California OAH special education order · June 24, 2015

Order Granting Request for Reconsideration and Continuing Mediation, Prehearing Conference and Due Process Hearing

OAH Case No. 2015030093 · ALJ Rebecca Freie

OAH granted Student's unopposed request for reconsideration and moved the hearing to September 2015, finding that Student's attorney's prepaid July vacation was a new fact and good cause.

Granted Reconsideration

Summary

OAH had earlier only partly granted a joint request to continue the hearing beyond 90 days, because the parties gave no reason for the long delay, and it reset the hearing to July 2015. Student asked for reconsideration, explaining that Student's attorney had a prepaid vacation from July 7 to July 31, 2015, booked before the earlier order. Lodi Unified did not respond. OAH found these new facts justified reconsideration and good cause. It set mediation for August 25, 2015, a prehearing conference for August 31, 2015, and the hearing to begin September 8, 2015.

Why it matters

A continuance request, especially one for more than 90 days, must state the specific reasons for good cause, such as attorney conflicts, up front. OAH will not assume the parties' requested dates will be granted. Reconsideration can fix the problem when the party shows new facts and explains why they were not raised earlier.

Key authority cited

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

Topics

reconsideration continuance good cause attorney unavailability scheduling

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. 2015030093 v. ORDER GRANTING REQUEST FOR

RECONSIDERATION AND

LODI UNIFIED SCHOOL DISTRICT. CONTINUING MEDIATION,

PREHEARING CONFERENCE AND

DUE PROCESS HEARING

On April 10, 2015, the undersigned Administrative Law Judge issued an order granting in part and denying in part a joint request for continuance. On May 13, 2015, Student filed a request for reconsideration. No response was received from Lodi Unified School District.

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

When the undersigned reviewed the joint request for continuance, it was noted that the parties were requesting a continuance of more than 90 days after April 23, 2015, the date the due process hearing was set to begin. Although the parties asked for a continuance of all dates to August and September 2015, no explanation was given as to why a continuance of more than 90 days was being requested and no good cause was shown. Accordingly, the continuance was not granted for the length of time requested.

In the request for reconsideration, Student’s attorney declares that she has a prepaid vacation scheduled from July 7, 2015, through July 31, 2015. The hearing is currently set for July 20, 21, 22 and 23, 2015. The vacation plans were made before the undersigned ordered the continuance on April 10, 2015. This information was not included on the original joint request for continuance because the attorney believed OAH would grant a continuance to the dates requested, and did not expect new dates to be set in July 2015. These new facts support reconsideration. Accordingly reconsideration is granted.

On reconsideration, the prepaid vacation of Student’s attorney constitutes good cause for continuing dates in this matter.

ORDER

1. Mediation is set for August 25, 2015, at 9:30 a.m.

2. Telephonic prehearing conference is set for August 31, 2015, at 10:00 a.m.

3. The due process hearing shall begin on September 8, 2015, at 9:30 a.m., and

shall continue on September 9, 10, 14, 15, and 16, 2015. If not completed on September 16, 2015, the hearing will continue day-to-day, Monday through Thursday, at the discretion of the ALJ.

DATE: June 24, 2015

/S/

REBECCA FREIE

Administrative Law Judge Office of Administrative Hearings