California OAH special education order · October 17, 2022
Order Granting Request for Reconsideration and Denying Request to Continue
OAH Case No. 2022060478 · ALJ Tiffany Gilmartin
OAH granted San Diego's reconsideration request but refused to add a December hearing day for an unavailable witness, saying hearing scheduling is handled by the ALJ on the first day of hearing.
Summary
OAH had granted a continuance of the due process hearing after Student's counsel said San Diego agreed to it. San Diego then asked for reconsideration, saying it had since learned a key witness would be unavailable for the November 1-3, 2022 hearing, and asked to add a hearing day in December. Student did not respond. The ALJ granted reconsideration but denied the extra December date, finding that using reconsideration to add a day five weeks after the hearing starts was improper because the ALJ handles scheduling on the first day of hearing. All existing dates were confirmed.
Why it matters
Witness availability problems and requests for extra hearing days are generally taken up with the ALJ on the first day of hearing, not through a reconsideration motion. Parties should bring scheduling concerns to the ALJ at the start of hearing.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
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.
SAN DIEGO UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2022060478
ORDER GRANTING REQUEST FOR RECONSIDERATION
AND DENYING REQUEST TO CONTINUE
OCTOBER 17, 2022
On September 22, 2022, the undersigned Administrative Law Judge granted a continuance of the Due Process hearing. The continuance was based on the assurances of Student’s counsel that San Diego’s counsel had agreed to the continuance. On October 7, 2022, San Diego filed a request for reconsideration. The Office of Administrative Hearings did not receive a response from Student.
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
San Diego asserts at the time the continuance was granted they were unaware a key witness would be unavailable during the November 1-3, 2022 due process hearing.
San Diego argues the unavailability of this key witness is a new fact, circumstances or law to support reconsideration. San Diego argues due to the unavailability of this key witness that an additional hearing day be added in December when the witness ostensibly will be available.
The motion for reconsideration is granted. Scheduling for due process hearings are handled by the administrative law judge on the first day of hearing. San Diego’s request to add an additional day in December, five weeks after the hearing commences is an improper use of the reconsideration process.
ORDER
On reconsideration, San Diego’s motion for reconsideration is granted. San Diego’s request to schedule an additional date in December is denied. All scheduling matters will be discussed with the administrative law judge on the first day of hearing.
All dates set in this matter are confirmed.
IT IS SO ORDERED.
Tiffany Gilmartin Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings