California OAH special education order · September 27, 2019
Order Following Prehearing Conference, Granting Request for Continuance, and Setting Prehearing Conference and Due Process Hearing Dates
OAH Case No. 2019040565 · ALJ Linda Johnson
OAH granted Student's continuance over Bellflower's objection because Parent's unavailability was good cause, though the ALJ said Student should have asked weeks earlier.
This case went to decision
Student v. Bellflower Unified School District: Bellflower Unified must reimburse Fusion Academy tuition after late annual IEPs and missing academic goals; four claims denied. (2020)
Summary
At a telephonic prehearing conference, Student asked to continue the prehearing conference and hearing because Parent, a witness, and counsel were unavailable. Bellflower opposed, arguing the request was untimely and the case had been filed in April 2019. The ALJ found the motion was timely filed three days before the prehearing conference. She said Student should have asked weeks earlier, when the amended schedule issued and Student knew Parent could not attend, but found Parent's unavailability was good cause. The hearing was reset to December 10-12, 2019, with a new prehearing conference on November 25, 2019.
Why it matters
A parent's unavailability can be good cause for a continuance even when the district objects, but families should ask as soon as they know of a conflict. Waiting draws criticism from the ALJ and risks denial.
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:
PARENT ON BEHALF OF STUDENT,
v.
BELLFLOWER UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2019040565
ORDER FOLLOWING PREHEARING CONFERENCE, GRANTING REQUEST
FOR CONTINUANCE, AND SETTING PREHEARING CONFERENCE AND
DUE PROCESS HEARING DATES
On September 27, 2019, Administrative Law Judge Linda Johnson, Office of Administrative Hearings held a telephonic prehearing conference. The Administrative Law Judge will be referred to as an ALJ. The prehearing conference will be referred to as a PHC. The Office of Administrative Hearings will be referred to as OAH.
Lauren Caron, Attorney at Law, appeared on behalf of Student. Marcia Brady, Attorney at Law, appeared on behalf of Bellflower Unified School District. Based upon discussion with the parties, the ALJ issues the following order:
HEARING DATES, TIMES, AND LOCATION
Student moved to continue the prehearing conference and due process hearing based on the unavailability of parents, a witness, and counsel. Bellflower opposed a continuance on the grounds that the request was untimely and this case was filed in April 2019. The motion was timely filed three days before the PHC.
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. (Ed. Code, § 56505, subd. (f)(3); 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 or imposing conditions on the continuance; and any other relevant fact or circumstance. (Cal. Rules of Court, rule 3.1332(d).)
Student should have filed the request for continuance weeks earlier when OAH issued the amended scheduling and Student knew Parent would be unavailable on the currently scheduled dates. Nonetheless, Parent’s unavailability constitutes good cause for the continuance.
The request for continuance is granted. All previously scheduled dates are vacated. The case shall proceed as follows:
Prehearing Conference: November 25, 2019, at 1:00 PM.
All other prehearing matters shall be addressed at the November 25, 2019, prehearing conference. All prehearing motions must be filed three business days before the PHC.
Due Process Hearing: December 10, 11, and 12, 2019.
The hearing shall begin at 9:30 AM on the first day of the hearing and at 9:00 AM on all other days, unless otherwise ordered. The hearing shall continue day to day at the discretion of the ALJ.
Hearing Location: Bellflower Unified School District, 16703 South Clark Avenue, Bellflower, California 90706.
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.
SETTLEMENT
The parties shall immediately inform OAH in writing if they reach a settlement or otherwise resolve the dispute before the scheduled hearing. If the parties reach a settlement within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.
If a full and final written settlement agreement is reached after 5:00 PM the day before the hearing, the parties shall leave a voicemail message regarding the settlement at (916) 274-6035. The parties should also leave contact information such as cellular phone numbers of each party or counsel for each party. At the same time, the parties should send the signature page of the signed agreement or a letter withdrawing the case to OAH at https://www.applications.dgs.ca.gov/oah/oahsftweb.
Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages before the hearing.
If the matter settles subject to board approval, in addition to a signed copy of the signature page of the settlement agreement, the parties shall provide the date of the next board meeting. The hearing dates will not be cancelled without this information.
FAILURE TO COMPLY
Failure to comply with this order may result in the exclusion of evidence or other sanctions.
IT IS SO ORDERED.
DATED: September 27, 2019 Linda Johnson Administrative Law Judge Office of Administrative Hearings