California OAH special education order · November 10, 2021
Order Granting Request for Reconsideration, Granting Request for Continuance and Denying November 9, 2021 Request for Continuance as Moot
OAH Case No. 2021090809 · ALJ Penelope S. Pahl
OAH reconsidered its denial and granted the joint continuance because the parties had mediated and were close to settlement, and Student's lack of an attorney could slow finalizing settlement documents.
Summary
OAH first denied a joint continuance request because it gave no reasons. The parties then filed new joint requests saying they had mediated and were close to settlement. OAH treated the latest request as a motion for reconsideration and granted it based on these new facts. It did not consider Fremont's unsigned declaration, but it accepted the facts counsel stated in the moving papers. Wanting more time to settle is not enough by itself to continue a hearing, but OAH found good cause because Student had no attorney, which could make finalizing settlement documents take longer. OAH reset the prehearing conference and hearing dates and denied an earlier duplicate request as moot.
Why it matters
A continuance request must state good cause and include signed, complete supporting papers, or OAH may deny it. Wanting more time to settle usually is not enough, but a family without an attorney can be a factor that tips the balance.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- Ed. Code, § 56505, subd. (f)(3)
- 34 C.F.R. § 300.515(a)
- Cal. Rules of Court, rule 3.1332
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.
FREMONT UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021090809
ORDER GRANTING REQUEST FOR RECONSIDERATION,
GRANTING REQUEST FOR CONTINUANCE AND DENYING
NOVEMBER 9, 2021 REQUEST FOR
CONTINUANCE AS MOOT.
NOVEMBER 10, 2021
On September 27, 2021, Student filed a request for due process hearing with the Office of Administrative Hearings, referred to as OAH, naming Fremont Unified School District as respondent. On November 9, 2021, the parties jointly requested a continuance. No grounds for the request to continue the case were stated and the request for continuance was denied by the undersigned.
Later, on November 9, 2021, the parties again jointly requested a continuance, accompanied by an unsigned declaration from counsel for Fremont. A copy of the order denying the original continuance was filed separately, but not noted as an Exhibit. No motion for reconsideration noting the prior denial was included. On November 10, 2021, the parties jointly filed a second motion to continue, also with the unsigned declaration and, again without a request for reconsideration noting the prior continuance denial. The ground stated for the request was that the parties required more time to complete settlement discussions. No prior continuances have been granted in this case. Student is not represented by counsel.
REQUEST FOR RECONSIDERATION
The November 10, 2021 joint motion for continuance is being treated as a motion for reconsideration. 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.)
The unsigned declaration was not considered. However, facts stated in the moving papers by Fremont’s counsel are accepted as representations of an officer of the court. It is recommended that future filings be reviewed closely for completeness and accuracy to avoid denial of requests.
The parties offer new facts to support reconsideration, specifically, that they mediated the case and are close to settlement. Therefore, reconsideration of the prior order denying the request for continuance is granted.
REQUEST FOR CONTINUANCE
A due process hearing must be conducted, and a decision rendered, within 45 days of receipt of the due process notice unless an extension is granted. (34 C.F.R.
§ 300.515(a); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3).) Speedy resolution of the due process hearing is mandated by law and continuance of the hearing may be granted only upon a showing of good cause. (Ed. Code, § 56505, subd. (f)(3).) In ruling upon a motion for continuance, OAH is guided by the provisions found within the Administrative Procedure Act and the California Rules of Court that concern motions to continue. (Cal. Code Regs., tit. 1, § 1020; Cal. Rules of Court, rule 3.1332.) Generally, continuances of matters are disfavored. (Cal. Rules of Court, rule 3.1332(c).)
A desire for more time to discuss settlement on its own does not constitute grounds for continuance. However, in this case, the undersigned takes notice that Student is not represented by an attorney, which could result in finalization of settlement documents taking longer. The request for a continuance is granted. All previously scheduled dates in this matter are hereby vacated. The new dates are:
PREHEARING CONFERENCE will be held on November 22, 2021, at 10:00 AM.
PARTICIPANT INFORMATION SHEETS FOR MEDIATION AND PREHEARING
CONFERENCES MUST BE FILED TWO BUSINESS DAYS PRIOR TO THE DATE OF
THE SCHEDULED EVENT.
HEARING will be held on November 30, 2021, and December 1 and 2, 2021.
The hearing shall begin at 9:30 AM on all days unless otherwise ordered. After the scheduled dates, the hearing shall continue day to day, including Mondays and Fridays, 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 the document was not timely filed.
EARLIER FILED JOINT MOTION TO CONTINUE DENIED AS MOOT
The joint motion to continue, filed November 9, 2021, at 4:56 p.m. is denied, as the subsequently filed joint motion to continue rendered it moot.
IT IS SO ORDERED.
Penelope S. Pahl Administrative Law Judge Office of Administrative Hearings