California OAH special education order · July 7, 2016
Order Denying Student's Request for Continuance
OAH Case No. 2016030805, 2016060614 · ALJ Peter Paul Castillo
OAH denied Student's opposed request to continue the hearing because counsel's depositions and court conflicts did not show good cause, and the dates were jointly requested and confirmed at the prehearing conference.
This case went to decision
Pasadena Unified School District v. Student: Pasadena Unified may not conduct an intensive counseling services assessment without parents' consent; the district's request is denied. (2016)
Summary
Student asked OAH to continue the July 12–14, 2016 hearing dates because Student's attorney had scheduled depositions and court appearances. Pasadena Unified opposed, arguing Student had not shown good cause. OAH denied the request and confirmed all hearing dates. The parties had jointly requested these dates and confirmed them at the July 1, 2016 prehearing conference, and counsel did not explain when he learned of the conflicts, why he waited until after the prehearing conference to ask, or why he did not check witness availability earlier.
Why it matters
A continuance request made late, especially after jointly picked dates were confirmed at the prehearing conference, is likely to be denied unless it explains when the conflict arose and why the request could not be made sooner. Attorneys should raise scheduling conflicts and check witness availability before or at the prehearing conference.
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)
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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016030805 v.
PASADENA UNIFIED SCHOOL
DISTRICT,
PASADENA UNIFIED SCHOOL OAH Case No. 2016060614
DISTRICT,
ORDER DENYING STUDENT’S
v. REQUEST FOR CONTINUANCE
PARENT ON BEHALF OF STUDENT.
On July 6, 2016, Student filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon the unavailability of Student’s legal counsel, Abraham A. Labbad, as he had scheduled depositions and court appearances. On July 7, 2016, Pasadena Unified School District opposed the request based upon failure of Student to establish good cause for a continuance. On April 29, 2016, OAH granted the parties’ joint continuance request, which set the matter for hearing on July 12 – 14, 2016.
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:
Denied. All hearing dates are confirmed and shall proceed as calendared.
Student did not establish good cause for a continuance in this matter. The dates set for hearing are the dates that the parties jointly requested on April 28, 2016. Further, the parties confirmed the hearing dates at the July 1, 2016 Prehearing Conference.
Student’s continuance request did not explain when Mr. Labbad first learned of the scheduling conflicts or why the continuance request was not made until July 6, 2016, after the July 1, 2016 PHC. Finally, Mr. Labbad did not explain why he did not inquire earlier as to witness availability. Therefore, Student did not establish good cause for a continuance of the hearing dates.
IT IS SO ORDERED.
DATE: July 7, 2016
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings