California OAH special education order · April 11, 2014
Order Denying Without Prejudice District's Request to Stay Proceedings
OAH Case No. 2014040200 · ALJ Darrell Lepkowsky
OAH denied without prejudice District's request to take the case off calendar for lack of service, because Student's proof of service showed fax service and District offered no supporting declaration.
Summary
District's counsel sent OAH a letter saying District never received Student's due process complaint and asked OAH to remove the case from its calendar until the complaint was served. Student did not respond. OAH treated the letter as a request to stay the proceedings and denied it without prejudice. Student's proof of service showed the complaint was faxed to an assistant superintendent, and an attorney's letter is not evidence that the complaint was never received. District may renew the request if it includes a supporting declaration.
Why it matters
A filed proof of service carries weight. A party disputing service must back up the claim with a sworn declaration, not just an attorney's letter. Parents should always attach a proof of service to the complaint showing how and to whom the district was served.
Key authority cited
- Ed. Code § 56502, subd. (a)
- Ed. Code § 56502, subd. (c)
- Ed. Code § 56502, subd. (d)(1)
People named in the order
- Elizabeth Blanco, Assistant Superintendent, San Francisco Unified School District
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. 2014040200
v. ORDER DENYING WITHOUT
PREJUDICE DISTRICT’S REQUEST
SAN FRANCISCO UNIFIED SCHOOL TO STAY PROCEEDINGS
DISTRICT.
On April 1, 2014, Student’s Parent, through her legal counsel, filed a due process hearing request (complaint) with the Office of Administrative Hearings on behalf of Student naming the San Francisco Unified School District (District). The proof of service attached to the complaint indicates service on Elizabeth Blanco, Assistant Superintendent, via fax number (415) 750-8690. On April 3, 2014, OAH served the scheduling order on the parties.
On April 4, 2014, counsel for District filed a letter with OAH. The letter states that District had received the scheduling order from OAH, but had never been served with a copy of Student’s complaint. District, through its legal counsel, requested that OAH remove this case from the OAH calendar until such time as Student serves the complaint on District. The letter did not include any declarations in support of District’s request to, in effect, stay proceedings pending service of the complaint on District.
Student has not filed a response to District’s request.
APPLICABLE LAW AND DISCUSSION
Education Code section 56502, subdivisions (a) and (c)(1) and (2), state that the party initiating a due process hearing shall provide the respondent with a copy of the complaint at the same time it is filed with OAH. A party may not have a hearing until the notification requirements are met.
Education Code section 56502, subdivision (d)(1) states that the notice requirement are deemed sufficient unless the Administrative Law Judge is notified within 15 days of service of the notice of hearing. Within five days of such notice, the ALJ shall make a determination of on the face of the notice whether the notification requirements are met.
Here, Student included a proof of service with the complaint indicating that District was served by fax. District has not provided any declaration in support of its request to stay the proceedings in this matter. District’s letter from its legal counsel is not evidence that the Student’s complaint was never received by District.
District’s request is therefore denied without prejudice. Should District wish to renew the request, it must be accompanied by a supporting declaration.
ORDER
District’s request to stay the proceedings in Student’s case is denied without prejudice.
DATE: April 11, 2014 /s/
DARRELL LEPKOWSKY
Administrative Law Judge Office of Administrative Hearings