California OAH special education order · July 3, 2018
Order Denying Request for Reconsideration
OAH Case No. 2018051105 · ALJ Marian H. Tully
OAH denied Student's motion for reconsideration because Student offered no new facts or law, and the motion to dismiss Student was worried about had not yet been ruled on.
Summary
Student's attorney's office phoned OAH and asked for more time to respond to the District's Notice of Insufficiency. OAH denied the request because it must rule on sufficiency within five days based only on the complaint itself, and it found the complaint sufficient. Student then moved for reconsideration of what Student described as a denial of a one-day extension to oppose the District's separate motion to dismiss. OAH denied reconsideration because Student showed no new facts or law, and no order on the motion to dismiss had been issued. Student's opposition to that motion was timely filed and was still pending.
Why it matters
Reconsideration requires new facts, circumstances, or law, and there must be an actual ruling to reconsider. Responding to a Notice of Insufficiency is rarely critical, since OAH decides sufficiency within five days based only on the complaint itself.
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. 2018051105 v. ORDER DENYING REQUEST FOR
RECONSIDERATION
LONG BEACH UNIFIED SCHOOL
DISTRICT .
On June 21, 2018, Student filed a First Amended Complaint. On June 26, 2018, Long Beach Unified School District filed: 1) a Notice of Insufficiency; and 2) a Motion to Dismiss First Amended Complaint in Part.
The administrative record reflects a telephone call from the office of Student’s attorney on June 26, 2018. OAH was informed that Student’s attorney was out of the office and unable to respond to the NOI until July 2, 2018, and requested an extension of time to respond to District’s NOI until July 2, 2018. As OAH is required to issue an Order determining the sufficiency of a complaint within 5 calendar days, and to determine sufficiency based upon the four corners of complaint itself, OAH denied the telephonic request for continuance. OAH informed all parties that Student’s request for additional time to file a written response to District’s NOI was denied.
On June 27, 2018, OAH issued an Order determining the complaint sufficient.
The administrative record further reflects that Student timely filed an opposition to District’s motion to dismiss on July 2, 2018. As OAH allows time for the parties to respond to motions to dismiss, and Student filed opposition yesterday, the motion to dismiss has yet to be ruled upon.
On July 2, 2018, Student filed a motion for reconsideration of OAH’s denial of request for one day extension to file opposition to the motion to dismiss.
APPLICABLE LAW AND DISCUSSION
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.)
Student alleges no new facts or law to reconsider an order that has not been issued.
ORDER
Student’s Motion for Reconsideration is denied.
IT IS SO ORDERED.
DATE: July 03, 2018
MARIAN H. TULLY
Presiding Administrative Law Judge Office of Administrative Hearings