California OAH special education order · October 26, 2017
Denying in Part and Granting in Part Request for Continuance and Setting Hearing Dates
OAH Case No. 2017050484 · ALJ Peter Paul Castillo
OAH refused Student's request to push the hearing to November 21, 2017, vacating only the October 31 date because both attorneys were available in early November.
This case went to decision
Student v. Benicia Unified School District (consolidated): Benicia Unified lawfully graduated a 21-year-old with a regular diploma; ALJ denies all of Student's claims despite a late annual IEP. (2018)
This case went to decision
Student v. Irvine Unified School District: Irvine Unified must reimburse private school, occupational therapy, and mileage after building an IEP on year-old data; assessment claim denied. (2018)
Summary
Student's counsel asked to continue the hearing to November 21, 2017, because she was set for hearings in two other OAH cases. The District opposed. It pointed out that the parties had jointly agreed to the current dates and that counsel had known of the conflict but waited until the eve of hearing. OAH vacated only the October 31 date and set hearing for November 1, 2, and 7, 2017, because the other case should end October 31 and both attorneys were available the week of November 6.
Why it matters
Continuances are disfavored, and an attorney's scheduling conflict will not justify a long delay when it was known in advance and other dates are open. Raise conflicts early and propose specific alternative dates.
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
People named in the order
- Tanya Whiteleather, Student's attorney
- Cynthia Yount, District's attorney
- Christine Arden, Administrative Law Judge assigned to hearing
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. 2017050484 v. DENYING IN PART AND GRANTING
IN PART REQUEST FOR
LONG BEACH UNIFIED SCHOOL CONTINUANCE AND SETTING
DISTRICT. HEARING DATES
On October 24, 2017, Student filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon unavailable of Student’s counsel, Tanya Whiteleather, as she will be in hearing in OAH Case No. 2017040249 on October 31, 2017, the first day of hearing in this matter, and then in on November 14 – 16, 2017, in OAH Case No. 2017040667. Student requested that the hearing in this case be continued to November 21, 2017. On October 25, 2017, Long Beach Unified School District opposed the request based upon the fact that the parties jointly requested to the current dates and OAH issued the continuance order on July 13, 2017, and Ms. Whiteleather has known about this conflict for a while and waited until the eve of hearing to request a 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 in Part and Granted in Part. Student has not established good cause for vacating the existing hearing dates, except for October 31, 2017, and continuing the hearing until November 21, 2017. The hearing in OAH Case No. 2017040249 did not commence as scheduled on October 24, 2017, as the school district’s attorney was ill, and the hearing should conclude therefore on October 31, 2017. Further, based upon the parties’ briefs, Ms. Whiteleather, and District’s attorney, Cynthia Yount, are available the week of November 6, 2017. Therefore, this matter will proceed as follows:
Due Process Hearing: November 1, 2017, at 9:30 AM, November 2 and 7, 2017, at 9:00 AM, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge. Matter is assigned to Administrative Law Judge Christine Arden The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify. A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.
IT IS SO ORDERED.
DATE: October 26, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings