California OAH special education order · May 28, 2021
Order Following Prehearing Conference for Hearing by Videoconference
OAH Case No. 2021040585 · ALJ Ted Mann
OAH granted Ventura's first continuance over Student's objection because district counsel was in another OAH hearing, but reset the hearing to mid-July rather than the fall as Ventura asked.
This case went to decision
Student v. Ventura Unified School District: Ventura Unified must fund 220 compensatory hours and goal-writing training for distance-learning FAPE denials; several claims denied. (2021)
Summary
Ventura asked to continue Student's due process case until the new school year in the fall. Student did not file a written opposition but objected at the prehearing conference to a delay that long. The ALJ found good cause for a first continuance because Ventura's attorney had a scheduling conflict with a hearing already underway at OAH. All prior dates were vacated, a new prehearing conference was set for July 2, 2021, and a three-day videoconference hearing was set for July 13–15, 2021.
Why it matters
OAH treats continuances as disfavored and may grant one for a counsel conflict while still refusing the long delay a district wants. Parents who object at the prehearing conference can limit how far a hearing is pushed back.
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
- Ted Mann, Administrative Law Judge
- Sheila Bayne, Attorney for Student
- Shayla White, Attorney for Student
- Colman Alguire, Attorney for Student
- Melissa Hatch, Attorney for Ventura Unified School District
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:
PARENTS ON BEHALF OF STUDENT,
v.
VENTURA UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021040585
ORDER FOLLOWING PREHEARING CONFERENCE FOR
HEARING BY VIDEOCONFERENCE
MAY 28, 2021
On April 16, 2021, Student filed a request for a due process hearing naming Ventura Unified School District. On May 25, 2021, Ventura filed a request for continuance seeking a continuance of the case until the new school year begins in the Fall. Written Opposition was not filed by Student.
On May 28, 2021, Administrative Law Judge Ted Mann, Office of Administrative Hearings, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH. The prehearing conference is called a PHC.
Sheila Bayne, Shayla White, and Colman Alguire, Attorneys at Law, appeared on behalf of Student. Melissa Hatch, Attorney at Law, appeared on behalf of Ventura Unified School District. The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:
HEARING DATES, TIMES, AND LOCATION
Ventura’s request for a continuance was addressed at the PHC. Student opposed a continuance of the length sought by Ventura.
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. Good cause for Ventura’s request for a first continuance is found in attorney Hatch’s scheduling conflict with a matter currently underway in hearing before OAH. All previously scheduled dates are vacated. The case shall proceed as follows:
Prehearing Conference: Friday, July 2, 2021, at 10:00 AM All other prehearing matters shall be addressed at the July 2, 2021 prehearing conference.
Due Process Hearing: July 13, 2021 through July 15, 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 are encouraged to continue working together to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately if they reach a settlement or otherwise resolve the dispute before the scheduled hearing.
In addition, if a settlement is reached 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. 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.
If a full and final written settlement agreement is reached after 4:00 PM the day prior to 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.
Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received and processed 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.
IT IS SO ORDERED.
Ted Mann Ted Mann (May 28, 2021 12:51 PDT)
Ted Mann Administrative Law Judge Office of Administrative Hearings