admissibility.

Why it matters

A new IEP held after filing does not become part of the case unless the complaint is amended. Even an unopposed continuance can be denied when the stated reason is not good cause.

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

continuance good cause new iep amendment admissibility

Order details

OAH case number: 2015070319
Order date: September 18, 2015
Order type: Scheduling and continuances
Ruling: Denied
Administrative law judge: Margaret Broussard
Moving party: Student
Case filed by: Student
Education agency: Fresno Unified School District
Student's counsel: Not stated
District's counsel: Not stated
Official order: OAH PDF

Orders in this case

July 13, 2015: Order of Determination of Sufficiency of Due Process Complaint
July 15, 2015: Order Granting Motion to Dismiss All Claims Prior to June 30, 2013 and Motion to Strike Portions of
July 17, 2015: Order Denying Request for Reconsideration
September 15, 2015: Order Following Prehearing Conference and Denying Motions to Continue and to Conduct Hearing Outside
September 18, 2015: Order Denying Request for Continuance
Decision (2015-11-18)

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. 2015070319 v. ORDER DENYING REQUEST FOR

CONTINUANCE

FRESNO UNIFIED SCHOOL DISTRICT.

On September 17, 2015, Student filed a request for continuance in this matter.

Student requests a continuance because an individualized education program team meeting was held on September 15, 2015 and Student alleges that the IEP does not offer Student appropriate services. Student would like the hearing delayed so that it begins on September 28, 2015 to give him time to submit the additional evidence regarding that IEP team meeting to Fresno Unified School District. Fresno filed a non-opposition to the motion but does not concede that evidence regarding the September 15, 2015 IEP is relevant to the issues identified 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 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:

Denied. All hearing dates and timelines shall proceed as calendared. The September 15, 2015 IEP will not be at issue in this case, as it was not included in the original complaint and the complaint has not been amended to include the IEP. While the IEP and associated documents may have some relevance to the issues identified in this matter, this matter will not be continued solely to allow time for Student to serve these documents on Fresno. Student may serve the documents on Fresno and then, if he wishes to admit them at hearing, make the appropriate motion at hearing. After both parties are heard on the matter, the ALJ will make a determination regarding admissibility.