California OAH special education order · April 5, 2024
Order Denying Second Request for Reconsideration
OAH Case No. 2024020456, 2024010744 · ALJ Laurie Gorsline
OAH denied Student's second reconsideration request on subpoenas to Student's medical providers. Student repeated earlier arguments, and the district that issued the subpoenas, not Student, must pay the providers' compliance costs.
Summary
An earlier order narrowed Mt. Diablo Unified's subpoenas to Student's medical and service providers so they covered only records about Student's feeding disorder and feeding-related needs. OAH had already denied one reconsideration motion. Student then filed a second motion, repeating the same arguments and adding that the family could not afford to pay the third parties to comply. OAH denied it because Student offered no new facts, circumstances, or law, disagreeing with the judge is not a basis for reconsideration, and the money argument could have been raised earlier and was wrong anyway: under Evidence Code section 1563 the party issuing a subpoena pays the reasonable costs of compliance.
Why it matters
Families do not have to pay providers' costs for producing records under subpoenas the district issued; under Evidence Code section 1563 the subpoenaing party pays. Repeat reconsideration motions that only restate earlier arguments will be denied.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Evid. Code, § 1563, subd. (b)(1)
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494
- New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206
People named in the order
- Cole Dalton, Administrative Law Judge who issued the prior subpoena order
- Anthony Verzi, Student's medical/service provider (subpoenaed)
- Dr. Olga Kelly, Student's medical/service provider (subpoenaed)
- Jennifer Jourdain, Student's medical/service provider (subpoenaed)
- Nan Arkwright, Student's medical/service provider (subpoenaed)
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 CONSOLIDATED MATTERS INVOLVING:
PARENT ON BEHALF OF STUDENT,
and
MT. DIABLO UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2024020456
OAH CASE NUMBER 2024010744
ORDER DENYING SECOND REQUEST FOR
RECONSIDERATION
APRIL 05, 2024
On March 25, 2024, Administrative Law Judge Cole Dalton issued an Order Granting Motion to Quash in Part and Modifying Subpoenas Duces Tecum, dated March 22, 2024. An Administrative Law Judge is known as an ALJ.
By the March 22, 2024, Order, ALJ Dalton limited the scope of the subpoenas issued by Mount Diablo Unified School to Student’s medical and/or service providers, Anthony Verzi, Dr. Olga Kelly, Jennifer Jourdain, University of California San Francisco Benioff Children’s Hospital, and Nan Arkwright. Specifically, the Order limited the production required by the subpoenas to the documents pertaining to Student’s feeding disorder, feeding issues, and feeding related needs.
On March 28, 2024, Student filed a motion for reconsideration of the March 22, 2024, Order. On March 28, 2024, OAH denied Student’s motion for reconsideration on the grounds that Student offered no new facts, circumstances, or law, to justify reconsideration of the March 22, 2024, Order.
On April 4, 2024, Student filed a motion for reconsideration of the prior Orders.
Student raises the same arguments he made in the original motion. Student also argues he does not have the funds to pay the third parties to comply with the subpoenas.
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.)
Disagreement with a judge’s analysis is not proper basis for bringing a motion for reconsideration. (See e.g., Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 [respondent’s argument without merit and contrary to the legislative intent behind California Code of Procedure section 1008 when it argued that because the court misinterpreted California law in its initial decision, respondent was relying on “different”
law when it reiterated its prior reasoning and authorities].)
The party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. The party moving for reconsideration must establish he could not, with reasonable diligence, have discovered and produced the evidence earlier. (See, New York Times Co. v.
Superior Court (2005) 135 Cal.App.4th 206, 213 [Evidence that was available and easily obtainable by the moving party at the time of the prior order does not qualify as a “new or different” within the meaning of section 1008]; Baldwin v. Home Savings of America, supra, at pp. 1198-1201 [a party must provide a satisfactory explanation for failing to provide the new evidence earlier, a diligence requirement, which was designed to foster the legislative goal of reducing the number of reconsideration motions and creating incentive for parties to marshal their evidence].)
DISCUSSION
Student offers no new facts, circumstances, or law, to justify reconsideration of either the March 22, 2024, Order or the March 28, 2024, Order. Although Student disagrees with ALJ Dalton’s analysis and conclusions, that is not a proper basis for a motion for reconsideration.
Student’s claim that he does not have the financial resources to pay for compliance with the subpoenas does not justify reconsideration. This was evidence that was available and easily obtainable by Student at the time of the prior order. As such, it does not qualify as a “new or different” within the meaning of section 1008.
In any event, Student apparently believes he is required to pay for the third parties’ compliance with the subpoenas served by Mt. Diablo Unified. This is belief is incorrect. The party who issued the subpoenas duces tecum is responsible for paying the reasonable costs incurred by the third party in complying with the subpoenas. (See, Evid. Code, § 1563, subd. (b)(1).) As such, Student’s financial hardship argument does not justify reconsideration of the prior Orders.
ORDER
Student has not established that the OAH Orders dated March 22, 2024, and March 28, 2024, Order should be reconsidered. The motion for reconsideration is denied.
IT IS SO ORDERED.
Laurie Gorsline Administrative Law Judge Office of Administrative Hearings