California OAH special education order · December 3, 2015

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

OAH Case No. 2015100421 · ALJ Margaret Broussard

OAH granted Parlier's opposed request for a short continuance because its representative, who is also a witness, was unavailable, and reset the hearing to February 2, 2016.

Granted Scheduling and continuances

This case went to decision

Student v. Parlier Unified School District: Parlier Unified must train Benavidez staff after a PE teacher never saw a student's IEP; all other claims denied. (2016)

Summary

Parlier asked to continue all dates because its representative, who will also be a witness, was unavailable. Student opposed, relying partly on Government Code section 11524, and asked that any new hearing start the week of January 11. OAH found good cause for a short continuance and noted that section 11524 does not apply to special education due process hearings. Because OAH was not available the week of January 11, 2016, it set mediation for December 8, 2015, a prehearing conference for January 22, 2016, and the hearing for February 2, 2016.

Why it matters

Parents opposing a continuance should rely on the special education rules, such as Education Code section 56505 and the Rules of Court good-cause factors, not the general administrative procedure statute in Government Code section 11524. The unavailability of a party's representative who is also a witness can be good cause for a short delay.

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
Gov. Code, § 11524

Topics

continuance good cause witness unavailability self-represented parent hearing schedule

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. 2015100421 v. ORDER GRANTING REQUEST FOR

CONTINUANCE AND SETTING

PARLIER UNIFIED SCHOOL DISTRICT. MEDIATION, PREHEARING

CONFERENCE, AND HEARING

DATES

On November 24, 2015, Parlier Unified School District filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon the unavailability of Parlier’s representative who will also be a witness in this matter. Student did not file an opposition with OAH. However, on December 1, 2015, Parlier filed a response to Student’s opposition to the motion to continue. Because OAH did not have a phone number at that time for Parent, OAH contacted Parlier in order to have a copy of the opposition faxed to OAH so that Student’s opposition could be considered. The opposition was faxed and received by OAH on December 2, 2015. The opposition was considered when ruling on this motion.

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. Parlier has established good cause for a short continuance in this matter. Student’s opposition relies, in part, on California Government Code section 11524, which is not applicable to special education due process hearings.

Parent also requests that the matter be set to begin on January 11, 2015, should a continuance be granted. However, OAH is not available for hearings during the week of January 11,

2016. This matter will be set as follows:

Mediation: December 8, 2015, at 9:30 a.m.

Prehearing Conference: January 22, 2016, at 3:00 p.m.

Due Process Hearing: February 2, 2016, at 9:30 a.m., February 3, 2016, at 9:00 a.m., and February 4, 2016 at 9:00 a.m., 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.