California OAH special education order · February 8, 2018

Order Granting Request for Reconsideration and Modifying Order Regarding Procedural Matter

OAH Case No. 2017051407 · ALJ Rebecca Freie

OAH granted Yuba City's reconsideration request because one of its witnesses was unavailable for the scheduled February 12 session. Each side's unused time may be spent questioning that witness on February 13.

Granted Reconsideration

Summary

During an ongoing due process hearing, the ALJ ordered a 60-minute evidentiary session on February 12, 2018, about a procedural matter discussed in an in camera session, with 30 minutes for each side. Yuba City asked for reconsideration because a witness it wanted to call on that matter, Colleen Davenport, was unavailable on February 12. The ALJ found the witness's unavailability was a new fact not known when the earlier order issued, and granted the request. Each side keeps 30 minutes total and may use any time left over to question Ms. Davenport on February 13, 2018.

Why it matters

OAH will adjust its own prior orders when a party promptly shows a new fact, such as a witness's unavailability, that the ALJ did not know about when ruling. The original time limits for each side still apply after the adjustment.

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

  • Colleen Davenport, District witness on procedural matter

Topics

reconsideration witness availability hearing schedule in camera procedural matter

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. 2017051407 v. ORDER GRANTING REQUEST FOR

RECONSIDERATION AND

YUBA CITY UNIFIED SCHOOL MODIFYING ORDER REGARDING

DISTRICT. PROCEDURAL MATTER

There is an ongoing due process hearing in this matter. On January 30, 2018, the undersigned ALJ issued an order that set a further evidentiary proceeding for February 12, 2018, concerning a matter discussed in an in camera session on January 25, 2018. On February 8, 2018, Yuba City filed a motion for reconsideration of the January 30, 2018 order.

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 The order of January 30, 2018, set aside the first 60 minutes of hearing time on February 12, 2018, to permit each party 30 minutes to present evidence concerning the subject of the in camera hearing of January 25, 2018. Yuba City, in its February 8, 2018 request for reconsideration, asserts that one of the witnesses it wishes to testify concerning the subject of the in camera hearing on January 25, 2018, is unavailable on that date, and asks that additional time be set aside on February 13, 2018, for the testimony of that witness.

When the undersigned ALJ issued the order of January 30, 2018, she did not know who the parties intended to call as witnesses in reference to the procedural matter. Yuba City now wishes to have a witness who is unavailable on February 12, 2018, to testify concerning the procedural matter. This is a new fact that was not considered when the January 30, 2018 order, was issued. Accordingly, Yuba City’s motion for reconsideration of the January 30, 2018 order is granted.

Hearing Concerning Procedural Matter Upon reconsideration, the order of January 30, 2018, shall be amended to reflect the new information provided in Yuba City’s motion for reconsideration. The 60-minute hearing concerning the procedural matter shall commence on February 12, 2018, with each side given 30 minutes total to question the witnesses called regarding the procedural matter. Any time remaining from their allocated 30 minutes can be used to question Colleen Davenport on February 13, 2018, to question Ms. Davenport as it relates to the procedural matter.

ORDER

1. Yuba City’s motion for reconsideration is granted.

2. The 60-minute hearing concerning the procedural matter shall commence on

February 12, 2018, with each side given 30 minutes to question witnesses regarding the procedural matter.

3. Any time remaining from each side’s allocated 30 minutes can be used to

question Ms. Davenport on February 13, 2018, to question her regarding the procedural matter.

IT IS SO ORDERED.

DATE: February 8, 2018

REBECCA FREIE

Administrative Law Judge Office of Administrative Hearings