California OAH special education order · December 9, 2016
Order Denying Request for Reconsideration
OAH Case No. 2016110779 · ALJ Theresa Ravandi
OAH denied Student's request to reconsider dismissing Visalia's complaint without prejudice, because Student offered no new facts or law and Visalia withdrew before the hearing began.
Summary
Visalia filed a due process complaint against Student. After OAH denied Visalia's request to continue the December 13, 2016 hearing, Visalia withdrew its complaint, and OAH dismissed it without prejudice. Student objected, asking that the case either go to hearing as scheduled or be dismissed with prejudice, and OAH treated the objection as a motion for reconsideration. OAH denied it because Student offered no new facts, circumstances, or law, and under Code of Civil Procedure section 581, a party may withdraw its complaint without prejudice before the hearing starts.
Why it matters
A district that files for due process can withdraw its case without prejudice any time before the hearing begins, even right after losing a continuance request, which leaves it free to refile later. A parent who wants a with-prejudice dismissal must point to new facts, circumstances, or law to win reconsideration.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Code Civ. Proc., § 581, subd. (c)
- Code Civ. Proc., § 581, subd. (e)
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
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:
VISALIA UNIFIED SCHOOL DISTRICT, OAH Case No. 2016110779 v. ORDER DENYING REQUEST FOR
RECONSIDERATION
PARENT ON BEHALF OF STUDENT.
On November 17, 2016, Visalia Unified School District filed with the Office of Administrative Hearings a Request for Due Process Hearing (complaint) naming Parent on behalf of Student. This matter was set for hearing beginning December 13, 2016. On December 2, 2016, OAH denied Visalia’s request to continue the hearing date. On December 5, 2016, Visalia filed a motion to withdraw its case and requested that OAH dismiss the complaint without prejudice.
On December 5, 2016, the Division Presiding Administrative Law Judge issued an Order of Dismissal of this matter without prejudice. On December 6, 2016, Student filed an objection to the request for dismissal without prejudice which is treated as a motion for reconsideration. Student requests that the matter proceed to hearing on the original scheduled date or be dismissed with prejudice.
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. (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.)
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, Code of Civil Procedure, section 581, et seq., addresses such motions in the context of state civil proceedings. 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. Section 581, subdivision (e), states that after the actual commencement of a trial, a court will dismiss a complaint, or any portion of it, with prejudice upon a plaintiff’s request, unless all parties consent to dismissal without prejudice or unless the court finds good cause for a dismissal without prejudice.
DISCUSSION AND ORDER
Student alleges no new facts, circumstances, or law in support of the request for reconsideration. Visalia has the right to withdraw its complaint. Because Visalia withdrew its complaint prior to the commencement of hearing, OAH issued an order dismissing the complaint without prejudice. Accordingly, Student’s request for reconsideration is denied.
IT IS SO ORDERED.
DATE: December 9, 2016
THERESA RAVANDI
Administrative Law Judge Office of Administrative Hearings