California OAH special education order · February 20, 2020
Order Granting Request for Reconsideration and Granting Request for Continuance
OAH Case No. 2019110180, 2019120240 · ALJ Adrienne L. Krikorian
OAH granted Capistrano's reconsideration request and moved the hearing to April 21-23, 2020, because the OAH-chosen April 7-9 dates fell during a school break when essential witnesses were unavailable.
Summary
After OAH granted a continuance but set the hearing for April 7, 8 and 9, 2020, instead of the week the parties had asked for, Capistrano asked OAH to reconsider. Capistrano said the new dates fell during a school break, so essential witnesses would not be available. Student did not respond, though the motion said Student's attorney knew about the request. OAH found these were new facts it did not have when it issued the earlier order, and found the nearly one-month delay in filing reasonable here. It granted reconsideration and reset the prehearing conference for April 13, 2020 and the hearing for April 21, 22 and 23, 2020.
Why it matters
When OAH picks hearing dates the parties did not ask for, a party can get them changed through reconsideration by showing new facts, such as witnesses being unavailable during a school break. Parties should still notify or subpoena their witnesses right away, because OAH will not accept a failure to do so as good cause for a witness being unavailable.
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 CONSOLIDATED MATTERS OF:
PARENT ON BEHALF OF STUDENT,
v.
CAPISTRANO UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2019110180
and
CAPISTRANO UNIFIED SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT,
OAH CASE NUMBER 2019120240
ORDER GRANTING REQUEST FOR RECONSIDERATION
AND GRANTING REQUEST FOR CONTINUANCE
FEBRUARY 20, 2020
On January 22, 2020, the undersigned Administrative Law Judge issued an order granting a second request to continue the due process hearing in this matter. On February 19, 2020, Capistrano Unified filed a motion for reconsideration. The Office of Administrative Hearings, referred to as OAH, did not receive a response from Student, but the motion represented that Student’s attorney was aware of the request for a change of dates in this motion.
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, 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.)
Here, Capistrano’s attorney filed the motion almost one month after the order was issued, which under these facts is reasonable. He asserted that OAH granted the motion to continue but set the hearing for dates during the week after the parties requested. OAH was not setting hearings during the week of March 30, 2020, the dates the parties requested, because of the mid-week holiday. For that reason, the hearing was set for April 7, 8 and 9, 2020. Capistrano’s attorney represented in this motion that the new dates fall during a school break, and therefore essential witnesses would not be available for hearing. Those are new facts that were not available to OAH at the time the Order was issued. Capistrano proposed that OAH continue the hearing to April 21, 22 and 23, 2020, claiming that those dates were the first available dates for both parties.
Capistrano offered new facts, circumstances or law to support reconsideration.
The motion for reconsideration is granted.
On reconsideration, good cause exists to continue the hearing dates currently set for April 7, 8 and 9, 2020, in particular because those dates were set by OAH rather than being requested by the parties in their request for continuance. Therefore, Capistrano’s request that the hearing dates be continued is granted.
The prehearing conference will be on April 13, 2020 at 1:00 p.m. Prehearing conference statements and motions are due to OAH no later than three business days before the prehearing conference or with evidence of good cause why it was not possible to file the motion by that date.
The Due Process Hearing will be held on April 21, 22, and 23, 2020. 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.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure their availability to testify. Good cause for witness unavailability is not established by failing to properly notify or subpoena a witness.
IT IS SO ORDERED.
Adrienne L. Krikorian Administrative Law Judge Office of Administrative Hearings