California OAH special education order · December 30, 2020
Order Granting Request for Continuance and Setting Prehearing Conference and Hearing
OAH Case No. 2020100198 · ALJ Rita Defilippis
OAH granted Charter Oak's opposed request to continue the hearing because its counsel had hearings in previously filed cases, and reset the hearing to January 26-28, 2021.
This case went to decision
Student v. Charter Oak Unified School District: Charter Oak Unified must fund 35 hours of ABA after failing to offer an IEP or comparable services at age three. (2021)
Summary
Charter Oak asked to continue the due process hearing because its counsel had hearings in two earlier-filed cases on the same dates. Parent opposed, arguing the delay would prejudice Student. OAH granted the request because earlier-filed cases take priority over later-filed ones. It found Parent's claim that a two-week delay would harm Student unpersuasive, and reset the prehearing conference to January 15, 2021 and the hearing to January 26-28, 2021, both by videoconference.
Why it matters
Opposing a short continuance usually won't succeed on a general claim of delay, especially when opposing counsel is in hearings in earlier-filed cases. Parents who oppose should show specific, concrete harm to the student from the delay.
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
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.
CHARTER OAK UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020100198
ORDER GRANTING REQUEST FOR CONTINUANCE AND
SETTING PREHEARING CONFERENCE AND HEARING
DECEMBER 30, 2020
On December 23, 2020, Charter Oak Unified School District filed with the Office of Administrative Hearings, referred to as OAH, a request to continue hearing in this matter. The reason for the request is that Charter Oak’s counsel has a due process hearing, in a previously filed case, scheduled on the same dates as hearing in the current matter. On December 28, 2020, Parent filed an 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:
Granted. All dates are vacated. The continuance request is granted as previously filed cases take priority over later filed cases. Charter Oak’s counsel has due process hearings in two previously filed cases on consecutive weeks. Parent opposed the motion as the continuance will result in a delay in resolving the dispute. Parent’s position that a two-week continuance will result in prejudice to Student is unpersuasive.
Accordingly, this matter will be set as follows:
Prehearing Conference will be held via videoconference on January 15, 2021, at
3:00 PM.
Due Process Hearing will be held via videoconference on January 26, 27, and 28,
2021. The hearing shall begin at 9:30 AM on all days unless otherwise ordered. The
hearing shall continue day to day, as needed at the discretion of the Administrative Law Judge.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure their availability to testify. Good cause for witness unavailability is not established by failing to properly notify or subpoena a witness. Prehearing conference statements and motions are due to OAH no later than three business days before the prehearing conference or with evidence of good cause why it was not possible to file the motion by that date.
IT IS SO ORDERED.
Rita Defilippis Administrative Law Judge Office of Administrative Hearings