California OAH special education order · June 6, 2022
Order Following Prehearing Conference Granting Request for Continuance
OAH Case No. 2022050832 · ALJ Judith L. Pasewark
OAH granted Charter Oak's first continuance request over Parent's opposition, finding good cause because the district's counsel was unavailable, and reset the hearing to August 23 through 25, 2022.
This case went to decision
Charter Oak Unified School District v. Student: Charter Oak Unified's April 2022 initial multidisciplinary assessment upheld; district need not fund independent educational evaluations. (2022)
Summary
Charter Oak asked to continue the prehearing conference and due process hearing in its own case because its attorney was unavailable on the scheduled hearing date. This was its first request. Parent opposed because she did not want the case to continue through the summer. The ALJ found good cause and granted the continuance, setting mediation for July 7, 2022, a prehearing conference for August 15, 2022, and a videoconference hearing for August 23 through 25, 2022. The ALJ also noted that Parent's opposition raised new issues and remedies, and said that if Parent wants those heard she must file her own due process complaint.
Why it matters
A district's first continuance request based on its attorney's unavailability can be granted even when a parent objects, so parents should expect some delay. A parent who wants to raise their own claims must file a separate due process complaint; new issues written into an opposition brief will not be heard.
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
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
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:
CHARTER OAK UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT.
OAH CASE NUMBER 2022050832
ORDER FOLLOWING PREHEARING CONFERENCE
GRANTING REQUEST FOR CONTINUANCE
JUNE 6, 2022
On June 6, 2022, Administrative Law Judge Judith L. Pasewark, 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. Courtney Brady, Attorney at Law, appeared on behalf of Charter Oak Unified School District. Charter Oak Unified School District is called Charter Oak. Parent appeared on behalf of Student. The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:
HEARING DATES, TIMES, AND LOCATION
On June 1, 2022, Charter Oak moved to continue the prehearing conference and due process hearing based on Charter Oak’s counsel is not available on the scheduled hearing date. This is a first request for continuance.
The motion was timely filed three days prior to the prehearing conference. On June 6, 2022, Parent filed an opposition to the continuance, on the grounds that she did not want this matter continuing through the summer. Her opposition, however, also included what may be construed as complaint on behalf of Student, as it included new issues and requests for remedies. If Parent wishes to file their own complaint on behalf of Student against Charter Oaks, Parent may contact the Case Manager on how to file their own due process hearing 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).)
The request for continuance is granted for good cause. All previously scheduled dates are vacated. The case shall proceed as follows:
Mediation: July 7, 2022, 9:00 a.m. to 4:30 p.m.
The mediation shall occur via videoconference.
Prehearing Conference: August 15, 2022 at 1:00 p.m.
The prehearing conference shall occur via videoconference. All other prehearing matters shall be addressed at the August 15, 2022 prehearing conference. All prehearing motions must be filed three business days before the PHC.
Due Process Hearing: August 23, through 25, 2022.
The hearing shall begin at 9:30 AM on the first day of the hearing and at 9:00 AM on all other days, unless otherwise ordered. The hearing shall continue day to day at the discretion of the ALJ.
OAH is authorized to conduct due process hearings by videoconference or telephone. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) OAH will conduct the due process hearing by videoconference using the Microsoft Teams application. Unless otherwise ordered, participants are required to appear by videoconference using a webcam and Microsoft 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 appear to testify. A party’s failure to notify or subpoena a witness to testify will not be considered good cause to continue the hearing. Instructions for issuing and responding to subpoenas and optional forms for subpoenas can be found on the website at https://www.dgs.ca.gov/OAH/Case-Types/Special- Education/Forms/Subpoenas?search=special%20education%20subpoena 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.
Judith Pasewark Administrative Law Judge Office of Administrative Hearings