California OAH special education order · December 2, 2014

Order Granting Request for Reconsideration; Granting Request for Continuance and Setting Prehearing Conference and Hearing Dates

OAH Case No. 2014080454, 2014050059 · ALJ Bob N. Varma

OAH reconsidered its earlier denial and granted a continuance because Student's counsel had booked a family vacation over the hearing dates before the hearing was scheduled. Oakland did not oppose.

Granted Reconsideration

Summary

OAH had denied the parties' joint request to continue the hearing. Student then moved for reconsideration with his counsel's sworn declaration. The declaration showed that counsel booked a timeshare family vacation for December 16–20, 2014, before the order setting the hearing dates was issued, and that the trip could not be rescheduled without disruption and extra cost. Oakland filed a non-opposition. OAH found the new facts timely and supported, granted reconsideration, and granted one further continuance. It vacated all dates and warned that no further continuances will be granted without exceptional good cause.

Why it matters

A denied continuance can be revisited if a party presents new, sworn facts that were not raised the first time, such as counsel's pre-existing commitments. Including those facts with the original request can avoid a second round of motions.

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 counsel unavailability consolidated case 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 Consolidated Matters of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2014080454 v.

OAKLAND UNIFIED SCHOOL DISTRICT,

OAKLAND UNIFIED SCHOOL DISTRICT, OAH Case No. 2014050059 v.

PARENT ON BEHALF OF STUDENT. ORDER GRANTING REQUEST FOR

RECONSIDERATION; GRANTING

REQUEST FOR CONTINUANCE AND

SETTING PREHEARING CONFERENCE

AND HEARING DATES

On November17, 2014, the undersigned presiding administrative law judge issued an order denying the parties’ joint request for a continuance of the prehearing conference and hearing dates in this matter. On November 25, 2014, Student filed a motion for reconsideration supported by his counsel’s declaration under penalty of perjury. On November 25, 2014, the Oakland Unified School District (Oakland) filed a non-opposition to Student’s motion along with a supporting declaration of its counsel.

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 Student alleges new facts and circumstances in support of the request for reconsideration. Specifically, Student alleges that prior to receiving notice of the hearing schedule, his counsel planned a family vacation to occur at the same time as the dates set for hearing. Student’s motion is supported by a declaration under penalty of perjury, is timely, and unopposed. Accordingly, Student’s motion for reconsideration is Granted.

Continuance This matter has been pending since April 2014, when Oakland filed its initial request for hearing. After two continuances and an order for consolidation, the consolidated matter is currently set for hearing beginning December 15, 2014. Student’s motion establishes good cause for one further continuance due to the unavailability of his counsel. On July 22, 2014, prior to the September 26, 2014 order which set the current hearing dates, Student’s counsel scheduled a family vacation for December 16 through 20, 2014, using time share points.

This planned vacation cannot be rescheduled without disruption and additional expense.

Oakland supports the request for continuance.

On reconsideration, having considered the parties’ pleadings, evidence and contentions, a continuance is granted. No further continuances will be granted without a showing of exceptional good cause. All dates are vacated and this matter will be set as follows:

Prehearing Conference: January 23, 2014, at 1:00 p.m.

Due Process Hearing: February 3, 2014, at 9:30 a.m., February 4-5, 2014, at 9:00 a.m., and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.