California OAH special education order · November 10, 2015

Order Reconsidering and Reaffirming Denial of Continuance

OAH Case No. 2015050922 · ALJ June R. Lehrman

OAH reaffirmed its denial of District's continuance request because District's claim that its special education director was its only prepared representative lacked supporting detail and was submitted late.

Ruling Reconsideration

Summary

OAH denied District's request for a continuance on November 5, and District moved for reconsideration on November 9, 2015. District said by declaration that its Director of Special Education was the only representative prepared to attend the hearing and would be out of state on the hearing dates. Student opposed. OAH considered the new facts but kept the denial in place, because District did not explain why no one else could be prepared, why the director would be absent, how District would be harmed, or why it raised these facts late. The denial was without prejudice, so either party could raise a continuance at the prehearing conference.

Why it matters

A party asking OAH to reconsider a continuance denial must back up new facts with specific detail, including why no substitute witness or representative is available, what prejudice would result, and why the facts were not raised earlier. A bare claim that one key staff member is unavailable is not enough.

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

June R. Lehrman, Presiding Administrative Law Judge

Topics

reconsideration continuance district representative unavailability new facts

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. 2015050922 v. ORDER RECONSIDERING AND

REAFFIRMING DENIAL OF

TORRANCE UNIFIED SCHOOL CONTINUANCE

DISTRICT.

On November 5, the undersigned administrative law judge issued an order denying District’s request for a continuance. On November 9, 2015, District filed a motion for reconsideration. On November 10, 2015, Student opposed. As discussed below, District’s additional facts have been considered but on reconsideration the prior denial of continuance is reaffirmed. This order is without prejudice, such that the parties are free to raise the question of a continuance and available dates before the hearing ALJ at the prehearing conference.

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

District states additional facts by declaration, namely that its Director of Special Education is “the only representative prepared to attend the hearing on behalf of the District”

in this matter, and will be out of state during the scheduled hearing dates.

These facts, having now been considered, do not warrant a reversal of the denial of continuance. No detail is provided regarding the assertion that this individual is the only representative prepared to attend, nor about the reasons for the absence, nor whether other individual representatives could be prepared in sufficient time, nor whether or how District would be prejudiced by proceeding in the absence of this particular representative, nor for the lateness of the submission of these facts. For these reasons, the denial of continuance is reaffirmed.