California OAH special education order · October 19, 2018
Order Denying Request for Reconsideration
OAH Case No. 2018100006 · ALJ Charles Marson
OAH denied Parent's motion to reconsider the denial of a continuance because it raised no new facts or law, came two business days before hearing, and a delay would not solve Parent's inability to afford counsel.
This case went to decision
Milpitas Unified School District v. Student: Milpitas Unified may not implement its 2018 IEP without consent after holding meetings without the parent and making an unclear offer. (2019)
Summary
Parent asked OAH to reconsider an earlier order denying Student's motion to continue the hearing in a case filed by Milpitas USD. Parent had already tried to renew the request orally at the prehearing conference, and that was denied too. OAH denied reconsideration because Parent offered no new facts, circumstances, or law and filed only two business days before hearing. OAH also found the motion lacked merit: Parent said she needed time to get a lawyer but did not say she was trying to find one, and her stated problems, being unable to afford counsel and a prior attorney's lien, would not be fixed by a continuance.
Why it matters
A reconsideration request must show new facts, circumstances, or law and be filed promptly; repeating earlier arguments will not work. A parent who wants more time to find a lawyer should show concrete efforts to get representation.
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
- Cynthia Fritz, Administrative Law Judge (prehearing conference)
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:
MILPITAS UNIFIED SCHOOL DISTRICT, OAH Case No. 2018100006 v. ORDER DENYING REQUEST FOR
RECONSIDERATION
PARENT ON BEHALF OF STUDENT.
On October 8, 2018, the undersigned administrative law judge issued an order denying Student’s motion for a continuance. On October 15, 2018, at a prehearing conference conducted by Administrative Law Judge Cynthia Fritz, Parent attempted to renew the motion orally, without notice, and Judge Fritz denied it. On October 19, 2018, Parent filed a motion, and then an amended motion, to reconsider.
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.)
Parent alleges no new facts, circumstances or law in support of reconsideration; she merely repeats and embellishes previous claims.
The motion is untimely, as Parent waited until two business days before the hearing to make it.
The motion lacks merit. Parent claims she needs time to obtain legal representation, but she does not assert she has been trying to do so or will try to do so if a continuance is granted.
Instead she asserts that she cannot afford counsel, and in addition a previous attorney has placed a lien against her funds in a previous matter. Neither of these problems can be solved by a continuance.
For the reasons above, the Amended Motion for Reconsideration is DENIED.
DATE: October 19, 2018
CHARLES MARSON
Administrative Law Judge Office of Administrative Hearings