California OAH special education order · February 25, 2015
Order Granting Request for Reconsideration, Granting Motion to Continue, and Vacating Scheduled First Day of Hearing Only
OAH Case No. 2015010203 · ALJ Joy Redmon
OAH granted Student's reconsideration request and moved the hearing start by one day because Student's attorney had a conflicting court appearance, but kept the second hearing day despite Elk Grove's opposition.
Summary
After OAH denied Student's motion to continue the hearing, Student asked for reconsideration. Student's attorney, Guy Leemhuis, submitted a declaration showing a previously scheduled probate hearing in Los Angeles on February 26, 2015. Elk Grove opposed. The ALJ found the declarations contained previously undisclosed facts, inaccuracies, and inconsistencies, but chose not to hold Student responsible for the attorney's failure to disclose the conflict at the prehearing conference. OAH vacated only the February 26 hearing date and ordered the hearing to begin February 27, noting that Elk Grove also has a right to proceed with the case it filed.
Why it matters
Attorneys should disclose all scheduling conflicts at the prehearing conference. OAH may grant only narrow relief and will hold the attorney of record responsible for representing the client, even when a paralegal was expected to handle the hearing.
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
- Guy Leemhuis, Student's attorney
- Mr. Peters, Paralegal for Student's attorney
- Joy Redmon, 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:
ELK GROVE UNIFIED SCHOOL OAH Case No. 2015010203
DISTRICT,
ORDER GRANTING REQUEST FOR
v. RECONSIDERATION, GRANTING
MOTION TO CONTINUE, AND
PARENT ON BEHALF OF STUDENT. VACATING SCHEDULED FIRST DAY
OF HEARING ONLY
On February 24, 2015, the undersigned administrative law judge issued an order denying Student’s motion to continue the due process hearing scheduled to begin on February 26, 2015. On February 25, 2015, Student filed a motion for reconsideration of that ruling and provided a declaration indicating that Student’s counsel, Guy Leemhuis, has a conflicting hearing scheduled in another court at 10:30 a.m. on February 26, 2015. Elk Grove Unified School District opposed the motion for reconsideration and motion to continue.
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
Student alleges new facts, circumstances, or law in support of the request reconsideration. The new fact, as contained in Mr. Leemhuis’s declaration, is that he is scheduled for a hearing in a probate matter in Los Angeles at 10:30 a.m. on Thursday, February 26, 2015. He also provided clarification that he was assigned to the probate matter on December 31, 2014, prior to this matter being filed with OAH by Elk Grove. Mr.
Leemhuis’s declaration presents no scheduling conflict for Friday, February 27, 2015, the second day currently scheduled for hearing in this matter.
The motion for reconsideration and accompanying declarations contain previously undisclosed facts, inaccuracies, and inconsistencies that were weighed in considering this motion. Mr. Leemhuis participated in a telephonic prehearing conference on Friday, February 13, 2015, during which these hearing dates were specifically selected. During that PHC, Mr. Leemhuis’s paralegal, Mr. Peters, requested to continue the previously scheduled hearing dates, in part, due to a conflict with an ongoing hearing before OAH.
This ALJ, weighing that fact and Elk Grove’s objection, granted a continuance to February 26, 2015, to permit Mr. Leemhuis time to conclude that hearing and allow one additional day to travel to northern California before starting this hearing. At no time during that PHC did Mr. Leemhuis or Mr. Peters inform this ALJ that Mr. Leemhuis had a conflicting court appearance previously scheduled for February 26, nor that Mr. Leemhuis, “never intended to make the February 26 appearance,” at the due process hearing as stated in his declaration.
Mr. Leemhuis’s declaration also incorrectly states that during the PHC, “Mr. Peters at [sic] request of the hearing officer took the lead in addressing the court.” During the PHC, this ALJ did not request that Mr. Peters “take the lead” but instructed the parties to designate one speaker on Student’s behalf. It was their decision and not this ALJ’s that Mr. Peters be designated as the speaker. Regardless, neither Mr. Leemhuis nor Mr. Peters disclosed Mr.
Leenhuis’s conflict during the PHC.
Additionally, the declarations of Mr. Leemhuis and Mr. Peters contain conflicting information. Mr. Peters’ declaration states that Mr. Leemhuis, “is not able to fly up to Sacramento and represent the client on Friday morning, on the 27th.” Mr. Leemhuis’s declaration, however, states only that he is unavailable on February 26, 2015, and nothing indicating he is unavailable on February 27, 2015.
Despite the forgoing, Mr. Leemhuis is not available to represent the Student in this matter on February 26, 2015. This ALJ is not going to hold Student responsible for the omission or actions of his attorney in failing to disclose this conflict earlier. Elk Grove, however, also has a right to proceed with the due process case it filed. The fact that Mr.
Leemhuis intended for Mr. Peters to represent his client in this due process hearing and that Mr. Peters is not available does not obviate Mr. Leenhuis’s responsibility as the attorney of record to represent his client in all matters related to the case.
After carefully considering the motion, declarations, and the case as a whole, the motion for reconsideration is granted. The motion to continue is granted as to Thursday, February 26, 2015 only. The due process hearing will commence on Friday, February 27,
2015. If the hearing is not concluded on that day, the ALJ will schedule additional days.
ORDER
1. The motion for reconsideration is granted.
2. The motion to continue is granted as to Thursday, February 26, 2015.
3. This matter will proceed at 9:30 a.m. on Friday, February 27, 2015.
IT IS SO ORDERED.
DATE: February 25, 2015
/ S/
JOY REDMON
Administrative Law Judge Office of Administrative Hearings