California OAH special education order · September 22, 2023
Order Following Prehearing Conference Granting Request for Continuance
OAH Case No. 2023070586 · ALJ Paul H. Kamoroff
OAH granted Parent's late request to continue the prehearing conference and hearing because of an unexpected medical emergency, over El Segundo's objection that a continuance had already been granted.
This case went to decision
El Segundo Unified School District v. Student: El Segundo Unified may assess a third grader in academics, cognition, health, and social-emotional areas without parental consent. (2023)
Summary
At the prehearing conference, Parent asked to continue the prehearing conference and due process hearing because of an unexpected medical emergency. The request was filed less than three days before the conference, but the ALJ found good cause for the late filing. El Segundo opposed because the case had already been continued once, but it agreed to the new dates. OAH granted the continuance for good cause and reset the prehearing conference to October 6, 2023, and the videoconference hearing to October 17 through 19, 2023.
Why it matters
A sudden medical emergency can be good cause for a continuance, even when the request is filed late and the case has already been continued once. Parents representing themselves should raise these problems as soon as they happen.
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
People named in the order
- Adam Newman, Attorney for El Segundo Unified School District
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:
EL SEGUNDO UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT.
OAH CASE NUMBER 2023070586
ORDER FOLLOWING PREHEARING CONFERENCE
GRANTING REQUEST FOR CONTINUANCE
SEPTEMBER 22, 2023
On September 22, 2023, Administrative Law Judge Paul H. Kamoroff, Office of Administrative Hearings held a telephonic prehearing conference. The Administrative Law Judge is called an ALJ. The prehearing conference is called a PHC. Attorney Adam Newman appeared on behalf of El Segundo Unified School District, called El Segundo.
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
Parent moved to continue the prehearing conference and due process hearing based on an unexpected medical emergency.
The motion was not filed three days before the PHC. Student established good cause for filing the motion less than three days before the PHC, based upon an unexpected medical emergency. El Segundo opposed the request based upon there being a prior continuance granted for this matter but agreed to the new dates set for the PHC and due process hearing.
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, based upon an unforeseen medical emergency. All previously scheduled dates are vacated. The case shall proceed as follows:
PHC will be held on October 6, 2023, at 10:00 AM.
The PHC will be conducted by telephone of videoconference. All other prehearing matters shall be addressed at the October 6, 2023, PHC. All prehearing motions must be filed three business days before the PHC.
Due Process Hearing: October 17, 2023, through October 19, 2023.
The hearing will be conducted 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.
IT IS SO ORDERED.
Paul H. Kamoroff (Sep 22, 2023 16:12 PDT)
Paul H Kamoroff Administrative Law Judge Office of Administrative Hearings