California OAH special education order · November 15, 2022
Order Granting Request for Reconsideration
OAH Case No. 2022100868 · ALJ Cynthia Fritz
OAH granted the parties' joint reconsideration request and continued the hearing because Hemet's counsel was newly scheduled for another hearing on the same December dates, which the parties had not known earlier.
Summary
OAH had denied the parties' request to continue the due process hearing, and both parties then jointly asked OAH to reconsider. Hemet offered a new fact. On the same day as the denial, OAH had set another, earlier-filed case with Hemet's counsel for hearing on the same December 20 to 22, 2022 dates, and the parties did not know this when they first asked for a continuance. OAH found the new fact justified reconsideration and found good cause for a short continuance because counsel was unavailable. It vacated the earlier dates, set a prehearing conference for December 23, 2022, and set the hearing for January 4 and 5, 2023.
Why it matters
A denied continuance can be revisited if a party promptly shows new facts it could not have raised before, such as counsel's conflicting hearing. The request should be filed within about ten days, with an explanation of why the facts are new.
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
- 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.
HEMET UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2022100868
ORDER GRANTING REQUEST FOR RECONSIDERATION
NOVEMBER 15, 2022
On November 3, 2022, the undersigned administrative law judge issued an order denying the parties’ request for a due process hearing continuance. On November 10, 2022, the parties filed 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, 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.)
Hemet Unified School District offered new facts to support reconsideration. On November 3, 2022, the Office of Administrative Hearings scheduled a due process hearing for December 20, 21, and 22, 2022, the same days as this matter, in an earlier filed case where Hemet’s counsel is the counsel of record. The parties were unaware of this at the time it filed its original request for a continuance on November 2, 2022. Thus, the motion for reconsideration is granted.
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 because it 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).)
For reconsideration, a short continuance request is granted for good cause due to counsel unavailability. All previously scheduled dates are vacated. The case will proceed as follows:
PREHEARING CONFERENCE is December 23, 2022, at 3:00 PM.
All other prehearing matters will be addressed at the December 23, 2022 prehearing conference. All prehearing motions must be filed three business days before the prehearing conference.
Due Process Hearing is January 4 and 5, 2023.
The hearing will be conducted via telephone or videoconference and will begin at 9:30 AM and end at 3:30 PM on all days, unless otherwise ordered. The hearing will continue day to day at the discretion of the ALJ. The parties must immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses, if necessary, to ensure that the witnesses will be available to testify. A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed.
IT IS SO ORDERED.
Cynthia Fritz Administrative Law Judge Office of Administrative Hearings