California OAH special education order · April 3, 2018
Order Following Prehearing Conference and Continuing Prehearing Conference and Due Process Hearing Dates
OAH Case No. 2018030746 · ALJ Charles Marson
OAH granted Parents' request to continue the District-filed due process hearing over Riverdale's objection, finding Parents needed reasonable time to find an attorney and the case had been pending only two weeks.
This case went to decision
Riverdale Joint Unified School District v. Student: Riverdale Joint Unified may reassess student without parental consent at locations it chooses; parents must sign medical releases. (2018)
Summary
At the prehearing conference, Parents asked to continue the prehearing conference and the April 11, 2018 hearing. They said they had too little time to prepare and were still looking for an attorney. Riverdale opposed, citing how long the dispute had gone on and its concern that Parents only wanted delay. The ALJ found good cause and reset the prehearing conference for May 7, 2018 and the hearing for May 15-16, 2018. The reasons were that Parents were actively seeking representation, the case had been pending only two weeks, and the English-language complaint still had to be translated into Spanish and served on Parents.
Why it matters
Parents served with a district-filed complaint, especially those whose primary language is not English, can get a short continuance to find a lawyer early in the case, even when the district objects.
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:
RIVERDALE JOINT UNIFIED SCHOOL OAH Case No. 2018030746
DISTRICT,
ORDER FOLLOWING PREHEARING
v. CONFERENCE AND CONTINUING
PREHEARING CONFERENCE AND
PARENT ON BEHALF OF STUDENT. DUE PROCESS HEARING DATES
On April 2, 2018, a telephonic prehearing conference (PHC) was held before Administrative Law Judge Charles Marson, Office of Administrative Hearings. Kathleen McDonald, Attorney at Law, appeared on behalf of the Riverdale Joint Unified School District. Student’s Mother and Father appeared on behalf of Student. The PHC was recorded.
Based on discussion with the parties, the ALJ issues the following order:
1. Motion for Continuance. During the PHC, Parents requested a continuance of
the PHC and the due process hearing on the grounds that they have had insufficient time to prepare for the hearing (now set for April 11, 2018), and that they have been seeking an attorney to represent them but have not yet been successful. Riverdale opposed the request, citing the length of time the dispute has been pending between the parties, its efforts to bring about a resolution, and concern that Parents sought simply to delay 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 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).)
Student has shown good cause for a continuance. While Riverdale’s arguments are reasonable, Parents have been attempting to secure legal representation. The request for due process hearing was filed on March 16, 2018, in English. As Parents’ primary language is Spanish, the hearing request will be translated and served on parents. Additionally, the matter has been pending only for two weeks. Parents are entitled to a reasonable time to seek representation.
The requested continuance is therefore granted. All dates are vacated. This matter will be set for PHC on May 7, 2018, at 1:00 p.m., and for due process hearing on May 15 and 16, 2018, starting at 9:30 a.m. on the first day of hearing and 9:00 a.m. on subsequent days, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
2. All other matters deferred. The resolution of all other matters is deferred to
the continued PHC on May 7, 2018, at 1:00 p.m.
IT IS SO ORDERED.
DATE: April 3, 2018
CHARLES MARSON
Administrative Law Judge Office of Administrative Hearings