California OAH special education order · November 8, 2016
Order Denying Request for Continuance and Changing Hearing Location
OAH Case No. 2016100772 · ALJ Margaret Broussard
OAH denied Elk Grove's opposed continuance request and moved the hearing to OAH's Sacramento office. Student would not call the unavailable witnesses, OAH could host the hearing, and Elk Grove had cancelled mediation.
This case went to decision
Student v. Elk Grove Unified School District: Elk Grove Unified owed no special education services for 2016-2017 because Parent did not comply with an assessment order. (2016)
Summary
Elk Grove asked to continue the hearing dates because some witnesses were unavailable, the District office was closed, and it wanted to mediate. Student opposed, saying he did not plan to call the unavailable witnesses on the dates they could not attend. OAH denied the request for lack of good cause. Student presents his case first and would not call those witnesses, and OAH would hold the hearing in its own nearby Sacramento courtroom. OAH also refused a continuance for mediation because Elk Grove had cancelled the agreed mediation and turned down Student's alternative dates, and Student now declines to mediate.
Why it matters
Even a first continuance request needs good cause when the other side opposes it. A district that cancels mediation and rejects other dates cannot later use mediation as a reason to delay the hearing.
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. 2016100772 v. ORDER DENYING REQUEST FOR
CONTINUANCE AND CHANGING
ELK GROVE UNIFIED SCHOOL HEARING LOCATION
DISTRICT.
On November 3, 2016, Elk Grove Unified School District filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon witness unavailability, District office unavailability and a desire to mediate. On November 7, 2016, Student, opposed the request, in part because he does not intend to call any of the unavailable witness on the dates for hearing for which those witnesses are unavailable.
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 prehearing conference and hearing dates are confirmed and shall proceed as calendared. For an opposed continuance, even on a first request, a showing of good cause is required. As Student will put on his case first and has stated that he does not intend to call any of the unavailable witnesses, it is denied for this reason. As to the closure of the District office, OAH will provide a courtroom for the hearing, as it is located nearby the District. As to the request for mediation, although the parties agreed to waive resolution session and participate in mediation, it was Elk Grove who cancelled mediation. Student offered several other dates for mediation prior to the scheduled hearing date which Elk Grove did not accept. Student made himself available for mediation. Finally, as Student previously made himself available for mediation and Student now affirmatively refuses to participate in mediation, no continuance will be granted for the purposes of mediation. Should the parties agree on a date for mediation, please notify OAH and a mediation will be scheduled.
ORDER
1. The request for continuance is denied.
2. The hearing will be held at:
Office of Administrative Hearings 2349 Gateway Oaks Drive, Suite 200 Sacramento, CA 95833
IT IS SO ORDERED.
DATE: November 8, 2016
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings