California OAH special education order · June 14, 2019

Order Following Prehearing Conference, Granting Request for Mediation and Continuance, and Setting Mediation, Prehearing Conference and Due Process Hearing

OAH Case No. 2019041183 · ALJ Adrienne L. Krikorian

OAH granted Lompoc's motion to continue the hearing over Student's opposition, finding good cause, and set mediation for June 21, a continued prehearing conference for July 8, and hearing for July 16, 2019.

Granted Prehearing conference orders

This case went to decision

Student v. Lompoc Unified School District (consolidated): Lompoc Unified denied FAPE by failing to assess a struggling ninth grader; ordered to assess and train staff, IEE claim denied. (2019)

Summary

Lompoc moved to continue the June 25–27, 2019 hearing. Among its reasons, its attorney was unavailable because of a prepaid vacation. Student opposed the motion, and both sides argued it at the prehearing conference. The ALJ found good cause for a continuance based on all the circumstances. She then set mediation, a continued prehearing conference, and hearing dates the parties agreed to, and ordered Lompoc to file its overdue facility accessibility certification by June 18, 2019.

Why it matters

A district can win a continuance over a parent's objection when the ALJ finds good cause, including counsel's prior vacation plans. Parents should expect hearing dates to move, especially when both sides say they are willing to mediate.

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

People named in the order

  • Natalie Cummings, Paralegal for Student

Topics

continuance good cause mediation prehearing conference facility certification

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. 2019041183 v. ORDER FOLLOWING PREHEARING

CONFERENCE, GRANTING

LOMPOC UNIFIED SCHOOL DISTRICT. REQUEST FOR MEDIATION AND

CONTINUANCE, AND SETTING

MEDIATION, PREHEARING

CONFERENCE AND DUE PROCESS

HEARING

On June 13, 2019, Administrative Law Judge Adrienne L. Krikorian, Office of Administrative Hearings held a telephonic prehearing conference. Attorney Andréa Marcus and paralegal Natalie Cummings appeared on Student’s behalf. Attorney Sarah Garcia appeared on behalf of Lompoc Unified School District. The PHC was recorded. Based upon discussion with the parties, the ALJ makes the following orders.

1. Hearing Dates, Times, and Location. On April 29, 2019, OAH issued a

Scheduling Order setting this matter for hearing on June 25, 26, and 27, 2019. On June 11, 2019, Lompoc timely filed a motion to continue the hearing dates. Lompoc’s counsel asserted, among other reasons, that she was unavailable on the originally scheduled hearing dates due to a prepaid vacation. Student filed an opposition to the motion on June 13, 2019.

At the PHC, counsel for the parties argued their respective positions on continuance.

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.)

The ALJ determined that good cause exists for a continuance of the hearing dates based on all relevant facts and circumstances. After a discussion with the parties regarding hearing dates and their desire to mediate, the matter was continued based upon the parties’ agreement to the following dates and times.

Mediation will take place on June 21, 2019, 9:30 a.m. to 4:30 p.m. at Lompoc’s offices located at Lompoc Unified School District, 1301 North A Street, Lompoc, California 93438.

The telephonic prehearing conference is continued to July 8, 2019, at 1:00 p.m. The parties are not required to file new PHC unless circumstances change. The parties shall file all prehearing motions no later than three business days before the prehearing conference.

Any party that files a motion later than three business days before the PHC shall accompanying the motion with a declaration establishing good cause for the late filing. All remaining PHC issues will be discussed at the continued PHC.

The due process hearing shall take place on July 16, 17, 18, 2019, and continuing day to day, at the discretion of the ALJ. The hearing shall begin at 9:30 a.m. the first day of the hearing and at 9:00 a.m. all other days, unless otherwise ordered. The hearing shall take place at Lompoc Unified School District, 1301 North A Street, Lompoc, California 93438.

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.

2. Facility Certification. As ordered in the scheduling order, the named local

educational agency shall provide a facility for the hearing that fully complies with the Americans with Disabilities Act of 1990 (42 U.S.C.A. § 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. § 794 et seq.), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and all laws governing accessibility of government facilities to persons with disabilities. The named local educational agency failed to file a signed certification. Lompoc is ordered to file no later than June 18, 2019, a certification signed under penalty of perjury that it will provide a facility that complies with the law.

3. Settlement. The parties are encouraged to continue working together

to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. In addition, if a settlement is reached 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 P.M. THE DAY PRIOR TO 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. THE

PARTIES SHOULD SIMULTANEOUSLY EMAIL THE SIGNATURE PAGE OF THE

SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE OAH AT

https://www.applications.dgsapps.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 the evening prior to the hearing or the morning of the hearing.

If the parties settle the matter subject to board approval, in addition to a signed copy of the signature page of the settlement agreement as noted above, the parties shall provide the date of the next board meeting. OAH will not cancel the hearing dates without this information, and will set the matter for dismissal 30 days after the date of the board meeting.

4. Failure to comply. The failure to comply with this order may result in the

exclusion of evidence or other sanctions.

IT IS SO ORDERED.

DATE: June 14, 2019

ADRIENNE L. KRIKORIAN

Administrative Law Judge Office of Administrative Hearings