California OAH special education order · May 31, 2018
Order Regarding Request to Withdraw Unexpedited Claims and Order Extending Date for Final Briefing
OAH Case No. 2018021017 · ALJ Chris Butchko
OAH ruled that Student's withdrawal of unexpedited claims after hearing must be with prejudice, and will be treated that way unless Student withdraws the request by June 8, 2018.
This case went to decision
Student v. San Dieguito Union High School District: San Dieguito Union High School District did not have to hold a manifestation determination before expelling a student who was not in special education. (2018)
Summary
After the hearing on the unexpedited claims was completed, and before final briefs were due, Student filed a notice withdrawing those claims. OAH explained that once a hearing has taken place, claims can only be withdrawn with prejudice under Code of Civil Procedure section 581(e). Because Student's notice did not say the withdrawal was with prejudice, OAH will treat it as a with-prejudice dismissal unless Student tells OAH by June 8, 2018, that he no longer wants to dismiss. OAH also extended the final briefing deadline to June 15, 2018, with no briefing due if the claims are withdrawn.
Why it matters
Once a hearing has been held, a family cannot withdraw claims and refile them later. Withdrawing at that stage gives up those claims permanently, so parents should weigh that before withdrawing after hearing.
Key authority cited
- Code Civ. Proc., § 581, subd. (e)
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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2018021017 v. ORDER REGARDING REQUEST TO
WITHDRAW UNEXPEDITED CLAIMS
SAN DIEGUITO UNION HIGH SCHOOL AND ORDER EXTENDING DATE FOR
DISTRICT. FINAL BRIEFING
Student filed this action on February 26, 2018. The action contained claims requiring expedited hearing and claims which did not. Hearing on the unexpedited claims was commenced on March 22, 2018, and completed on April 17, 2018. Decision on the expedited claims was issued on May 7, 2018. Hearing on the unexpedited claims in this matter was convened and completed on May 22, 2018. The parties were given until June 4, 2018, to submit their final briefing on the unexpedited claims.
On May 29, 2018, Student submitted a notice that he wished to withdraw his unexpedited claims. Because hearing on the unexpedited claims had taken place, Student may not withdraw those claims unless the withdrawal was with prejudice to refiling. (Cal.
Code Civ. Proc., § 581, subd. (e).) Student did not state that the withdrawal was with prejudice. Accordingly, the request will be understood to be a withdrawal with prejudice unless Student notifies OAH by June 8, 2018, that he no longer wishes to dismiss his unexpedited claims. If Student does not file such notice, the withdrawal shall be with prejudice and the unexpedited matter dismissed with prejudice.
The due date for final briefing shall be extended to June 15, 2018. No briefing shall be due if the unexpedited claims are withdrawn.
IT IS SO ORDERED.
DATE: May 31, 2018
CHRIS BUTCHKO
Administrative Law Judge Office of Administrative Hearings