California OAH special education order · April 11, 2016
Order Granting District's Motion for Continuance and Setting Prehearing Conference and Hearing
OAH Case No. 2015120968 · ALJ Clifford H. Woosley
OAH granted District's renewed request to continue the hearing to May 31, 2016, finding good cause because District's trial counsel was on medical leave and Student showed no prejudice.
This case went to decision
Student v. Tehachapi Unified School District: Tehachapi Unified's deficient behavior plan denied FAPE for four weeks; ALJ orders 12 hours of BCBA services, rejects two other claims. (2016)
Summary
District asked to continue the prehearing conference and hearing because its trial counsel, Kathleen LaMay, was on medical leave until late April. OAH had denied the first request without prejudice because District had not tried to reach agreement with Student's attorney. District renewed the motion with declarations showing it had tried to contact Student's counsel, and Student opposed. OAH granted the continuance because Student's opposition had no supporting declaration or exhibit, did not show how a short delay would hurt Student, and a decision likely would not issue before the end of the school year even on the original schedule.
Why it matters
A party asking for a continuance should first try to agree on new dates with the other side. A party opposing one should support the opposition with declarations showing concrete prejudice, because OAH will not assume harm from a short 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)
- Cal. Rules of Court, rule 3.1332(d)
People named in the order
- Kathleen LaMay, District's trial counsel
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. 2015120968 v. ORDER GRANTING DISTRICT’S
MOTION FOR CONTINUANCE AND
TEHACHAPI UNIFIED SCHOOL SETTING PREHEARING
DISTRICT. CONFERENCE AND HEARING
On March 29, 2016, Tehachapi Unified School District filed a request to continue the prehearing conference and hearing in this matter with the Office of Administrative Hearings, based upon the medical leave of its trial counsel. Student opposed the motion. On March 29, 2016, OAH denied the motion, without prejudice, because District had not contacted Student’s attorney in an attempt to reach an agreement regarding the requested continuance.
On April 7, 2016, District renewed its motion to dismiss, supported by declarations and exhibits, demonstrating that it attempted to contact Student’s counsel and agree upon continued dates. On April 8, 2016, Student filed his opposition.
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).)
District’s Motion seeks a continuance of the hearing dates due to the unavailability of District’s trial counsel, Kathleen LaMay, who was placed on medical leave beginning Monday, March 21, 2016; she is not expected to return to work until the latter part of April.
Since the filing of District’s initial motion to continue herein, OAH has continued another of Ms. LeMay’s hearings to mid May 2016. Therefore, District requests a continuance of the hearing in this matter to May 31, 2016.
Student’s opposition is not supported by declaration or exhibit. Most of the opposition reviews the law and motion history associated with District’ motion to dismiss, which OAH denied. The opposition does not demonstrate how Student might be prejudiced by a short continuance. Even if the hearing proceeded as presently scheduled, a decision would likely not be issued before the end of the regular school year. Accordingly, District has demonstrated good cause.
All dates are vacated and the matter is set as follows:
Prehearing Conference: May 23, 2016 at 1:00 PM.
Due Process Hearing: May 31, June 1, 2, and 7, 2016, at 1:30 PM the first day, and 9:00 AM each hearing day thereafter, continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge. The hearing shall take place at District offices, 300 South Robinson Street, Tehachapi, CA 93561.
Any further continuance is unlikely, absent a showing of substantial good cause.
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.
IT IS SO ORDERED.
DATE: April 11, 2016
CLIFFORD H. WOOSLEY
Administrative Law Judge Office of Administrative Hearings