California OAH special education order · April 2, 2021
Order Granting Request for Reconsideration and Denying Request for Continuance
OAH Case No. 2021020698 · ALJ Rita Defilippis
OAH reconsidered but again denied San Jose's continuance request because OAH's records showed another attorney, not district counsel, was lead counsel in the earlier-filed case claimed to conflict.
Summary
After OAH denied its request to continue the due process hearing, San Jose asked for reconsideration. It argued that its attorney, Jeffery Maisen, was lead counsel in an earlier-filed case set for hearing on the same dates, and pointed to a prehearing conference statement. Student opposed. The ALJ granted reconsideration but found no prehearing conference statement signed by Mr. Maisen in either earlier case, and noted that a prior OAH order named Eliza McArthur as San Jose's lead counsel in that case. Because San Jose did not show a real scheduling conflict, the continuance remained denied and all hearing dates were confirmed.
Why it matters
A party claiming a counsel scheduling conflict must back it up with specific, verifiable proof, because OAH will check its own case files. Parents opposing a delay can benefit when OAH holds the other side to that standard.
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
- Jeffery Maisen, Attorney for San Jose Unified School District
- Eliza McArthur, Lead counsel for San Jose in earlier OAH case 2020110384
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.
SAN JOSE UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021020698
ORDER GRANTING REQUEST FOR RECONSIDERATION
AND DENYING REQUEST FOR CONTINUANCE
APRIL 2, 2021
On April 1, 2021, the undersigned Administrative Law Judge issued an order denying San Jose Unified School District’s request for continuance of the due process hearing in this matter. On April 2, 2021, San Jose filed a request for reconsideration asserting that its counsel, Jeffery Maisen, was lead counsel in an earlier-filed case that had dates conflicting with the present matter. On April 2, 2021, Student 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.)
MOTION FOR RECONSIDERATION
San Jose requests the undersigned ALJ take judicial notice of a prehearing conference statement filed with the Office of Administrative Hearings, called OAH, by San Jose which lists Jeffery Maisen as attorney of record. San Jose argues this supports its request for a continuance, on the grounds that the signed prehearing conference statement demonstrates his position as lead counsel on the earlier filed case. As lead counsel, San Jose argues, its counsel has two cases scheduled for hearing on the same dates. As the other is an earlier filed case, San Jose requests that this case be continued.
The motion for reconsideration is granted.
REQUEST FOR CONTINUANCE
On reconsideration, the undersigned ALJ reviewed all documents filed with OAH and found no prehearing conference statement in either OAH case number 2020070344 or 2020110384, signed by Mr. Maisen. Mr. Maisen did not provide the date of the alleged prehearing conference statement referred to in support of the request for reconsideration. The only evidence of Mr. Maisen’s involvement the earlier filed case, was an appearance on behalf of San Jose at a January 4, 2021 prehearing conference. In the order following the January 4, 2021 prehearing conference in OAH Case No, 2020110384, Ms. Eliza McArthur is specifically identified by the Administrative Law Judge conducting the prehearing conference as lead counsel for San Jose.
ORDER
San Jose failed to establish that it’s counsel has a conflict for the dates currently scheduled for hearing. Having reconsidered the April 1, 2021 order in light of further argument by the parties, no change is made to the order previously issued. San Jose’s request for continuance is denied. All dates set in this matter are confirmed.
IT IS SO ORDERED.
Rita Defilippis Administrative Law Judge Office of Administrative Hearings