California OAH special education order · September 19, 2022
Order Following Prehearing Conference Granting Request for Continuance
OAH Case No. 2022070352 · ALJ Marlo Nisperos
OAH granted Student a brief continuance over Travis Unified's modest objection, finding good cause because Student, as respondent in a district-filed case, retained counsel quickly after filing and counsel was not ready.
This case went to decision
Student v. Travis Unified School District (consolidated): Travis Unified prevails on all claims; exit from special education upheld and March 2022 behavior assessment found appropriate. (2023)
Summary
At the prehearing conference, Student asked to continue the prehearing conference and due process hearing because Student's attorney had just been retained and was not prepared for the scheduled dates. Travis Unified made a modest objection. The ALJ excused the late filing of the motion and granted the continuance. Although attorneys who take a case after filing are normally on notice of the hearing dates, Student was the respondent and had obtained counsel quickly. All dates were vacated, and the case was reset to a November 7, 2022 prehearing conference and a November 15 to 17, 2022 hearing.
Why it matters
When a district files against a student, a family that hires counsel promptly may get a short continuance so its new attorney can prepare. The ALJ warned, however, that newly retained attorneys should not assume a continuance will be granted.
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.
7BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
IN THE MATTER OF:
TRAVIS UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT
OAH CASE NUMBER 2022070352
ORDER FOLLOWING PREHEARING CONFERENCE
GRANTING REQUEST FOR CONTINUANCE
SEPTEMBER 19, 2022
On September 19, 2022, Administrative Law Judge Marlo Nisperos, 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. Jan Tomsky, Attorney at Law, appeared on behalf of Travis Unified School District. Tania Whiteleather, Attorney at Law, appeared on behalf of Student. Parent was present 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
Student moved to continue the prehearing conference and due process hearing based on Student’s counsel was recently retained to represent them in this matter and was not prepared to proceed to hearing on the dates currently scheduled.
The motion was not filed three days before the PHC. Student established good cause for filing the motion less than three days before this PHC based upon counsel recently being retained. Travis Unified made a modest objection.
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. Typically, attorneys are on notice of the scheduled hearing dates in situations where they agree to provide representation after a matter is filed. Continuances after assuming representation should not be assumed.
Here, however, Student is the respondent. Student obtained counsel expeditiously after the matter was filed. Under the circumstances presented here, Student established good cause for a brief continuance. The matter was scheduled based upon counsel’s schedule, including out of state vacation schedules. All previously scheduled dates are vacated. The case shall proceed as follows:
PREHEARING CONFERENCE will be held on November 7, 2022, at 3:00 PM.
All other prehearing matters shall be addressed at the November 7, 2022, prehearing conference. All prehearing motions must be filed three business days before the PHC.
Due Process Hearing: November 15, through November 17, 2022.
The hearing will be conducted via telephone or videoconference and shall begin at 9:30 AM and end at 3:30 PM on all days, unless otherwise ordered. The hearing shall continue day to day at the discretion of the ALJ.
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.
Marlo Nisperos Administrative Law Judge Office of Administrative Hearings