California OAH special education order · July 25, 2013

Order Denying Motion for Reconsideration

OAH Case No. 2013030530 · ALJ June R. Lehrman

OAH denied District's reconsideration of an earlier continuance denial because District still did not explain its 15-day delay in seeking Superior Court process to compel a witness.

Denied Reconsideration

This case went to decision

Torrance Unified School District v. Student: Torrance Unified may complete a triennial reassessment without parental consent, and parents may not be present in the testing room. (2013)

Summary

Midway through a due process hearing, District got a continuance to compel a witness's attendance through Superior Court, then asked for more time. OAH denied the request because District had not acted with reasonable diligence. District's filing, treated as a motion for reconsideration, added facts about its court filings, and Student opposed. OAH denied it because District still gave no reason for waiting from June 20 to July 5 to file, and it was seeking an indefinite delay without good cause. OAH also refused to take the final hearing day off calendar and ordered oral closing arguments on August 13, 2013.

Why it matters

A party that gets extra hearing time to secure a witness must act promptly and be able to explain any delay. Reconsideration will not fix an unexplained lack of diligence, and OAH will keep the case moving toward a decision.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • 34 C.F.R. § 300.515
  • Ed. Code, § 56505, subd. (f)(3)
  • Cal. Rules of Court, rule 3.1332

Topics

reconsideration continuance witness subpoena diligence closing arguments

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:

TORRANCE UNIFIED SCHOOL OAH CASE NO. 2013030530

DISTRICT,

ORDER DENYING MOTION FOR

v. RECONSIDERATION

PARENT ON BEHALF OF STUDENT.

On June 18, 19 and 20, 2013, this matter proceeded to due process hearing. On June 20, 2013, District sought, and was granted a continuance until August 13, 2013, for an additional hearing day, to compel a witness' attendance via Superior Court process. On July 16, 2013, District filed a motion seeking a further continuance. District’s motion sought additional time for Superior Court process, and stated that it had first filed its papers with the Superior Court on July 10, 2013. By Order dated July 20, 2013, the motion was denied, because District had not proceeded with reasonable diligence in the filing of its Superior Court paperwork from the June 20 hearing day until July 10, 2013, and had stated no explanation for the delay.

On July 24, 2013, District filed a document entitled “Response to Order Denying Request for Further Continuance and Request for Further Continuance,” which is treated as a Motion for Reconsideration. On July 25, 2013, Student filed an opposition. As discussed below, the Motion for Reconsideration is denied. The scheduled August 13, 2013, hearing date is confirmed, and shall proceed as calendared.

APPLICABLE LAW

The Office of Administrative Hearings will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)

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. (See 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;

and any other relevant fact or circumstance. (See Cal. Rules of Court, rule 3.1332(d).)

DISCUSSION

District’s motion for reconsideration is denied. District provides further facts regarding its Superior Court filings, which explain that District’s papers were first filed on July 5 and then re-filed due to Superior Court requirements on July 10, and provides further facts regarding the Superior Court calendaring process. Nevertheless, it still appears that District did not proceed with reasonable diligence. Rather, District delayed the filing of its Superior Court paperwork from June 20 until July 5, 2013. District has still stated no explanation for why it delayed the filing of its Superior Court paperwork approximately 15 days, from June 20 until July 5, 2013. Moreover, District is still seeking an indefinite delay in this matter, for which it has not established good cause.

Finally, District requests that the August 13, 2013, hearing day be taken off calendar as no additional witnesses are scheduled for that day, apart from the witness whose appearance was to be compelled. This request is denied. The final hearing day shall be devoted to closing arguments, which shall be taken orally on the record on that date.

ORDER

1. District’s request for further continuance is denied.

2. The remaining hearing date is confirmed and shall proceed as calendared. The

parties shall be prepared to orally present their closing arguments on the record on August 13, 2013, at which time the record will be closed and the matter submitted.

Dated: July 25, 2013 /s/

JUNE R. LEHRMAN

Administrative Law Judge Office of Administrative Hearings