California OAH special education order · January 25, 2021
Order Granting Request for Reconsideration of Motion to Amend, and Vacating Order Granting Motion to Amend and January 15, 2021 Scheduling Order
OAH Case No. 2020100257 · ALJ Cole Dalton
OAH vacated its order granting Student's motion to amend because Excel Academy showed by sworn declaration that it was never served with the motion or amended complaint, and Student did not respond.
Summary
Excel Academy asked OAH to reconsider its January 15, 2021 order granting Student's motion to amend the complaint. Excel Academy said it was never served with the motion or the amended complaint, even though Student's proof of service showed fax service. A paralegal's sworn declarations supported this, and Student did not answer Excel Academy's request for copies or its reconsideration motion. OAH granted reconsideration and vacated both the amendment order and the new scheduling order. It ordered Student to serve the papers and confirm receipt by January 27, 2021, gave Excel Academy until January 29, 2021 to respond, and reinstated the original prehearing conference and hearing dates.
Why it matters
A party must actually serve motions and amended complaints on the other side. An unanswered sworn claim that papers were never received can undo a favorable ruling and bring back the original hearing timeline.
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
- Bynoe, Paralegal for Excel Academy's counsel (declarant)
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.
EXCEL ACADEMY CHARTER SCHOOL.
OAH CASE NUMBER 2020100257
ORDER GRANTING REQUEST FOR RECONSIDERATION OF
MOTION TO AMEND, AND VACATING ORDER GRANTING
MOTION TO AMEND AND JANUARY 15, 2021
SCHEDULING ORDER
JANUARY 25, 2021
On January 15, 2021, the undersigned Administrative Law Judge issued an order granting Student’s motion to amend the request for due process hearing, called a complaint, and ordered that all applicable timelines be reset. On January 15, 2021, the Office of Administrative Hearings, called OAH, issued a new scheduling order with new hearing dates.
On January 19, 2021, Excel Academy Charter School filed a motion for reconsideration of the order granting Student’s motion to amend, supported by a declaration, on the ground that Student had not served the motion or amended complaint on counsel for Excel Academy. On January 22, 2021, Excel Academy filed a supplementary declaration stating that Student had not served the motion and amended complaint in response to Excel Academy’s January 19, 2021 written request for service. OAH, did not receive a response from Student.
APPLICABLE LAW
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.)
DISCUSSION
Excel Academy offers new facts and circumstances to support reconsideration.
Student’s amended complaint includes a proof of service reflecting facsimile service of the motion to amend and amended complaint on counsel for Excel Academy on January 12, 2021. Excel Academy’s motion for reconsideration and supplemental letter are supported by paralegal Bynoe’s declarations under penalty of perjury asserting that it was never served. Specifically, Bynoe asserts that her office learned of the motion to amend and amended complaint only after receiving OAH’s new scheduling order granting the motion to amend. Student neither responded to Excel Academy’s January 19, 2021 request for a copy of the motion and amended complaint nor filed a response to Excel Academy’s motion for reconsideration. The motion for reconsideration is granted.
ORDER
On reconsideration, OAH’s January 15, 2021 order granting Student’s motion to amend is vacated. Student is ordered to serve and confirm Excel Academy’s receipt of the motion to amend and amended complaint by 5:00 PM on January 27, 2021. Excel Academy is ordered to file an opposition or notice of non-opposition to the motion to amend by 5:00 PM on January 29, 2021.
The January 15, 2021 Scheduling Order is vacated. The prehearing conference date of February 12, 2021, at 10:00 AM and hearing dates of March 2, 3, and 4, 2021 are reinstated.
PARTICIPANT INFORMATION SHEETS FOR THE PREHEARING CONFERENCE MUST BE
FILED TWO BUSINESS DAYS PRIOR TO THE DATE OF THE SCHEDULED EVENT.
The hearing shall begin at 9:30 AM on all days unless otherwise ordered. The hearing shall continue day to day, as needed at the discretion of the Administrative Law Judge. Prehearing conference statements and motions are due to OAH no later than three business days before the prehearing conference or with a showing of good cause why it was not timely filed.
IT IS SO ORDERED.
Cole Dalton Administrative Law Judge Office of Administrative Hearings