California OAH special education order · June 3, 2016
Order for Further Information
OAH Case No. 2016020288, 2016010119 · ALJ Darrell Lepkowsky
OAH required Districts to file a declaration showing how and when an independent assessor was served before it would consider certifying his failure to obey a subpoena for contempt.
This case went to decision
Student v. Capistrano Unified School District et al. (consolidated): Capistrano Unified and Community Roots Academy should have found student eligible as other health impaired; $4,500 and 30 hours ordered. (2016)
Summary
On the first day of hearing, Districts made an oral motion to enforce a subpoena duces tecum. The subpoena was served on Dr. Perry Passaro, who did the independent assessment of Student. Districts asked OAH to certify the matter to a superior court for contempt. Dr. Passaro had not produced his records and had not moved to quash, and Mother had sent him a signed waiver. Because Districts' papers included no proof of service on Dr. Passaro, OAH ordered them to file a declaration explaining when and how he was served.
Why it matters
A party seeking contempt certification for an ignored subpoena must first prove proper service on the witness, so keep proofs of service ready. Parents can help get assessment records released by signing a waiver, as Mother did here.
People named in the order
- Dr. Perry Passaro, Independent assessor served with subpoena duces tecum
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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016020288 v.
CAPISTRANO UNIFIED SCHOOL
DISTRICT AND COMMUNITY ROOTS
ACADEMY.
, CAPISTRANO UNIFIED SCHOOL OAH Case No. 2016010119
DISTRICT,
ORDER FOR FURTHER
v. INFORMATION
PARENT ON BEHALF OF STUDENT.
The due process hearing in this matter began on June 1, 2016. At the beginning of the hearing, Capistrano Unified School District and Community Roots Academy (collectively, Districts) made an oral motion to enforce a subpoena duces tecum served on Dr. Perry Passaro, or to certify the matter for purposes of enforcement to an appropriate court. The subpoena requested that Dr. Passaro produce records on the first day of hearing relating to his independent assessment of Student.
Counsel for Districts represented that Dr. Passaro had not produced the records as ordered by the subpoena. The record in this case does not show any motion filed by Dr. Passaro to quash the subpoena. Student’s mother, who is representing him in this matter, acknowledged that Dr. Passaro’s office had informed her that he would not produce the records without either a court order or a waiver signed by Mother. Mother digitally signed the waiver and sent it to Dr. Passaro, but, as of the second day of hearing, Dr. Passaro had not yet produced the records.
To support their request for an order certifying this issue for contempt to a superior court, Districts are directed to file a declaration addressing when and how Dr. Passaro was served with the subpoena duces tecum. The paperwork submitted by Districts on June 2, 2016, to the Office of Administrative Hearings does not include a proof of service on Dr. Passaro.
IT IS SO ORDERED.
DATE: June 3, 2016
DARRELL LEPKOWSKY
Administrative Law Judge Office of Administrative Hearings