California OAH special education order · January 20, 2016

Order Granting Request for Continuance and Setting Prehearing Conference and Hearing Dates

OAH Case No. 2015080076 · ALJ Peter Paul Castillo

OAH granted Tustin Unified's opposed request for a brief continuance because its attorney had prior court and hearing commitments, and noted that Student had caused the earlier delays.

Granted Scheduling and continuances

This case went to decision

Student v. Tustin Unified School District: Tustin Unified properly exited a gifted third grader with autism from special education; all of Student's claims denied. (2016)

Summary

District asked to continue the January 26, 2016 hearing because its legal counsel was unavailable. Student opposed, arguing District had not shown good cause and the case had been pending since July 2015. OAH found good cause for a brief continuance based on counsel's previously scheduled court appearances, mediations, and hearings. It also noted that both earlier delays came from Student's own continuance request and motion to amend, and it reset the prehearing conference to February 12, 2016 and the hearing to February 23, 2016.

Why it matters

A family's argument that a case has dragged on may carry little weight when the family's own continuance request or amended complaint caused the earlier delays. OAH may treat an attorney's prior scheduled commitments as good cause for a short continuance.

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(c)
Cal. Rules of Court, rule 3.1332(d)

Topics

continuance good cause attorney unavailability hearing timelines delay

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. 2015080076 v. ORDER GRANTING REQUEST FOR

CONTINUANCE AND SETTING

TUSTIN UNIFIED SCHOOL DISTRICT. PREHEARING CONFERENCE AND

HEARING DATES

Student filed his complaint against Tustin Unified School District on July 29, 2015.

At the September 14, 2015 prehearing conference, the Office of Administrative Hearings granted Student’s continuance request, and set the hearing for December 15 and 16, 2015.

On November 25, 2015, Student filed a motion to amend the complaint. OAH granted the motion to amend on December 2, 2015, which reset the hearing dates. The new hearing is scheduled to commence on January 26, 2016.

On January 15, 2016, District filed a request to continue the dates in this matter, based upon the unavailability of its legal counsel. On January 18, 2016, Student opposed the request based upon District’s failure to show good cause for a continuance and Student’s right to have this matter heard within the legal timelines as this matter has been pending since July 29, 2015. District filed a response on January 20, 2016.

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. District established good cause for a brief continuance due to the unavailability of its legal counsel due to previously scheduled court appearances and special education mediations and hearings. As to the delay in this matter, Student overlooks that both delays in this matter were requested by Student in the continuance request first and then the motion to amend. Therefore, this matter will be set as follows:

Prehearing Conference: February 12, 2016, at 1:00 PM Due Process Hearing: February 23, 2016, at 9:30 AM, February 24 and 25, 2016, at 9:00 AM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.

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. A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.