Free Motion to Amend/Correct - District Court of California - California

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Vincent Pastorino, CA SBN 095939 Institute for Administrative Justice University of the Pacific McGeorge School of Law 3455 5th Avenue Sacramento, CA 95817 Phone: (916) 739-7049 Fax: (916) 739-7199 e-mail: [email protected] Attorney for Defendants California Special Education Hearing Office, Mcgeorge School of Law, and Vincent Pastorino __________________________

UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

SAN FRANCISCO ) ) Case No. Case No. C07-02400 (SI) ) MICHAEL PETERSEN on behalf of himself and next of friend to Mike Jr. and ) AMENDED NOTICE OF MOTION ) Ryan, disabled minor children PRO SE AND MOTION BY CALIFORNIA ) SPECIAL EDUCATION HEARING ) Plaintiffs, OFFICE, McGEORGE SCHOOL OF ) LAW, AND VINCENT PASTORINO ) v. TO DISMISS COMPLAINT OR, IN ) THE ALTERNATIVE, FOR A MORE ) DEFINITIVE STATEMENT ) CALIFORNIA SPECIAL EDUCATION ) [FED. R. CIV. PROC. 12(b)(1), 12(b)(6), ) HEARING OFFICE, et al and 12(e)] ) ) Defendants. JUDGE: Susan Illston ) DATE: November 9, 2007 TIME: 9:00 A.M. DEPT.: Courtroom 10

TO PLAINTIFFS: NOTICE IS HEREBY GIVEN that on October 23, 2007, at Courtroom 3, or as soon thereafter as the matter may be heard in Department-Courtroom 3 of the above-entitled court, Defendants McGeorge, SEHO, and Pastorino (hereinafter, "MCGEORGE Defendants") will

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bring on for their Motion to Dismiss Complaint for Relief or, in the alternative, Motion for a More Definitive Statement. MCGEORGE Defendants seek dismissal of plaintiffs' complaint against them in its

4 5 6 7 8 9 10 notice of the claims against them, thereby preventing MCGEORGE Defendants from framing an 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

entirety on the grounds that those claims fail to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12, subdivisions (b)(1) and (b)(6). In the alternative, MCGEORGE Defendants seek an Order from this Court directing plaintiffs to provide a more definite statement under Rule 12, subdivision (e) as to the basis of plaintiffs' claims and relief sought, as their complaint fails to put MCGEORGE Defendants on proper

adequate response thereto. This motion will be based on this Notice, the attached Memorandum of Points and Authorities, and on such oral and documentary evidence as may be presented at or before hearing.

DATED: September 14, 2007

By: _________________________ Vincent Pastorino Attorney for Defendants California Special Education Hearing Office (SEHO), Mcgeorge School of Law, and Vincent Pastorino

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Vincent Pastorino, CA SBN 095939 Institute for Administrative Justice University of the Pacific McGeorge School of Law 3455 5th Avenue Sacramento, CA 95817 Phone: (916) 739-7049 Fax: (916) 739-7199 e-mail: [email protected] Attorney for Defendants California Special Education Hearing Office, Mcgeorge School of Law, and Vincent Pastorino __________________________

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

) ) ) MICHAEL PETERSEN on behalf of himself) and next of friend to Mike Jr. and Ryan, ) disabled minor children PRO SE ) ) ) Plaintiffs, ) ) v. ) ) ) ) ) ) CALIFORNIA SPECIAL EDUCATION )

Case No. C07-02400 (SI) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NOTICE OF MOTION AND MOTION BY CALIFORNIA SPECIAL EDUCATION HEARING OFFICE, McGEORGE SCHOOL OF LAW, AND VINCENT PASTORINO TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR A MORE DEFINITIVE STATEMENT [FED. R. CIV. PROC. 12(b)(1), 12(b)(6), and 12(e)] JUDGE: Susan Illston DATE: November 9, 2007 TIME: 9:00 A.M. DEPT.: Courtroom 10

HEARING OFFICE, et al Defendants.

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McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

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TABLE OF CONTENTS Page

3 4 5 6 7 8 9 10 11 12 13 14 15 3. 16 17 18 19 20 21 22 C. 23 24 25 26 27 28 ______________________________________________________________________________ IV. CONCLUSION 14 Motion for a More Definitive Statement 13 B. Plaintiff's Complaint Is Jurisdictionally Barred Because Plaintiffs Failed to Exhaust Their Administrative Remedies 4. Hearing Officers Claims for Relief Other than Damages 8 10 Judicial (Absolute) Immunity Applies to McGeorge/SEHO A. Judicial Immunity 1. 2. The Rule of Judicial Immunity Application of Judicial Immunity to the Present Case a. Plaintiff's factual allegations against SEHO/McGeorge b. Factual allegations against Pastorino 3 3 5 5 6 III. LEGAL ARGUMENTS 3 I. II. FACTUAL BACKGROUND STANDARD OF REVIEW A. Motion to Dismiss 1 2 2

11

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1 TABLE OF AUTHORITIES 2 3 4 FEDERAL CASES 2 3 2 4 4 4 2 11 4 4 11 4 11 13 13 9 2 4 4 5 Page(s)

5 Balistreri v. Pacifica Police Dept. 901 F. 2d 696 (9th Cir 1990) 6 Bradley v. Fisher 80 U.S. 335 (1871) 7 8 9 Butz v. Economou, 438 U.S. 478 (1978) Broam v. Bogan 320 F. 3d 1023 (9th Cir 2003)

th 10 Cadena v. Perasso, 498 F.2d 383 (9 Cir. 1974)

11 Cleavenger v. Saxner, 474 U.S. 193 (1985) 12 Conley v. Gibson 355 U.S. 41 (1957) 13 14 Foster v. McBride, 521 F.2d 1304 (9th Cir. 1975) 15 16 Hagan v. State of California, 265 F.Supp 174 (C.D.Cal. 1967) Doe v. Arizona Dept. of Educ., 111 F3d 678 (9th Cir. 1997)

17 Honig V. Doe, 484 U.S. 305 (1988) 18 Jones v. Rath Packing Co., 430 U.S. 519 (1977) 19 20 21 22 McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) Kutasi v. Virgenes, 2007 WL 2050952 (9th Cir. 2007) McCalden v. California Library Ass'n, 955 F.2d 1214 (9th Cir. 1990)

th 23 Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467 (9 Cir. 1993)

24 Pareto v. FDIC 139 F. 3d 696 (9th Cir 1998) 25 Rath Packing Co. v. Becker, 530 F.2d 1295 (9th Cir. 1975) 26 27 28 Sellars v. Procunier, 641 F.2d 1295 (9th Cir. 1981) Schucker v. Rockwood, 846 F2d 1202 (9th Cir. 1988)

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1 Stump v. Sparkman, 435 U.S. 349 (1978) 2 3 4 5 Yoonessi v. Albany Medical Center, 352 F.Supp 2d 1096 (C.D. Cal. 2005) Sykes v. State of California (Dep't of Motor Vehicles), 497 F.2d 197 (9th Cir. 1974) Union Sch. Dist. v. Smith, 15 F.3d 1519 (9th Cir. 1994)

4 5 9 5

6 STATE CASES 7 Alicia T. v. County of Los Angeles, (1990) 222 Cal.App.3d 869 8 American Arbitration Assn, v. Superior Court (1992) 8 Cal. App. 4th 1131 9 10 11 Frost v. Geernaert,(1988) 200 Cal.App.3d 1104 4 3 3 5 4 3 4 3 4 4 Falls v. Superior Court, (1996) 42 Cal.App. 4th 1031 4 9 3

12 Greene v. Zank, (1984) 158 Cal. App. 3d 497 13 Haas v. Gibson, (1960) 179 Cal.App2d 259 14 Lebbos v. State Bar of California,(1985) 165 Cal.App.3d 656 15 16 Lewis v. Linn, (1963) 209 Cal. App. 2d 394 17 18 Rosenthal v. Vogt, (1991) 229 Cal.App.3d 68 Legg v. Breitenbach, (1961) 198 Cal.App.2d 206

19 Tagliavia v. County of Los Angeles, (1980) 112 Cal. App. 3d 759 20 Taylor v. Mitzel, (1978) 82 Cal.App.3d 665 21 22 23 24 25 26 27 28 Thiele v. RML Realty Partners, (1993)14 Cal.App.4th 1526

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1 MISCELLANEOUS 2 3 California Education Code, sections 56000 through 56507 4 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1377 (1990) 13 8 California Education Code, section 56505(k) 10

6 Fed.R.Civ.P. 12(b)(1) 7 Fed.R.Civ.P. 12(b)(6) 8 9 10 11 State regulations (Title 5, C.C.R. sections 3080, et seq) Fed.R.Civ.P. 12(e). Federal Statutes (20 U.S.C. section 1415)

1, 11 1 13 8 8 8

12 Regulations (34 C.F.R. sections 300.507, et seq) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

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1 Defendants McGEORGE COLLEGE OF LAW, CALIFORNIA SPECIAL EDUCATION 2 3 4 5 of it's motion to dismiss plaintiffs' complaint for lack of subject matter jurisdiction (FRCP HEARING OFFICE (SEHO), and VINCENT PASTORINO (collectively McGEORGE defendants)1 respectfully submit the following Memorandum of Points and Authorities in support

6 12(b)(1) and for failure to state a claim upon which relief can be granted (FRCP 12(b)(6)). 7 8 9 10 11 12 MCGEORGE defendants, asserts that McGeorge/SEHO was a private entity under contract with I. FACTUAL BACKGROUND Plaintiffs assert generally that their action "arises out of contract violations that affect the disabled minor children [plaintiffs] Mikey and Ryan," plaintiff Michael Petersen's children. (Complaint 2:22-25; 6:15-19.)2 Plaintiffs' complaint, as it pertains specifically to the

13 the California Department of Education to provide hearing services and thus obligated by various 14 unspecified state and federal laws to be free of discrimination toward special education students. 15 (Complaint 4:22-25.) As it pertains to PASTORINO, Plaintiffs assert that PASTORINO, a SEHO 16 17 contract law to provide [plaintiff] Mikey [with] unbias [sic] due process, free from discrimination 18 19 as the beneficiary of the state and federal contract laws." (Complaint 5:4-7.) Plaintiffs' hearing officer, was "... to act impartially and was contractually bound by state and federal

20 complaint adds that SEHO and PASTORINO were employees and/ or agents of defendants, and 21 in doing all things hereinafter mentioned, acted under color of their authority as, and under color 22 of the statutes, regulations, customs, and usages of state and federal contractual laws, acting under 23 24 25 26 27 28
1

color of authority as such. (Complaint 5:10-15.) 1
Although references to McGeorge, SEHO, and Pastorino collectively are referred to in this brief as the "MCGEORGE defendants," allegations and claims pertaining to McGeorge and SEHO that are not inclusive of Pastorino are referred to as "McGeorge/SEHO". References to Pastorino that are not inclusive of McGeorge/SEHO are referred to as "PASTORINO". McGeorge defendants' copy of plaintiff's complaint does not include printed page numbers; thus, the page numbers referred to in this brief are based on counting plaintiff's caption page as page one, the next page as page two, and thereafter counting each page consecutively. McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)
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Plaintiffs limit their claim against MCGEORGE defendants to their "Second Claim for Relief." In that claim, plaintiffs allege that the MCGEORGE defendants were in "violation of state and federal contract laws, ... due process and equal protection contract laws, ... ADA and

4 5 section 504 contract laws, ... 42 U.S.C. 1983 due process and equal protection contract

6 provisions, ...42 U.S.C. 1985 contract provisions, and violations of public contract code and 7 public policy provisions." (Complaint 14:5-15.) 8 9 10 federal contract "laws" or "provisions" that either govern such contracts or create for plaintiffs a 11 12 13 14 A. 15 16 17 facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 4518 19 46 (1957). When ruling on a rule 12(b)(6) motion, the court must construe the pleadings in the Motion to Dismiss A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings. A complaint may be dismissed only if "it appears beyond doubt that the Plaintiff can plead no set of private cause of action against MCGEORGE defendants. II. STANDARD OF REVIEW Plaintiffs' complaint, however, does not specify or refer to any particular contract involving MCGEORGE defendants, and the complaint does not identify or articulate any state or

th 20 light most favorable to the plaintiff. See Broam v. Bogan, 320 F.3d 1023, 1028 (9 Cir. 2003).

21 The court must also accept as true all material allegations in the complaint, as well as any 22 reasonable inferences to be drawn therefrom. See Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 23 24 25 26 27 28 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

1998). If the complaint is dismissed for failure to state a claim, the court should allow leave to amend the pleadings if it appears at all possible that the plaintiff can cure the defect. Balistreri v. Pacifica Police Dept., 901 f.2d 696, 701 (9th Cir. 1990). 2

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1 2 3 A. Judicial Immunity

III.

LEGAL ARGUMENTS

MCGEORGE defendants are absolutely immune from suit under the doctrine of judicial 4 5 6 7 immunity. 1. The Rule of Judicial Immunity

Judges have long been accorded absolute immunity from actions for damages for their

8 judicial acts. The doctrine was established to protect the finality of judgments from continual 9 10 intimidation. All aspects of judicial decision making are protected by judicial immunity in order 11 12 to protect judicial independence. Greene v. Zank, 158 Cal.App.3d 497, 507 (1984). It is essential collateral attack in courts of competing jurisdiction and to protect judicial decision making from

13 to the proper administration of justice that "a judicial officer, in exercising the authority vested in 14 him, shall be free to act upon his own convictions, without apprehension or personal 15 consequences to himself." Tagliavia v. County of Los Angeles, 112 Cal.App.3d 759, 762 (1980), 16 17 The critical test is whether the judge's act or omission was a judicial act committed to 18 19 judicial discretion and within the scope of judicial jurisdiction. "[When] ... exercising judicial quoting from Bradley v. Fisher, 80 U.S. 335 (1871).

20 functions, a judge who has a duty, breaches that duty and causes injury­however intentionally, 21 maliciously, and corruptly­is immune from civil suit..." Falls v. Superior Court, 42 Cal.App.4th 22 1031, 1037 (1996). If any reasonable ground for the assumption of jurisdiction exists, judicial 23 24 25 26 27 28 3 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

immunity attaches. See Lewis v. Linn, 209 Cal.App.2d 394, 397-98 (1963). A judge's issuance of court orders in civil cases pending before the judge is within the immunity, however wrong the orders are said to be, because the remedy for judicial error is appeal. Haas v. Gibson, 179

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1 Cal.App2d 259 (1960); Foster v. McBride, 521 F.2d 1304 (9th Cir. 1975). Alleging a conspiracy 2 3 actionable. Legg v. Breitenbach, 198 Cal.App.2d 206. 208; Hagan v. State of California, 265 4 5 F.Supp 174 (C.D.Cal. 1967). Judicial immunity applies irrespective of whether the acts were between the judge and third parties does not make actionable conduct that is not otherwise

6 done in excess of jurisdiction [Tagliavia v. County of Los Angeles, 112 Cal.App.3d 759, 761 7 (1980); Stump v. Sparkman, 435 U.S. 349 (1978)], alleged to have been committed maliciously 8 and corruptly [Frost v. Geernaert, 200 Cal.App.3d 1104, 1107 (1988); Cadena v. Perasso, 498 9 10 11 12 Federal judges are immune pursuant to federal law, although the principles governing F.2d 383 (9th Cir. 1974)], or alleged to be grossly and unfairly wrong or prejudiced [Rosenthal v. Vogt, 229 Cal.App.3d 68, 76 (1991); Schucker v. Rockwood, 846 F2d 1202, 1204 (9th Cir. 1988)].

13 judicial immunity in the state and federal courts are closely similar. See Alicia T. v. County of 14 Los Angeles, 222 Cal.App.3d 869, 882; Cleavenger v. Saxner, 474 U.S. 193. 199-200 (1985); 15 Rath Packing Co. v. Becker, 530 F.2d 1295, 1305 (9th Cir. 1975), aff'd sub nom. Jones v. Rath 16 17 Those who undertake to perform quasi-judicial acts are accorded an immunity like that 18 19 recognized for judges, to the extent that their acts are judicial in character. Thus, a hearing Packing Co., 430 U.S. 519 (1977).

20 examiner and an administrative law judge are entitled to absolute judicial immunity. Cleavinger 21 v. Saxner, 474 U.S. 193, 201 (1985); Butz v. Economou, 438 U.S. 478 (1978); Thiele v. RML 22 Realty Partners, 14 Cal.App.4th 1526, 1530 (1993). Among the many examples of quasi-judicial 23 24 25 26 27 28 4 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

officers to which immunity applies are a hearing examiner employed by the Office of Administrative Hearings for an official fair hearing on Medi-Cal reimbursement [Taylor v. Mitzel, 82 Cal.App.3d 665, 670 (1978)], the members of a parole board engaged in parole hearings

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1 [Sellars v. Procunier, 641 F.2d 1295 (9th Cir. 1981)], a hearing officer of the Department of 2 3 4 5 [Yoonessi v. Albany Medical Center, 352 F.Supp 2d 1096 (C.D. Cal. 2005)], and bar associations Motor Vehicles engaged in a formal hearing [Sykes v. State of California (Dep't of Motor Vehicles), 497 F.2d 197, 201 (9th Cir. 1974)], hearing officers in respect to revocation of a license

6 engaged in attorney admission and discipline [Lebbos v. State Bar of California, 165 Cal.App.3d 7 656, 669 n.6]. 8 9 10 it is necessary to review all of the factual allegations against the MCGEORGE defendants in 11 12 13 14 order to determine whether judicial immunity applies. a. Plaintiffs' factual allegations against SEHO/McGeorge 2. Application of Judicial Immunity to the Present Case

In order to determine the application of judicial (absolute) immunity to the present action,

In their complaint, plaintiffs set forth the following factual allegations against defendant

15 McGeorge/SEHO:3 16 17 numbers SN99-01431, SN02-01673, SN02-01998, SN02-02868, SN03-00076, SN-00778. 18 19 (Complaint 7:3-9:12.) Case numbers SN99-01431, SN02-01673 SN02-02868, and SN-00778 (1) A total of six cases pertaining to plaintiff Mikey have been filed with SEHO­case

20 were filed by plaintiff Petersen on behalf of plaintiff Mikey, and case numbers SN02-01998 and 21 SN03-00076 were filed by (defendant) Mount Diablo Unified School District ("MDUSD"). 22 (Complaint 9:10-11:15.) 23 24 25 26 27 28 MCGEORGE defendants, of course, do not concede the truthfulness of any of plaintiffs' allegations but, for the reasons set forth above in the Standard of review, understand that this court must accept the allegations as true for the purposes of this motion.
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)
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5

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(2) MDUSD filed with SEHO case number SN02-1998 against father and, on December 24, 2002, and January 2, 2003, MDUSD notified SEHO and father in writing that it was withdrawing its case­case number SN02-01998.4 (Complaint 7:24-28.) (3) Father [plaintiff Petersen] filed with SEHO case number SN02-02868 against

6 MDUSD. (Complaint 8:1-2.) The hearing was set for January 23, 2003, and the parties provided 7 a statement of issues and resolutions prior to the January 13, 2003 due date for such statements. 8 (Complaint 8:2-3) Father's issue statement included issue and resolution numbers 1-11, which 9 10 (4) On January 13, 2003, attorney Elizabeth Estes, on behalf of MDUSD, attempted to re11 12 file with SEHO MDUSD's previously withdrawn case­case number SN02-01998. (Complaint are attached as Exhibit 2 to plaintiffs' complaint. (Complaint 8:4-5)

13 8:5-8) SEHO accepted MDUSD's filing and assigned it a new case number­case number SN0314 00076. (Complaint 8:8-9) SEHO mailed the parties' hearing notices, setting MDUSD's case for 15 hearing on February 6, 2003. (Complaint 8:9-10) 16 17 the case a new case number, was the result of a conspiracy between attorney Estes and SEHO, 18 19 and that SEHO's acceptance of MDUSD's filling circumvented "father's" case SN02-02868. (5) Plaintiffs allege that SEHO's acceptance of MDUSD's filing, along with its assigning

20 (Complaint 8:5-8) (Plaintiffs' do not provide any factual allegations pertaining to such a 21 conclusory assertions regarding a conspiracy, nor does it articulate how SEHO's acceptance of 22 MDUSD's filing "circumvented" father's case number SN02-02868. Plaintiffs' complaint also 23 24 25 26 27 28 Plaintiffs' complaint in this case frequently refers to "father" when referencing plaintiffPetersen's actions or petitions in the underlying IDEA administrative hearing process, which is the underlying basis of the action against MCGEORGE defendants. Thus, MCGEORGE defendants will use the term "father" when referring to plaintiff-Petersen's underlying administrative cases or his actions pertaining to those cases.
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)
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fails to state whether SEHO had any legal discretion to reject any party's filing of a case.) 6

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(6) SEHO denied father's request for a subpoena duces tecum seeking testing information performed by a Dr. Maier and did not notify "father" of a declaration by Dr. Maier in opposition to the subpoena duces tecum until it­SEHO­had issued the denial. (Complaint 8:12-17)

4 5 Plaintiffs assert that SEHO's denial of the subpoena duces tecum was the result of a conspiracy

6 between SEHO and MDUSD. (Complaint 8:25-27) (Other than making the conclusory assertion 7 that SEHO's denial of his subpoena request was the result of a conspiracy, plaintiffs do not 8 provide any factual allegations of a conspiracy.) 9 10 ruling regarding SEHO's "authority and jurisdiction" over section 504, ADA, and tort claims. 11 12 (Complaint 8:17-19) Plaintiffs also allege SEHO's lack of response to father's motion requesting (7) SEHO failed to respond to father's pre-hearing motion in which he requested a written

13 a written ruling on its "authority and jurisdiction" was the result of a conspiracy with MDUSD. 14 (Complaint 8:25-28) (Plaintiffs again fail to make any factual allegations pertaining this 15 conspiracy allegation.) 16 17 allowed MDUSD to become petitioner in their SN03-00076 case with their sole issue of their 18 19 FAPE other to place Mikey into a locked facility for the emotionally disturbed." (Complaint (8) Plaintiffs allege that SEHO conspired with MDUSD "because it had motive that

20 8:28-8:2) (Plaintiffs do not provide any factual allegations relative to this conclusory statement.) 21 (9) On January 21, 2003, father withdrew the case he had filed for Mikey­case number

22 SN02-02868, which included the 11 issues set forth in Exhibit 2, attached to his complaint. 23 24 25 26 27 28 ___________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

(Complaint 8:11, 16.)

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b.

Factual allegations against Pastorino

In their complaint, plaintiffs set forth the following factual allegations against defendant PASTORINO:

4 5 (1) Hearing Officer PASTORINO, who presided over MDUSD's case number SN03-

6 00076, ordered some of father's resolutions (from the 11 issues included in his previously filed 7 and withdrawn case number SN02-02868) to be part of the issues to be decided regarding 8 assessment and reimbursement in MDUSD's case­SN03-00076. (Complaint 9:19-20) 9 10 special education" "we deal with ADA" when asked about the scope of SEHO jurisdiction but 11 12 13 14 refused to acknowledge student's issues 1-11." (Complaint 10:14-16) 3. Judicial (Absolute) Immunity Applies to McGeorge/SEHO Hearing Officers (2) " ... SEHO hearing officer PASTORINO quoted on the record that "we deal with

In the present case, as alleged in the Complaint., McGEORGE contracted with CDE to

15 conduct special education due process hearings. (Complaint 4:22-24) Such contract is authorized 16 17 process hearings and the adjudicatory duties, authority, and jurisdiction of the hearing officers are 18 19 set forth in sections 56000 through 56507 of the Education Code, as well as in State regulations pursuant to section 56504.5 of the Education Code, and the procedures governing such due

20 (Title 5, C.C.R. sections 3080, et seq) and in federal statutes (20 U.S.C. section 1415) and 21 regulations (34 C.F.R. sections 300.507, et seq). These statutes and regulations make clear that 22 special education hearing officers function in the capacity of administrative law judges, including 23 24 25 26 27 28 8 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

administering oaths, granting motions, ruling on party objections, receiving testimony, examining witnesses, and rendering decisions.

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1 Courts reviewing hearing officer decisions give it "due weight" and, where the hearing officer's 2 3 4 5 6 (9th Cir. 1994). All of the specific acts alleged by plaintiff against McGEORGE and its hearing officers, findings are "thorough and careful," gives them "particular deference." (Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1474 (9th Cir. 1993); Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524

7 including PASTORINO, if true, would fall within the scope the hearing officers' judicial (or 8 quasi-judicial) functions and thus are covered by judicial immunity. All of the acts alleged 9 10 knowledge of the applicable law, the conduct of the hearing, and the issuance of decisions and 11 12 orders­ matters which fall squarely within the judicial functions of the hearing officers and are against McGEORGE and its hearing officers, including PASTORINO, as itemized above, involve

13 covered by judicial immunity. 14 Finally, the judicial immunity that is applicable to the McGEORGE hearing officers also

15 applies to McGEORGE/SEHO. As stated in a case acknowledging that arbitrators are also 16 17 "[A] refusal to extend immunity to the sponsoring organization would make the 18 arbitrator's immunity illusory. Stated otherwise, it would shift liability rather than extinguish it. ... As a practical matter, a grant of immunity to the arbitrator must be accompanied by a grant of 19 the same immunity to the AAA, an entity as indispensable to the arbitrator's job of arbitrating as 20 are the courts to the judge's job of judging." American Arbitration Assn v. Superior Court (1992) 8 Cal. App. 4th 1131, 1133-1134. 21 In the present case, McGEORGE held the contract with CDE and the hearing officers 22 23 were provided by McGEORGE. Thus, borrowing language from the above, McGEORGE was as 24 indispensable to the hearing officer's job of exercising judicial functions as the courts to the 25 judge's job of judging. A refusal to extend the hearing officers' immunity to McGEORGE would 26 27 9 28 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

protected by judicial immunity,

make the hearing officers' immunity illusory, shifting liability rather than extinguishing it.

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1 2 3

4.

Claims for relief other than damages

Judicial immunity applies to claims for damages but does not always apply to claims for injunctive relief. However, the only conceivable injunctive relief plaintiff could seek against the

4 5 MCGEORGE defendants is some sort of order requiring the MCGEORGE defendants to reverse

6 or modify some or all of its pre-existing orders pertaining to plaintiff. However, in the present 7 case such an injunctive order would be legally impermissible. The reasons are two-fold. First, 8 under federal law, "any party aggrieved by the findings and decision ... [made by the hearing 9 10 party bringing the action shall have 90 days from the date of the decision of the hearing officer to 11 12 bring such action, or ... [within] ... such time as the State law allows." 20 U.S.C. section officer] ... shall have the right to bring a civil action ..." 20 U.S.C. section 1415(i)(2)(A). "The

13 1415(i)(2)(B). Under State law, the time limit for bringing such an action (appeal) is 90 from the 14 date of receipt of the hearing decision. Cal. Educ. Code section 56505(k). Thus, Plaintiff is time15 barred from bringing any actions that would be in the nature of an appeal or an attempt to reverse 16 17 Second, even if the Plaintiff's requests to reverse or modify the due process hearing 18 19 decisions of the McGEORGE hearing officers were somehow not time barred, the requests would or modify the decisions, referenced in the Complaint, of the McGEORGE hearing officers.

20 be moot as to McGEORGE and its hearing officers. As referenced in the Complaint, 21 McGEORGE lost the contract with CDE in 2005 and thus has no jurisdiction to issue orders or 22 decisions in special education due process matters. 23 24 25 26 27 28 10 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

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1 B. 2 3

Plaintiff's Complaint Is Jurisdictionally Barred Because Plaintiffs Failed to Exhaust Their Administrative Remedies Plaintiffs failed to exhaust their administrative remedies; thus, this court has no

4 jurisdiction over the present action. A Rule 12(b)(1) motion is appropriate when the plaintiffs fail 5 to exhaust their administrative remedies that are a prerequisite for filing suit. Honig V. Doe, 484 6 7 8 bringing a civil action in federal court deprives the court of subject matter jurisdiction over the U.S. 305, 326-327 (1988) (failure to exhaust administrative remedies under the IDEA before

9 action). "Judicial review under the IDEA is ordinarily available only after the plaintiff exhausts
th 10 administrative remedies." Doe v. Arizona Dept. of Educ., 111 F3d 678, 680 (9 Cir. 1997).

11 Exhaustion is required in order to give states "the power to place themselves in compliance with 12 13 14 15 experience in the needs of handicapped students­[] the benefit of expert fact finding by a state the law, and the incentive to develop a regular system for fairly resolving conflicts under the IDEA. Id. At 680. It also serves the purpose of giving "[f]ederal courts­generalists with no

16 agency devoted to this very purpose." Id. 17 The requirement to exhaust under IDEA procedures is not limited to cases in which the

18 plaintiff seeks to resolve issues or obtain remedies available in the IDEA's due process 19 20 requires that before plaintiffs may file a civil action under "the Constitution, the Americans with 21 22 Disabilities Act, title V of the Rehabilitation Act or other federal laws protecting the rights of administrative hearing process. Kutasi v. Virgenes, 2007 WL 2050952 (9th Cir. 2007) (the IDEA

23 children with disabilities," they must exhaust the IDEA's due process hearing procedures if the 24 action "seek[s] relief that is also available under" the IDEA). The law of exhaustion requires that 25 "plaintiffs must exhaust administrative remedies before filing a civil lawsuit if they seek relief for 26 27 11 28 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

injuries that could be redressed to any degree by the IDEA's administrative procedures." Ibid.

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1 In this case, the thrust of plaintiffs' complaint against MCGEORGE defendants is that by 2 accepting MDUSD's petition for hearing, denying father's request for subpoena duces tecum, and 3 4 collateral claims, SEHO somehow (in some inexplicable way) "sabotaged" father's pending case 5 6 against MDUSD, effectively forcing him to voluntarily withdraw it. And, plaintiffs allege, as a by failing to provide a written pre-hearing order setting forth SEHO's jurisdiction over father's

7 result of their withdrawing father's pending case before SEHO­case number SN02-02868­SEHO 8 refused to hear and decide all of the issues set out in father's withdrawn case when it heard and 9 decided MDUSD's case against father­case number SN03-00076. 10 11 father's previously withdrawn case as part of MDUSD's case caused them­the 12 13 plaintiffs­damages, since they could not seek all of the remedies father originally sought in his In the present action, plaintiffs allege that SEHO's refusal to address the issues from

14 withdrawn case. (Complaint 15:5-19) The issues in father's previously withdrawn case­SN0215 02868­included a claim for denial of educational services, and the remedies father sought in that 16 case included educational services. (Complaint Exhibit 2) Also, in the present action, plaintiffs 17 18 the loss of educational benefits. (Complaint 15:6, 14, 17-19) Finally, in their Prayer for Relief, 19 20 plaintiffs seek relief for educational damages. (Complaint 15:17-16:14) Thus, plaintiffs could claim that the damages they suffered from not having that case heard, at least in part, pertain to

21 have sought relief for any educational losses by either maintaining father's original action before 22 SEHO­case number SN02-02868­or, after withdrawing the action, filing a new case with SEHO 23 raising the same issues and seeking the same remedies sought in that case. By withdrawing their 24 25 26 27 28 12 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

case and not re-filing it, or by not filing a new case raising the same issues and seeking the same remedies, plaintiffs failed to bring his IDEA-based claims before SEHO. Plaintiffs do not allege

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1 that SEHO ever refused to hear father's original case­SN02-02868­or ever refused to allow him 2 to file a subsequent case raising the same issues. Moreover, plaintiffs do not allege that they ever 3 4 Hence, plaintiffs failed to exhaust their administrative remedies prior to filing the present 5 6 case inasmuch as plaintiffs could have obtained at least some relief in an IDEA due process attempted to take case SN02-02868, or any subsequent case, to hearing before SEHO.

7 administrative hearing. Thus, this court has no jurisdiction over the present matter. 8 9 C. 10 11 party cannot be reasonably required to frame a responsive pleading, the party may move for a 12 13 more definitive statement before interposing a responsive pleading." Fed.R.Civ.P. 12(e). "The Motion for a More Definitive Statement "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a

14 situations in which a Rule 12(e) motion is appropriate are very limited." 5A Charles A. Wright & 15 Arthur R. Miller, Federal Practice and Procedure § 1377 (1990). Absent special circumstances, a 16 Rule 12(e) motion cannot be used to require the pleader to set forth "the statutory or 17 18 Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990). However, "even though a complaint is not defective 19 20 for failure to designate the statute or other provision of law violated, the judge may in his constitutional basis for his claim, only the facts underlying it." McCalden v. California Library

21 discretion ... require such detail as may be appropriate in the particular case." McHenry v. Renne, 22 84 F.3d 1172, 1179 (9th Cir. 1996). 23 24 25 that MCGEORGE defendants are contractually obligated under some unidentified and 26 27 28 13 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

In this case, plaintiffs have made clear that their action against MCGEORGE defendants, which plaintiffs recognize in their complaint as non-governmental entities, is based on a theory

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1 unarticulated state and federal laws protecting plaintiffs from discrimination. (Complaint 4:222 5:7; 6:15, 24-27; 8:11-12, 19, 22, 25-26; 9:24-28; 14:5-15) Plaintiffs neither identify or describe 3 4 important for the court in this case to exercise its discretion and require more detail regarding 5 6 plaintiffs' legal theory of the case inasmuch as there are few, if any, statutes pertaining to the contract(s) in question, nor do they articulate what state and federal statutes apply. It is

7 governmental contract obligations that give rise to private actions. Such absence of information, 8 in light of plaintiffs' allegations, effectively prevent McGEORGE defendants' from preparing a 9 defense or evaluating other dispositive defenses such as the Statute of Limitations or "failure to 10 11 action for the reasons set forth above, MCGEORGE Defendants request this court to require 12 13 14 15 16 17 18 their theory of the case with more specificity. 19 20 21 22 23 24 25 26 27 28 14 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

state a claim" under Rule 12(b)(6) Therefore, in the event that this court does not dismiss this

plaintiffs to identify their theory of the case with more specificity.

IV. CONCLUSION MCGEORGE Defendants respectfully request this court to dismiss plaintiffs' entire case against them for the reasons discussed above or, in the alternative, require plaintiffs to identify

DATED: September 14, 2007

By: _________________________ Vincent Pastorino Attorney for Defendants California Special Education Hearing Office (SEHO), McGeorge School of Law, and Vincent Pastorino

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1 Vincent Pastorino, CA SBN 095939 Institute for Administrative Justice 2 University of the Pacific McGeorge School of Law 3455 5th Avenue 3 Sacramento, CA 95817 4 Phone: (916) 739-7049 Fax: (916) 739-7199 5 e-mail: [email protected] 6 Attorney for Defendants California Special Education Hearing Office, 7 Mcgeorge School of Law, and Vincent Pastorino 8 __________________________ 9 10 11 NORTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 ______________________________________________________________________________ SAN FRANCISCO ) ) ) MICHAEL PETERSEN on behalf of himself and next of friend to Mike Jr. and ) ) Ryan, disabled minor children PRO SE ) ) Plaintiffs, ) ) v. ) ) ) CALIFORNIA SPECIAL EDUCATION ) ) HEARING OFFICE, et al ) ) Defendants. ) UNITED STATES DISTRICT COURT

Case No. Case No. C07-02400 (SI) PROPOSED ORDER

[FED. R. CIV. PROC. 12(b)(1), 12(b)(6), and 12(e)] JUDGE: Susan Illston DATE: November 9, 2007 TIME: 9:00 A.M. DEPT.: Courtroom 10

McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

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1 2 3

FACTUAL BACKGROUND Plaintiffs assert generally that their action "arises out of contract violations that affect the disabled minor children [plaintiffs] Mikey and Ryan," plaintiff Michael Petersen's children.

4 5 (Complaint 2:22-25; 6:15-19.) Plaintiffs' complaint, as it pertains specifically to the

6 MCGEORGE defendants, asserts that McGeorge/SEHO was a private entity under contract with 7 the California Department of Education to provide hearing services and thus obligated by various 8 unspecified state and federal laws to be free of discrimination toward special education students. 9 10 hearing officer, was "... to act impartially and was contractually bound by state and federal 11 12 contract law to provide [plaintiff] Mikey [with] unbias [sic] due process, free from discrimination (Complaint 4:22-25.) As it pertains to PASTORINO, Plaintiffs assert that PASTORINO, a SEHO

13 as the beneficiary of the state and federal contract laws." (Complaint 5:4-7.) Plaintiffs' 14 complaint adds that SEHO and PASTORINO were employees and/ or agents of defendants, and 15 in doing all things hereinafter mentioned, acted under color of their authority as, and under color 16 17 color of authority as such. (Complaint 5:10-15.) 18 19 Plaintiffs limit their claim against MCGEORGE defendants to their "Second Claim for of the statutes, regulations, customs, and usages of state and federal contractual laws, acting under

20 Relief." In that claim, plaintiffs allege that the MCGEORGE defendants were in "violation of 21 state and federal contract laws, ... due process and equal protection contract laws, ... ADA and 22 section 504 contract laws, ... 42 U.S.C. 1983 due process and equal protection contract 23 24 25 26 27 16 public policy provisions. (Complaint 14:5-15.) provisions, ...42 U.S.C. 1985 contract provisions, and violations of public contract code and

28 ______________________________________________________________________________

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1 Plaintiffs' complaint, however, does not specify or refer to any particular contract involving 2 3 contract "laws" or "provisions" that either govern such contracts or create for plaintiffs a private 4 5 6 7 STANDARD OF REVIEW 8 9 10 facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 4511 12 46 (1957). When ruling on a rule 12(b)(6) motion, the court must construe the pleadings in the A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings. A complaint may be dismissed only if "it appears beyond doubt that the Plaintiff can plead no set of cause of action against MCGEORGE defendants. MCGEORGE defendants, and the complaint does not identify or articulate any state or federal

th 13 light most favorable to the plaintiff. See Broam v. Bogan, 320 F.3d 1023, 1028 (9 Cir. 2003).

14 The court must also accept as true all material allegations in the complaint, as well as any 15 reasonable inferences to be drawn therefrom. See Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 16 17 amend the pleadings if it appears at all possible that the plaintiff can cure the defect. Balistreri v. 18 19 20 21 ANALYSIS Judicial Immunity MCGEORGE defendants are absolutely immune from suit under the doctrine of judicial immunity. All aspects of judicial decision making are protected by judicial immunity in order to Pacifica Police Dept., 901 f.2d 696, 701 (9th Cir. 1990). 1998). If the complaint is dismissed for failure to state a claim, the court should allow leave to

22 A. 23 24 25 26

27 protect judicial independence. Greene v. Zank, 158 Cal.App.3d 497, 507 (1984). It is essential to 28 17 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

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1 the proper administration of justice that "a judicial officer, in exercising the authority vested in 2 3 consequences to himself." Tagliavia v. County of Los Angeles, 112 Cal.App.3d 759, 762 (1980), 4 5 6 quoting from Bradley v. Fisher, 80 U.S. 335 (1871). The critical test is whether the judge's act or omission was a judicial act committed to him, shall be free to act upon his own convictions, without apprehension or personal

7 judicial discretion and within the scope of judicial jurisdiction. "[When] ... exercising judicial 8 functions, a judge who has a duty, breaches that duty and causes injury­however intentionally, 9 10 1031, 1037 (1996). If any reasonable ground for the assumption of jurisdiction exists, judicial 11 12 immunity attaches. See Lewis v. Linn, 209 Cal.App.2d 394, 397-98 (1963). A judge's issuance maliciously, and corruptly­is immune from civil suit..." Falls v. Superior Court, 42 Cal.App.4th

13 of court orders in civil cases pending before the judge is within the immunity, however wrong the 14 orders are said to be, because the remedy for judicial error is appeal. Haas v. Gibson, 179 15 Cal.App2d 259 (1960); Foster v. McBride, 521 F.2d 1304 (9th Cir. 1975). Alleging a conspiracy 16 17 actionable. Legg v. Breitenbach, 198 Cal.App.2d 206. 208; Hagan v. State of California, 265 18 19 F.Supp 174 (C.D.Cal. 1967). Judicial immunity applies irrespective of whether the acts were between the judge and third parties does not make actionable conduct that is not otherwise

20 done in excess of jurisdiction [Tagliavia v. County of Los Angeles, 112 Cal.App.3d 759, 761 21 (1980); Stump v. Sparkman, 435 U.S. 349 (1978)], alleged to have been committed maliciously 22 and corruptly [Frost v. Geernaert, 200 Cal.App.3d 1104, 1107 (1988); Cadena v. Perasso, 498 23 24 25 26 27 28 18 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

F.2d 383 (9th Cir. 1974)], or alleged to be grossly and unfairly wrong or prejudiced [Rosenthal v. Vogt, 229 Cal.App.3d 68, 76 (1991); Schucker v. Rockwood, 846 F2d 1202, 1204 (9th Cir. 1988)].

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1 2 3

Those who undertake to perform quasi-judicial acts are accorded an immunity like that recognized for judges, to the extent that their acts are judicial in character. Thus, a hearing examiner and an administrative law judge are entitled to absolute judicial immunity. Cleavinger

4 5 v. Saxner, 474 U.S. 193, 201 (1985); Butz v. Economou, 438 U.S. 478 (1978); Thiele v. RML

6 Realty Partners, 14 Cal.App.4th 1526, 1530 (1993). 7 In the present case, as alleged in the Complaint, McGEORGE contracted with CDE to

8 conduct special education due process hearings. (Complaint 4:22-24) Such contract is authorized 9 10 process hearings and the adjudicatory duties, authority, and jurisdiction of the hearing officers are 11 12 set forth in sections 56000 through 56507 of the Education Code, as well as in State regulations pursuant to section 56504.5 of the Education Code, and the procedures governing such due

13 (Title 5, C.C.R. sections 3080, et seq) and in federal statutes (20 U.S.C. section 1415) and 14 regulations (34 C.F.R. sections 300.507, et seq). These statutes and regulations make clear that 15 special education hearing officers function in the capacity of administrative law judges, including 16 17 witnesses, and rendering decisions. Courts reviewing hearing officer decisions give it "due 18 19 weight" and, where the hearing officer's findings are "thorough and careful," gives them administering oaths, granting motions, ruling on party objections, receiving testimony, examining

th 20 "particular deference." (Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1474 (9 Cir. 1993);

21 Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994). 22 23 24 25 26 27 28 19 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

All of the specific acts alleged by plaintiff against McGEORGE and its hearing officers, including PASTORINO, if true, fall within the scope the hearing officers' judicial (or quasijudicial) functions and thus are covered by judicial immunity. All of the acts alleged against McGEORGE and its hearing officers, including PASTORINO, as itemized above, involve

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1 knowledge of the applicable law, the conduct of the hearing, and the issuance of decisions and 2 3 covered by judicial immunity. Thus, McGEORGE defendents are immune from suit. 4 5 6 B. Failure to Exhaust Administrative Remedies Plaintiffs failed to exhaust their administrative remedies; thus, this court has no orders­ matters which fall squarely within the judicial functions of the hearing officers and are

7 jurisdiction over the present action. A Rule 12(b)(1) motion is appropriate when the plaintiffs fail 8 to exhaust their administrative remedies that are a prerequisite for filing suit. Honig V. Doe, 484 9 10 bringing a civil action in federal court deprives the court of subject matter jurisdiction over the 11 12 action). "Judicial review under the IDEA is ordinarily available only after the plaintiff exhausts U.S. 305, 326-327 (1988) (failure to exhaust administrative remedies under the IDEA before

th 13 administrative remedies." Doe v. Arizona Dept. of Educ., 111 F3d 678, 680 (9 Cir. 1997).

14 Exhaustion is required in order to give states "the power to place themselves in compliance with 15 the law, and the incentive to develop a regular system for fairly resolving conflicts under the 16 17 experience in the needs of handicapped students­[] the benefit of expert fact finding by a state 18 19 20 agency devoted to this very purpose." Id. The requirement to exhaust under IDEA procedures is not limited to cases in which the IDEA. Id. At 680. It also serves the purpose of giving "[f]ederal courts­generalists with no

21 plaintiff seeks to resolve issues or obtain remedies available in the IDEA's due process 22 administrative hearing process. Kutasi v. Virgenes, 2007 WL 2050952 (9th Cir. 2007) (the IDEA 23 24 25 26 27 28 20 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

requires that before plaintiffs may file a civil action under "the Constitution, the Americans with Disabilities Act, title V of the Rehabilitation Act or other federal laws protecting the rights of children with disabilities," they must exhaust the IDEA's due process hearing procedures if the

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1 action "seek[s] relief that is also available under" the IDEA). The law of exhaustion requires that 2 3 injuries that could be redressed to any degree by the IDEA's administrative procedures." Id. at 4 5 6 8787. In this case, the thrust of plaintiffs' complaint against MCGEORGE defendants is that by "plaintiffs must exhaust administrative remedies before filing a civil lawsuit if they seek relief for

7 accepting MDUSD's petition for hearing, denying father's request for subpoena duces tecum, and 8 by failing to provide a written pre-hearing order setting forth SEHO's jurisdiction over father's 9 10 against MDUSD, effectively forcing him to voluntarily withdraw it. And, plaintiffs allege, as a 11 12 result of their withdrawing father's pending case before SEHO­case number SN02-02868­SEHO collateral claims, SEHO somehow (in some inexplicable way) "sabotaged" father's pending case

13 refused to hear and decide all of the issues set out in father's withdrawn case when it heard and 14 decided MDUSD's case against father­case number SN03-00076. 15 16 17 plaintiffs­damages, since they could no seek all of the remedies father originally sought in his 18 19 withdrawn case. (Complaint 15:5-19) The issues in father's previously withdrawn case­SN02In the present action, plaintiffs allege that SEHO's refusal to address the issues from father's previously withdrawn case as part of MDUSD's case caused them­the

20 02868­included a claim for denial of educational services, and the remedies father sought in that 21 case included educational services. (Complaint Exhibit 2) Also in the present action, plaintiffs 22 claim that the damages they suffered from not having that case heard, at least in part, pertained to 23 24 25 26 27 28 21 _____________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

loss of educational benefits. (Complaint 15:6, 14, 17-19) Finally, in their Prayer for Relief, plaintiffs seek relief for those damages. (Complaint 15:17-16:14) Thus, plaintiffs could have sought relief for any educational losses by either maintaining father's original action before

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1 SEHO­case number SN02-02868­or, after withdrawing the action, filing a new case with SEHO 2 3 case and not re-filing it, or filing a new case raising the same issues and seeking the same 4 5 remedies, plaintiffs failed to bring his IDEA-based claims before SEHO. Plaintiffs do not allege raising the same issues and seeking the same remedies sought in that case. By withdrawing their

6 that SEHO ever refused to hear father's original case­SN02-02868­or ever refused to allow him 7 to file a subsequent case raising the same issues. Moreover, Plaintiffs do not allege that they ever 8 attempted to take case SN02-02868, or any subsequent case, to hearing before SEHO. 9 10 case inasmuch as plaintiffs could have obtained at least some relief in an IDEA due process 11 12 administrative hearing. Thus, this court has no jurisdiction over the present matter and it must Hence, plaintiffs failed to exhaust their administrative remedies prior to filing the present

13 dismissed. 14 CONCLUSION

15 PLAINTIFFS case against McGEORGE Defendants (California Special Education Hearing 16 17 grounds that those claims fail to state a claim upon which relief can be granted pursuant to 18 19 Federal Rules of Civil Procedure 12, subdivision (b)(1) and on the grounds that it fails to state a Office, Mcgeorge School of Law, and Vincent Pastorini) is dismissed in its entirety on the

20 claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12, 21 subdivision (b)(6). 22 23 24 September 14, 2007 25 26 27 28 22 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

By: _________________________ Vincent Pastorino Attorney for Defendants California Special Education Hearing Office (SEHO), Mcgeorge school of Law, and Vincent Pastorino

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1 Vincent Pastorino, CA SBN 095939 Institute for Administrative Justice 2 University of the Pacific McGeorge School of Law th 3 3455 5 Avenue Sacramento, CA 95817 4 Phone: (916) 739-7049 Fax: (916) 739-7199 5 e-mail: [email protected] 6 Attorney for Defendants California Special Education Hearing Office, 7 Mcgeorge School of Law, and Vincent Pastorino __________________________ 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 ______________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO ) MICHAEL PETERSEN on behalf of ) himself and next of friend to Mike Jr. and ) Case No. Case No. C07-02400 (SBA) Ryan, disabled minor children PRO SE ) ) ATTEMPT TO MEET AND CONFER Plaintiffs, ) ) v. ) ) CALIFORNIA SPECIAL EDUCATION ) HEARING OFFICE, et al ) ) Defendants. ) ) ) ) )

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1 2 3

Plaintiff did not provide a telephone number on or in his complaint. On September 12, 2007, at 11:21 a.m., attorney Paul Lacy, from Mcgeorge school of Law, contacted the nationwide 4-1-1 operator and attempted to obtain a telephone number for plaintiff based on the name and

4 5 city of residence listed on his complaint. The information operator informed Mr. Lacy there was

6 no such listing. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 ____________________________________________________________________________
McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)

DATED: September 14, 2007

By: _________________________ Vincent Pastorino Attorney for Defendants California Special Education Hearing Office (SEHO), Mcgeorge School of Law, and Vincent Pastorino

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

McGEORGE defendants' Amended Motion to Dismiss, Case No. C07-02400 (SI)