California OAH special education order · November 30, 2015

Order Denying Request for Reconsideration

OAH Case No. 2015100716 · ALJ Marian H. Tully

OAH denied Kern County's request to reconsider the denial of its continuance request because it offered no new facts or law; counsel's possible conflict with another OAH hearing was not good cause.

Denied Reconsideration

Summary

Kern County Superintendent of Schools asked OAH to reconsider its November 20, 2015 order denying Kern County's request to continue the hearing. Student did not oppose. OAH denied reconsideration because Kern County presented no new facts, circumstances, or law, and the case's status had not changed. OAH repeated that counsel's possible involvement in another OAH hearing on overlapping dates is not good cause, but said Kern County may ask again for a continuance if that other hearing actually goes forward on December 8, 2015.

Why it matters

A reconsideration motion that only repeats earlier arguments will fail. A scheduling conflict that may or may not happen is not enough for a continuance; the party has to wait until the conflict is real and then ask again.

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 attorney scheduling conflict good cause no 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. 2015100716 v. ORDER DENYING REQUEST FOR

RECONSIDERATION

KERN COUNTY SUPERINTENDENT OF

SCHOOLS.

On November 20, 2015, the undersigned administrative law judge issued an order denying a request for continuance filed by Kern County Superintendent of Schools. On November 23, 2015, Kern County filed a motion for reconsideration. No opposition has been received.

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

Kern County alleges no new facts or law in support of the request reconsideration.

The status of the case has not changed. Counsel has a due process hearing on calendar in OAH Case number 2015070782 on December 8, 9, 10 and 14, 2015. The due process hearing in this matter is calendared for December 9, 2015. The Prehearing Conference Order in case number 2015070782 is dated November 18, 2015, and was issued before the Order Denying Kern County’s Request for Continuance. Student’s counsel continues to be non- responsive to Kern County’s reasonable attempts to obtain agreed dates for a first continuance. The Motion for Reconsideration does not present anything new.

As the previous Order stated, the possibility that counsel will be involved in other OAH matters at future dates is not good cause for a continuance. If OAH case number 2015070782 goes forward on December 8, 2015, Kern County may request a continuance based upon the unavailability of counsel at that time.

Accordingly, Kern County’s Motion for Reconsideration is denied. All dates and timelines shall proceed as calendared.