California OAH special education order · May 14, 2020

Order Denying Request for Continuance

OAH Case No. 2019080542, 2020040245, 2020010465 · ALJ Ted Mann

OAH denied Upland's contested continuance request because these older consolidated cases would take scheduling priority over the conflicting case, and Upland did not show its witness was unavailable on every hearing day.

Denied Scheduling and continuances

This case went to decision

Student v. Upland Unified School District (consolidated): Upland Unified wins every decided issue; adult student's eligibility lapsed after mother withheld triennial consent; two district claims not reached. (2020)

Summary

Upland asked to continue the consolidated hearing because an essential witness was expected to serve as the district's representative in another OAH case set for overlapping dates. Student opposed, noting that Student's attorney had a pre-paid vacation during Upland's proposed new dates. OAH found no good cause. These cases had been pending longer and would have scheduling priority, and there was no evidence the witness was unavailable on each hearing day or on later days the ALJ could add. The hearing will go forward by videoconference as scheduled.

Why it matters

A scheduling conflict in another case is not enough for a continuance. The party asking must show the witness is truly unavailable on every hearing day, and the case that has been pending longer usually gets priority.

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

continuance good cause witness unavailability scheduling conflict videoconference hearing

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 CONSOLIDATED MATTERS OF:

PARENT ON BEHALF OF STUDENT,

v.

UPLAND UNIFIED SCHOOL DISTRICT,

OAH CASE NUMBER 2019080542 AND 2020040245

and

UPLAND UNIFIED SCHOOL DISTRICT,

v.

PARENT ON BEHALF OF STUDENT,

OAH CASE NUMBER 2020010465

ORDER DENYING REQUEST FOR CONTINUANCE

MAY 14, 2020

On May 8, 2020, Upland Unified School District filed with the Office of Administrative Hearings, referred to as OAH, a request to continue this matter, based upon potentially conflicting hearing dates between the instant consolidated cases and OAH Case Number 2020040060. Upland argues that an essential witness in these consolidated cases is expected to appear as the district’s hearing representative in the other matter. On May 14, 2020, Student opposed the request based upon the declaration of Student’s attorney that she has a pre-paid vacation scheduled during the dates requested by Upland. On May 14, 2020, Upland replied to Student’s opposition.

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. The continuance request is denied as failing to demonstrate good cause.

Here, in the event that these consolidated cases and OAH Case Number 2020040060 were to actually proceed to hearing, this matter would have scheduling priority over the other case due to the length of time this case has been pending. Moreover, the hearing in this case and the hearing in the other matter are both set for three days and continue day to day at the discretion of the ALJ. There is no evidence the essential witness was unavailable on each day of the hearing and on any continuing date at the discretion of the ALJ. The matter will proceed with a videoconference hearing on the presently scheduled dates.

IT IS SO ORDERED.

Ted Mann Administrative Law Judge Office of Administrative Hearings