California OAH special education order · August 4, 2021
Order Denying Request for Reconsideration
OAH Case No. 2020120692 · ALJ Brian Krikorian
OAH denied Parent's request to reconsider the with-prejudice dismissal of Student's case. Parent never raised a medical condition at hearing, offered no verification of it, and Del Mar Union was prejudiced.
Summary
Parent asked OAH to reconsider its July 13, 2021 order, which denied a further continuance and dismissed Student's case with prejudice after Parent fired Student's two attorneys mid-hearing. Parent argued she had a debilitating medical condition, did not ask for a long continuance, and that the District suffered no prejudice. The ALJ found that Parent never mentioned any illness at the hearing and still gave no tangible proof of one. The ALJ also found that Parent offered no time frame or plan for new counsel, and that her filings and firing of counsel had forced the District's consolidated case to be split off and continued. Because Parent showed no new facts, circumstances, or law, reconsideration was denied.
Why it matters
A party who needs a continuance for health reasons should raise it at the time and back it up with a sworn statement or a doctor's letter, since raising it afterward without proof will not undo a dismissal. Firing counsel in the middle of a hearing without a concrete plan to proceed can lead to dismissal with prejudice.
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
- Ms. Bayne, Student's former attorney (terminated by Parent)
- Mr. Alguire, Student's former attorney (terminated by Parent)
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:
PARENTS ON BEHALF OF STUDENT,
v.
DEL MAR UNION SCHOOL DISTRICT.
OAH CASE NUMBER 2020120692
ORDER DENYING REQUEST FOR RECONSIDERATION
AUGUST 04, 2021
On July 13, 2021, the undersigned Administrative Law Judge issued an order denying a further continuance and dismissing the Student’s case with prejudice. On July 26, 2023, Parent on behalf of Student filed a Motion for reconsideration. On July 28, 2021, Del Mar Union 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
The factual background related to this case and the dismissal is set forth in great detail in the Order of July 13, 2021. In addition, several of Parent’s arguments were addressed in the July 13 written order, and Parent has not submitted new evidence which would impact those issues. As such, the following facts are relevant only to Parent’s motion for reconsideration.
At the time of hearing on July 13, 2021, Parent advised the Administrative Law Judge, on the record, referred to as ALJ, that she had not slept for the last two days, and was unprepared to proceed with the next witness. Parent now asserts that she was in fact suffering from a debilitating medical condition which prevented her from proceeding. As Del Mar Union argues in its opposition, Parent attended the two previous hearing days, and was in attendance on July 13, 2021 when she terminated Student’s attorneys on the record. During none of these hearings, did Parent or Student’s counsel indicate she was ill.
Parent’s argument that she should not have been required to reveal personal medical matters on the record misses the point. That was never required of her.
Notwithstanding her assertion that she told the ALJ multiple times she was suffering from an illness, Parent in fact made no mention, whatsoever, of any medical condition at the hearing. Had she done so, and provided some verification under oath or a letter from her physician, then the ALJ would have certainly considered that evidence with regard to a brief continuance. Even in her current filings, she provides no tangible verification that this medical condition prevented her from proceeding.
Parent also argues in her Motion to Reconsider that the ALJ incorrectly found that she asked for “a long continuance.” This is erroneous, as Parent offered no time period at all on a potential continuance. The crucial fact glossed over by Parent is that Student was represented by two attorneys the morning of the hearing. Parent represented to the ALJ and District’s counsel on July 7, 2021, that Parent intended to proceed with the hearing and agreed that Ms. Bayne and Mr. Alguire represented Student. The hearing proceeded for two days. Despite this, Parent continued to file motions in the matter and then abruptly terminated each attorney on July 13, while a witness was pending and all counsel and the ALJ were prepared to begin.
Parent was vague on the record about how Parent intended to proceed, and did not offer any reasonable alternative to the ALJ. Other than alleging that Student’s terminated counsel failed to communicate with her and that Parent had not received any documents, Parent offered the ALJ no assurance that she had retained counsel prepared to take over or that she needed a short period of time to be prepared.
Finally, Parent’s assertion that no prejudice to Del Mar Union exists is simply untenable. This matter was consolidated with Del Mar Union’s own case in May of 2021.
Student’s counsel made no objection to consolidation. The matter proceeded to hearing with the parties intending to have both cases decided at one hearing. However, because of Parent’s multiple filings and her decision to terminate Student’s counsel in Del Mar Union’s case, the matters were unconsolidated and Del Mar Union’s case was continued. None of this, nor the subsequent firing of counsel on July 13, was caused by Del Mar or its counsel’s actions.
Parent has not established the July 13, 2021 Order should be reconsidered. The motion for reconsideration is denied.
IT IS SO ORDERED.
Brian Krikorian Administrative Law Judge Office of Administrative Hearings