California OAH special education order · February 20, 2019
Order Denying Request for Reconsideration Re Motion to Dismiss
OAH Case No. 2018120181 · ALJ Alexa J. Hohensee
OAH denied Student's renewed motion to dismiss Upland's assessment case, treating it as reconsideration, because it offered no new facts or law and the withdrawal argument was untimely.
This case went to decision
Upland Unified School District v. Student: Upland Unified may not reassess student without consent because its assessment plan was not in Parent's native Spanish. (2019)
Summary
Student filed a renewed motion to dismiss Upland's due process case, which sought permission to assess Student under a March 2018 assessment plan. The motion relied on Student's earlier 'withdrawal,' arguments already rejected twice, a repeated Parent declaration, and the Fifth Amendment. OAH treated the motion as a request for reconsideration and denied it. It found no new facts, circumstances, or law, and the withdrawal argument came more than 10 days after the February 4, 2019 ruling. OAH also explained that the Fifth Amendment applies only in criminal cases, urged Parent to take part, and confirmed the February 21, 2019 hearing date.
Why it matters
When a district files for due process, a parent cannot end the case by 'withdrawing' or by repeating the same arguments; the hearing will go forward without the family if needed. Reconsideration requires new facts or law and must be sought within about 10 days. The Fifth Amendment does not let a family avoid a special education assessment case.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- U.S. Const., 5th Amend.
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:
UPLAND UNIFIED SCHOOL DISTRICT, OAH Case No. 2018120181 v. ORDER DENYING REQUEST FOR
RECONSIDERATION RE MOTION TO
PARENT ON BEHALF OF STUDENT. DISMISS
On February 4, 2019, the undersigned administrative law judge issued a prehearing conference order that denied Student’s motion to dismiss Upland Unified School District’s due process hearing request, finding that the notice of “withdrawal” filed by respondent Student was not grounds for dismissal of this matter. Student was notified that if he chose not to participate at the hearing, the hearing would nevertheless proceed as a default prove- up, with Upland continuing to bear the burden of proof.
On February 14, 2019, the undersigned ALJ denied Student’s second motion to dismiss, finding that Student’s defense to Upland’s claim required a hearing on the merits, and that the existence of an asserted defense was not grounds for dismissal.
On February 20, 2019, Student filed a renewed motion to dismiss on the grounds of his previous “withdrawal,” and grounds previously argued in the earlier motions to dismiss (and in a challenge for cause against the undersigned ALJ). Parent submitted the same declaration attached to an earlier motion, with an added conclusion that Student is prejudiced by the lack of counsel. The moving papers stated that Student was pleading the Fifth Amendment of the United States Constitution. The renewed motion will be treated as a motion for reconsideration.
Opposition from Upland has not yet been received.
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.)
DISCUSSION
Student alleges no new facts, circumstances or law in support of the requested reconsideration. Parent’s declaration is a duplicate of one previously filed, with the inclusion of a single conclusory statement of prejudice. That declaration was already considered in a previous motion, and contains no new information.
Student’s assertion that the matter should be dismissed due to his filing of a “withdrawal” from this matter is also untimely made. This renewed motion was not received within 10 days of the original denial of Student’s request for dismissal on the ground of withdrawal in the February 4, 2019 prehearing conference order, or service of the Spanish language translation of that order on Student on February 6, 2019.
Accordingly, Student’s request for reconsideration is denied.
The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. The Fifth Amendment applies only in criminal matters, and no crime is alleged against Parent or Student by this due process claim, where the sole issue is whether Upland may assess Student pursuant to a March 2018 assessment plan.
Therefore, Parent is urged to participate in the due process hearing.
ORDER
1. Student’s motion for reconsideration of the orders on his previous motions to
dismiss is denied.
2. The due process hearing date of February 21, 2019 is confirmed.
DATE: February 20, 2019
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings