California OAH special education order · September 17, 2018
Order Granting Request for Continuance and Setting Prehearing Conference and Due Process Hearing
OAH Case No. 2018071234 · ALJ Tara Doss
OAH granted Bellflower's opposed motion to continue the hearing to November 2018 because its counsel was set for an earlier-filed, already-continued OAH hearing on the same date.
This case went to decision
Student v. Bellflower Unified School District: Bellflower Unified must fund six IEEs, 52 hours of instruction, and private school tuition after ignoring a prior OAH order. (2019)
Summary
Bellflower asked OAH to continue the September 25, 2018 due process hearing because its counsel was scheduled for another OAH due process hearing that same day. Student opposed the motion. The ALJ confirmed the conflict and found good cause. The other case took priority because it was filed earlier and had already been continued, and this was the first continuance requested in this case. OAH reset the prehearing conference to November 5, 2018 and the hearing to November 13-15, 2018.
Why it matters
OAH may grant a district's first continuance over a parent's objection when its attorney has a verified conflict with an earlier-filed OAH hearing. Parents should expect hearing dates to slip in that situation and should notify or subpoena their witnesses for the new dates.
Key authority cited
- 34 C.F.R. § 300.515
- 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. 2018071234 v. ORDER GRANTING REQUEST FOR
CONTINUANCE AND SETTING
BELLFLOWER UNIFIED SCHOOL PREHEARING CONFERENCE AND
DISTRICT. DUE PROCESS HEARING
On July 30, 2018, Student filed a Request for Due Process Hearing with the Office of Administrative Hearings, naming Bellflower Unified School District. On July 30, 2018, OAH issued a Scheduling Order setting the due process hearing for September 25, 2018. On September 7, 2018, Bellflower filed a Motion to Continue the due process hearing due to the unavailability of its counsel. On September 12, 2018, Student filed an Opposition to Bellflower’s motion.
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).)
Bellflower requests a continuance in this case because its counsel is simultaneously scheduled to appear in a due process hearing before OAH on September 25, 2018. The undersigned ALJ has verified Bellflower’s assertion. The case Bellflower’s counsel is scheduled to appear in on September 25, 2018, takes priority over the present case because it has an earlier filing date and has already been continued. Additionally, this is the first continuance requested in this case.
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Granted. All dates are vacated. This matter will be set as follows:
Prehearing Conference: November 5, 2018, at 3:00 PM.
Due Process Hearing: November 13, 14, and 15, 2018, at 1:30 PM on the first day and 9:00 AM on all subsequent days, continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.
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: September 17, 2018
TARA DOSS
Administrative Law Judge Office of Administrative Hearings