California OAH special education order · February 16, 2016
Order Denying Request for Continuance of Hearing on February 22, 2016
OAH Case No. 2015090255 · ALJ Margaret Broussard
OAH denied Student's fourth continuance request, which asked to skip the first hearing day for counsel's federal court appearance. Student gave no explanation of when that conflict arose or why it was not disclosed earlier.
This case went to decision
Student v. Vacaville Unified School District: Vacaville Unified must provide communication devices, 79.5 hours of AAC services, and $1,597.13; the speech-provider claim is denied. (2016)
Summary
Student asked OAH to have the hearing 'go dark' on February 22, 2016, its first day, because Student's attorney had a federal District Court appearance in Southern California. This was the fourth continuance request and the third based on counsel's unavailability, and Vacaville opposed it. OAH denied the request. Student did not say when the court date was set, why it was left off counsel's earlier declaration listing her conflicts, or what she had done to resolve the conflict. OAH also noted that federal court dates do not automatically take priority, that the case had been pending since August 2015, and that Vacaville had repeatedly lined up witnesses for dates that were later vacated.
Why it matters
A continuance request based on an attorney's scheduling conflict needs specifics: when the conflict arose, why it was not disclosed sooner, and what was done to resolve it. Repeated prior continuances and prejudice to the other side's witnesses make denial much more likely.
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), (d)
Topics
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. 2015090255 v. ORDER DENYING REQUEST FOR
CONTINUANCE OF HEARING ON
VACAVILLE UNIFIED SCHOOL FEBRUARY 22, 2016
DISTRICT.
On February 10, 2016, Student filed a request to continue the first scheduled day of hearing in this matter, February 22, 2016. Student requested that the hearing “go dark” on February 22, 2016, and begin on February 23, 2016, because her counsel, Tania Whiteleather, is scheduled to appear in a United States District Court in Southern California in another matter. This is the fourth request for a continuance in this matter and the third based upon the unavailability of Student’s counsel. Vacaville filed an opposition to the motion on February 12, 2016.
On February 1, 2016, Student asked for a continuance in this matter due to illness of Ms. Whiteleather. At that time, the hearing was scheduled to begin the next day. Attached to that motion was a declaration from Ms. Whiteleather with a myriad of dates on which she had other matters scheduled. The February 22, 2016 appearance in District Court was not among them. That motion for continuance was granted on February 1, 2016, and served on the parties, including Ms. Whiteleather, the same day.
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).) The Office of Administrative Hearings 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 prehearing conference and hearing dates are confirmed and shall proceed as calendared. In her motion to continue this case, or “go dark” on February 22, 2016, Student simply states that Ms. Whiteleather has a Southern California appearance scheduled in District Court. There is no indication when the District Court matter was scheduled, why she did not disclose this in her earlier request, or what steps she took, if any, to change the District Court appearance based upon this matter being in conflict or have another attorney appear in District Court. Further, Vacaville correctly points out in its opposition that this matter has been pending since August 2015 and that there is no requirement that when an attorney has conflicting dates before OAH and District Court that the District Court date has automatic precedence.
Vacaville has been asked to have its party representatives and witnesses available on several occasions for dates that were vacated based upon Ms. Whitleather’s schedule and illness. The party representatives and witnesses have been secured for the hearing as scheduled currently. Therefore, the request is denied and the matter will proceed on February 22, 2016, and continue as previously ordered.
IT IS SO ORDERED.
DATE: February 16, 2016
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings