California OAH special education order · October 27, 2022
Order Granting Request for Reconsideration and Granting Request to Continue Due Process Hearing
OAH Case No. 2022060534 · ALJ Marlo Nisperos
OAH granted Student's reconsideration request and moved the hearing to November 8–10, 2022. The one-day notice of the November 1 date left the parties no time for the required five-business-day evidence exchange.
Summary
OAH put the case back on calendar on October 26, 2022, with hearing set for November 1. That same day, Student filed a notice saying there was not enough time to exchange evidence, and OAH treated it as a request for reconsideration. Student explained that the parties had not uploaded evidence because they finalized a settlement agreement on the day the exchange was due, and the new date made it impossible to exchange exhibits five business days before hearing as Education Code section 56505(e)(7) requires. OAH found new facts and good cause, granted reconsideration, reset the hearing to November 8, 9, and 10, 2022, and ordered the parties to meet and confer by November 3, 2022.
Why it matters
When OAH sets a hearing too soon for the parties to meet the five-business-day evidence exchange deadline, a prompt request explaining the conflict can get the hearing moved. This is true even when the conflict arose from settlement activity.
Key authority cited
- Ed. Code, § 56505, subd. (e)(7)
- Ed. Code, § 56505, subd. (f)(3)
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- 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.
SAN LORENZO UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2022060534
ORDER GRANTING REQUEST FOR RECONSIDERATION
AND GRANTING REQUEST TO CONTINUE
DUE PROCESS HEARING
OCTOBER 27, 2022
On October 26, 2022, the undersigned Administrative Law Judge issued an order placing the matter back on calendar and scheduled the due process hearing to begin November 1, 2022. On October 26, 2022, Student filed a notice of insufficient time to comply with Education Code section 56505(e)(7) due to insufficient notice of hearing date. OAH considers Student’s notice as a request for reconsideration.
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
Student offers new facts, circumstances or law. to support reconsideration.
Student’s notice states that the parties did not upload evidence to the electronic evidence program because the parties finalized the settlement agreement on the same date they were required to exchange evidence pursuant to Education Code section 56505, subdivision (e)(7). As a result, Student contends that the due process hearing dates scheduled in the Order of October 26, 2022, prevents the parties from complying with Education Code section 56505, subdivision (e)(7), which requires the parties to exchange exhibits five business days before the first day of hearing. The motion for reconsideration is granted.
MOTION TO CONTINUE
Student requested for the due process hearing to be continued to provide the parties sufficient time to comply with Education Code section 56505, subdivision (e)(7).
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 for good cause.
(34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal.
Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (Ed. Code, § 56505, subd. (f)(3); Cal. Rules of Court, rule 3.1332(c).) OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance or imposing conditions on the continuance; and any other relevant fact or circumstance. (Cal. Rules of Court, rule 3.1332(d).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. Student established good cause to continue the matter to a date that would give the parties an opportunity to exchange evidence five business days prior to the due process hearing.
ORDER
On reconsideration, the due process hearing is scheduled on November 8, 9, and 10, 2022. The parties are ordered to meet and confer by November 3, 2022, at 5:00 PM.
IT IS SO ORDERED.
Marlo Nisperos Administrative Law Judge Office of Administrative Hearings