California OAH special education order · January 24, 2020
Order Denying Request for Continuance
OAH Case No. 2019070571 · ALJ Peter Paul Castillo
OAH denied Long Beach's unopposed request to continue the hearing because nothing showed the school psychologist, who was busy in a civil trial, would be needed in the first week.
This case went to decision
Student v. Long Beach Unified School District: Long Beach Unified's IEP for a student with autism in a moderate-severe class upheld; all claims denied. (2020)
Summary
Long Beach Unified School District asked to continue the due process hearing because School Psychologist Kristen Bogdan, a witness for both sides, was scheduled for a two-week civil trial. Student did not oppose. Neither side proposed new dates. OAH denied the request because nothing the parties filed showed Ms. Bogdan's testimony would be needed during the first three hearing days, and the parties could schedule more days at the start of the hearing.
Why it matters
OAH may deny a continuance even when both sides agree. A party claiming a witness is unavailable must show that witness is actually needed on the dates set, and should propose alternative dates.
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
People named in the order
- Kristen Bogdan, School psychologist, Long Beach Unified School District (witness)
- Rommel P. Cruz, Administrative Law Judge (prehearing conferences)
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.
LONG BEACH UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2019070571
ORDER DENYING REQUEST FOR CONTINUANCE
On September 23, 2019, Administrative Law Judge Rommel P. Cruz, Office of Administrative Hearings held a telephonic prehearing conference. The Office of Administrative Hearings will be referred to as OAH. At the Prehearing Conference, ALJ Cruz granted the parties’ continuance request due to the unavailability of Student’s guardian, setting the hearing to begin on January 28, 2020.
On December 26, 2019, Legal Guardian on behalf of Student filed a request to continue this matter based on a compliance compliant filed with the California Department of Education on December 20, 2019, until the completion of the compliance complaint investigation and the independent educational evaluations. In addition, Student sought a continuance based on the Guardian’s unavailability due to the Guardian’s health concerns related to an automobile accident that occurred in September 2019. No declaration or medical documentation was provided by Student to support the continuance request. OAH denied the continuance request on January 3, 2020.
At the January 17, 2020 Prehearing Conference, ALJ Cruz confirmed the hearing dates of January 28, 29 and 30, 2020, and stated that additional “hearing dates will be discussed with the ALJ on the first day of hearing.”
On January 23, 2020, Long Beach Unified School District filed with OAH a request to continue this matter, based upon the unavailability of Long Beach School Psychologist Kristen Bogdan, who is a witness for both parties, as Ms. Bogdan will be in a civil trial scheduled to begin on January 23, 2020, that is scheduled to last two weeks.
On January 24, 2020, Student filed a non-opposition. Neither party provided dates for when the hearing should be continued.
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).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Denied. All hearing dates are confirmed and shall proceed as calendared. The continuance request is denied as nothing in the documents provided by the parties establish that Ms. Bogdan’s testimony will be needed for the first week of hearing. The parties, as stated in the Prehearing Conference Order, can discuss at the beginning of hearing, or during any of the first three days of hearings, when to schedule additional hearing dates if the hearing will take more than three days to finish. Parties are advised that for scheduling additional hearing dates that this matter will take precedence over other scheduled hearings that have not commenced and mediations.
IT IS SO ORDERED.
DATED: January 24, 2020 Peter Paul Castillo Presiding Administrative Law Judge Office of Administrative Hearings