California OAH special education order · January 17, 2020

Order Following Prehearing Conference Granting Request for Continuance

OAH Case No. 2020010158 · ALJ Judith L. Pasewark

OAH granted Trivium Charter School's first continuance request over Mother's objection, finding good cause because the school's attorney had a conflicting out-of-state hearing. The hearing was reset to February 4, 2020.

Granted Scheduling and continuances

This case went to decision

Trivium Charter School v. Student: Trivium Charter School may reassess a tenth grader without parent consent; its request to compel medical releases is denied. (2020)

Summary

Trivium Charter School asked to continue the prehearing conference and due process hearing in its own case because its attorney had a conflicting out-of-state hearing. Mother objected at the prehearing conference and asked that the hearing go forward as scheduled. OAH found good cause for this first, timely request. It reset the prehearing conference to January 24, 2020 and the hearing to February 4-6, 2020 in Santa Barbara. OAH also ordered the school to certify that the hearing facility is accessible to people with disabilities.

Why it matters

Even though continuances are disfavored under the 45-day timeline, OAH will often grant a first, timely request based on counsel's conflict in another trial, even when a parent objects. Parents who oppose a continuance should be ready to show specific prejudice from the delay.

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)

People named in the order

  • Hollis R. Peterson, Attorney for Trivium Charter School
  • Judith L. Pasewark, Administrative Law Judge

Topics

continuance good cause attorney calendar conflict self-represented parent charter school prehearing conference

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:

TRIVIUM CHARTER SCHOOL,

v.

PARENT ON BEHALF OF STUDENT.

OAH CASE NUMBER 2020010158

ORDER FOLLOWING PREHEARING CONFERENCE

GRANTING REQUEST FOR CONTINUANCE

On January 17, 2020, Administrative Law Judge Judith L. Pasewark, 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. Hollis R. Peterson, Attorney at Law, appeared on behalf of Trivium Charter School. Mother appeared on behalf of Student. The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:

HEARING DATES, TIMES, AND LOCATION

On January 13, 2020, Trivium Charter School moved to continue the prehearing conference and due process hearing based on a calendar conflict for counsel involving an out-of-state hearing. This is the first request for continuance. The motion was timely filed three days prior to the prehearing conference. Mother orally opposed the continuance, requesting the hearing go forward as scheduled.

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).)

The request for continuance is granted for good cause. All previously scheduled dates are vacated. The case shall proceed as follows:

Prehearing Conference: January 24, 2020, at 3:00 p.m.

All other prehearing matters shall be addressed at the January 24, 2020 prehearing conference. All prehearing motions must be filed three business days before the PHC.

Due Process Hearing: February 4, 5, 6, 2020.

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: Living Faith Center, 4597 Hollister Avenue, Santa Barbara, California 93110.

Trivium Charter School shall fully comply with the Americans with Disabilities Act of 1990 (42 U.S.C. § 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. Trivium Charter School is required to file written certification with OAH that the facilities it provides complies with these laws. Trivium Charter School shall file the required certification with five days of this order and provide facilities that comply with these laws.

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: January 17, 2020 Judith Pasewark Administrative Law Judge Office of Administrative Hearings