California OAH special education order · May 26, 2017
Order Denying Request for Continuance of Prehearing Conference
OAH Case No. 2017030443 · ALJ Penelope S. Pahl
OAH denied Student's last-minute request to continue the next day's prehearing conference. The letter lacked the proper form, opposing counsel's agreement, and an explanation, and the firm had other attorneys available.
This case went to decision
Student v. Los Altos School District: Los Altos must reimburse $33,359.25 for an IEE, private school, tutoring and therapy; a federal court later vacated the decision. (2017)
Summary
Around 4:00 p.m. the day before a scheduled prehearing conference, Student's counsel filed a letter asking to continue it because of a schedule conflict. The request was not on the required form and did not have opposing counsel's signature or show it was copied to them. It also gave no reason for discovering the conflict so late and showed no effort to work out the conflict with opposing counsel. Because continuances are disfavored under the 45-day hearing timeline, and Student's counsel belonged to a multi-attorney firm with no showing that every attorney was unavailable, OAH denied the request and confirmed all dates.
Why it matters
Last-minute continuance requests sent by informal letter, without the OAH form, the other side's position, or a good-cause explanation, are likely to be denied. A firm with several attorneys is expected to send someone else to cover a conflict.
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. 2017030443 v. ORDER DENYING REQUEST FOR
CONTINUANCE OF PREHEARING
LOS ALTOS SCHOOL DISTRICT. CONFERENCE
On Thursday, May 25, 2017 at approximately 4:00 p.m., Student filed a letter with the Office of Administrative Hearings requesting a continuance of the Friday May 26, 2017 1:00 p.m. Prehearing Conference in this matter, based upon a schedule conflict. No form requesting a continuance was filed, no signature from opposing counsel agreeing to the continuance was submitted and there is no indication the letter was copied on opposing counsel, no reason for the late discovery was proffered, and no indication that contact was made with opposing counsel for both conflicting events seeking a jointly designed resolution of the conflict was submitted.
Counsel for Student is a member of a firm with multiple attorneys. There was no indication that all attorneys in the firm had conflicts.
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.
IT IS SO ORDERED.
DATE: May 26, 2017
PENELOPE S. PAHL
Administrative Law Judge Office of Administrative Hearings