California OAH special education order · January 25, 2019
Order Granting Request for Continuance
OAH Case No. 2019010414 · ALJ Joy Redmon
OAH continued the hearing about six weeks, to March 19, 2019, but refused Student's request to delay until mid-April because Student gave no declaration or reason for Parent's claimed unavailability.
This case went to decision
East Side Union High School District v. Student: East Side Union High School District may exit a high-achieving junior from special education; its assessments were upheld and IEEs denied. (2019)
Summary
Student asked to move the due process hearing from February 5 to April 16, 2019. Student cited newly retained counsel, counsel's conflicting hearing, and Parent's unavailability, but filed no declaration and did not identify the conflicting case. East Side did not oppose a short continuance but objected to the length. OAH found good cause for a continuance but not for a delay to mid-April, noting that no reason was given for Parent's unavailability, and reset the hearing for March 19, 2019.
Why it matters
OAH will not grant a long continuance on bare assertions. A request should include a declaration, the name and number of any conflicting case, and the specific reason a parent or witness is unavailable, or the delay granted may be shorter than needed.
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)-(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:
EAST SIDE UNION HIGH SCHOOL OAH Case No. 2019010414
DISTRICT,
ORDER GRANTING REQUEST FOR
v. CONTINUANCE
PARENT ON BEHALF OF STUDENT.
On January 18, 2019, Student filed a motion to continue the due process hearing in this matter until April 16, 2019. Student asserts that counsel was recently retained and additional time is needed to prepare a defense, Student’s counsel is scheduled for another due process hearing scheduled to commence on February 5, 2019, the date currently set for hearing in this matter, and Parent is not available until April 16, 2019. No declaration accompanied the motion, the conflicting case name or number was not provided, nor the basis for Parent’s alleged unavailability. On January 24, 2019, East Side Union High School District submitted a response. East Side does not oppose a brief continuance, but opposes continuing the matter until mid April noting the lack of evidence supporting the length requested.
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:
Granted. All dates are vacated. Good cause was not provided to continue the matter until mid-April. In particular, no reason was given citing Parent’s unavailability. This matter will be set as follows:
Prehearing Conference: March 11, 2019, at 1 PM Due Process Hearing: March 19, 2019, at 9:30 AM, March 20-21, 2019, at 9 AM and continuing day to day, as needed at the discretion of the Administrative Law Judge.
All Prehearing motions are due no later than three business days prior to the prehearing conference.
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 25, 2019
JOY REDMON
Presiding Administrative Law Judge Office of Administrative Hearings