California OAH special education order · August 26, 2013
Order Following Pre-Hearing Conference of August 26, 2013; Order Granting in Part and Denying in Part Student's Motion to Dismiss; Order Resetting Timelines
OAH Case No. 2013080189 · ALJ Darrell Lepkowsky
OAH refused to dismiss the District's complaint but ordered re-service and reset all timelines, because Student's family never actually received the complaint even though the District served it properly.
This case went to decision
San Dieguito Union High School District v. Student: San Dieguito Union High School District's speech and PT assessments and nonpublic school IEP offer upheld; no IEEs owed. (2013)
Summary
Just before the prehearing conference, Student, represented by Parent, moved to dismiss the District's due process complaint. Parent said the family was on vacation when the District sent the complaint by overnight delivery to their home, and never received it. OAH found the District's service was proper but accepted that Student did not actually receive the complaint. It ordered the District to re-serve the complaint at both the family's post office box and home address by August 30, 2013, vacated all scheduled dates, reset timelines from the new service date, and otherwise denied the motion to dismiss.
Why it matters
A family that never actually receives a district's complaint may not get the case dismissed, but it can get the complaint re-served and the hearing timelines restarted. Districts should serve every address they know a family uses, including a post office box.
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:
SAN DIEGUITO UNION HIGH SCHOOL OAH CASE NO. 2013080189
DISTRICT,
ORDER FOLLOWING PRE-HEARING
v. CONFERENCE OF AUGUST 26, 2013;
ORDER GRANTING IN PART AND
PARENT ON BEHALF OF STUDENT. DENYING IN PART STUDENT’S
MOTION TO DISMISS; ORDER
RESETTING TIMELINES
The San Dieguito Union High School District (District) filed a Request for Mediation and Due Process Hearing (complaint) on August 5, 2013, naming Student as respondent. Its proof of service indicates that it served the complaint on Student by overnight mail on that date to Student’s home address. The Office of Administrative Hearings (OAH) served a Scheduling Order on both parties on August 9, 2013. OAH served Student at his family’s post office box.
OAH scheduled the prehearing conference (PHC) in this case for August 26, 2013.
Just prior to the scheduled time of the PHC, Student filed a motion to dismiss the District’s complaint. Student contended that he and his mother, who represents him, had not received service of the District’s complaint.
On August 26, 2013, Administrative Law Judge (ALJ) Darrell Lepkowsky convened the prehearing conference. Justin R. Shinnefield, Attorney at Law, appeared on behalf of the District. Student’s mother appeared on behalf of Student. The ALJ recorded the PHC. 1 Student reiterated his motion to dismiss. He contended that the District was aware that his family was on vacation when the District served its complaint. Therefore, no one was in residence to receive the overnight delivery of the complaint. Student stated that he never received a copy of it and was not aware of the complaint until receipt of the Scheduling Order. Student stated that the District was aware that his family maintained a post office box to receive mail and that the District therefore should have served him there rather than by overnight delivery to his physical home address.
The PHC was originally scheduled to begin at 1:00 p.m. Due to a misunderstanding at Mr. Shinnefield’s office, the person who had the alternative phone number at which to reach him for the PHC was not available when the ALJ made the PHC telephone call. The ALJ therefore trailed the PHC until 3:00 p.m. at which time all parties appeared.
The District orally responded to and opposed Student’s motion. The District stated it had properly served Student with its complaint by overnight mail, as indicated in its proof of service. The District also stated that it had attempted in previous matters to serve Student at his post office box but that no overnight mail could be delivered there. However, the District also stated that if Student was requesting a continuance, it would not oppose one.
The evidence shows that the District properly served Student with its complaint.
However, the evidence, through Mother’s statements at oral argument, indicates that Student did not receive the complaint. Based upon discussion with the parties, the ALJ rules as follows:
1. The District is directed to re-serve its complaint on Student at his post office
box and at his home address no later than close of business on August 30, 2013.
2. The District shall file a proof of service with OAH the same date it serves
Student, indicating that it has served Student as detailed in paragraph one above.
3. OAH will serve a new scheduling order on both parties setting new timelines
for this matter based upon the District’s filing of its proof of service. The timelines for hearing in this matter therefore shall be set based upon the District’s new service of its complaint.
4. All presently scheduled dates in this case are vacated.
5. In all other respects, Student’s motion to dismiss is denied.
IT IS SO ORDERED.
Dated: August 26, 2013 /s/
DARRELL LEPKOWSKY
Administrative Law Judge Office of Administrative Hearings