California OAH special education order · January 10, 2022
Order Following Prehearing Conference Granting Request for Continuance
OAH Case No. 2021090721 · ALJ Ted Mann
OAH granted Chula Vista's opposed continuance because Student's 2019-2020 teacher, a key witness for both sides, was unavailable due to a serious medical condition with a firm return-to-work date.
This case went to decision
Student v. Chula Vista Elementary School District: Chula Vista Elementary must fund 38 compensatory hours for IEP services missed in spring 2020 distance learning; other claims denied. (2022)
Summary
Chula Vista asked to continue the prehearing conference and due process hearing because a critical witness remained unavailable. Student opposed, arguing there was no good cause, the witness was not essential, and further delay would harm Student. The ALJ found good cause. Student's 2019-2020 teacher was the key witness for both sides on the March 2020 through end-of-year virtual program, the teacher had a firm return date, and Student was not prejudiced because Student also needed the teacher and had left the district in June 2020. The hearing was reset to May 24-26, 2022, counsel were ordered to meet and confer by May 9 about the witness and alternatives, and further continuances will be greatly disfavored.
Why it matters
OAH may find that delay does not prejudice a student who has already left the district, especially when the missing witness is also needed for the student's own case. Parties should plan other ways to prove facts in case a key witness stays unavailable.
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
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.
CHULA VISTA ELEMENTARY SCHOOL DISTRICT.
OAH CASE NUMBER 2021090721
ORDER FOLLOWING PREHEARING CONFERENCE
GRANTING REQUEST FOR CONTINUANCE
JANUARY 10, 2022
On January 10, 2022, 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 prehearing conference will be referred to as a PHC.
Sheila Bayne, Attorney at Law, appeared on behalf of Student. Pamela Townsend, Attorney at Law, appeared on behalf of Chula Vista Elementary School District. The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:
HEARING DATES, TIMES, AND LOCATION
Chula Vista moved to continue the prehearing conference and due process hearing based on the continuing unavailability of a critical witness for the hearing.
The motion was timely filed three days prior to the prehearing conference. The motion was opposed on the grounds that Chula Vista lacked good cause for the requested continuance, that the witness was not essential for hearing, and that Student would be prejudiced by any further delay in the hearing.
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. Student’s teacher for the 2019-2020 school year is unavailable due to a serious medical condition and is the key witness for both Student’s claims and Chula Vista’s defenses related to the period from March 2020 through the end of the 2019-2020 school year. There is a firm date for return to employment for this key witness, and the requested continuance is a reasonable time for Chula Vista to determine whether the teacher will be able to return from their serious medical condition and testify at hearing. This time also gives both parties time to explore alternative means of establishing Student’s educational needs and performance during the 2019-2020 school year and the components of the virtual program from March 2020 through the end of the 2019-2020 school year in the event of the teacher’s continued unavailability.
There is no prejudice to Student for two reasons. First, Student also needs the teacher to prove up Student’s case. Second, Student matriculated from Chula Vista’s elementary school district over one year and a half ago, in June 2020, and Student will not be denied a free appropriate public education by the continuance.
The request for continuance is granted for good cause. Further requests for continuance of this matter are greatly disfavored and a requesting party will be expected to demonstrate substantial good cause for a further continuance. All previously scheduled dates are vacated. The case shall proceed as follows:
Prehearing Conference: Friday, May 13, 2022 at 1:00 PM.
Prehearing Conference Location: Videoconference through MS Teams.
All other prehearing matters shall be addressed at the May 13, 2022 PHC. All prehearing motions must be filed three business days before the PHC. Counsel for Student and Chula Vista, respectively, are ordered to meet and confer by Monday, May 9, 2022, by 5:00 PM to discuss the availability of the witness at issue, and to discuss alternatives if the witness’ unavailability for testimony at hearing continues. At the May 13, 2022 PHC, the attorneys will be expected to report on their discussions, and any agreement reached, during their meet and confer.
Due Process Hearing: May 24, 2022 through May 26, 2022.
The hearing shall begin at 9:30 AM on each day of the hearing, unless otherwise ordered. The hearing shall continue day to day at the discretion of the ALJ.
Hearing Location: Videoconference through 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 Administrative Law Judge Office of Administrative Hearings