California OAH special education order · February 11, 2019

Order Denying Student's Request for Continuance

OAH Case No. 2018120181 · ALJ Peter Paul Castillo

OAH denied Student's request to continue the hearing because it was really a challenge to the assigned ALJ, which will be decided separately, and any reassignment would keep the February 21, 2019 hearing date.

Denied Scheduling and continuances

This case went to decision

Student v. Upland Unified School District: Upland Unified's September 2017 IEP offered FAPE; parent's claims for goals, testing accommodations, transportation, ESY, and OT denied. (2018)

This case went to decision

Upland Unified School District v. Student: Upland Unified may not reassess student without consent because its assessment plan was not in Parent's native Spanish. (2019)

Summary

Student asked OAH to continue all dates in this District-filed case. The request was based on Parent's concerns about rulings by ALJ Alexa Hohensee in this case and in an earlier case between the parties. The District did not respond. OAH denied the request and confirmed all dates, finding that the motion was really a challenge to the ALJ for cause, which will be ruled on separately; even if that challenge is granted, another ALJ will hear the case as scheduled on February 21, 2019.

Why it matters

Disagreeing with a judge's rulings is not good cause for a continuance. A party who believes an ALJ is biased should file a challenge for cause, and even a successful challenge usually means a new ALJ on the same schedule, not a delay.

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
  • Gov. Code, § 11425.40

People named in the order

  • Alexa Hohensee, Administrative Law Judge assigned to the matter

Topics

continuance denied good cause challenge for cause alj bias hearing dates

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:

UPLAND UNIFIED SCHOOL DISTRICT, OAH Case No. 2018120181 v. ORDER DENYING STUDENT’S

REQUEST FOR CONTINUANCE

PARENT ON BEHALF OF STUDENT.

On February 11, 2019, the Office of Administrative Hearings received Student’s request to continue the dates in this matter, based upon concerns that Parent on behalf of Student has had regarding rulings made by Administrative Law Judge Alexa Hohensee in this matter and the prior hearing between the parties in OAH Case No. 2017100459. Upland Unified School District has not filed a response.

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. All prehearing conference and hearing dates are confirmed and shall proceed as calendared. Student has not demonstrated grounds for a continuance as Student’s motion is more aptly described as a challenge of ALJ Hohensee for cause, which will be ruled upon separately. (Gov. Code, § 11425.40.) In any event, even if Student’s challenge for cause is granted, OAH will assign another ALJ to hear this matter as presently scheduled for February 21, 2019.1

IT IS SO ORDERED.

DATE: February 11, 2019

PETER PAUL CASTILLO

Presiding Administrative Law Judge Office of Administrative Hearings Student’s Motion to Dismiss, which OAH received on February 11, 2019, will be ruled on separately.