California OAH special education order · June 6, 2014

Order Denying Request for Reconsideration and in the Alternative, Motion for Continuation

OAH Case No. 2014050832 · ALJ Robert Helfand

OAH denied Student's request to reconsider the denial of a continuance and his renewed continuance motion, finding no new facts and noting the District could not be forced to mediate.

Denied Reconsideration

This case went to decision

Magnolia Elementary School District v. Student: Magnolia Elementary School District's triennial assessment and nonpublic school IEP offer upheld; district may implement the IEP. (2014)

Summary

Student asked OAH to reconsider its June 2, 2014 denial of his motion to continue the hearing so the parties could mediate, or in the alternative to grant a continuance because of late notice, mediation delays, and his law firm's busy schedule. OAH denied reconsideration because Student offered no new facts, circumstances, or law, and the original order explained that the District did not want to mediate, which is voluntary. OAH also denied the renewed continuance motion, finding there was no late notice and no mediation delay other than counsel's last-minute rescheduling. It also found the scheduling-conflict claim unsupported, especially since Student had three attorneys and could have raised it earlier.

Why it matters

Reconsideration requires genuinely new facts or law, and mediation is voluntary, so one side cannot use it to force a continuance. Vague claims of attorney workload, raised late, are likely to be treated as a pretext for delay.

Key authority cited

Gov. Code, § 11521
Code Civ. Proc., § 1008
Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192

People named in the order

Amanda Selogie, Student's attorney

Topics

reconsideration continuance mediation attorney scheduling conflicts good cause

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:

MAGNOLIA ELEMENTARY SCHOOL OAH CASE NO. 2014050832

DISTRICT,

ORDER DENYING REQUEST FOR

v. RECONSIDERATION AND IN THE

ALTERNATIVE, MOTION FOR

PARENT ON BEHALF OF STUDENT. CONTINUATION

On June 2, 2014, the undersigned administrative law judge issued an order denying Student’s motion to continue the Due Process Hearing. 1 On June 5, 2014, Student filed with the Office of Administrative Hearings a motion for reconsideration of request for continuance, or in the alternative, motion for continuance.

RECONSIDERATION

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.)

DISCUSSION AND ORDER

In denying the initial request for continuance in the Prehearing Conference order, the undersigned stated (Order following Prehearing Conference of June 2, 2014, p. 3):

The first [motion] is to continue the hearing to permit the parties to attend mediation. The District opposed the motion on grounds that it did not desire to mediate the matter. Accordingly, the motion to continue is

DENIED.

The order was part of the Order Following Prehearing Conference of June 2, 2014.

Student alleges no new facts, circumstances, or law in support of the request for reconsideration. Student contends that the order denying the request for continuance may have been a result of a mix-up where Student’s counsel did not attend the Prehearing Conference. This is based on the allegation that the undersigned ALJ failed to cite any facts in support of the order. This contention is in error. The ALJ cited that the District did not desire to mediate the matter as stated in its opposition and orally at the Prehearing Conference. Mediation is voluntary and a party cannot be compelled to attend mediation.

Accordingly, Student’s motion for reconsideration is DENIED.

CONTINUANCE

Alternatively, Student renews his motion for continuance. Student seeks a continuance on grounds that “the late notice” by which his request for continuance was denied, the delay in scheduling mediation, and “the press of other firm business has created hardship” on Student and his attorneys. In a supporting declaration, attorney Amanda Selogie contends that the firm has several scheduling conflicts including preparation for a federal trial and numerous Individualized Education Program (IEP) meetings.

Student’s contention that he received late notice of the denial for the continuance request is without merit. Student filed his continuance request on May 28, 2014 and OAH ruled on this request within three business days of its receipt. Student fails to offer any evidence as to any delay in scheduling mediation. In its opposition to the original motion, the District alleged that Student’s counsel requested a change in mediation date two days prior to the May 29, 2014 scheduled mediation. Student sought to re-schedule the mediation to dates after the scheduled hearing date. The District refused to continue the hearing date to hold mediation. Student’s counsel’s office then offered to hold the mediation on June 5,

2014. Later on May 29, 2014, District’s counsel’s office informed Student’s counsel that it

did not desire to mediate. Mediation is voluntary and can not be compelled. The District here desired to proceed to hearing without attending mediation. Thus, there was no delay in scheduling mediation. The only “delay” was Student’s counsel waiting to the last minute to attempt to re-schedule mediation.

Student fails to set forth sufficient grounds to delay the hearing. Student presented no facts in support of his contention that there “several scheduling conflicts.” Student has been represented by three attorneys as indicated in the pleadings filed by Student. Additionally, Student could have raised the same argument in his original motion. The failure to do so infers that Student’s counsel is only using this argument as a pretext to delay the scheduled due process hearing. Accordingly, Student’s motion for continuance is DENIED.