California OAH special education order · June 10, 2019

Order Granting Request for Reconsideration and Request for Continuance and Setting Prehearing Conference and Due Process Hearing Dates

OAH Case No. 2019050122 · ALJ Penelope S. Pahl

OAH granted reconsideration and continued the hearing to July 2019 because District's counsel had a prepaid vacation, but refused the parties' agreed September dates for lack of good cause.

Granted in part Reconsideration

Summary

OAH denied the parties' joint request to continue the June 2019 hearing because it gave no reasons. District then filed a renewed request with a declaration that its attorney would be on a prepaid overseas vacation, and Student's counsel argued that a first continuance does not need good cause. ALJ Pahl treated the renewed request as a motion for reconsideration and accepted the vacation declaration as good cause. She reset the hearing to July 16-18, 2019, rather than the September dates the parties had agreed to, because no good cause supported the longer delay and neither side gave proof of specific witness unavailability.

Why it matters

OAH requires good cause for every continuance, including the first one, and does not accept stipulations alone. Parties should file supporting declarations and specific witness-unavailability evidence with the original request, not count on reconsideration later.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • Ed. Code, § 56505, subd. (f)(3)
  • 34 C.F.R. § 300.515(a)
  • Cal. Rules of Court, rule 3.1332

Topics

reconsideration continuance good cause attorney unavailability stipulated continuance

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:

OAH Case No. 2019050122

PARENT ON BEHALF OF STUDENT,

ORDER GRANTING REQUEST FOR

v. RECONSIDERATION AND REQUEST

FOR CONTINUANCE AND SETTING

MOUNTAIN VIEW-LOS ALTOS HIGH PREHEARING CONFERENCE AND

SCHOOL DISTRICT. DUE PROCESS HEARING DATES

On May 2, 2019, Student filed a request for due process hearing (complaint) in this case naming Mountain View-Los Altos High School District as respondent. On May 3, 2019, a Scheduling Order was issued setting hearing dates for June 25, 26, and 27, 2019.

On June 6, 2019, the parties jointly filed a request to continue the dates in this matter.

No grounds for the continuance were stated. The request was denied that day. On June 7, 2019, Mountain View-Los Altos High School District filed a “Renewed Request for Continuance” with a declaration by its counsel regarding an upcoming vacation. Later that same day, Student’s counsel filed a “Letter in Support re: Renewed Request for Continuance” asserting her belief that the first request for a continuance in a case did not require a showing of good cause. Both parties indicated that they had agreed to hearing dates in early September, 2019.

APPLICABLE LAW

The Office of Administrative Hearings will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199- 1200.)

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. (34 C.F.R. § 300.515(a);

Ed.Code, §§ 56502, subd. (f), 56505, subd. (f)(3).) Speedy resolution of the due process hearing is mandated by law and continuance of the hearing may be granted only upon a showing of good cause. (Ed. Code, § 56505, subd. (f)(3).) In ruling upon a motion for continuance, OAH is guided by the provisions found within the Administrative Procedure Act and the California Rules of Court that concern motions to continue. (Cal. Code Regs.,tit.

1, § 1020;Cal. Rules of Court, rule 3.1332.) Generally, continuances of matters are disfavored. (Cal.Rules of Court, rule 3.1332(c).)

DISCUSSION

The “Renewed Request for Continuance” is being treated as a motion for reconsideration. Here, district’s counsel’s renewed request offers a declaration that she will be out of the country on a pre-planned, pre-paid vacation from June 14 through June 30,

2019. No explanation as to why that information was not provided with the initial request

for continuance was offered. References were made by both parties to potential witness unavailability. However, neither side provided evidence of dates on which any witness was unavailable.

The declaration regarding Mountain View-Los Altos’ attorney’s vacation will be accepted in this instance as a basis for granting reconsideration. In future, the parties should not assume that an order will be reconsidered simply because they failed to attached necessary supporting documents with the original moving papers.

Good cause is always required in order to secure a continuance of a special education hearing. Stipulations to continuances of prehearing conferences or hearings are not allowed by the Office of Administrative Hearings. Here, Counsel’s unavailability constitutes good cause for a continuance. However, the parties have not established good cause to continue the case to September.

The request for continuance is GRANTED. All previously scheduled dates in this matter are hereby VACATED. The new dates are:

Prehearing Conference: July 8, 2019 at 10:00 AM Due Process Hearing: July 16, 17, and 18, 2019, then continuing day to day as needed at the discretion of the Administrative Law Judge.

All prehearing conference statements and any motions shall be filed three business days prior to the date of the prehearing conference or shall be accompanied by a declaration under penalty of perjury stating the reason why the documents were not timely filed.

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: June 10, 2019

PENELOPE S. PAHL

Administrative Law Judge Office of Administrative Hearings