California OAH special education order · April 20, 2017
Order Denying Student's Request for Continuance
OAH Case No. 2017010041 · ALJ Peter Paul Castillo
OAH denied Student's second continuance request because Student offered no proof that a federal lawsuit challenging OAH's jurisdiction had been filed or served, or that a federal court had stayed the hearing.
This case went to decision
Anaheim Elementary School District v. Student: Anaheim Elementary may assess student without parental consent under its November 2016 comprehensive assessment plan. (2017)
Summary
Student asked OAH to continue the hearing dates in District's case seeking to assess Student over parental objection. The request was based on Parent's claimed filing in United States District Court challenging OAH's jurisdiction. District did not respond, and OAH had denied an earlier continuance request the day before. OAH denied this request because Student gave no conformed copy of a federal complaint, no proof of service on District, no federal stay order, and no proof of a scheduled federal hearing, and also did not serve the request on District's counsel. Student was told not to refile without proof of a federal stay order or a scheduled hearing.
Why it matters
Saying that a federal lawsuit has been filed will not delay an OAH hearing. A family needs a conformed copy of the complaint, proof of service, and ideally a federal stay order, and must serve every continuance request on the other side's counsel.
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:
ANAHEIM CITY SCHOOL DISTRICT, OAH Case No. 2017010041 v. ORDER DENYING STUDENT’S
REQUEST FOR CONTINUANCE
PARENT ON BEHALF OF STUDENT.
On April 20, 2017, Student filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon a purported filing in United States District Court of an action challenging OAH’s jurisdiction to hear Anaheim City School District’s hearing request to assess Student over parental objection. District did not submit a response.
OAH denied Student’s prior continuance request on April 19, 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 are confirmed and shall proceed as calendared.
Student failed to establish good cause for a continuance based on a purported filing by Parent in United States District Court that challenges OAH’s jurisdiction to hear District’s complaint that it may assess Student over parental objection. Student did not establish that any action has been in fact filed as a conformed copy was not provided, or that District has been served with a copy of federal lawsuit. Further, Student has not provided an order from the United States District Court staying the hearing scheduled for this matter or even proof that there is a hearing in United States District Court regarding whether to enjoin OAH from proceeding with this hearing.
Finally, Student did not serve a copy of this continuance request on District’s legal counsel. Accordingly, Student failed to establish good cause for a continuance and is advised not to refile this request without proof that the District Court has issued an order that stays this matter or has scheduled such a hearing.
IT IS SO ORDERED.
DATE: April 20, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings