California OAH special education order · January 23, 2023
Order Denying Student's Request for Continuance
OAH Case No. 2023010221 · ALJ Cararea Lucier
OAH denied Student's request for a two-month continuance. The attorney Parent planned to hire had not filed a notice of representation, and Student showed no diligent search for other counsel and no Parent unavailability.
This case went to decision
Simi Valley Unified School District v. Student: Simi Valley Unified's October 2022 IEP moving a ninth grader from residential treatment to Phoenix School offered a FAPE. (2023)
Summary
Parent asked to move the January 31 to February 2, 2023 hearing in Simi Valley's case to April because the attorney Parent intended to retain, Andrea Marcus, was unavailable. Simi Valley opposed. It argued there was no good cause and that the case should move quickly because the issue was whether Student should be discharged from a residential treatment center. OAH denied the request because Attorney Marcus had not filed a notice of representation, so her unavailability carried little weight. Student also did not show diligent efforts to find available counsel or that Parent was unavailable.
Why it matters
A planned attorney's unavailability will not support a continuance unless that attorney has formally appeared in the case. Families who know their preferred lawyer cannot attend should quickly look for other counsel and document those efforts.
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
- Andrea Marcus, Attorney Parent intended to retain; filed Student's earlier withdrawn complaint
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:
SIMI VALLEY UNIFIED SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.
OAH CASE NUMBER 2023010221
ORDER DENYING STUDENT’S REQUEST FOR
CONTINUANCE
JANUARY 23, 2023
On January 19, 2023, Parent on behalf of student filed with the Office of Administrative Hearings, referred to as OAH, a request to continue this matter, based upon the unavailability of her attorney on the scheduled due process hearing dates of January 31, 2023, and February 1 and 2, 2023. Student requests to continue the matter to April 4, 2023, through April 6, 2023. On January 20, 2023, Simi Valley Unified School District opposed the request, arguing that Student did not establish good cause for a continuance, and that the matter should be resolved in a speedy manner because the issue for hearing is whether Student should be discharged from a residential treatment center, a highly restrictive setting.
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. All prehearing conference and hearing dates are confirmed and shall proceed as calendared. The continuance request is denied as Student did not establish good cause for a two-month continuance. Parent intends to retain attorney Andrea Marcus for this hearing. On October 19, 2022, Attorney Marcus filed a complaint on behalf of Student in which she also requested a stay put of Student’s placement at a residential treatment facility. OAH designated that case number 2022100535. On December 16, 2022, Student withdrew his complaint in OAH Case number 2022100535.
Simi Valley filed the current matter on January 9, 2023. Attorney Marcus has not filed a notice of representation in the current matter, making her unavailability for hearing of little relevance. Student failed to demonstrate that they made diligent efforts to find counsel for the currently scheduled hearing dates given Parent’s knowledge of Attorney Marcus’s unavailability. Student did not show that Parent is unavailable on the scheduled hearing dates. As such, Student failed to demonstrate good cause for a continuance and the motion to continue is denied.
IT IS SO ORDERED.
Cararea Lucier Administrative Law Judge Office of Administrative Hearings