California OAH special education order · June 24, 2016
Order Granting Request for Reconsideration and Denying Motion to Continue
OAH Case No. 2016020899 · ALJ Margaret Broussard
OAH granted James Peters' timely reconsideration request but again refused to continue the June 24, 2016 order to show cause hearing, because being out of town does not prevent joining a telephonic hearing.
This case went to decision
Elk Grove Unified School District v. Student: Elk Grove Unified may reassess a six-year-old private school student without parent consent under its January 2016 assessment plan. (2016)
Summary
James Peters asked OAH to reconsider its earlier denial of his request to continue a June 24, 2016 order to show cause hearing. He filed a sworn declaration with new facts: funeral services on June 27 and 28, travel, and many tasks after a family member's death. Elk Grove Unified School District did not respond. OAH granted reconsideration because the request was timely and raised new facts, but it denied the continuance again because he did not show good cause for being unavailable for a telephonic hearing at the scheduled time.
Why it matters
A request to continue must show that the person cannot attend at the exact scheduled time. Travel or general personal obligations will not justify postponing a telephonic 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
- James Peters, Moving party; subject of order to show cause hearing
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. 2016020899
DISTRICT,
ORDER GRANTING REQUEST FOR
v. RECONSIDERATION AND DENYING
MOTION TO CONTINUE
PARENT ON BEHALF OF STUDENT.
On June 23, 2016, the undersigned presiding administrative law judge issued an order denying Mr. James Peters’ motion to continue the order to show cause hearing, scheduled for June 24, 2016. On June 23, 2016, Mr. Peters filed a motion for reconsideration. No response has been received from Elk Grove 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
Reconsideration Mr. Peters alleges new facts in support of the request reconsideration, He provides June 27 and June 28 as dates he is unavailable due to funeral services for a family member.
He otherwise alleges he will be busy with arrangements for out of town guests, that he is out of town and that he is in the midst of two dozen tasks related to the death. The motion is accompanied by a sworn declaration. The motion is timely.
Accordingly, Mr. Peters’ request for reconsideration is Granted..
Motion to Continue On reconsideration, the motion to continue is denied. Mr. Peters’ has not shown good cause regarding his unavailability for a telephonic hearing on June 24, 2016 at 9:00 a.m..
Being “out of town” does not make him unavailable for a telephonic hearing. He has also not alleged that he is unavailable for good cause during the time scheduled for the hearing.
The matter is denied. The parties were notified by telephone this morning of the ruling.
ORDER
Motion for Reconsideration is Granted.
Based on reconsideration, the motion to continue us denied. .
IT IS SO ORDERED.
DATE: June 24, 2016
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings