California OAH special education order · July 14, 2022
Order Granting Request for Continuance
OAH Case No. 2022010333, 2022060344 · ALJ Claire Yazigi
OAH granted Student's continuance over Los Angeles's objection because Student's attorney and expert witness both had COVID, resetting the hearing to August 2-4, 2022.
This case went to decision
Student v. Los Angeles Unified School District (consolidated): Los Angeles Unified missed child find for gifted eighth grader, but student was ineligible; IEE denied and no remedy ordered. (2022)
Summary
Student asked to continue the due process hearing because Student's attorney and Student's expert witness were both ill with COVID. Los Angeles opposed. It pointed to the age of the case and the number of continuances already granted, and argued that another attorney in Student's counsel's office should handle the matter. OAH found good cause in the illness and unavailability of both the attorney and the essential expert witness, weighed against the short length of the delay requested. A declaration also showed that Parent was ready to proceed on the new dates, so the request was not based on Parent's vacation plans.
Why it matters
Illness of the attorney of record or an essential expert can justify a short continuance even in an older case with prior continuances, despite a district's argument that another attorney in the firm could step in. Supporting declarations that rebut the opposing side's suggested motives can help the request succeed.
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)
People named in the order
- Carolina Watts, Declarant (declaration attached to Student's reply)
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 CONSOLIDATED MATTERS INVOLVING:
PARENT ON BEHALF OF STUDENT,
and
LOS ANGELES UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2022010333
OAH CASE NUMBER 2022060344
ORDER GRANTING REQUEST FOR CONTINUANCE
JULY 14, 2022
On July 13, 2022, Student filed with the Office of Administrative Hearings, referred to as OAH, a request to continue this matter, based upon Student’s counsel’s COVID illness, as well as the COVID illness of Student’s expert witness. On July 13, 2022, Los Angeles Unified School District opposed the request based upon the age of this case and the number of continuances already granted, and Los Angeles’s assertion that another attorney within Student’s counsel’s office should handle the matter. On July 13, 2022, Student filed a reply to Los Angeles’s opposition, reiterating its continuance 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).)
In reviewing the request, the undersigned considered the number of continuances already granted in this case against the modest length of continuance Student currently requests. Student established good cause for continuance based on the illness of Student’s attorney of record, and the attorney’s resulting inability to prepare for or appear at hearing. Student also established good cause for continuance based on the COVID illness and unavailability of Student’s expert witness. Student’s continuance request was not based on Parent’s vacation plans; rather, the Declaration of Carolina Watts, attached to Student’s reply, established that Parent is willing to proceed to hearing on the new dates requested. Student’s continuance request is granted over Los Angeles’ objection. This matter will be set as follows:
Due Process Hearing will be held on August 2, 3, and 4, 2022. 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.
IT IS SO ORDERED.
Claire Yazigi Administrative Law Judge Office of Administrative Hearings