California OAH special education order · December 21, 2016
Order Denying Request for Continuance
OAH Case No. 2016090918 · ALJ Peter Paul Castillo
OAH denied Student's opposed request to continue the hearing. Student did not meet and confer with District about new dates, and hiring new counsel alone was not good cause.
This case went to decision
Student v. Buena Park School District: Buena Park School District must provide 116.6 hours of compensatory services for limiting a student to home/hospital instruction; other claims time-barred. (2017)
Summary
Student asked to continue the mediation and hearing dates because Student had hired a new attorney who needed time to prepare. District opposed. It argued that Student had not met and conferred about the request and had not shown good cause. OAH denied the request. Student had not conferred with District about new hearing dates as OAH requires, and new counsel knew the existing dates when taking the case and did not show there was too little time to prepare. All dates stayed as calendared, and the parties may resubmit if they agree on dates.
Why it matters
Changing attorneys does not by itself justify a continuance, especially when the new attorney accepted the case knowing the hearing dates. Families should confer with the district about new dates before asking OAH for a continuance, and should explain specifically why the existing schedule leaves too little time to prepare.
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 Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016090918 v. ORDER DENYING REQUEST FOR
CONTINUANCE
BUENA PARK SCHOOL DISTRICT.
On December 19, 2016, Student filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon Student retaining new legal representation and Student’s counsel needing time to prepare for mediation and hearing. On December 20, 2016, Buena Park School District opposed the request based upon Student not meeting and conferring with District’s counsel as to the continuance request and Student not establishing good cause for a continuance in any event. OAH granted the parties’ previous continuance on October 31, 2016, which set this matter for mediation on January 4, 2017, Prehearing Conference for 10 a.m., on January 27, 2014, and hearing on February 7 – 9, 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:
Denied. All hearing dates and timelines shall proceed as calendared. First, Student did not discuss and confer with District regarding new hearing dates as required by OAH. Forms are available on the OAH website that explain the procedure. The parties may re-submit the request to continue if they have agreed upon hearing dates. If the parties are unable to agree on hearing dates, they may request OAH to select dates. Secondly, Student retaining new legal counsel is not good cause by itself for a continuance as Student’s new counsel knew of the existing hearing dates when accepting representation of Student and did not establish that insufficient time exists to prepare for the scheduled mediation and hearing.
IT IS SO ORDERED.
DATE: December 21, 2016
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings