California OAH special education order · November 2, 2020

Order Granting Request for Reconsideration, and Order Granting Motion Amend

OAH Case No. 2020100509 · ALJ Peter Paul Castillo

OAH granted Student's reconsideration request and allowed the amended complaint after Student showed Temecula Valley's attorney had not actually served its notice of representation until after Student filed the amendment.

Granted Reconsideration

Summary

OAH had denied Student's motion to amend because Student served the amended complaint on Temecula Valley itself rather than on the district's attorney. Student asked for reconsideration. Student's counsel showed, through a declaration and emails, that the district's Notice of Representation was not served on Student's counsel until October 27, 2020, after the amendment was filed, even though the proof of service said October 21. Temecula Valley did not respond, so OAH granted reconsideration and granted the unopposed, timely motion to amend, resetting all timelines as of the order date.

Why it matters

A procedural denial based on service can be undone quickly if a party shows, with a declaration and documents, that it did not know the other side had an attorney. Filing an amended complaint restarts the hearing timelines.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • 20 U.S.C. § 1415(c)(2)(E)(i)
  • 20 U.S.C. § 1415(c)(2)(E)(ii)

Topics

reconsideration amended complaint service notice of representation timelines reset

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.

TEMECULA VALLEY UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2020100509

ORDER GRANTING REQUEST FOR RECONSIDERATION,

AND ORDER GRANTING MOTION AMEND

NOVEMBER 02, 2020

On October 30, 2020, the undersigned Administrative Law Judge issued an order that denied Student’s Motion Amend the Complaint as Student did not serve a copy of the motion and amended complaint on the attorney for Temecula Valley Unified School District. On November 2, 2020, Student filed a motion for reconsideration as Temecula Valley did not serve its Notice of Representation on Student’s attorney on October 21, 2020, as noted in the notice’s proof of service. The Office of Administrative Hearings did not receive a response from Temecula Valley.

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.)

An amended complaint may be filed when the other party consents in writing and is given the opportunity to resolve the complaint through a resolution session, or when the hearing officer grants permission. The hearing officer may grant permission at any time more than five days before the due process hearing. (20 U.S.C.§1415(c)(2)(E)(i).)

The filing of an amended complaint restarts the applicable timelines for the due process hearing. (20 U.S.C. §1415(c)(2)(E)(ii).)

DISCUSSION

RECONSIDERATION

Student offers new facts, circumstances or law. to support reconsideration.

Student establishes by way of declaration of counsel and emails between counsel that Temecula Valley did not serve its Notice of Representation on Student’s counsel on October 21, 2020, but on October 27, 2020, after Student filed the amended complaint on Temecula Valley itself. Further, counsel for Temecula Valley received a copy of the amended complaint from its client, which led to the discovery about the service of the Notice of Representation. Therefore, the motion for reconsideration is granted.

MOTION TO AMEND

The motion to amend was filed more than five days prior to the due process hearing, and OAH received no opposition from Temecula Valley. Therefore, it is timely and is granted. The amended complaint shall be deemed filed on the date of this order.

All applicable timelines shall be reset as of the date of this order. OAH will issue a scheduling order with the new dates.

ORDER

1. Student’s Motion for Reconsideration is granted.

2. Student’s Motion to Amend is granted.

IT IS SO ORDERED.

{{sig1_es_:signer1:signature}} Peter Paul Castillo Presiding Administrative Law Judge Office of Administrative Hearings