California OAH special education order · August 31, 2020
Order Granting Request for Reconsideration and Granting Motion to Continue
OAH Case No. 2020040780, 2020030273 · ALJ Marlo Nisperos
OAH granted Long Beach's reconsideration request and continued the hearing to October 6–8, 2020, but refused December dates because this earlier-filed case has priority over counsel's later-filed hearings.
Summary
OAH had denied the parties' joint request to continue the due process hearing set for September 29 through October 1, 2020. Long Beach then asked for reconsideration, with a declaration that its counsel was unavailable because of other scheduled hearings. OAH found these were new facts and granted reconsideration and the continuance. It rejected the proposed December 1–3, 2020 dates because several of counsel's conflicting cases were filed after this one, and instead reset the hearing to the soonest available dates, October 6–8, 2020, with a prehearing conference on September 28, 2020.
Why it matters
OAH gives earlier-filed cases priority over an attorney's later-filed hearings, so a busy calendar alone will not win a long delay. Parties seeking a continuance should expect OAH to pick the soonest workable dates, not the dates they propose.
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.
LONG BEACH UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2020040780
and
LONG BEACH UNIFIED SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT,
OAH CASE NUMBER 2020030273
ORDER GRANTING REQUEST FOR RECONSIDERATION
AND GRANTING MOTION TO CONTINUE
AUGUST 31, 2020
On August 28, 2020, the undersigned Administrative Law Judge issued an order denying the parties’ joint request for continuance of the due process hearing set for September 29, through October 1, 2020. On August 28, 2020, Long Beach filed a Request for Reconsideration of Joint Request to Continue Hearing Dates and Declaration in Support Thereof.
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
Long Beach offers new facts, circumstances or law to support reconsideration.
Long Beach’s counsel submitted a declaration indicating that they are unavailable on the dates set in the scheduling order that was issued after Student’s motion to amend the complaint was granted on August 7, 2020. Long Beach’s counsel lists several dates they are unavailable based on due process hearings that are currently scheduled. However, several of the cases that are listed were filed after the lead case in the instant matter;
therefore, the proposed hearing date of December 1, 2020 through December 3, 2020 is denied.
The lead case in the instant matter was filed in April 24, 2020, and therefore takes precedence over the cases cited that were filed later. This matter shall proceed to due process hearing on October 6, 2020 through October 8, 2020, because that is the soonest date available after the dates set in the scheduling order. The hearing listed by Long Beach’s counsel that is currently set for that date was filed after the instant matter, and therefore the instant matter has priority. The motion for reconsideration is granted.
ORDER
1. The Motion for Reconsideration is Granted.
2. The Motion for Continuance is Granted.
3. The dates currently scheduled in this consolidated case are vacated.
4. The matter shall now be scheduled as follows:
a. The prehearing conference is scheduled for September 28, 2020, at
3PM.
b. The due process hearing is scheduled for October 6, 2020 through
October 8, 2020.
IT IS SO ORDERED.
Marlo Nisperos Administrative Law Judge Office of Administrative Hearings