California OAH special education order · September 12, 2017
Order Granting Student's Request for Reconsideration and Continuing Prehearing Conference and Due Process Hearing
OAH Case No. 2017050521 · ALJ Rita Defilippis
OAH granted Student's reconsideration request and reset hearing dates because the ALJ had overlooked that Student's counsel would be out of the country on the dates originally ordered.
Summary
OAH had granted Dublin's request to continue the hearing. The new hearing dates fell on days Student's counsel had said, in her opposition, that she would be out of the country. Student then asked for a different continuance, and OAH treated that request as a request for reconsideration. The ALJ admitted she had missed counsel's unavailable dates, found good cause for the dates Student had proposed, vacated the prior dates, and reset the prehearing conference for October 23, 2017 and the hearing for October 31, 2017.
Why it matters
If a scheduling order conflicts with unavailability a party already disclosed, promptly asking for reconsideration can get the dates fixed. Clearly stating conflicts in an opposition protects a party's ability to seek that relief.
Key authority cited
- 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 Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017050521 v. ORDER GRANTING STUDENT’S
REQUEST FOR RECONSIDERATION
DUBLIN UNIFIED SCHOOL DISTRICT. AND CONTINUING PREHEARING
CONFERENCE AND DUE PROCESS
HEARING
On September 1, 2017, the undersigned administrative law judge issued an order granting Dublin Unified School District’s Request for Continuance. On September 6, 2017, Student filed a Request for Continuance because the dates the undersigned ALJ ordered for the continued due process hearing are the dates that Counsel for Student stated she would be out of the country in her opposition to Dublin’s Request for Continuance. Student’s Request for Continuance is therefore considered a Request for Reconsideration of the order granting Dublin’s Request for Continuance.
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 In the present case, the undersigned ALJ failed to notice the dates that Counsel for Student was out of the country. Having found good cause for the dates Student requested in her opposition to Dublin’s Request for Continuance, Student’s request for reconsideration is granted.
Continuance On reconsideration, all previous dates are vacated. The continuance is still granted, but the dates scheduled have changed.
Prehearing Conference: October 23, 2017, at 10:00 AM Due Process Hearing: October 31, 2017 at 9:30 AM, continuing November 1 and 2, 2017, at 9:00 AM, and day to day, Monday through Thursday, as needed at the discretion of the Administrative law Judge.
ORDER
Based on reconsideration of the order granting Dublin’s Request for Continuance, Student’s Request for Reconsideration is Granted, the Motion to Continue is granted and the dates for the prehearing conference and hearing are changed.
IT IS SO ORDERED.
DATE: September 12, 2017
RITA DEFILIPPIS
Administrative Law Judge Office of Administrative Hearings