California OAH special education order · January 15, 2021
Order Following Prehearing Conference Granting Student's Request for Continuance
OAH Case No. 2020120031 · ALJ Ted Mann
OAH granted Parents' late, opposed request to continue the hearing. A sudden family emergency and an ongoing search for counsel were good cause, and that outweighed any prejudice to Pivot Charter.
This case went to decision
Pivot Charter School – San Diego v. Student: Pivot Charter School – San Diego may not implement its November 2020 IEP over parents' objection; offer was unclear and unproven. (2021)
Summary
At the prehearing conference, self-represented Parents asked to continue the prehearing conference and due process hearing in Pivot Charter School's case. They cited continuing difficulty finding affordable or available counsel and a sudden family emergency. Pivot Charter opposed, arguing further delay would hurt both sides. The ALJ excused the late filing because Parents had trouble with OAH's e-filing system, found good cause, reset the prehearing conference to March 26, 2021 and the hearing to April 6-8, 2021, and warned that further continuances will be greatly disfavored.
Why it matters
Parents without a lawyer can get more time when a family emergency and a real effort to find counsel would otherwise force them into hearing unprepared, even over a district's objection. Later requests, however, face a much higher bar and must be in writing with compelling reasons.
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)
- Cal. Rules of Court, rule 3.1332(d)
People named in the order
- Ted Mann, Administrative Law Judge
- Rebecca Diddams, Attorney for Pivot Charter School
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:
PIVOT CHARTER SCHOOL - SAN DIEGO,
v.
PARENT ON BEHALF OF STUDENT.
OAH CASE NUMBER 2020120031
ORDER FOLLOWING PREHEARING CONFERENCE
GRANTING STUDENT’S REQUEST FOR CONTINUANCE
JANUARY 15, 2021
On January 15, 2021, Administrative Law Judge Ted Mann, Office of Administrative Hearings held a telephonic prehearing conference. The Administrative Law Judge will be referred to as an ALJ. The Office of Administrative Hearings will be referred to as OAH. The prehearing conference will be referred to as a PHC.
Rebecca Diddams, Attorney at Law, appeared on behalf of Pivot Charter School.
Parents 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
Student moved to continue the prehearing conference and due process hearing based on continuing difficulty retaining affordable or available counsel, along with a sudden family emergency.
The motion was not filed three days before the PHC. Student established good cause for filing the motion less than three days before this PHC in ongoing difficulties using the OAH e-filing system. The motion was opposed on the grounds that a further continuance would be prejudicial to both Pivot Charter and Student.
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. Parents’ sudden family emergency and Parents’ continuing search for counsel to represent their son, along with enough time to prepare for a hearing, constitutes good cause for the continuance requested. Any prejudice to Pivot Charter is vastly outweighed by the prejudice to Parents in being forced to hearing without either an attorney or enough time to prepare for hearing. All previously scheduled dates are vacated. Further requests for continuance will be greatly disfavored. If made, such requests shall be in writing and evidence compelling cause for further delay of the hearing. The case shall proceed as follows:
Prehearing Conference: Friday, March 26, 2021, at 3:00 PM All other prehearing matters shall be addressed at the March 26, 2021 prehearing conference.
Due Process Hearing: April 6, 2021 through April 8, 2021.
The hearing shall begin at 9:30 AM on each day of the hearing, unless otherwise ordered by the ALJ. The hearing shall continue day to day at the discretion of the ALJ.
Hearing Location: By Teleconference on MS Teams.
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.
Ted Mann Ted Mann (Jan 19, 2021 13:56 PST)
Ted Mann Administrative Law Judge Office of Administrative Hearings