California OAH special education order · October 11, 2019
Order Granting Request for Reconsideration and Granting Student's Continuance Request
OAH Case No. 2019040225 · ALJ Peter Paul Castillo
OAH granted Student's reconsideration request and continued the hearing to December 3, 2019, because a new declaration showed Father could not attend due to a binding work contract.
Summary
Student asked OAH to reconsider its October 9, 2019 order denying a continuance and filed a declaration from Father explaining he was unavailable because of a contractual work obligation. Bellflower opposed. OAH found the declaration was a new fact that justified reconsideration. The other grounds did not: a general education teacher's unavailability, and a scheduling conflict with the Great Shakeout for which Student had the wrong date. OAH granted a continuance, but not the 60 to 70 days Student requested, and reset the hearing for December 3 through 5, 2019, with no further continuances for Father's or the teacher's unavailability.
Why it matters
A sworn declaration with specific facts about a parent's unavailability can turn a denied continuance into a granted one on reconsideration. Families should still expect OAH to limit how long it delays a hearing and to refuse repeat continuances on the same grounds.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- Ed. Code, § 56505, subd. (f)(3)
- 34 C.F.R. § 300.515
- Cal. Rules of Court, rule 3.1332
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,
v.
BELLFLOWER UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2019040225
ORDER GRANTING REQUEST FOR RECONSIDERATION AND
GRANTING STUDENT'S CONTINUANCE REQUEST
On October 9, 2019, the Presiding Administrative Law Judge Peter Paul Castillo issued an order that denied Student’s request for a continuance based upon the inability of Student’s attorney to meet with Father to prepare him for hearing and the absence on a vital witness. On October 10, 2019, Student filed a Motion for Reconsideration, which included a declaration from Student’s father as to his unavailability. On October 11, 2019, Bellflower Unified School District filed an opposition.
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, generally within ten days. (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
Student offers new facts, circumstances or law. to support reconsideration with the Declaration of Father as to his unavailability due to an important work contract that he is obligated contractually to fulfill. Without this Declaration, Student would not have established good cause for reconsideration based on the other two grounds as to the unavailability of a specified Bellflower general education teacher, and because Student has the incorrect date for the Great Shakeout. The motion for reconsideration is granted.
CONTINUANCE REQUEST
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 for good cause. (34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored.
Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (Ed. Code, § 56505, subd. (f)(3); Cal. Rules of Court, rule 3.1332(c).)
OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance or imposing conditions on the continuance; and any other relevant fact or circumstance. (Cal. Rules of Court, rule 3.1332(d).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Granted. All dates are vacated. The continuance request is granted as Student established good cause based on Father’s inability to participate at the hearing due to significant work obligations. However, Student did not establish good cause to continue this matter for 60 to 70 days. Therefore, this matter will be set as follows:
Due Process Hearing will be held on December 3, 2019, through December 5,
2019. The hearing shall begin at 9:30 AM the first day, and at 9:00 AM on all other days
unless otherwise ordered. The hearing shall continue day to day, as needed at the discretion of the Administrative Law Judge. No further continuance will be granted as to the unavailability of Father or the Bellflower general education teacher. This matter shall take precedent over any later filed matter.
Bellflower’s pending motion to dismiss the due process complaint and motion to exclude evidence will be ruled upon in a separate order.
ORDER
1. Student’s motion for reconsideration is granted.
2. On reconsideration, Student’s continuance request is granted.
IT IS SO ORDERED.
DATED: October 11, 2019 Peter Paul Castillo Presiding Administrative Law Judge Office of Administrative Hearings