California OAH special education order · October 29, 2015
Order Granting Request to Reopen Case
OAH Case No. 2015050410, 2015050399 · ALJ Peter Paul Castillo
OAH reopened Student's case because Student's former attorney had no authority to dismiss it; Parent only wanted to change lawyers. The consolidated hearing dates stay in place.
Summary
Student's former attorney asked OAH to let her withdraw as counsel and to dismiss Student's case, first without prejudice and then with prejudice. Through new counsel, Student promptly moved to reopen, saying Parent never approved a dismissal. OAH found the request timely and agreed the former attorney lacked authority to dismiss, because Parent only wanted new counsel. OAH also noted the former attorney gave no proof that she served the withdrawal on Parent, so the consolidated case with District's complaint will go forward on the original prehearing conference and hearing dates.
Why it matters
A lawyer cannot dismiss a family's due process case without the parent's approval. Parents who learn of an unauthorized withdrawal or dismissal should act quickly, through new counsel if needed, to get the case reopened.
Key authority cited
- In re Malcolm D. (1996) 42 Cal.App.4th 904
- Code Civ. Proc., § 284
People named in the order
- Meagan Nunez, Student's prior attorney
- Patricia Lewis, Student's new attorney
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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2015050410 v.
SAN MARCOS UNIFIED SCHOOL
DISTRICT,
SAN MARCOS UNIFIED SCHOOL OAH Case No. 2015050399
DISTRICT,
ORDER GRANTING REQUEST TO
v. REOPEN CASE
PARENT ON BEHALF OF STUDENT.
On October 22, 2015, Student’s prior attorney, Meagan Nunez, filed a request with the Office of Administrative Hearings to withdraw as legal counsel from the above consolidated matter and to dismiss Student’s Case, OAH Case No. 2015050410, without prejudice. 1 On October 26, 2015, Ms. Nunez filed a separate request to dismiss Student’s case with prejudice. OAH has not yet issued an order to dismiss Student’s complaint against San Marcos Unified School District.
On October 28, 2015, Student, through new legal counsel, Patricia Lewis, moved to reopen the above-titled case on the grounds that Ms. Nunez never obtained Student’s Parent’s approval to withdraw Student’s case.
On October 28, 2015, District filed a request as to the status of the prehearing conference and hearing dates, which were scheduled for November 2, 2015, and November 9 through 13, 2015, respectively for the consolidated matters, and if those dates still applied to District’s pending complaint against Student.
Ms. Nunez’s withdrawal of counsel did not include evidence that Ms. Nunez served a copy of the withdrawal on Student’s Parent. (An attorney who seeks to withdraw as legal counsel must provide notice to the client of the withdrawal of counsel request. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 914; Code Civ. Proc., § 284, subd (2).)
The request to reopen the case is timely and is granted. Student established that Ms. Nunez did not have the authority to dismiss Student’s case as Student’s Parent merely wanted to change legal counsel, not dismiss Student’s case. Therefore, Student’s case is reopened and the consolidated matter of Student’s Case and District’s Case will proceed as previously scheduled.
ORDER
1. Student’s request to reopen the case is granted and reopened under the
same case number, OAH Case No. 2015050410.
2. All dates previously set for the prehearing conference, November 2,
2015, at 3:00 p.m., and hearing, November 9 through 13, 2015, shall remain on calendar.
DATE: October 29, 2015
/S /
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings