California OAH special education order · August 4, 2016
Order Denying District's Request for Continuance
OAH Case No. 2016060676 · ALJ Alexa J. Hohensee
OAH denied District's first request for a 30-day continuance because one attorney's busy trial calendar did not show that every attorney at District's law firm was unavailable.
This case went to decision
Student v. Saugus Union School District: Saugus Union School District prevails on all four claims about restraint, academic goals, report card grades, and IEP team membership. (2016)
Summary
District asked to continue all dates by about 30 days because one attorney at its law firm had a busy trial calendar. Student opposed, citing Student's right to a timely hearing and noting that other attorneys at the firm were available. OAH denied the request and confirmed all mediation, prehearing conference, and hearing dates. A declaration from one attorney did not show the whole firm was unavailable, District's preference for a particular attorney was not an excusable circumstance, and a conflict with another hearing that might not go forward was premature.
Why it matters
Parents can successfully oppose district continuance requests based on counsel's schedule when the district's law firm has other attorneys available, because a preference for a specific attorney is not good cause. The order also notes that mediation is voluntary, so a district cannot use mediation scheduling to force 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)
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. 2016060676 v. ORDER DENYING DISTRICT’S
REQUEST FOR CONTINUANCE
SAUGUS UNION SCHOOL DISTRICT.
On August 1, 2016, Saugus Unified School District filed a first request to continue the dates in this matter with the Office of Administrative Hearings for approximately 30 days, based upon one of the attorneys in the firm representing District having a very busy trial calendar for the next couple of months.
On August 4, 2016, Student opposed the request, based upon Student’s right to a have the matter heard within a reasonable time, and District’s law firm having other attorneys available for mediation and hearing as scheduled.
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 mediation, prehearing conference and hearing dates are confirmed and shall proceed as calendared.
District has not established good cause for a continuance of the hearing. The declaration of one attorney from the firm representing District regarding her schedule does not demonstrate that all attorneys in that firm, let alone District’s preferred attorney, are unavailable due to death, illness or other excusable circumstances.
District’s preference for an unavailable attorney over an available attorney is not an excusable circumstance for purposes of establishing good cause for a continuance.
Similarly, a continuance because counsel is assigned to handle another hearing, which may not go forward and may be reassigned to another attorney, is premature.
Mediation is voluntary. If Parent is unwilling to reschedule for purposes of meeting with District’s preferred representatives to discuss resolution short of hearing, District may designate other representatives or contact OAH to cancel mediation.
IT IS SO ORDERED.
DATE: August 4, 2016
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings