Order Following Prehearing Conference Continuing Due Process Hearing

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

HUENEME ELEMENTARY SCHOOL DISTRICT,

v.

PARENT ON BEHALF OF STUDENT.

OAH CASE NUMBER 2023030299

ORDER FOLLOWING PREHEARING CONFERENCE

CONTINUING DUE PROCESS HEARING

MAY 12, 2023

On May 12, 2023, Administrative Law Judge Jennifer Kelly, Office of Administrative Hearings, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH. The prehearing conference is called a PHC.

Beatrice Hoffman and Kathleen LaMay, Attorneys at Law, appeared on behalf of Hueneme Elementary School District, called Hueneme. 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

DUE PROCESS HEARING

The due process hearing currently is scheduled for May 23, 24, and 25, 2023. On May 11, 2023, Student filed a motion to continue the due process hearing for two months because he is seeking legal representation. Hueneme filed an opposition to the continuance request on May 11, 2023.

Parent advised the ALJ she is in the process of seeking legal representation and believes she has located an attorney that is willing to represent Student in this matter.

Parent represented that she believes she will have an answer from the attorney shortly.

Hueneme opposed the continuance on the basis Student had sufficient time to retain legal counsel since the complaint was filed on March 9, 2023, but has not done so.

Hueneme further argued that a continuance of the due process hearing after the end of the current school year will prejudice Student, who has not been assessed for over five years.

OAH must conduct a due process hearing and issue a decision within 45 days of receiving the due process complaint unless an extension is granted. (34 C.F.R.

§ 300.515(a); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3).) Resolving the due process hearing quickly is legally required. Hearings may only be continued if "good cause" is established. (Ed. Code, § 56505, subd. (f)(3).) OAH is guided by the Administrative Procedure Act and the California Rules of Court when ruling on continuance motions. (Cal. Code Regs., tit. 1, § 1020; Cal. Rules of Court, rule 3.1332.)

Good cause to continue a hearing may include:

• An essential lay or expert witness is unavailable because of death, illness,

or other excusable circumstances;

• A party is unavailable because of death, illness, or other excusable

circumstances;

• A party’s attorney is unavailable because of death, illness, or other

excusable circumstances;

• A new attorney substitutes in, but only if the party establishes that the

substitution is required in the interests of justice;

• A new party is added, and the new party has not had a reasonable

opportunity to prepare for trial, or other parties have not had a reasonable opportunity to prepare for trial regarding the new party's involvement;

• A party is unable to obtain essential testimony, documents, or other

material evidence despite diligent efforts; or

• The case has a significant and unexpected change which makes the case

not ready for trial.

Generally, continuances are disfavored. (Cal. Rules of Court, rule 3.1332(c).)

Student established good cause for a brief continuance of the due process hearing for the purpose of retaining legal counsel, but not for the length of time requested. All previously scheduled dates are vacated. The new dates are:

PREHEARING CONFERENCE will be held on May 22, 2023, at 10:00 AM.

DUE PROCESS HEARING will be held on June 6, 7, and 8, 2023.

The prehearing conference, and due process hearing will be held by videoconference or telephone, unless otherwise ordered. The due process hearing will begin at 9:30 AM on all days, and generally end at 3:30 PM, unless otherwise ordered.

The hearing will continue day to day, as needed, Mondays and Fridays included, at the discretion of the Administrative Law Judge. Prehearing conference statements and motions are due to OAH no later than three business days before the prehearing conference. Late motions will only be considered if good cause is established for the late filing.

The parties must immediately give potential witnesses the hearing dates, and must subpoena witnesses, if necessary, so they are available to testify. Failing to properly notify or subpoena a witness is not good cause to delay the hearing.

SETTLEMENT

The parties are encouraged to continue working together to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately if they reach a settlement or otherwise resolve the dispute before the scheduled hearing.

In addition, if a settlement is reached 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. At the same time, the parties should send the signature page of the signed agreement or a letter withdrawing the case to OAH by visiting OAH Secure e-file at https://www.applications.dgs.ca.gov/oah/oahsftweb.

If a full and final written settlement agreement is reached after 4:00 PM the day prior to 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.

Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received and processed 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

The failure to comply with this Order may result in the exclusion of evidence or other sanctions.

ORDER INCLUDES ALL RULINGS

This Order includes all rulings made at the PHC. Any discussion and conversation not referenced in this Order is not binding on the ALJ conducting the hearing and may not be relied upon by the parties. The parties should be aware that, at hearing, the ALJ conducting the hearing has discretion to reconsider any part of this Order.

IT IS SO ORDERED.

Jennifer Kelly Administrative Law Judge Office of Administrative Hearings