California OAH special education order · April 21, 2017
Order Granting Request for Reconsideration of Motion to Withdraw, and Denying Motion for Continuance Without Prejudice
OAH Case No. 2016120180, 2016100595, 2016110680 · ALJ Robert G. Martin
OAH granted reconsideration and let Student's attorney withdraw after counsel supplied Parent's last known address and written notice, but deferred the continuance request because nothing showed Parent wanted one.
Summary
A day after OAH denied Student's counsel's motion to withdraw, counsel asked for reconsideration. Counsel supplied Parent's last known address and proof of written notice to Parent, as California Code of Regulations, title 1, section 1015 requires. OAH granted the withdrawal and made Parent responsible for the case until new counsel is retained. The opposed request for a continuance of unspecified length rested only on counsel's hearsay declaration and did not say Parent wanted a continuance, so OAH left it for the April 24, 2017 prehearing conference, where Parent can speak to it directly.
Why it matters
When an attorney withdraws, the parent becomes responsible for the case right away, and the withdrawal alone is not a reason to delay the hearing. Parents who need time to find new counsel should be ready to ask for a continuance themselves and explain how their search is going.
Key authority cited
- Cal. Code Regs., tit. 1, § 1015
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016120180 v.
BONITA UNIFIED SCHOOL DISTRICT,
BONITA UNIFIED SCHOOL DISTRICT, OAH Case Nos. 2016100595 and 2016110680 v.
PARENT ON BEHALF OF STUDENT. ORDER GRANTING REQUEST FOR
RECONSIDERATION OF MOTION TO
WITHDRAW, AND DENYING MOTION
FOR CONTINUANCE WITHOUT
PREJUDICE
On April 20, 2017, the undersigned administrative law judge issued an order denying Student counsel’s motion to withdraw as Student’s counsel, on grounds that counsel had failed to satisfy all requirements of the California Code of Regulations, title 1, section 1015, subdivision (b), because the motion did not provide Parent’s last known address, or indicate that counsel had given Parent written notice of counsel’s withdrawal. The Order also addressed Student counsel’s request for a short continuance to an unspecified date, to allow Parent to obtain new counsel. The request for continuance was opposed by District.
On April 21, 2017 Student’s counsel filed a motion for reconsideration, providing Parent’s last known address and giving Parent written notice of counsel’s withdrawal. In his supporting declaration, Student’s counsel declared that Parent was actively seeking new representation and had already contacted several attorneys.
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
Motion to Withdraw Here, counsel has satisfied the requirements of California Code of Regulations, title 1, section 1015, subdivision (b), for withdrawal. Accordingly, Counsel’s motion to withdraw is reconsidered and granted.
California Code of Regulations, title 1, section 1015, subdivisions (c) and (d), provide that upon withdrawal by counsel or other representative:
(1) The formerly represented party bears the burden of keeping OAH and all other parties informed of a current address for purposes of service.
(2) The formerly represented party is responsible for preparation and representation throughout the remainder of the case, unless and until such party retains new counsel or other representative.
(3) Withdrawal or change of counsel or other representative does not alone constitute grounds for continuance of any previously scheduled proceeding in the case.
Accordingly, Parent is now responsible for preparation and representation throughout the remainder of the case, unless and until Parent retains new counsel or other representative.
Continuance The request for continuance of unspecified duration in this matter is supported only by Student counsel’s hearsay declaration that Parent is actively seeking new representation.
The declaration does not state that Parent desires a continuance.
The request for continuance therefore is not ruled upon in this Order and will be considered at the prehearing conference in this matter set for April 24, 2014. Parent will have an opportunity to confirm whether Parent desires a continuance, and if so, to provide the status of Parent’s efforts to obtain new representation and such other facts as may support the continuance, and the duration of continuance sought. Both parties will have an opportunity to present argument on any requested continuance.
ORDER
1. Student counsel’s motion to withdraw is reconsidered and granted.
2. Parent is now responsible for preparation and representation throughout the
remainder of the case, unless and until Parent retains new counsel or other representative.
3. The prehearing conference set for April 24, 2017 at 10:00 a.m. will proceed as
scheduled. Parent will be contacted by the ALJ at the telephone number provided in Student counsel’s motion for reconsideration.
IT IS SO ORDERED.
DATE: April 21, 2017
ROBERT G. MARTIN
Administrative Law Judge Office of Administrative Hearings