California OAH special education order · January 13, 2017
Order Denying Request for Reconsideration and Order Continuing Hearing
OAH Case No. 2016111006 · ALJ Chris Butchko
OAH denied Student's request to reconsider an order keeping the hearing in Tehachapi because Student offered no new facts, circumstances, or law, and continued the hearing to January 24, 2017.
Summary
Student asked OAH to reconsider its January 6, 2017 order denying Student's request to move the hearing out of Tehachapi. District did not respond. The ALJ denied reconsideration because Student only added details, declarations, and rebuttal to District's earlier opposition that could have been included in the original venue motion. Both of Student's attorneys said they would not appear for a hearing in Tehachapi. OAH continued the hearing to January 24 and 25, 2017, at the District's office, and ordered counsel who will not appear to file a withdrawal by January 19, 2017, along with a formal continuance request so Student can find new representation.
Why it matters
A reconsideration request must present genuinely new facts, circumstances, or law, not a fuller version of the original motion. Also, an attorney's refusal to travel to the hearing location will not by itself change the venue, and may lead OAH to require counsel to withdraw.
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
- Kelly Kaeser, Co-counsel for Student
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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016111006 v. ORDER DENYING REQUEST FOR
RECONSIDERATION AND ORDER
TEHACHAPI UNIFIED SCHOOL CONTINUING HEARING
DISTRICT.
On January 6, 2017, the undersigned administrative law judge issued an order denying Student’s request to change the venue of the hearing of this action from Tehachapi, California. On January 11, 2017, Student filed a request for reconsideration of that order.
The Office of Administrative Hearing requested a response from District by close of business on January 11, 2017. District did not file a response.
APPLICABLE LAW
OAH 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 Student alleges no new facts, circumstances, or law in support of the request reconsideration. Instead, Student supplements the recitation of the facts provided in the original motion with additional details and declarations and disputes arguments made in District’s opposition. Nothing appears in the request for reconsideration that did not and could not have been included in the original motion to change venue. Accordingly, Student’s request for reconsideration is denied.
Counsel for Student includes with her motion a declaration from co-counsel Kelly Kaeser stating that he is unwilling to represent Parent at a hearing in Tehachapi.
Although both counsel have said they are unwilling to abandon the representation of their legally underserved clients in Tehachapi, both have said they are unwilling to appear for hearing in Tehachapi.
Continuance of Hearing Accordingly, hearing in this matter is continued to January 24, 2017, at 9:30 a.m. and January 25, 2017 at 9:00 a.m. Hearing will be held at the office of the Tehachapi Unified School District. If counsel for Student will not appear at the continued hearing, counsel are to file a statement by Thursday, January 19, 2017, withdrawing from representation of Parent and make a formal continuance request for Student to find new legal representation.
IT IS SO ORDERED.
DATE: January 13, 2017
CHRIS BUTCHKO
Administrative Law Judge Office of Administrative Hearings