California OAH special education order · June 26, 2014

Order Granting Request for Reconsideration, Granting Continuance and Setting Prehearing Conference and Due Process Hearing

OAH Case No. 2014050575 · ALJ Bob N. Varma

OAH reconsidered its earlier denial and granted Pajaro's continuance because the district newly learned its school psychologist was medically unavailable, resetting the hearing to August 12, 2014.

Granted Reconsideration

Summary

Pajaro asked OAH to reconsider its June 11, 2014 denial of a continuance. Pajaro said it learned on June 17 that its school psychologist was unavailable for medical reasons, and it supported this with her sworn declaration. Student opposed. OAH treated the psychologist's unavailability as a new fact, granted reconsideration and the continuance, vacated all dates, and set a prehearing conference for August 1 and a hearing for August 12, 2014. OAH also considered Student's opposition even though it was technically filed late.

Why it matters

A denied continuance can be revisited if a party shows truly new facts, such as a key witness's sworn medical unavailability. Even a late-filed opposition may still be considered.

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, § 56502, subd. (f)
Cal. Rules of Court, rule 3.1332

People named in the order

Bob N. Varma, Presiding Administrative Law Judge

Topics

reconsideration continuance witness unavailability school psychologist late opposition

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:

PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2014050575

v. ORDER GRANTING REQUEST FOR

RECONSIDERATION, GRANTING

PAJARO VALLEY UNIFIED SCHOOL CONTINUANCE AND SETTING

DISTRICT. PREHEARING CONFERENCE AND

DUE PROCESS HEARING

On June 11, 2014, the undersigned denied a request for continuance from the Pajaro Valley Unified School District (Pajaro). On June 19, 2014, Pajaro filed a request for reconsideration. On June 24, 2014, Student filed an opposition and on June 25, 2014, Pajaro filed a response to the opposition.

APPLICABLE LAW

Reconsideration 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.)

Continuance 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 AND ORDER

Reconsideration Pajaro contends that on June 17, 2014, it learned of the unavailability of its school psychologist due to medical reasons. Pajaro further clarifies the need for its representative to participate in the due process hearing and states that she is unavailable as well. While the unavailability of the representative was previously alleged, the unavailability of the school psychologist was not known to Pajaro previously and constitutes new facts; and therefore, the request for reconsideration is granted.

Continuance With respect to the continuance, Pajaro has provided a sworn declaration from the school psychologist to establish her unavailability. Pajaro has also requested that Student’s opposition be disregarded as it was filed beyond three business days from Pajaro’s request for reconsideration. While it was technically late, Student’s opposition has been considered.

After full consideration of the parties’ contentions, the length of time this matter has been pending and all of the evidence submitted by the parties, Pajaro’s request for continuance is granted. All dates are vacated. This matter will be set as follows:

Prehearing Conference: August 1, 2014, at 10:00 AM Due Process Hearing: August 12, 2014, at 9:30 AM, and continuing day to day Mondays through Thursday, at the discretion of the Administrative Law Judge