California OAH special education order · May 31, 2024
Order Granting Request for Continuance and Setting Prehearing Conference and Hearing
OAH Case No. 2024050221 · ALJ Cole Dalton
OAH granted Roseville's opposed request for a brief continuance because its lead counsel and a key witness, its special education director, were on prescheduled vacations during the original hearing dates.
This case went to decision
Student v. Roseville Joint Union High School District: Roseville Joint Union High School District prevails on all 17 assessment and services claims, including home or hospital instruction. (2024)
Summary
Roseville asked to continue the June 2024 hearing because its lead counsel, Heather Edwards, and its executive director of special education, Craig Garabedian, who is also a key witness, would be away on prescheduled vacations. Student opposed, arguing there was no good cause and no proof the vacations had been scheduled or paid for. OAH found good cause, noting that parties are generally allowed their counsel of choice and that the unavailability of a witness and counsel supports a brief continuance of a newly filed case. OAH also observed that Student's firm customarily refuses to agree to continuances and did not propose other dates, while Roseville waited less than 24 hours for a response before filing. The prehearing conference was reset to June 28, 2024, and the hearing to July 9, 10, and 11, 2024.
Why it matters
OAH will usually grant a first, short continuance when counsel or a key witness is unavailable, even over objection, and a sworn declaration is enough proof without receipts for travel. Opposing a continuance without meeting and conferring or offering other dates carries little weight.
Key authority cited
- 34 C.F.R. § 300.515(a)
- Ed. Code § 56502(f)
- Ed. Code § 56505(f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332
People named in the order
- Heather Edwards, District counsel
- Craig Garabedian, District executive director of special education; key witness
- Bayne, Student's attorney (firm)
- Cole Dalton, Administrative Law Judge
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.
ROSEVILLE JOINT UNION HIGH SCHOOL DISTRICT.
OAH CASE NUMBER 2024050221
ORDER GRANTING REQUEST FOR CONTINUANCE AND
SETTING PREHEARING CONFERENCE AND HEARING
MAY 31, 2024
On May 2, 2024, Student filed a request for due process hearing, complaint, with the Office of Administrative Hearings, OAH, naming Roseville Joint Union High School District.
On May 7, 2024, OAH issued a scheduling order setting the prehearing conference for June 10, 2024 at 3:00 PM and the hearing for June 18, 19, and 20, 2024.
On May 21, 2024, Roseville filed a request to continue the due process hearing with OAH. Roseville seeks a brief continuance as counsel Heather Edwards and representative Craig Garabedian are unavailable due to prescheduled vacations.
On May 28, 2024, Student opposed the request arguing a lack of good cause and because of the lack of proof of regarding the scheduling or payment for vacation plans.
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).)
OAH does not generally require the parties to demonstrate good cause for a first request for continuance. The parties are expected to meet and confer and agree on dates for a continuance. Here, Bayne’s firm customarily does not agree to continuances or mediations sought by an opposing party and regularly fails to meet and confer. On the other hand, Roseville waited less than 24 hours for a response, before filing their motion. Bayne’s firm has not opposed the specific dates sought for continuance or proposed any other dates for hearing.
Roseville accompanied the motion to continue with the declaration of Edwards, which established that she acts as lead counsel prepared to take the matter to hearing and that both she and Roseville’s executive director of special education Garabedian, also a key witness, are both out of town on vacation during the dates OAH scheduled for hearing. Over Student’s objections, Roseville has established good cause for a continuance. Local education agencies and students, generally, are allowed to have their counsel of choice present during due process hearings. Unavailability of a witness and counsel constitutes good cause for a continuance. The request seeks a brief continuance of a newly filed matter.
The request is granted. All previously scheduled dates are vacated.
PREHEARING CONFERENCE will be held on June 28, 2024, at 1:00 PM.
DUE PROCESS HEARING will be held on July 9, 10, and 11, 2024.
Participant information sheets, or any changes thereto, must be filed at least two business days prior to the scheduled event.
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.
IT IS SO ORDERED.
Cole Dalton Administrative Law Judge Office of Administrative Hearings