California OAH special education order · June 20, 2019
Order Granting Request for Continuance and Setting Due Process Hearing
OAH Case No. 2019030607 · ALJ Tara Doss
OAH granted Los Angeles's contested request to move the hearing to August 27–29, 2019, because its attorney and several witnesses were unavailable and Student did not claim to be unavailable on the new dates.
This case went to decision
Student v. Los Angeles Unified School District: Los Angeles Unified prevails on all claims; no reimbursement owed for Westmark School tuition or a private psychological evaluation. (2019)
Summary
Los Angeles asked to continue the June 25–27, 2019 due process hearing. It supported the request with declarations showing its attorney and several witnesses were unavailable. Student opposed, arguing the delay left his future placement uncertain and forced Parent to pay private school tuition for 2019-2020. OAH found good cause based on witness unavailability, noted that Student did not say he was unavailable on the proposed dates, and reset the hearing to August 27, 28, and 29, 2019.
Why it matters
A claim of prejudice from delay, even the cost of private tuition, may not defeat a continuance supported by declarations showing witnesses are unavailable. Parents opposing a continuance should give concrete reasons why the new dates would not work. Parties should also notify and subpoena witnesses promptly, because an unnotified witness will not count as unavailable for good cause.
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. 2019030607 v. ORDER GRANTING REQUEST FOR
CONTINUANCE AND SETTING DUE
LOS ANGELES UNIFIED SCHOOL PROCESS HEARING
DISTRICT.
On June 13, 2019, Los Angeles Unified School District filed a Motion to Continue the due process hearing in this case, currently scheduled for June 25, 26, and 27, 2019. Los Angeles argued there is good cause to continue the hearing because its attorney and several witnesses are unavailable on the scheduled hearing dates. Los Angeles attached declarations to its motion indicating the unavailability of the attorney and witnesses. Los Angeles requests the hearing be continued until August 27, 28, and 29, 2019.
On June 17, 2019, Student filed an Opposition to Los Angeles’s Motion to Continue.
Student argued Student will be prejudiced by the delay in the hearing because his future educational placement is uncertain. Student argued Parent will be prejudiced by the delay due to the financial burden she will incur in having to pay Student’s private school tuition for the 2019- 2020 school year. Student did not indicate unavailability during Los Angeles’s proposed hearing dates of August 27, 28, and 29, 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:
Granted. All dates are vacated. There is good cause to continue the due process hearing in this case due to the unavailability of several witnesses on Student’s and Los Angeles’s witness lists. While Student opposed a continuance in the case due to prejudice, Student did not indicate unavailability during Los Angeles’s proposed hearing dates. The hearing dates in this case will be set as follows:
Due Process Hearing: August 27, 28, and 29, 2019, at 9:30 AM, on the first day of hearing, and 9:00 AM on all following days, continuing day to day, as needed at the discretion of the Administrative Law Judge.
The parties must immediately notify all potential witnesses of the hearing dates, and must 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: June 20, 2019
TARA DOSS
Administrative Law Judge Office of Administrative Hearings