California OAH special education order · November 18, 2015

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

OAH Case No. 2015100570 · ALJ Peter Paul Castillo

OAH granted District's opposed continuance because its counsel was unavailable, finding the long history of the parties' dispute irrelevant, and reset the hearing to February 23, 2016.

Granted Scheduling and continuances

This case went to decision

Student v. Torrance Unified School District: Torrance Unified must fund 23 hours of compensatory education and train staff; Student loses placement, transportation and IEE claims. (2016)

Summary

District asked to continue the hearing dates because its attorney had other hearings already scheduled and a prepaid vacation. Student opposed, pointing to how long the dispute had gone on and arguing District had not shown good cause. OAH granted the request, finding counsel's unavailability was good cause. It said the fact that the parties had dismissed earlier cases over allegations from nearly two years ago did not matter to the continuance analysis. The prehearing conference was set for February 12, 2016, and the hearing for February 23, 2016, before ALJ Caroline Zuk.

Why it matters

Opposing a continuance by pointing to how long a dispute has lasted may not succeed when the other side's attorney has documented scheduling conflicts. Parents should focus objections on specific prejudice from delay.

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)

People named in the order

Caroline Zuk, Administrative Law Judge assigned to hearing

Topics

continuance good cause counsel unavailability opposed continuance hearing dates

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. 2015100570 v. ORDER GRANTING REQUEST FOR

CONTINUANCE AND SETTING

TORRANCE UNIFIED SCHOOL PREHEARING CONFERENCE AND

DISTRICT. HEARING DATES

On November 17, 2015, Torrance Unified School District filed a request to continue the initially set dates in this matter with the Office of Administrative Hearings, based upon the unavailability of its legal counsel due to previously scheduled hearings and prepaid vacation. On November 17, 2015, Student opposed the request based upon the length of the dispute between the parties and that District did not establish good cause for the continuance.

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 continuance of this matter due to the unavailability of District’s legal counsel. The fact that the parties had dismissed prior cases that involved the basic allegations in this previous matter regarding allegations that occurred nearly two years ago is not relevant for this continuance analysis. 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 through 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 matter is assigned to Administrative Law Judge Caroline Zuk.

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.