California OAH special education order · March 29, 2017
Order Denying Request for Continuance
OAH Case No. 2017010619 · ALJ Cole Dalton
OAH denied Student's opposed request to continue the hearing, finding no good cause because counsel could still confer with the expert and Student named no evidence that would be missing.
This case went to decision
Student v. Riverside Unified School District: Riverside Unified prevails on all six claims, including mental health assessment, auditory processing testing, Spanish notices, and FAPE. (2017)
Summary
Student asked OAH to continue the hearing dates. Student argued that his expert's classroom observation was too close to the hearing for counsel to prepare and exchange evidence on time. District opposed, saying Student had not met and conferred on new dates and had not shown good cause. OAH denied the request and kept all dates, because nothing stopped counsel from meeting with the expert before the expert testified, and Student did not identify any documents he could not include in his evidence list due five days before hearing.
Why it matters
Continuances are disfavored because of the 45-day timeline, so a late expert observation alone is not enough. Families should plan observations early and, when asking for a continuance, name the specific evidence that will not be ready in time.
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. 2017010619 v. ORDER DENYING REQUEST FOR
CONTINUANCE
RIVERSIDE UNIFIED SCHOOL
DISTRICT.
On March 22, 2017, Student filed a request to continue the dates in this matter with the Office of Administrative Hearings. Student contends, based upon the proximity of his expert’s classroom observation to the hearing date, that his counsel will be unable to prepare for hearing and exchange evidence timely. On March 27, 2017, District opposed the request as Student failed to meet and confer on new dates for hearing and did not show good cause for the requested continuance.
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. Nothing prevents Student’s counsel and expert from conferring before the expert testifies, so that counsel can prepare for hearing. Student failed to identify any documents or other information that he will not have in time to include in his notice of witnesses and evidence, which must be served five days prior to hearing.
IT IS SO ORDERED.
DATE: March 29, 2017
COLE DALTON
Administrative Law Judge Office of Administrative Hearings