California OAH special education order · September 22, 2017
Order Denying Request for Continuance
OAH Case No. 2017051304 · ALJ Charles Marson
OAH denied Parent's request to continue the hearing after her computer was stolen. She had over a month to recover, the case had been continued several times, and the IEP covers the current school year.
This case went to decision
Fairfield-Suisun Unified School District v. Student: Fairfield-Suisun Unified may move a hard-of-hearing student with intellectual disability to a functional academics class without parent consent. (2017)
Summary
Parent asked OAH to continue the due process hearing in Fairfield-Suisun's case, saying in an unsworn filing that her car was vandalized and the computer holding her case data was stolen on August 31, 2017. Fairfield-Suisun opposed, arguing good cause was not shown. OAH denied the request and kept the October 3 and 4, 2017 hearing dates. It noted that Parent waited more than two weeks to ask, the case had already been continued several times, ASL interpreters were confirmed, and the district's IEP for the current school year needed a prompt decision. The ALJ warned that no further continuance would be considered without truly extraordinary circumstances shown by sworn declarations.
Why it matters
Continuances are disfavored, especially after repeated delays. A party who loses evidence or materials should ask for relief promptly and back the request with a sworn declaration. Unsworn explanations filed weeks after the problem are unlikely to show good cause.
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:
FAIRFIELD-SUISUN UNIFIED SCHOOL OAH Case No. 2017051304
DISTRICT,
ORDER DENYING REQUEST FOR
v. CONTINUANCE
PARENT ON BEHALF OF STUDENT.
On September 15, 2017, Parent on behalf of Student filed a request to continue the dates in this matter. In an unsworn pleading she states that on August 31, 2017, her car was vandalized and her computer, containing all her data for this case, was stolen. She further states that she is in the process of obtaining a new computer and retrieving her data from her “computer carrier.” On September 20, 2017, Fairfield-Suisun filed an opposition to the motion, arguing that good cause to continue has not been shown.
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. The hearing dates are confirmed and shall proceed as now calendared.
According to Parent her computer was stolen on August 31, 2017, more than two weeks before she moved for continuance. This matter was continued on June 14, July 10, and August 16, 2017, and set for completion of hearing on August 28 and 29, 2017. Due to difficulties in obtaining American Sign Language interpreters the matter was continued again, and is now scheduled for October 3 and 4, 2017. ASL interpreters have now been confirmed for October 3, 2017. Fairfield-Suisun’s complaint seeks approval of an individualized education program that would govern the current school year, which is well under way. The need for prompt resolution of this matter is clear. By October 3, 2017, Parent will have had more than a month to resolve the problems relating to her computer. Good cause is not shown for a further continuance.
The parties are admonished that, due to the reasons above, no further application for continuance will be entertained absent truly extraordinary circumstances established by declarations sworn under penalty of perjury.
IT IS SO ORDERED.
DATE: September 22, 2017
CHARLES MARSON
Administrative Law Judge Office of Administrative Hearings