California OAH special education order · March 27, 2019

Order Granting Request for Reconsideration, Granting Continuance, and Denying Request for Mediation Date

OAH Case No. 2018110512 · ALJ Cynthia Fritz

OAH granted reconsideration and continued the hearing based on a new declaration about assessment delays, but denied another mediation date because the parties canceled the last one on the eve without explanation.

Ruling Reconsideration

Summary

On March 20, 2019, OAH denied the parties' joint request for another mediation date and a hearing continuance. The parties then jointly asked for reconsideration. They filed a declaration describing their efforts over 90 days to find an assessor and an unexpected fourth assessment completed in March 2019. OAH granted reconsideration and found good cause to continue the hearing to May 7, 2019, but denied a new mediation date because the parties gave no reason for canceling the March 12 mediation after 4:00 p.m. the day before.

Why it matters

A detailed declaration with new facts can win reconsideration and a continuance. But OAH expects parties to tell it promptly about scheduling problems, and canceling a mediation at the last minute without a reason can cost you a further mediation date.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • 34 C.F.R. § 300.515(a)
  • Ed. Code, § 56505, subd. (f)(3)
  • Cal. Rules of Court, rule 3.1332

Topics

reconsideration continuance mediation assessments good cause interim settlement

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. 2018110512 v. ORDER GRANTING REQUEST FOR

RECONSIDERATION, GRANTING

THE LANGUAGE ACADEMY OF CONTINUANCE, AND DENYING

SACRAMENTO. REQUEST FOR MEDIATION DATE

On March 20, 2019, the undersigned administrative law judge issued an order that denied the parties joint request for a third mediation date and a hearing continuance. On March 26, 2019, the parties jointly filed a motion for reconsideration.

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.)

A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted. (34 C.F.R. § 300.515(a);

Ed.Code, §§ 56502, subd. (f), 56505, subd. (f)(3).) Speedy resolution of the due process hearing is mandated by law and continuance of the hearing may be granted only upon a showing of good cause. (Ed. Code, § 56505, subd. (f)(3).) In ruling upon a motion for continuance, OAH is guided by the provisions found within the Administrative Procedure Act and the California Rules of Court that concern motions to continue. (Cal. Code Regs.,tit.

1, § 1020;Cal. Rules of Court, rule 3.1332.) Generally, continuances of matters are disfavored. (Cal.Rules of Court, rule 3.1332(c).)

DISCUSSION

Reconsideration The parties allege new circumstances and a declaration in support of their request for reconsideration. The declaration sets forth specific facts concerning their ability to complete two assessments, and their efforts and inability to complete one assessment before the second scheduled mediation date of March 12, 2019. Counsel further submitted that an unforeseen fourth assessment was initiated and completed in March 2019, and needed to be considered prior to the conclusion of this matter. As a result, reconsideration is granted.

Continuance Based upon the submitted declaration detailing the steps taken to secure an assessor in the preceding 90 days, good cause is found to continue the hearing in this matter.

Mediation A request for an initial mediation is generally good cause for a continuance; multiple mediations are not guaranteed. In this case, however, OAH found good cause to grant a second mediation to March 12, 2019, in order for the parties to conduct assessments pursuant to a December 2018 interim settlement agreement.

On March 11, 2019, after 4:00 p.m., the parties canceled the mediation scheduled for the next day, explaining that the parties were not in a position to effectively negotiate a settlement because they only recently found an assessor. While the parties set forth detailed information regarding efforts to secure an assessor in the preceding 90 days, they failed to provide any explanation as to why they waited on the eve of mediation to cancel it. The parties own declaration suggests that they could have contacted OAH earlier. Thus, the request for a second mediation date is denied.

ORDER

1. The motion for reconsideration is GRANTED.

2. The request for a due process hearing continuance is GRANTED.

3. The current prehearing conference and due process hearing dates are

vacated.

4. The prehearing conference is set for April 26, 2019, at 3:00 p.m.

5. The due process hearing is set for May 7, 2019, at 9:30 a.m., and May 8 and 9,

2019, at 9:00 a.m., and continuing day to day at the discretion of the administrative law judge.

6. The request for mediation is DENIED.

IT IS SO ORDERED.

DATE: March 27, 2019

CYNTHIA FRITZ

Administrative Law Judge Office of Administrative Hearings