California OAH special education order · February 3, 2017
Order Granting Newport-Mesa Unified School District's Request for Continuance and Setting Hearing Dates
OAH Case No. 2016080996, 2016050515 · ALJ Peter Paul Castillo
OAH granted District a short continuance because its witnesses were tied up in another hearing. It refused to delay until late March and reset Student's older case for February 14–16, 2017.
This case went to decision
Newport-Mesa Unified School District v. Student: Newport-Mesa Unified must fund an independent evaluation because its assessment was flawed and it shut Mother out of the review meeting. (2017)
Summary
District asked to continue the hearing in Student's consolidated cases because District personnel were testifying in another OAH case that had been continued. Student did not oppose a continuance but objected to pushing the hearing to the end of March 2017. OAH found good cause for a short delay because of the witness conflict, but not for a delay to late March. Because Student's consolidated matter was older than two other cases scheduled that week, OAH set the hearing for February 14–16, 2017.
Why it matters
Even when a parent cannot block a continuance, objecting to how long it lasts can work. Here, pointing out that the student's case was older than other cases on the calendar got it heard weeks sooner.
Key authority cited
- 34 C.F.R. § 300.515
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332
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. 2016080996 v.
NEWPORT-MESA UNIFIED SCHOOL
DISTRICT,
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016050515 v. ORDER GRANTING NEWPORT-MESA
UNIFIED SCHOOL DISTRICT’S
NEWPORT-MESA UNIFIED SCHOOL REQUEST FOR CONTINUANCE AND
DISTRICT. SETTING HEARING DATES
On February 2, 2017, Newport-Mesa Unified School District filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon unavailability of District personnel who will be testifying in OAH Case No. 2016090101 that was continued by OAH on January 31, 2017. On January 3, 2017, Student filed a response that did not oppose the continuance request, but did object to District’s request to continue this matter until the end of March 2017.
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. All dates are vacated. District did establish good cause for a continuance due to the conflict with OAH Case No. 2016090101, in which the hearing commenced and then continued after the completion of preliminary matters. However, District did not establish good cause for a continuance until the end of March 2017. Student established that since his consolidated matter is older than OAH Cases Nos. 2016101114 and 2016090853, scheduled for hearing on February 14 – 16, 2017, that Student’s case should be heard that week. Therefore, this matter will be set as follows:
Due Process Hearing: February 14, 2017, at 9:30 AM, February 15 and 16, 2017, at 9:00 AM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
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: February 3, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings