California OAH special education order · March 5, 2019
Order Denying Request for Continuance
OAH Case No. 2019020281, 2019010105 · ALJ Tiffany Gilmartin
OAH denied the districts' opposed request to continue the hearing over one attorney's prepaid vacation, because co-counsel of record was heavily involved and the districts never said he was unavailable.
This case went to decision
Student v. Tuolumne County Superintendent of Schools et al. (consolidated): Tuolumne County Superintendent of Schools and Curtis Creek must fund residential placement at Madison Oaks and reimburse $11,025 after broad FAPE denials. (2019)
Summary
Tuolumne County Superintendent of Schools and Curtis Creek Elementary School District asked to continue all dates because attorney Marcella Gutierrez had a preplanned, prepaid vacation. Student opposed. OAH denied the request and kept all prehearing conference and hearing dates. The ALJ found that the districts created the scheduling conflict by filing their own motion to amend. The ALJ also found that co-counsel Tilman Heyer was attorney of record, had been heavily involved in the case, had signed the continuance papers, and was not claimed to be unavailable.
Why it matters
A party with more than one attorney of record generally cannot get a continuance because one lawyer is unavailable when the other lawyer can handle the hearing. Parents can successfully oppose continuance requests that rest on one attorney's personal schedule.
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
People named in the order
- Marcella Gutierrez, District attorney
- Tilman Heyer, District attorney
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 Consolidated Matters of:
TUOLUMNE COUNTY SUPERINTENDENT OAH Case No. 2019020281
OF SCHOOLS, CURTIS CREEK
ELEMENTARY SCHOOL DISTRICT
v.
PARENT ON BEHALF OF STUDENT,
PARENT ON BEHALF OF STUDENT, OAH Case No. 2019010105 v.
TUOLUMNE COUNTY SUPERINTENDENT ORDER DENYING REQUEST FOR
OF SCHOOLS, CURTIS CREEK CONTINUANCE
ELEMENTARY SCHOOL DISTRICT.
On February 27, 2019 Tuolumne County Superintendent of Schools and Curtis Creek Elementary School District filed a request to continue the dates in this matter with the Office of Administrative Hearings, based upon a preplanned, prepaid vacation for counsel Marcella Gutierrez. Student filed an opposition on March 4, 2019. Tuolumne and Curtis Creek filed a reply on March 4, 2019.
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. Counsel for Tuolumne and Curtis Creek failed to establish good cause as a basis for continuance. Tuolumne and Curtis Creek filed a motion to amend that was granted on February 22, 2019. Counsel for Tuolumne and Curtis Creek is an experienced practitioner before OAH and is expected to be familiar with the approximate scheduling timelines. It was Tuolumne and Curtis Creek who filed a motion to amend creating the instant scheduling conflict. However, even had the conflict not been anticipated, respondents have not established good cause for a continuance. The notice of representation filed in this case identified both Ms. Gutierrez and attorney Tilman Heyer as respondents’ attorneys of record. Additionally, Mr. Heyer has had significant involvement before OAH in prosecuting this matter. In Tuolumne and Curtis Creek’s initial filing, Mr. Heyer is listed as co-counsel.
Mr. Heyer is also listed as co-counsel on Tuolumne and Curtis Creek’s joint notice of representation filed with OAH on January 7, 2019 in Student’s case, 2019010105. Mr. Heyer signed the initial motion to continue on Tuolumne and Curtis Creek’s behalf; and further signed Tuolumne and Curtis Creek’s reply. Respondents did not assert that Mr. Heyer is unavailable on the dates currently set in this matter. Accordingly, good cause for continuance was not established and the motion is denied.
IT IS SO ORDERED.
DATE: March 5, 2019
TIFFANY GILMARTIN
Administrative Law Judge Office of Administrative Hearings