California OAH special education order · December 21, 2015

Order Granting in Part and Denying in Part Request for Continuance and Setting Prehearing Conference and Hearing Dates

OAH Case No. 2015110718 · ALJ Peter Paul Castillo

OAH moved the prehearing conference because of the holiday break but refused to delay the hearing, finding District's morning federal court appearance did not prevent an afternoon start and witness unavailability was unsupported.

Granted in part Scheduling and continuances

This case went to decision

Student v. Compton Unified School District: Compton Unified must reimburse two IEEs and Prentice School tuition and provide 31 hours of compensatory language therapy; many claims denied. (2016)

Summary

District asked to continue the case dates because its attorney had a previously set federal court appearance. Student opposed and asked for a decision as soon as possible. OAH found good cause to move the prehearing conference to January 4, 2016, because of the holiday break. It denied a hearing delay because the court appearance was in the morning and the hearing could start that afternoon, and because District gave no declaration showing witnesses were unavailable. Hearing dates were set beginning January 7, 2016, at 1:30 PM.

Why it matters

OAH will look for ways to work around a scheduling conflict, such as an afternoon start, instead of delaying the hearing, especially when a parent objects. A claim that witnesses are unavailable needs to be backed by a declaration.

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)

People named in the order

Caroline Zuk, Administrative Law Judge assigned to hearing

Topics

continuance good cause attorney unavailability witness unavailability 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. 2015110718 v. ORDER GRANTING IN PART AND

DENYING IN PART REQUEST FOR

COMPTON UNIFIED SCHOOL CONTINUANCE AND SETTING

DISTRICT. PREHEARING CONFERENCE AND

HEARING DATES

On December 18, 2015, Compton Unified School District filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon the unavailability of its legal counsel due to a previously set Federal court appearance. On December 21, 2015, Student opposed the request based upon Student’s request for OAH to issue a decision in this matter as soon as possible.

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 in Part and Denied in Part. District established good cause to continue the prehearing conference to give it more time to prepare due to the holiday break.

However, District did not establish good cause for a brief continuance due to a preexisting Federal court appearance as that appearance is in the morning, and the hearing can therefore commence in the afternoon. As to witness unavailability, District did not establish good cause because it did present any evidence as to witness unavailability by way of declaration.

Therefore, this matter will be set as follows:

Prehearing Conference: January 4, 2016, at 10:00 AM Due Process Hearing: January 7, 2016, at 1:30 PM, January 19, 2016, at 1:30 PM, January 20 and 21, 2016, at 9:00 AM and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge. 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.