California OAH special education order · January 9, 2013
Order Denying Objection of Student to the Dismissal of Case Number 2001200043 Without Prejudice
OAH Case No. 2012100043, 2012100933 · ALJ Robert Helfand
OAH denied Student's objection and let District withdraw its due process complaint without prejudice, because the hearing had not yet started.
This case went to decision
Student v. Julian Charter School et al.: Julian Charter School's proposed special day class denied a student with Down syndrome FAPE in the LRE; aide-documentation claim denied. (2013)
Summary
District filed a due process complaint about the appropriateness of Student's April 2012 IEP. Student then filed a complaint on the same IEP, and OAH consolidated the two cases. District later asked to withdraw its own complaint without prejudice, and Student objected. Looking by analogy to Code of Civil Procedure section 581, subdivision (c), which lets a plaintiff dismiss without prejudice before trial begins, OAH found District could withdraw its case without prejudice because the hearing had not commenced.
Why it matters
A party who files for due process can generally withdraw its own complaint without prejudice at any point before the hearing starts, even over the other side's objection. Parents who want their claims heard should make sure those claims are in their own complaint rather than relying on the district's case.
Key authority cited
- Code Civ. Proc. § 581, subd. (c)
- Parent v. Julian Unified School District, OAH Case No. 2012020570 (Order dated July 12, 2012)
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 of:
JULIAN CHARTER SCHOOL, by and through OAH CASE NO. 2012100043
JULIAN UNION ELEMENTARY SCHOOL
DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT
PARENTS ON BEHALF OF STUDENT, OAH CASE NO. 2012100933
v.
JULIAN CHARTER SCHOOL, by and through ORDER DENYING OBJECTION OF
JULIAN UNION ELEMENTARY SCHOOL STUDENT TO THE DISMISSAL OF
DISTRICT. CASE NUMBER 2001200043 WITHOUT
PREJUDICE
On October 1, 2012, the Julian Charter School, by and through the Julian Union Elementary School District (District) filed a due process hearing request (complaint) naming Parents on behalf of Student (Student) as respondents (and assigned case number 2012100043). On October 12, 2012, Student attempted to file a cross-complaint against the District. On October 22, 2012, the Office of Administrative Hearings (OAH) issued a letter informing Student’s attorney that the pleading could not be processed as it lacked required information. On October 24, 2012, Student filed a pleading entitled “Amended Petition for Due Process, Motion for Consolidation, and Notice of Representation.” OAH filed it as a new case and assigned it case number 2012100933. Both actions involve the appropriateness of the April 14, 2012 Individualized Education Program (IEP) offered to Student by the District. On October 30, 2012, OAH issued an order granting Student’s motion to consolidate the two cases.
On December 31, 2012, the District filed a request to withdraw its complaint without prejudice. On January 2, 2013, Student filed an objection to the District’s request. On January 8, 2013, the District filed a reply to Student’s objection.
Neither state or federal special education statutes or regulations nor the California Administrative Procedures Act specifically address motions to withdraw complaints be it before, during, or after the commencement of a due process hearing. However, OAH may look by analogy to the Code of Civil Procedure, section 581, et seq., which addresses such motions in the context of state civil proceedings. 1 Section 581, subdivision (c), states that a plaintiff may dismiss his or her complaint, or any portion of it, with or without prejudice prior to the actual commencement of trial.
OAH has permitted a petitioner to withdraw their due process request without prejudice. (Parent v. Julian Unified School District, OAH Case No. 2012020570 (Order dated July 12, 2012.)
In the instant matter, the due process hearing has not commenced. Therefore, the District is entitled to withdraw its case without prejudice.
ORDER
Student’s objection to the January 2, 2013 order to dismiss the District’s complaint is denied.
Dated: January 09, 2013 /s/
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings All further statutory references are to the Code of Civil Procedure.