California OAH special education order · November 14, 2022
Order Denying Motion for Sanctions
OAH Case No. 2022100579 · ALJ Penelope S. Pahl
OAH denied Sacramento City's sanctions motion because filing a new complaint after two earlier ones were dismissed for insufficiency is not frivolous, and OAH lacks jurisdiction over unauthorized-practice and ethics complaints.
Summary
Sacramento City asked for sanctions after Student filed a third due process complaint. Two earlier complaints had been dismissed when Student did not amend them after they were found insufficient. The district also argued that Ms. Bayne was violating ethics rules and that her non-attorney employee, Mr. Peters, was practicing law without a license. OAH denied the motion: the new complaint had been pending only 12 days, no insufficiency notice had been filed against it, and the district cited no authority barring a new complaint after a dismissal. OAH also found it has no jurisdiction over unauthorized-practice or ethics claims, which belong with the State Bar or the Attorney General.
Why it matters
A family may file a new due process complaint after an earlier one is dismissed for failure to amend, and doing so is not sanctionable by itself. Concerns about a representative's ethics or unlicensed practice must go to the State Bar or Attorney General, not to OAH.
Key authority cited
- Gov. Code, § 11455.30
- Cal. Code Regs., tit. 5, § 3088
- Code Civ. Proc., § 128.5
- Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026
- West Coast Development v. Reed (1992) 2 Cal.App.4th 693
People named in the order
- Ms. Bayne, Student's representative
- Mr. Peters, Non-attorney employee of Student's representative
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:
PARENTS ON BEHALF OF STUDENT,
v.
SACRAMENTO CITY UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2022100579
ORDER DENYING MOTION FOR SANCTIONS
NOVEMBER 14, 2022
On October 20, 2022, Student filed a request for due process, also called a complaint, with the Office of Administrative Hearings, called OAH, naming Sacramento City Unified School District as respondent. On October 26, 2022, Sacramento City filed a motion for sanctions. Student filed a brief opposing the sanctions on October 31, 2022.
Sacramento City replied to Student’s opposition on November 1, 2022.
Sacramento City asserts that this is the third complaint filed on behalf of Student since June 2, 2022 following two prior complaints that were dismissed when Student failed to amend following the complaints being determined to be insufficient.
Sacramento City also contends that Ms. Bayne and her non-attorney employee Mr.
Peters are practicing outside the bounds of the ethics rules, and, in Mr. Peter’s case, practicing law without a license.
APPLICABLE LAW
In certain circumstances, an administrative law judge, known as the ALJ, presiding over a special education proceeding is authorized to shift expenses from one party to another, or to the Office of Administrative Hearings. (Gov. Code, §§ 11405.80, 11455.30;
Cal. Code. Regs., tit. 5, § 3088; see Wyner ex rel. Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026, 1029 [“Clearly, [California Code of Regulations] § 3088 allows a hearing officer to control the proceedings, similar to a trial judge.”].)
Only the ALJ presiding at the hearing may place expenses at issue. (Cal. Code. Regs., tit.
5, § 3088, subd. (b).)
Expenses may be ordered to be reimbursed either to OAH or to another party.
With approval from the General Counsel of the California Department of Education, the ALJ presiding over the hearing may “order a party, the party’s attorney or other authorized representative, or both, to pay reasonable expenses, including costs of personnel” to OAH (as the entity that is responsible for conducting due process hearings) as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Cal. Code. Regs., tit. 5, § 3088, subds. (a) & (e); see Gov. Code, § 11455.30, subd. (a).) An ALJ presiding over a hearing may, without first obtaining approval from the California Department of Education, “order a party, the party’s attorney or other authorized representative, or both, to pay reasonable expenses, including attorney’s fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Gov. Code, § 11455.30, subd. (a); Cal. Code. Regs., tit. 5, § 3088, subd. (a).) An order to pay expenses is enforceable in the same manner as a money judgment or by seeking a contempt of court order. (Gov. Code, § 11455.30, subd. (b).)
“Actions or tactics” is defined as including, but not limited to, making or opposing motions or filing and serving a complaint. (Gov. Code, §11455.30, subd. (a);
Code Civ. Proc., § 128.5, subd. (b)(1).) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (Gov. Code, § 11455.30, subd. (a); Code Civ. Proc., § 128.5, subd. (b)(2).) A finding of “bad faith” does not require a determination of evil motive, and subjective bad faith may be inferred. (West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 702.)
Sacramento City fails to demonstrate “actions or tactics” in this case that are totally without merit and are, therefore, sanctionable. This is a new complaint. At the time this motion was filed, Sacramento City had not filed a notice of insufficiency as to this complaint and offered no authority limiting a Student’s right to file a new complaint after another has been dismissed due to failure to amend following a determination of insufficiency. While Sacramento City’s motion for sanctions asserts that “petitioner has demonstrated absolutely no intent to prosecute or resolve this matter in good faith nor in accordance with the established OAH procedures pursuant to state and federal law,”
this complaint has only been pending for 12 days. Sacramento City has presented no evidence that Student does not intend to pursue the claims filed in this complaint.
The gravamen of Sacramento City’s contentions appear to be its concerns that the cumulative conduct described constitute alleged unauthorized practice of law by Mr. Peters and alleged ethical violations by Ms. Bayne. However, Sacramento City offers no legal authority establishing OAH jurisdiction over these grievances. Rather, these claims are addressed by the California State Bar or the State Attorney General’s office.
Sacramento City’s request for sanctions is denied.
IT IS SO ORDERED.
Penelope S. Pahl Administrative Law Judge Office of Administrative Hearings