California OAH special education order · March 16, 2018
Order Denying Request for Continuance Without Prejudice
OAH Case No. 2017110028 · ALJ Tara Doss
OAH denied Parent's continuance request without prejudice. It was inclined to grant a delay after Student's attorney withdrew, but Parent proposed no specific dates and did not confer with District first.
This case went to decision
Student v. Santa Monica-Malibu Unified School District: Santa Monica-Malibu Unified prevails on all claims over four IEPs; no reimbursement for private Arete Academy placement. (2018)
Summary
Student's attorney withdrew days before the March 20-22, 2018 hearing. Parent then asked OAH to continue the hearing so Parent could review the file and prepare to represent Student. OAH said it was inclined to grant a continuance because of the attorney's eve-of-hearing withdrawal. It denied the request without prejudice because Parent did not propose specific hearing dates and did not show that Parent had contacted District's attorney to try to agree on new dates, as OAH requires. The parties may file a joint request with agreed dates or ask OAH to pick dates, and Parent may refile with specific dates if District does not agree or opposes.
Why it matters
Even when good cause exists, such as a lawyer withdrawing right before hearing, a self-represented parent must follow OAH's procedure. That means contacting the district to agree on new dates and listing specific proposed dates, or the request can be denied and the hearing stays on calendar.
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)
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. 2017110028 v. ORDER DENYING REQUEST FOR
CONTINUANCE WITHOUT
SANTA MONICA-MALIBU UNIFIED PREJUDICE
SCHOOL DISTRICT.
On October 31, 2017, Student filed a Request for Due Process Hearing with the Office of Administrative Hearings, naming Santa Monica-Malibu Unified School District.
On November 15, 2017, OAH granted the parties’ joint request to continue the due process hearing. On January 29, 2018, OAH granted the parties’ joint second request to continue the due process hearing due to unavailability of Student’s expert witness. OAH set the due process hearing for March 20-22, 2018. On March 14, 2018, Student’s attorney filed a Notice of Withdrawal from the case. On March 16, 2018, Parent filed a request to continue the due process hearing to allow time to review Student’s file and for Parent to prepare to represent Student in the hearing.
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 has reviewed the request for good cause and considered all relevant facts and circumstances. Student’s attorney withdrew on the eve of the hearing after having represented Student since filing the complaint on Student’s behalf on October 31, 2017.
Parent requested a continuance of the hearing dates, and OAH is inclined to grant the continuance. However, Parent did not request any specific dates. Moreover, there is no indication Parent contacted District’s attorney to discuss the continuance and seek agreement upon new hearing dates, as required by OAH. Forms are available on the OAH website explaining the procedure.
Accordingly, Parent’s request for a continuance is:
Denied without prejudice. All hearing dates and timelines shall proceed as calendared. The parties may submit a joint request to continue the due process hearing after they have agreed upon hearing dates. If the parties are unable to agree on hearing dates, they may request OAH to select dates. In the event District and Parent are unable to agree upon dates, or District opposes Parent’s continuance request, Parent may resubmit a request for continuance that includes the specific due process hearing dates Parent is requesting.
IT IS SO ORDERED.
DATE: March 16, 2018
TARA DOSS
Administrative Law Judge Office of Administrative Hearings