Order Following Prehearing Conference Granting Request for Continuance

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE CONSOLIDATED MATTERS INVOLVING:

PARENT ON BEHALF OF STUDENT,

and

BONITA UNIFIED SCHOOL DISTRICT,

OAH CASE NUMBER 2023040205

OAH CASE NUMBER 2023040004

ORDER FOLLOWING PREHEARING CONFERENCE

GRANTING REQUEST FOR CONTINUANCE

MAY 12, 2023

On May 12, 2023, Administrative Law Judge Paul H. Kamoroff, Office of Administrative Hearings, held a videoconference prehearing conference. The Administrative Law Judge is called an ALJ. The prehearing conference is called a PHC.

Attorney Diane B. Weissburg appeared on behalf of Parent and Student. Attorney Gabrielle Ortiz appeared on behalf of Bonita Unified School District, called Bonita. The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:

HEARING DATES, TIMES, AND LOCATION

On May 9, 2023, Bonita moved to continue the due process hearing based on the unavailability of Bonita’s attorney and Bonita’s school district representatives. Bonita’s attorney is scheduled to be in hearing for an earlier filed OAH matter, OAH case no.

2023020355. Bonita’s representatives are scheduled to be in hearing for an expedited

OAH matter that can not be continued, OAH case no. 2023040851.

The motion was timely filed three days prior to the prehearing conference. On May 10, 2023, Student opposed the motion. Student’s opposition is based on a desire to obtain independent educational evaluations, the requested remedy for the present matter, as quickly as possible.

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. The unavailability of Bonita’s attorney and representatives constitute good cause for a continuance. All previously scheduled dates are vacated. The case shall proceed as follows:

PREHEARING CONFERENCE will be held on July 7, 2023, at 1:00 PM.

The PHC will be held by videoconference. All other prehearing matters shall be addressed at the July 7, 2023, PHC. All prehearing motions must be filed three business days before the PHC.

DUE PROCESS HEARING will be held on July 18, 2023, through July 20, 2023.

The hearing will be held by 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.

ORDER INCLUDES ALL RULINGS

This Order includes all rulings made at the PHC.

IT IS SO ORDERED.

Paul H. Kamoroff (May 15, 2023 08:12 PDT)

Paul H Kamoroff Administrative Law Judge Office of Administrative Hearings