California OAH special education order · March 16, 2022
Order Granting Request to Continue Due Process Hearing
OAH Case No. 2022010714, 2022010599 · ALJ Robert G. Martin
OAH granted Etiwanda only a one-week continuance, to March 29 and 30, 2022, rather than the six-week delay it sought, after Student objected that a longer delay would push relief past the school year.
This case went to decision
Student v. Etiwanda School District (consolidated): Etiwanda School District cannot implement its December 2021 IEP; it must fund therapy hours, a physical therapy IEE, and staff training. (2022)
Summary
Etiwanda asked to move the March 22–24, 2022 hearing to late May because staff would be unavailable over spring break, its counsel had a family event, and counsel had other hearings and a vacation. Student objected that a six-week delay would push the decision and any relief past the end of the school year on May 26, 2022. OAH found good cause for a short continuance only. It reset the hearing to March 29 and 30, 2022, noting that continuances are disfavored under the 45-day decision timeline.
Why it matters
When a district asks for a long delay, a parent who objects that relief would come after the school year ends may get a much shorter continuance than the district wanted. Counsel's busy calendar does not automatically justify a lengthy delay.
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 CONSOLIDATED MATTERS INVOLVING:
PARENT ON BEHALF OF STUDENT,
and
ETIWANDA SCHOOL DISTRICT,
OAH CASE NUMBER 2022010714
OAH CASE NUMBER 2022010599
ORDER GRANTING REQUEST TO CONTINUE DUE PROCESS
HEARING
MARCH 16, 2022
On March 11, 2022, Etiwanda School District filed with the Office of Administrative Hearings, referred to as OAH, a request to continue the hearing of this matter from its present dates of March 22 through 24, 2022, to May 23, 24, and 25,
2022. Student opposed the request, and the parties argued the motion at the March 14,
2022 prehearing conference in the mater, after which the administrative law judge took the matter under submission.
Etiwanda established good cause at the prehearing conference for the late filing of its request for continuance. Etiwanda's counsel declared Etiwanda had electronically filed and served the request for continuance on March 7, 2022, and Student's counsel confirmed she had received the request for continuance, with completed proof of service, on March 7, 2022.
Etiwanda requested the continuance of the March 22 through 24, 2022 dates due to the unavailability of some of its employees during Etiwanda's spring vacation, and to accommodate a vacation by Etiwanda's counsel to attend a significant family event.
Etiwanda proposed May 3, 2022 as its first available date for hearing, with its counsel being unavailable until then due to being the attorney of record in hearings in four other matters scheduled before OAH for the weeks of March 28, 2022 and April 4, 11, and 18, 2022, and a pre-paid vacation scheduled for the week of April 25, 2022.
Student did oppose a short continuance of the due process hearing, but objected that the requested six-week continuance would prejudice Student by delaying OAH's decision and the possible relief to Student until after the end of Etiwanda's 2021-2022 regular school year, which ends May 26, 2022.
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. Etiwanda has shown good cause for a short continuance of the due process hearing in this matter. The request is:
Granted. The present hearing dates are vacated. The continuance request is granted as of the date of this Order. This matter will be set as follows:
Due Process Hearing will be held on March 29 and 30, 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. The first day of hearing for purposes of calculating deadlines for the service of exhibits and final witness lists is March 29, 2022. Timely uploading electronic hearing exhibits five business days before the first day of hearing constitutes that party’s timely exchange of evidence on each other in compliance with Education Code section 56505, subdivision (e)(7).
IT IS SO ORDERED.
Robert G. Martin Administrative Law Judge Office of Administrative Hearings