California OAH special education order · May 17, 2017
Order Denying Request for Reconsideration
OAH Case No. 2017020060, 2017041186 · ALJ Cole Dalton
OAH denied Student's request to reconsider an order consolidating Student's and District's cases, finding proof that Student's counsel received District's motion by fax twelve days before the ruling.
Summary
After OAH granted District's motion to consolidate Student's and District's cases, Student moved for reconsideration. Student's counsel declared he first learned of the motion when the consolidation order issued. District opposed with a sworn declaration from its legal secretary and a fax confirmation showing the motion was served on Student's counsel on April 26, 2017. OAH found no new facts, circumstances, or law and no credible reason for Student's failure to respond during the twelve days before the order, so it denied reconsideration.
Why it matters
A claim that you never received a motion will fail against a proof of service and fax confirmation, so counsel and parents should watch for filings and respond within OAH's deadlines rather than count on reconsideration later.
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
- Eric Esteban, Student's counsel
- Simonia White, District legal secretary
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. 2017020060 v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
LOS ANGELES UNIFIED SCHOOL OAH Case No. 2017041186
DISTRICT,
v.
ORDER DENYING REQUEST FOR
PARENT ON BEHALF OF STUDENT. RECONSIDERATION
On May 9, 2017, the undersigned Administrative Law Judge issued an order consolidating Student’s case with District’s case. On May 10, 2017, Student filed a motion for reconsideration on behalf of Student. On May 15, 2017, District filed an opposition to the motion.
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
Student’s motion is accompanied by a sworn declaration by his counsel, Eric Esteban.
Mr. Esteban alleges first receiving notice of District’s motion to consolidate on May 9, 2017, in the form of the undersigned ALJ’s order granting the motion. However, District’s motion to consolidate included a proof of service reflecting service of the motion on Mr. Esteban on April 26, 2017, by way of both facsimile and overnight mail.
District’s opposition to Student’s motion for reconsideration is accompanied by a sworn declaration by Simonia White, District’s legal secretary. Ms. White affirmed serving District’s motion to consolidate, along with District’s complaint, on Student’s counsel by facsimile on April 26, 2017. The attached facsimile confirmation page reflects successful transmission of the documents to Student’s counsel at 4:24 p.m. on April 26, 2017.
Student’s motion does not show new or different facts, circumstances, or law justifying reconsideration. Student received the motion on April 26, 2017. Twelve days passed between Student’s receipt of the motion and issuance of the undersigned ALJ’s order.
Student fails to provide a credible reason for failure to respond to District’s motion within this time period. Accordingly, Student’s request for reconsideration is denied.
ORDER
Motion for Reconsideration is Denied.
IT IS SO ORDERED.
DATE: May 17, 2017
COLE DALTON
Administrative Law Judge Office of Administrative Hearings