California OAH special education order · December 22, 2023
Order Following Prehearing Conference Granting Request for Continuance
OAH Case No. 2023110431 · ALJ Charles Marson
OAH granted Snowline's opposed request to continue the hearing because four witnesses had pre-arranged travel plans on the hearing dates, and Student showed no prejudice from the delay.
This case went to decision
Student v. Snowline Joint Unified School District (consolidated): Snowline Joint Unified prevails on every issue; a settlement waiver barred earlier claims, and its December 2023 IEP was approved. (2024)
Summary
Snowline moved to continue the prehearing conference and the January 3–4, 2024 due process hearing. It filed seven witness declarations about why the witnesses could not attend. Student opposed, arguing Snowline had not shown good cause. The ALJ found that two declarations, which said only that the witnesses would not be back at work, were not enough. But four witnesses had pre-arranged travel plans, which counted as excusable circumstances, and Student showed no prejudice, so the hearing was reset to January 23–25, 2024.
Why it matters
Witnesses' pre-arranged travel can support a continuance, but a bare statement that a witness will be off work may not. A parent opposing a continuance should explain the specific harm a delay would cause, because OAH weighs prejudice when deciding these requests.
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.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
IN THE MATTER OF:
PARENTS ON BEHALF OF STUDENT,
v.
SNOWLINE JOINT UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2023110431
ORDER FOLLOWING PREHEARING CONFERENCE
GRANTING REQUEST FOR CONTINUANCE
DECEMBER 22, 2023
On December 22, 2023, Administrative Law Judge Charles Marson, 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. Constance Zarkowski, Attorney at Law, appeared on behalf of Student. Danielle Gigli, Attorney at Law, appeared on behalf of the Snowline Joint Unified School District.
The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:
HEARING DATES, TIMES, AND LOCATION
On December 19, 2023, Snowline timely filed a motion to continue the PHC and due process hearing on the ground that essential witnesses could not appear for the hearing, now scheduled for January 3 and 4, 2024. Snowline also filed seven declarations from prospective witnesses setting forth the details of their unavailability.
On December 22, 2023, Student filed an opposition on the ground that good cause for continuance had not been demonstrated.
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 two declarations stating that the declarants are not expected to be back at work on January 3 and 4, 2024, do not establish good cause. However, four of the remaining declarations establish that the witnesses have pre-arranged travel plans for those days. Collectively these facts constitute excusable circumstances under subdivision (1) of subsection (c )
of Rule 3.1332, California Rules of Court. Student did not make any showing of prejudice if the continuance were granted.
All previously scheduled dates are vacated. The case shall proceed as follows:
PREHEARING CONFERENCE will be held on January 12, 2024, at 10:00 AM.
All other prehearing matters shall be addressed at the January 12, 2024 prehearing conference. All prehearing motions must be filed three business days before the PHC.
Due Process Hearing: January 23, 24 and 25, 2024.
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.
Charles Marson Administrative Law Judge Office of Administrative Hearings