California OAH special education order · January 5, 2018
Order Granting in Part Etiwanda School District's Motion to Continue
OAH Case No. 2017110983 · ALJ Darrell Lepkowsky
OAH granted in part District's opposed request for a short continuance because its lead attorney had a conflicting, earlier-filed hearing, but reset the hearing to February 20, 2018 instead of District's requested week.
This case went to decision
Student v. Etiwanda School District: Etiwanda School District prevails on all claims; special day class placement and October 2017 IEP offered a FAPE. (2018)
Summary
District asked to move the hearing two weeks, from January 23, 2018, to the week of February 6, 2018, because its principal attorney had a conflicting OAH hearing in an earlier-filed case. Student opposed. Student said she wanted a prompt resolution, that another attorney at District's firm could handle the hearing, and that the motion was untimely. OAH found good cause for a short continuance and found District acted promptly, since it tried to meet and confer within two weeks of the scheduling order. Because OAH was closed the week District requested, the ALJ set the prehearing conference for February 12, 2018, and the hearing to begin February 20, 2018.
Why it matters
OAH may grant a short continuance over a parent's objection when the district's lead counsel has a scheduling conflict with an earlier-filed hearing and the district raised the conflict promptly. Arguing that another attorney at the same firm could step in may not be enough to stop it.
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
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. 2017110983 v. ORDER GRANTING IN PART
ETIWANDA SCHOOL DISTRICT’S
ETIWANDA SCHOOL DISTRICT. MOTION TO CONTINUE
Parent on behalf of Student filed a request for due process on November 27, 2017, naming the Etiwanda School District. On December 19, 2017, District filed a motion to continue the matter, supported by declaration, based on the unavailability of its principal attorney. District states that its principal attorney, who is most familiar with the case and will be representing it at hearing, has another hearing scheduled for the same time before the Office of Administrative Hearings in a case that was filed prior to this case. District requests a two-week continuance of the case, from the presently scheduled date of January 23, 2018, to the week of February 6, 2018.
Student filed an opposition to District’s motion on December 27, 2017.1 Student states that she wishes a prompt resolution of her due process request, and that there is at least one other attorney working with the law firm representing District who should be familiar enough with the case to represent District at hearing. Student also contends that the motion is not timely as it was filed over three weeks after OAH issued the scheduling order in this case.
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 Student timely filed an opposition on December 22, 2017, which, however, was only signed by Student’s non-attorney representative. Student timely re-filed her opposition, signed by her attorney of record, upon order of OAH to do so.
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:
Granted in part. All dates are vacated. Although Student’s desire for a prompt resolution of her case is valid, District has demonstrated good cause for a short continuance based upon District’s counsel conflict with a hearing in another case set to begin the same day as this case is presently scheduled. Further, Student’s contention that District did not timely request a continuance is not supported by the facts. District attempted to meet and confer with Student’s attorney regarding its need for a continuance less than two weeks after OAH issued the scheduling order, and as soon as its attorney realized that she had a conflict with a hearing in another due process matter.
However, the dates District has requested for the hearing are not available. OAH will be dark the week of February 5 through 9, 2018, due to ALJ annual training. Therefore the hearing will be set as follows, with the hearing beginning on February 20, 2018. Parties should note that the hearing on February 20, 2018, will begin at 1:30 p.m.
Prehearing Conference: February 12, 2018, at 3:00 p.m.
Due Process Hearing: February 20, 21, and 22, 2018, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge. The hearing shall start at 1:30 p.m.
on February 20, 2018, and at 9:00 a.m. on all other days, unless otherwise ordered.
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: January 5, 2018
DARRELL LEPKOWSKY
Administrative Law Judge Office of Administrative Hearings