California OAH special education order · August 26, 2016
Order Granting Request for Continuance and Setting Prehearing Conference and Due Process Hearing
OAH Case No. 2016060613 · ALJ Paul H. Kamoroff
OAH granted Temecula Valley's request to continue the hearing over Student's opposition, based on the district attorney's unavailability, and reset the hearing for September 14, 2016.
This case went to decision
Student v. Temecula Valley Unified School District: Temecula Valley Unified properly graduated a student with autism and exited her from special education; all claims denied or time-barred. (2017)
Summary
Temecula Valley Unified School District asked to continue the hearing dates because its attorney was unavailable, and Student filed an opposition. OAH noted that continuances are disfavored because of the 45-day timeline, but that an attorney's unavailability can be good cause. After considering all relevant facts and circumstances, OAH granted the request and vacated all dates. It set a prehearing conference for September 2, 2016 and the due process hearing to begin September 14, 2016.
Why it matters
An attorney's unavailability can justify a short continuance even when the other side objects. Parents opposing a delay should point to specific prejudice or other reasons the delay is unwarranted. The order also warns that witnesses who were not properly notified or subpoenaed will not support a later continuance.
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)
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. 2016060613 v. ORDER GRANTING REQUEST FOR
CONTINUANCE AND SETTING
TEMECULA VALLEY UNIFIED PREHEARING CONFERENCE AND
SCHOOL DISTRICT. DUE PROCESS HEARING
On August 23, 2016, Temecula Valley 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 attorney. On August 26, 2016, Student filed an 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).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Granted. All dates are vacated. This matter will be set as follows:
Prehearing Conference: September 2, 2016 at 10:00 a.m.
Due Process Hearing: September 14 and 15, 2016, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge. The hearing shall commence at 9:30 a.m. on the first day of hearing, and at 9:00 a.m. on each subsequent day, unless otherwise ordered 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: August 26, 2016
PAUL H. KAMOROFF
Administrative Law Judge Office of Administrative Hearings