California OAH special education order · December 13, 2021
Order Denying Request for Continuance
OAH Case No. 2021110515 · ALJ Linda Johnson
OAH denied a parent's last-minute request to continue the District's due process hearing to seek legal advice or counsel, finding no good cause because the parent skipped the prehearing conference and waited until two business days before hearing.
This case went to decision
Tustin Unified School District v. Student: Tustin Unified may conduct a ninth grader's triennial reassessment without one parent's consent, ALJ rules. (2022)
Summary
Parent Two asked OAH to continue the hearing in Tustin's due process case so Parent Two could get legal advice or hire counsel. Tustin opposed. The ALJ denied the request. Both divorced Parents share educational rights and were served with the complaint and hearing dates. Parent One took part in the prehearing conference and was available to represent Student. Parent Two refused to join the prehearing conference despite being told the hearing would go forward, never mentioned seeking counsel, and gave no reason for waiting until two business days before the hearing. The hearing stayed set for December 14, 2021.
Why it matters
Wanting to hire a lawyer is not good cause for a continuance if a parent waits until the eve of hearing and skips the prehearing conference. Parents served with a district's complaint should act quickly to get help and should take part in every scheduled conference.
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:
TUSTIN UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT.
OAH CASE NUMBER 2021110515
ORDER DENYING REQUEST FOR CONTINUANCE
DECEMBER 13, 2021
On December 10, 2021, Parent Two, on behalf of Student, filed with the Office of Administrative Hearings, referred to as OAH, a request to continue this matter, based upon wanting legal advice or to retain counsel. On December 10, 2021, Tustin Unified School District opposed the request.
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 denied. Tustin filed a request for due process on November 18, 2021. Tustin named both Parents on behalf of Student. Parents are divorced and share educational decision-making rights for Student. Both Parents were served a copy of the complaint and scheduling order setting the prehearing conference and due process hearing dates. Parent One participated in the prehearing conference and is available to represent Student at the due process hearing. Parent Two, who requested the continuance, refused to participate in the prehearing conference. The undersigned Administrative Law Judge spoke to Parent Two at the beginning of the prehearing conference and told Parent Two that the hearing was going forward on December 14, 2021, and if Parent Two had any questions about the hearing Parent Two should participate in the prehearing conference.
Parent Two declined to participate in the prehearing conference and did not state Parent Two was seeking legal representation or that Parent Two was going to request a continuance. Parent Two did not provide any reason in the request for continuance as to why Parent Two waited until two business days prior to the hearing to request a continuance. Parent Two did not establish good cause for a continuance. The due process hearing will commence as scheduled on December 14, 2021, at 9:30 AM.
IT IS SO ORDERED.
Linda Johnson Administrative Law Judge Office of Administrative Hearings