SIMI VALLEY UNIFIED SCHOOL DISTRICT.
Administrative Law Judge Richard T. Breen, Office of Administrative Hearings (OAH), State of California, heard this matter in Simi Valley, California, on May 28, 29, 30, 2008 and June 2 and 3, 2008.
N. Jane DuBovy and Carolina Watts, Attorneys at Law, represented Student. Student attended the hearing with her Mother (Mother) and Father (Father).
Andrew Arczynski, Attorney at Law, represented Simi Valley Unified School District (District). District representative Dennis Carter attended the hearing on all days.
Student filed a Request for Due Process Hearing (Complaint) in OAH case number N2007120033 on December 3, 2007. Student’s request for a continuance was granted on January 17, 2008. On January 29, 2008, the District filed a Complaint in OAH Case No. N2008010898. The District’s unopposed motion to consolidate was granted on February 6, 2008. On April 7, 2008, Student was granted leave to amend her complaint, resetting all timelines. At hearing, the parties were granted permission to file written closing arguments by June 30, 2008. Upon receipt of the written closing arguments the matter was submitted and the record was closed.
k) Offer an appropriate transition plan including appropriate levels of services and appropriate goals.
2. Whether the District denied Student a FAPE by failing to provide agreed-upon IEP services prior to the issuance of a December 27, 2007 “stay put” order.
3. Whether the District offered Student a FAPE in the October 12, 2007 IEP.
4. Whether the District provided Student with a FAPE because the terms of the October 12, 2007 IEP were implemented.
5. Was Student properly exited from special education on December 20, 2007.
1. Student turned 22 years old on October 26, 2007. At all relevant times she resided within the District and was eligible for special education under the primary category of visual impairment. The parties stipulated that Student was totally blind and had “significant cognitive delay.” Student was born prematurely and experienced fine and gross motor delays as a child. Student had a history of medical disorders including scoliosis and swallowing and digestive problems. Student also had a seizure disorder that required constant monitoring. In the event of a seizure, the responsible adult with Student could use a special magnet to activate a nerve stimulator to ward off the seizure. Student has the support of loving parents whose concern and care for Student were evident throughout the hearing. Mother and Father had the legal power to make all decisions for Student because of her cognitive impairment.
2. Student was assessed by the California School for the Blind (CSB) on October 27 and 28, 1998. CSB recommended, in relevant part: 1) that Student participate in a functional skills curriculum with exposure to “real world” settings; 2) that Student be taught using her multiple senses such as touch; 3) that Student be taught basic concepts beginning with concepts related to her body and expanding outward; 4) that Student needed to work on awareness of texture and fine motor skills; and 5) that Student should be encouraged to be as independent as possible in daily living skills. In general, CSB recommended that Student would require repetition, practice and use of “backward chaining” (guiding a child through an entire task by starting with the result and working backward) in order to acquire new skills. CSB did not recommend that Student be taught Braille. CSB recommended that Student could be given tactile symbols such as a piece of chain from a playground swing to represent recess time at school.
3. CSB also recommended that Student use an assistive technology device, possibly with tactile buttons, that could talk for her. However, during IEP meetings, Mother and Father chose not to use assistive technology in order to encourage Student to use the speaking ability that she had.
4. At hearing, Father expressed his hope that Student would learn to live independently and hold some type of job. Mother and Father believed that they had been promised that Student would be provided with a one-to-one aide at all times, even after Student was no longer enrolled in school. According to Mother, Student required a one-to-one aide for information about the environment, to encourage her to participate in activities and to monitor for possible seizures. Mother and Father did not think that Student could function without an aide in adult day programs because she had relied on an aide while enrolled in school and had not sufficiently been transitioned to reduced dependence on an aide. Father believed that at a minimum, to transition out of school, Student required a transition period with an aide that she could trust.
5. Mother and Father both believed that Student should have learned Braille while enrolled in the District, first by learning the Braille alphabet and numbers and then progressing to grade two Braille, which substituted symbols for whole words. Mother and Father did not believe that Student could learn any Braille symbols without first learning the Braille alphabet. Mother believed that Student could eventually learn to read Braille signs while Father expressed his belief that Student could eventually learn to read books in Braille.
6. Father had a master’s degree in special education and was a California credentialed special education teacher in another district. As part of his studies, Father had taken a course about transition plans. Father also had experience as a substitute teacher. Mother taught medical technology at a local adult school. At hearing, Mother and Father testified that they did not fully understand some aspects of the IEP process, and felt that they had to consent to get services. However, their testimony on this point was not persuasive in light of the above and because at all times Mother and Father had been provided with notices of procedural safeguards.
7. Student was eligible for services under California’s Lanterman Act and was a client of the Tri Counties Regional Center (TCRC). Snehah Zachariah (Zachariah) was Student’s service coordinator from March of 2003 through December of 2006 and attended Student’s annual IEP team meetings in October of 2004, 2005 and 2006. The services provided to Student from TCRC included assisting with the applications for, and funding, adult day programs. Zachariah’s job as a service coordinator required her to be knowledgeable about available adult programs and the standards for admissions. Zachariah had provided Mother and Father with information on all of the programs being considered. Zachariah persuasively explained that a representative of a program provided by TCRC would only be required to attend a transition IEP after Mother and Father had made a choice of program. Zachariah’s testimony was consistent with that of District personnel, who explained that programs such as ARC, the Braille Institute and the Foundation for the Junior Blind generally do not attend IEP team meetings to discuss transitions because if needed, a referral would originate with TCRC.
8. Transition planning was discussed at an IEP team meeting on October 8, 2004. At that meeting, TCRC representative Zachariah explained post-secondary program options for Student. Mother and Father were encouraged to look at programs such as the Cole Vocational Program (Cole), ARC and the Therapeutic Living Center (TLC). Cole, ARC and TLC were all vendors to TCRC and if Student attended, TCRC would pay for Student’s attendance. The IEP team recommended that Cole and TLC were the most appropriate. The transition plan expressly stated, “Parents need to begin working with TCRC to investigate post-high school options for [Student] to help direct instruction in her last years of school toward her strongest areas of need in the areas of semi-independent living, community access, and work.” The transition plan reflected that Student would continue with developing independent living skills through a functional skills curriculum, would participate in learning to use public transportation, and would have exposure to employment through two on-campus and one off-campus jobs. The IEP notes reflect that the District was willing to reconvene the IEP to develop functional goals that would align with the post-secondary program chosen by Mother and Father. The transition services in the IEP were reviewed and approved by parents at an IEP team meeting on January 7, 2005.
9. Julie Palmer (Palmer) taught Student in a SDC during the 2005-2006 school year. Palmer was an experienced educator with nearly 20 years experience as a special education teacher at the time she taught Student. Palmer had a master’s degree in special education and was credentialed to teach the severely handicapped. Palmer’s SDC consisted of 14-17 students, some of whom, like Student, required a one-to-one aide. Student was in the middle to lower range of cognitive ability compared to her classmates. The class was composed of students with a variety of disabilities including one student with visual impairment, some students with language impairments, and some students who were capable of carrying on conversations. Typical peer volunteer tutors participated in the class on a regular basis to provide social interaction and speech practice for the SDC students. Student’s aide was always encouraged to fade out as much as possible and only provide Student assistance when needed. Student was able to work with ratios of up to one aide to three students during art projects and did not require her aide to be close by when working with peer tutors.
10. District vision specialist Aaron Glaser (Glaser) provided vision services to Student prior to the fall semester of 2006. Glaser had been a credentialed teacher of the visually impaired since 1972 and had started working for the District in 1981. A teaching credential for visual impairment requires knowledge of Braille instruction. At the time of hearing, Glaser was retired and working part-time. Glaser had taught Braille to between 6-10 totally blind children while employed with the District. Glaser concluded that teaching Student the Braille alphabet with an end toward reading Braille was not appropriate in light of Student’s cognitive limitations and the greater need to teach Student functional skills. Glaser did not think teaching the Braille alphabet was appropriate because learning to read required the person to be able to conceptualize that what you are touching represents something else. At most, Glaser thought that Student might be able to acquire some understanding of whole Braille words. Based on Glaser’s observations of Student during community based instruction at school, Glaser did not think Student could function independently in the community. Although Glaser did not agree that Braille was appropriate, he did work with Student on the restroom-distinguishing goals. In addition, Glaser labeled common items in Student’s classroom with Braille labels so that Student could be exposed to Braille. Glaser needed to manually prompt Student to run her fingers over Braille surfaces.
12. As of December 3, 2005, Student’s operative IEP was dated October 21, 2005. This IEP placed Student in a special day class (SDC) within a District high school, with inclusion in general education classes for two periods per day. Student was provided the following related services: orientation and mobility training for two, 30-minute sessions per week; vision services for two, 30-minute sessions per week; speech therapy once a week for 60 minutes; adapted physical education four days per week for one period a day; and occupational therapy for 120 minutes per month.
13. The IEP notes reflect that Mother and Father had only visited one post-secondary program in the year since the October 8, 2004 IEP and intended to look at another program in the upcoming year. Zachariah, Student’s program coordinator from TCRC, attended the meeting, offered to arrange for Mother and Father to visit another program and provided information about a new adult day program that had opened in Simi Valley. The transition plan again emphasized that Mother and Father needed to work with TCRC to decide on a placement so that instruction could be tailored to that goal. The transition plan reflected that Student would continue with developing independent living skills through a functional skills curriculum, would participate in learning to use public transportation, and would have exposure to employment through six on-campus jobs and one off-campus job. The transition plan noted that Student was a client of TCRC. A line listing “other possible agencies to be considered” included CCS, the Braille Institute and the Foundation for the Junior Blind; however, as previously discussed, such agencies did not attend transition IEPs because ultimately, it would be TCRC that arranged for and funded Student’s post-secondary services.
14. TCRC service coordinator Zachariah believed that the Cole program in Oxnard or TLC in the San Fernando Valley were the most appropriate post-secondary placements for Student because they served the visually impaired. ARC was less appropriate because there were no totally blind people there. Father liked the Cole Vocational Program, but was concerned about the possible one-hour travel time to the program.
15. At the October 21, 2005 IEP, Mother and Father agreed with the IEP team that a triennial assessment of Student was not needed because Student’s needs were well known.
16. The October 21, 2005 IEP contained the following annual goals: a motor skills/mobility goal of full participation in APE; a vocational goal of reducing the need for prompting when performing job tasks; a vocational goal of reducing the frequency of hugging and kissing co-workers; a vocational goal of following instructions; a vocational goal of increasing Student’s ability to count items accurately; a functional/academic goal of learning to distinguish between the Braille symbols for “Men” and “Women” both in class and the community; an orientation/mobility goal of increasing Student’s ability to travel in the community with a human guide; a communication goal of increasing appropriate verbal greetings; a communication goal of increasing Student’s ability to verbally describe her own actions; a communication goal of increasing Student’s receptive understanding of concepts such as full/empty, in front of/in back of; a communication goal of replacing a gesture and whimper with speech when Student needed to use the restroom; a self-care/independent living goal of clearing the dining table with minimal prompts; a self-care/independent living goal of brushing her teeth with reduced physical prompting; a self-help/independent living goal of finding her own money when paying for items at a store; a self-care/independent living goal of increasing independent chewing and swallowing; a self-care/independent living goal of pouring liquids accurately. All of the goals were based on observed present levels of performance, contained benchmarks, and were measurable. The goals reflected Student’s functional skills curriculum and were appropriate for Student’s abilities. The self help/independent living goals of clearing the table, brushing teeth, locating money and properly eating and chewing were assigned in part to the occupational therapist.
17. The present levels of performance noted that teaching Student the Braille symbols for familiar items in the classroom had been attempted with little success. At the IEP team meeting both SDC teacher Palmer and vision specialist Glaser expressed that they did not believe that Student had sufficient cognitive ability, tactile sense, or sense of space to learn Braille letters. Palmer and Glaser chose to have Student attempt Braille with whole words because Student did not have sufficient cognitive skills to connect Braille letters with the formation of the letter sound. However, the IEP team included the Braille goal at the request of Mother and Father. Palmer explained that the focus of the goal was to have Student understand that a Braille symbol stood for something concrete. Palmer believed that Student needed to work on being less prompt dependent with an aide, but did not recommend reducing the provision of a one-to-one aide due to the safety issues caused by Student’s seizure disorder.
18. Student made progress on the goals from the October 21, 2005 IEP. By October of 2006, Student met the following annual goals: full participation in APE; the vocational goal of reducing the frequency of hugging and kissing co-workers; the communication goal of using an appropriate greeting; the orientation and mobility goal of traveling with a human guide; and the self-care/independent living goal of clearing the table with prompting. Student met the self-care/independent living goal of pouring, but only with maximum assistance. Student made progress, but did not meet, the following annual goals in the October 21, 2005 IEP: the vocational goal of reducing the need for prompting; the vocational goal of following simple, short directions; the vocational goal of accurately counting objects; the functional goal of differentiating between the Braille symbols for “Men” and “Women”; the communication goal of describing her own actions; the receptive communication goal of understanding concepts like in front of/in back of; the communication goal of using appropriate verbalization to request the restroom; the self-care/independent living goal of brushing her teach with verbal prompting; the self-care/independent living goal of finding her own wallet; and the self-care/independent living goal of chewing and swallowing food. Palmer described that Student did not make much progress on distinguishing the restroom, even when using the triangle (“Men”) and circle (“Women”) symbols on restroom doors.
19. Prior to December 20, 2007, Catherine Hunnewell (Hunnewell) provided daily one-to-one instructional aide support to Student for approximately eight years. Hunnewell provided Student with the support she needed, but would fade back to encourage Student to be more independent whenever possible, particularly during the times when Student was working with a peer tutor. Hunnewell generally worked on all of the goals in Student’s IEPs, in conjunction with the classroom teacher and/or service providers, and participated in IEP team meetings. Other aides worked with Student without incident during the times Hunnewell was absent.
20. Lynn Brown (Brown) provided speech and language services to Student from the fall semester of 2006 through the time of the October 12, 2007 IEP, after which she provided the consult services set forth in that IEP. Brown had a master’s degree in speech pathology and audiology and had almost 25 years of experience in the field at the time she provided services to Student.
21. When she started working with Student in the fall of 2006, Brown believed that the speech goals and levels of services provided by the October of 2005 IEP were appropriate. Brown noted Student’s significant cognitive delay and that Student was very selective about who she would speak to and when. Student rarely used spontaneous speech and when she did so her speech consisted of repeated phrases. Accordingly, Student required a lot of prompting to implement speech goals. Based on her experience working with Student, Brown did not believe that any level of increased speech therapy would have increased Student’s speech abilities. Brown was aware that parents reported a greater level of speech at home, which Brown plausibly explained was likely due to Student being more comfortable in that environment.
22. Brown persuasively explained that standardized speech assessment would not have been appropriate to use with Student in light of her cognitive delays and blindness. Standardized speech assessments frequently require pointing to a picture or responding with speech, making the tests inappropriate for Student. Assessment by observation was appropriate for Student.
23. In all of her SDC classrooms, Student had been provided with AT devices at various times such as a “hip talker,” specialized switches, software, computer touchscreens, and a tape player for books on tape. Brown concluded that during the relevant time periods, AT devices such as the “hip talker” would not have been helpful with Student’s communication needs because the devices would require use of tactile symbols and Student had not been successful with Braille symbols. More importantly, if Student was capable of producing speech, it was more important to encourage her to continue to use that skill. Brown’s testimony on all points was not refuted at hearing by any other speech language pathologist.
24. Cynthia Hawthorne (Hawthorne) taught Student in an SDC from the fall semester of 2006 until the time Student withdrew from school in February of 2008. Hawthorne was a credentialed special education teacher, who, prior to achieving her teaching credentials, had worked as an instructional aide for students with severe disabilities such as blindness, autism and emotional disturbance. Based on Student’s performance in her classroom, Hawthorne concluded that the present levels of performance in the October 21, 2005 IEP had been accurate.
25. Hawthorne’s SDC had a total of 15 students with 12 instructional aides and assistance from 35-40 peer tutors. Every aide in the classroom was trained to work with Student and to be aware of Student’s medical needs. Although Student had a great rapport with aide Hunnewell, Student would work with other aides when Hunnewell was absent.
26. On October 11 and 12, 2006, Hawthorne assessed Student’s transition needs using the YES – Knowing Yourself inventory of career interests; the Workplace Employment Skills Summary (WESS) and the Learning Style Preference Inventory. Hawthorne explained that the transition assessments such as the WESS, the Learning Style Preference and the YES- Getting to Know Yourself were not standardized assessments, but instead were questionnaires that were generally given to the student. Although the WESS instructions said it could be used for progress monitoring, it was also proper to use the WESS to establish baselines. Hawthorne plausibly explained that Student was not capable of answering the questions on the questionnaires so the data was based on teacher observation. No evidence was produced that had Student or parents provided input, the resulting transition plan would be different. Prior to the October 12, 2007 IEP team meeting, the October of 2006 assessments were reviewed and Student was observed at jobsites.
27. Hawthorne persuasively explained that additional assessments of Student were not required because Student was being provided the services she needed and the impact of Student’s disabilities had not changed. Hawthorne also persuasively explained that more services would not necessarily have resulted in greater improvements for Student because Student’s performance fluctuated based on how she was feeling and it also generally took Student a lot of repetition to acquire a skill.
28. Cynthia Page (Page) worked with Student on her employment skills goals. Page was a credentialed special education teacher, who had experience working with severely disabled students between the ages of 18 and 22, including totally blind Students. Page observed Student in job sites such as office cleaning, restocking dog waste bags in a public park and Student’s favorite, a coffee shop. Page described that Student needed physical and verbal prompts to perform all work tasks. For example, Student required prompting to wipe a table and prompting to let go of the towel when finished wiping. Page perceived that Student was not capable of working without an aide due to her blindness and safety issues and that at the time Student was just beginning to understand what was expected of her in work situations.
29. TCRC service coordinator Zachariah met with Mother prior to the October of 2006 IEP. At that time, Mother expressed to Zachariah that she was leaning toward placing Student in the ARC program because it was next to Mother’s workplace.
30. An IEP team meeting was held on October 20, 2006. The IEP contained present levels of performance that were drafted based on input from Hawthorne, all DIS providers and parents.
31. This IEP placed Student in a special day class within a District high school, with inclusion in general education classrooms or settings for 28 percent of the day, including two general education electives such as dance, comedy or drama. Student was provided the following related services: orientation and mobility training for 60 minutes a week; vision services for two, 30-minute sessions a week; speech and language therapist direct consult twice a month for 15 minutes; and occupational therapy direct consult for 90 minutes a month. Student’s participation in off-site work programs started at one day per week for two hours and increased to two days per for two to three hours. The use of assistive technology and Braille was discussed at the meeting. The IEP did not directly mention provision of a one-to-one aide, but did state that Student “needs adult supervision and assistance the entire school day.” Father initialed that he had received copies of all the reports discussed at the meeting. Mother and father consented to the IEP at the time. Father conceded at hearing that he understood the placement and the frequency, location and duration of the services offered.
32. The October 20, 2006 IEP included a transition plan. Student would continue in a functional skills curriculum with an emphasis on job-specific skills, self-care, daily living skills and street safety. The desired outcomes included living with parents within one year after graduation, participating in adult day program within one year of graduation and participating in supported employment within two years of graduation. TCRC was listed as an agency that also had responsibility for Student, while the Braille Institute was listed as another possible agency for parents to consider.
33. The October 20, 2006 IEP contained the following goals: an orientation and mobility/independent living goal of putting her cane in a shopping caret and pushing it in a store with physical and verbal prompts; a vocational goal that Student would identify clean/dirty and wet/dry and complete cleaning tasks with support; a recreation/leisure goal of activating her own books on tape using raised symbols on the tape recorder; a self-care/independent living goal of choosing a leisure activity; self-care/independent living goal of preparing a snack by spreading an item on crackers or bread; a self-care/independent living goal of putting on her own tap shoes and street shoes with minimal physical prompting; an independent living skills/functional goal of setting the table; and a transitional/vocational goal of reducing prompts to start a task. All of the goals were based on observed present levels of performance and were measurable. The goals reflected Student’s functional skills curriculum and were appropriate for Student’s abilities. The IEP team meeting notes reflect that the team discussed that Student was being exposed to reading the Braille signs on restrooms. The self-help goals of preparing a snack, putting on shoes, and setting the table were assigned to, among others, the occupational therapist.
34. By October of 2007, Student made progress on the annual goals from the October 20, 2006 IEP. Student met the following annual goals: with maximum physical prompting, the orientation and mobility goal of putting her cane in a shopping cart and pushing it; the self-care/independent living goal of activating a tape player by using a raised symbol on a button; the self-care/independent living goal of choosing a leisure activity; the vocational goal of starting an activity with fewer prompts; and the vocational goal of being able to identify clean/dirty and wet/dry and completing a task when prompted. Student made progress on the following annual goals from the October 20, 2006 IEP: the self-care/independent living goal of preparing food by spreading an item on bread or crackers; the self-care/independent living goal of putting on shoes; and the independent living and functional goal of pouring.
35. At the October 20, 2006 IEP team meeting, TCRC representative Zachariah could not stay for the entire meeting. Transition needs were discussed first and Zachariah gave her input and answered all questions prior to her departure. The IEP meeting notes reflect that this occurred and do not reflect any objection by parents to this procedure. No evidence was offered that had Zachariah stayed longer, the results of the IEP team meeting would have been different.
36. Angela DeSantis (DeSantis) was a teacher of the visually impaired who provided vision services to Student during the spring, summer and fall semesters of 2007. Prior to providing services to Student, DeSantis obtained input from Glaser, Student’s aide Hunnewell, teacher Hawthorne and Mother. DeSantis informally performed a learning media assessment by observing Student in different settings to see how Student accessed her environment. There is no standardized learning media assessment and no standardized test for Braille readiness. With a totally blind person, the learning media assessment consists of observation to determine the degree that the person learns through tactile or auditory means. Further assessment would not have revealed anything about Student’s abilities that was not already known. DeSantis was aware that the CSB report did not recommend using Braille but continued to expose Student to “functional” whole word Braille and the Braille alphabet and numbers, which were on Student’s desk. Student was resistant to touching the Braille. Student did not generally progress beyond touching the Braille with prompting during activities such as restroom trips or pouring by following a Braille recipe, to distinguishing between two Braille figures. Aide Hunnewell perceived that Student did not master differentiating restroom signs, but instead would guess at the answer. From working with Student, DeSantis concluded that although Student might be able to learn some functional Braille, Student did not have the cognitive ability to learn advanced Braille. A Braille writer, which was like a typewriter with only six keys, was available in the classroom. DeSantis exposed Student to it, but did not believe that Student could learn to use it effectively because it required memorization of how to form Braille letters. Overall, DeSantis was persuasive in her opinion that tactile and auditory training in functional skills was more important for Student than trying to learn type-one Braille and that additional Braille instruction would not have yielded better results.
37. Occupational therapist Krista Minnis (OT Minnis) provided occupational therapy services to Student beginning in September of 2007. OT Minnis was employed by the Ventura County Office of Education. OT Minnis reviewed the October 20, 2006 IEP before working with Student. OT Minnis thought the present levels of performance and goals in the IEP were accurate and that the goals were appropriate given Student’s needs. In particular, OT Minnis believed that the goals were appropriate because they were realistic and achievable. OT Minnis worked with Student on the food preparation goal using an audible cue for pouring and would also prompt Student to run her fingers over a Braille recipe while doing the activity. OT Minnis provided Student with 90 minutes per week of occupational therapy, an amount that she thought met Student’s needs. OT Minnis did not believe that Student could ever live independently and instead would always require some type of adult assistance. No contrary expert opinion from another occupational therapist was presented at hearing.
38. An IEP team meeting was held on October 12, 2007. Classroom personnel reported at the time, consistent with Mother’s testimony at hearing, that Student was using decreased verbalizations and more echolalia following a seizure in the summer of 2007. Student’s records reflected that Student made slow gains year after year consistent with her cognitive abilities regardless of whether the services were rendered as pull-out or push-in. Speech therapist Brown recommended to the IEP team that given Student’s needs for functional speech practice and repetition, Student was better served by having her speech goals worked on throughout the day by the classroom teacher and Student’s aide. Brown was able to supervise aide Hunnewell in how to appropriately work on the speech goals in Student’s IEP and would provide consult services. The IEP team agreed with this decision and Mother and Father consented to the change in speech services. Although Brown had discussed the possibility of reducing speech services with SDC teacher Hawthorne, no decision was made until the IEP team meeting such that no written notice could have been given to parents.
39. The October 12, 2007 IEP offered Student the following placement and services: an SDC in a District high school, with inclusion in general education classes such as dance for 54 percent of the school day; orientation and mobility training for two, 30-minute sessions per week; vision services for two, 30-minute sessions per week; and occupational therapy direct consult for 90 minutes per month. The IEP reflected that speech therapy consultation would be available as needed and that Student required adult assistance and supervision throughout the school day.
40. The October 12, 2007 IEP expressly stated that Student would be turning 22 on October 26, 2007, and as a result, would be ineligible for special education after December 20, 2007, the last day of school during the 2007 year. The District’s fiscal year ran from July 1, 2007 through June 30, 2008.
41. The October 12, 2007 IEP included a transition plan. Student would continue in a functional skills curriculum with an emphasis on job-specific skills, self-care, daily living skills and street safety. The desired outcomes included living with parents within one year after graduation with participation in supported recreation, participating in an adult day program within one year of graduation, and participating in supported employment within two years of graduation. TCRC was listed as an agency that also had responsibility for Student, while the Braille Institute was listed as another possible agency to be considered by parents. Along with continued development of cooking, self-care and daily living skills, the plan contemplated that Student would make a portfolio of work to take with her to the adult program that she would attend. The transition plan reflected that no new transition assessments had been performed and that the plan was based on the October of 2006 transition assessments.
42. Vision specialist DeSantis was a member of the December 12, 2007 IEP team. DeSantis persuasively testified that the drink preparation goal was appropriate given that Student required maximum assistance with non-preferred food preparation tasks. The independent living goal of making popcorn was also appropriate because it included exposure to Braille directions and tactile markings on the microwave oven. The independent living goal of putting on shoes was also appropriate because it was both challenging to Student and functional. DeSantis believed that the level of vision services provided to Student was appropriate because the vision programs were also implemented by Student’s one-to-one aide and the classroom teacher.
43. The October 12, 2007 IEP contained the following goals: a transition goal that Student would visit two adult day programs with the support of District staff; a transition goal that Student, with help from a teacher or aide, would develop a portfolio of her work-related and community based instruction activities; an independent living goal of preparing a drink to share with others given maximum verbal and physical prompts; an independent living goal of preparing, with maximum verbal and physical prompts, microwave popcorn using Braille instructions and raised dots on the microwave; a self care/independent living goal of putting on shows with maximal verbal and moderate physical prompts; a mobility/independent living goal of putting her cane in a shopping cart with verbal prompts; and a mobility/independent living goal of pushing a shopping cart with verbal prompts. Hawthorne accurately compiled the present levels of performance from her own observations, aide Hunnewell’s observations, the input of DIS providers and input from parents. All of the goals were measurable. The goals reflected Student’s functional skills curriculum and were appropriate for Student’s abilities. The IEP team meeting notes reflect that the team discussed that Student was still being exposed to Braille. SDC teacher Hawthorne, who had extensive experience teaching Student, was persuasive in explaining that the goals were appropriate. The goals continued to emphasize independent living skills and included a goal that Student visit another adult program, which was particularly important given that Student was scheduled to exit special education on December 20, 2007. The self-help goals of preparing a drink and putting on shoes were assigned, in part, to the occupational therapist.
44. Mother and Father signed the October 12, 2007 IEP indicating consent to its implementation. Mother initialed boxes indicating that she had received a notice of procedural safeguards, had received all reports that were discussed, and that the she participated in the IEP.
45. Although Student did not sign the October 20, 2006 and October 12, 2007 IEPs, she attended both meetings. This was confirmed by SDC teacher Hawthorne who had a specific recollection that Student assisted in preparing juice and cookies for the meetings.
46. According to Mother, day programs such as the ARC program required participants to be able to be supervised in a 4-to-one ratio of participants to staff. Mother expressed that had she known about this at the time of the IEPs, she would have requested a goal to fade Student’s reliance on a one-to-one aide. However, the evidence at hearing did not establish that Student could not be placed in a program based on this requirement. To the contrary, TCRC had the ability to provide an aide if needed; however, at the time of hearing, Mother and Father had yet to select a particular program for Student to attend.
47. At hearing, Mother and Father expressed interest in Student attending TLC, a program that had been discussed at an IEP meeting held in October of 2004. TLC had both a day program and a residential facility. However, as of the date of hearing, Mother had yet to visit this program and Father testified that they were waiting to hear from the program. TLC had not asked for any particular assessments to have been performed prior to considering Student’s application. A representative from TLC was not called as a witness at hearing.
48. Student tried the ARC program in Simi Valley during her final semester at school. Student attended the program twice a week, for a few hours at a time with support from her District-provided aide. Mother rejected ARC’s offer to have Student try their program without an aide for one month. Mother did not trust ARC’s conclusion that they could serve Student without a one-to-one aide because ARC had worked with the visually impaired but not the totally blind and because ARC did not perform any assessments before recommending that Student try the program. A representative of the ARC program was not called as a witness at the hearing.
49. In support of Student’s transition plan, speech therapist Brown visited ARC in December of 2007 at Father’s request to discuss Student’s needs such as the need to make Student aware that you are talking to her and the need to prompt Student. ARC personnel stated that they could continue to encourage Student’s speech development. Brown saw Student participating.
50. All of Student’s operative IEPs contained an emergency health plan for seizures and assisted transportation. No evidence was produced that these provisions were inappropriate.
51. On December 6, 2007, Student’s teacher Hawthorne helped Student sign an “Exit Summary.” Student was not capable of understanding what she was signing. The “Exit Summary” document was not an IEP, but instead was a summary of Student’s present levels of performance upon exiting school and also provided information about Student’s preferences and supports that might be helpful to those who would start working with Student. The last page of the “Exit Summary” was a contact list of agencies that served adults with disabilities. Hawthorne had Student “sign” the document to give her the experience of doing it, not because Student’s signature was legally required.
52. At a meeting with TCRC on December 7, 2007, parents were informed that ARC believed that they could meet Student’s needs without a one-to-one aide. ARC has no assessment requirements prior to acceptance. Zachariah explained at hearing that TCRC could provide funding if Student required a one-to-one aide in an adult program, and the adult program recommended it.
53. On December 13, 2007, Mother and Father sent a letter to the District asking for “assessments in the areas of training, education, employment, daily living skills, and a functional vocational evaluation” as well as a “learning media assessment.” Mother and Father attached a form for a “functional vision assessment” to the letter and indicated that they intended for the District to use the form for the “learning media assessment.” On December 18, 2007, the District sent Mother and Father a letter stating that their assessment request was being denied on the basis that the “functional vision assessment” form did not apply to Student because she was totally blind, that the remaining assessment requests were addressed by the information in the December 6, 2007 “exit summary,” and that Student did not require assessments because she was exiting special education as of December 20, 2007.
54. District schools were on holiday break from December 21, 2007 through December 31, 2007.
55. After Student filed for due process and was in “stay put,” she received the services set forth in the October 12, 2007 IEP. Despite her great affection for Student, one-to-one aide Hunnewell chose to take a longer-duration classroom aide position with the District rather than the uncertain position of continuing as Student’s aide while Student was under “stay put.” Student was provided one-to-one aide services from other aides that she was familiar with. Nothing in the October 12, 2007 IEP specified that a particular aide would be provided.
57. As of the date of the hearing, Mother and Father had not enrolled Student in an adult day program.
2. The petitioning party has the burden of persuasion. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Therefore, Student has the burden of persuasion for the issues raised in OAH case number N2007120033 (Issues 1 and 2), and the District has the burden of persuasion for the issues raised in OAH case number N200810898 (Issues 3, 4, and 5).
6. Student contends that she was denied a FAPE because the District did not conduct appropriate assessments in all areas of suspected disability from December 3, 2005 (two years prior to the filing of her Complaint) through December of 2007. Specifically, Student contends that the District should have performed standardized assessments in all areas during the statute of limitations period.
10. Student contends that she was denied a FAPE because IEP team meetings should have been held more frequently than once a year because Student was not making progress on her goals. Specifically, Student contends that because she was not making progress on goals related to independent living, IEP team meetings should have been held and more services should have been offered.
13. Student contends that the District violated her procedural rights because she should have been invited to participate in IEP team meetings held on October 20, 2006 and October 12, 2007. In addition, Student contends that her procedural rights were violated because no agencies other than the TCRC were invited to participate in the transition planning discussions at the same IEP team meetings. Student also contends that she was procedurally denied a FAPE because an IEP was held on December 20, 2007 with only Student and a teacher. Student contends that for an IEP meeting to have been held on December 20, 2007, both a parent and a District representative were required.
16. As discussed in Legal Conclusion 5, above, a denial of FAPE may only be shown if a procedural violation impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of FAPE, or caused a deprivation of educational benefits.
19. Finally, Student also contends that her procedural rights were violated because on December 20, 2007, a teacher assisted her to sign an “Exit Summary” document. According to Student, the presentation of the “Exit Summary” should have been conducted under the procedural rules related to IEP team meetings. As discussed below, Student is incorrect.
22. Student contends that the October 20, 2006 IEP failed to contain sufficient descriptions of the special education and related services being offered to Student. In particular, Student contends that the IEP was deficient because it failed to: contain a statement that an instructional assistant would be provided; include information about the location, frequency and durations of services; and, contain a description of the educational placement. As discussed below, this contention fails.
27. Student contends that she was denied a FAPE because the October 20, 2006 IEP team meeting did not include consideration of Student’s need for assistive technology or Braille instruction. As discussed below, this contention fails.
30. Student contends that she was denied a FAPE because the District failed to provide her with prior written notice that the IEP team would recommend a reduction of speech and language therapy at the October 12, 2007 IEP team meeting. As discussed below, this claim is meritless.
31. Parents must be given written notice a reasonable time before the public agency proposes to, or refused to, initiate or change the identification, evaluation, educational placement or provision of FAPE to a child. (20 U.S.C. § 1415(b) & (c); 34 C.F.R. 300.503(a); Ed. Code, § 56500.4.) The notice must include: a description of the proposed action; an explanation of why the agency proposes to, or refuses to, act; a description of the assessments or reports supporting the action; a statement that parents have procedural rights; sources for parents to consult for assistance regarding the notice; a description of other options considered by the IEP team and why those options were rejected; and a description of any other factors relevant to the agency decision. (20 U.S.C. § 1415(b) & (c); 34 C.F.R. § 300.503(b); Ed. Code, § 56500.4.) As discussed in Legal Conclusion 5, above, a denial of FAPE may only be shown if a procedural violation significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits.
33. Student contends that she was denied a FAPE because the goals in all of the operative IEPs between December 3, 2005 and December of 2007 were inappropriate. In particular, Student contends that: occupational therapy goals should have been written regarding self-help skills and tactile defensiveness, i.e., Student’s resistance to touching Braille; that assistive technology goals should have been written regarding the use of a Braille writer and other assistive technology that was provided to Student; and that all of the goals were inappropriate because they were not sufficiently designed to increase Student’s independence.
36. Student contends that she was provided an inappropriate level of occupational therapy services because the level of services was based solely on information about Student obtained from a teacher and Student’s aide. Similarly, Student contends that her levels of speech therapy were inadequate because the levels of service were based solely on observation of Student rather than formal assessments and should have been higher because Student experienced a regression in use of speech. As to vision services, Student contends that Student was not offered appropriate Braille instruction and that the level of services were set without sufficient assessments. As to assistive technology, Student contends that she should have been formally assessed for assistive technology and that Student should have been taught to use a Braille writer and that Student should have been trained and provided with a device to produce speech for her. Student further contends that her placements were all inappropriate because she did not make progress and was offered the same placement year after year.
40. Student failed to meet her burden of demonstrating that her occupational therapy services were inappropriate to meet her needs. The persuasive testimony of OT Minnis, that Student’s levels of occupational therapy were appropriate, was not contradicted at hearing. Similarly, as to speech therapy, the persuasive testimony of speech therapist Brown that Student’s levels of speech therapy were appropriate was not contradicted at hearing. To the extent Student contends that the speech therapy levels in the October 12, 2007 IEP were inadequate because Student had experienced a regression in use of speech, Student’s contention also fails. The October 12, 2007 IEP team had this information, i.e., that classroom personnel had observed Student using less speech and more echolalia following a summer of 2007 seizure. However, as explained by speech therapist Brown, work on Student’s speech goals was not stopped, but instead was imbedded into the functional skills curriculum in natural environments and implemented by Student’s teacher and aide. There was no evidence contradicting Brown that this level of service was appropriate.
41. As to vision services, Student’s contention fails. The evidence showed that Student was provided with appropriate vision services. Student’s program within the District included efforts to teach her functional, whole word Braille rather than the Braille alphabet. District witnesses convincingly explained that attempting to teach the Braille alphabet would have been inappropriate for Student because it would require Student to master not just the correspondence between Braille symbols and letters, but the abstract idea of the letters standing for phonetic sounds within words. Both of the District’s vision specialists who testified had formed the opinion that Student could not learn Braille by learning Braille letters and convincingly explained that Braille, if at all, was only appropriate to be taught for functional use such as distinguishing between a male or female bathroom. The use of whole word Braille with Student was appropriate given Student’s cognitive limitations and is analogous to children learning to sight-read words prior to being exposed to phonics. Contrary to Student’s contentions, the evidence showed that District staff worked patiently with Student on Braille symbols. Student was taught by qualified special education teachers, caring, experienced classroom aides and qualified vision specialists. Accordingly, Student failed to meet her burden of showing that the vision services were not designed to meet her unique needs.
42. Student’s contentions regarding assistive technology also fail. Mother unequivocally testified at hearing that a conscious choice was made to not have Student rely on a device to talk for her because Student had some speech ability that should be encouraged. Mother’s testimony on this point was consistent with the uncontroverted opinion of speech therapist Brown. As to the Braille writer, the evidence did not establish that this was provided to the classroom for Student to learn how to type Braille; but instead was used to allow the vision specialists to provide Braille labeling for items in the classroom that would be used with Student. To the extent Student was exposed to the feeling of the Braille writer, this was appropriate, given Student’s seeming resistance to running her fingers over Braille. Finally, Student was provided with numerous assistive technology devices such as specialized switches and touch screen computer software.
43. Finally, Student’s contention that her placements were inappropriate is also not supported by the record. Student made progress in her placements at all times. Moreover, Student’s SDC placement was appropriate. There was no evidence that given Student’s disabilities that she should have been placed in a general education classroom. Instead, Student was appropriately placed with peers of similar levels of disability. Student’s functional skills curriculum was implemented in real world settings such as job sites or community outings. However, Student was exposed to typical peer tutor and was mainstreamed into enriching general education electives like dance, demonstrating that Student was provided a placement in the least restrictive environment. Student’s SDC teachers were experienced and competent educators and Student was provided with dedicated and experienced aide support by Hunnewell up to the time when she was scheduled to exit special education.
45. Student contends that she was denied a FAPE because the transition plans in all of her operative IEPs from December 3, 2005 through December of 2007 were deficient. Specifically, Student contend that the transition plans should have identified specific outcomes in the area of independent living and should have also indicated that Student intended to pursue “training” and “education” after exiting high school. As discussed below, this claim fails.
47. Prior to October 10, 2007, the Education Code defined “transition services” as “a coordinated set of activities for an individual with exceptional needs” that 1) “Is designed with an outcome-oriented proves, that promotes movement form school to post-school activities, including post-secondary education, vocational training, integrated employment, including supported employment, continuing and adult education, adult services, independent living, or community participation”; 2) “Is based upon the individual pupil’s needs, taking into account the pupil’s preferences and interests”; and 3) “Includes instruction, related services, community experiences, the development of employment and other postschool adult living objectives, and, if appropriate, acquisition of daily living skills and functional vocational evaluation.” (former Ed. Code, § 56345.1, subd. (a).) This definition is consistent with that contained in title 20 United States Code section 1401(3) prior to July 1, 2005.
50. Student contends that the District failed to meet its “stay put” obligations because a specific one-to-one classroom aide was not assigned to replace aide Hunnewell, who, effective December 20, 2007, took another aide position with the District.
53. The District contends that the October 12, 2007 IEP offered Student a FAPE and that the District subsequently provided Student a FAPE by implementing the terms of the IEP. As discussed below, the District is correct.
55. Here, the October 12, 2007 IEP was procedurally proper. All required parties were present and Student and her parents attended and participated in the IEP process. The IEP contained appropriate goals in all areas of need including transition services. Student was placed in an SDC. Despite being in an SDC, Student had interaction with typical peer tutors, participated in general education electives and received instruction in the community and job sites as part of her functional skills curriculum. Thus, Student’s placement was appropriate and was the least restrictive environment for her. The testimony of District personnel that Student received appropriate levels of related services was not contradicted by other educators or service providers. Student received all of the services and instruction called for by the IEP including the provision of a one-to-one aide, demonstrating that the IEP was implemented by the District.
57. The District contends that it properly exited Student from special education as of December 20, 2007, just after Student’s 22nd birthday. As discussed below, the District is correct.
2. The District provided Student with a FAPE under the terms of the October 12, 2007 IEP.
3. The District properly exited Student from special education effective December 20, 2007.


1) These contractual terms and conditions exclusively form the basis for the legal relationships between us and the retailer. Retailers (hereinafter referred to as Traders) are those contracting parties who sell products acquired from us to end customers and occasionally to other traders, irrespective of the distribution channel. These are specifically Traders with stationary shop premises or online trading, construction workers such as electrical engineers, architects and planners. The contractual and delivery terms and conditions do not apply to product sales to wholesalers; we conclude individual framework agreements for this purpose.
2) Our contractual and delivery terms and conditions apply to all product sales and other services.
3) Contradictory, deviating or supplemental general terms and conditions of the Trader shall not become part of the contract, even if we are aware of them, unless their application is explicitly consented to in written form. Our sales and delivery terms and conditions shall also apply where we perform the delivery to the Trader without reservation in awareness of Trader’s conditions contradicting or deviating from our contractual and delivery terms and conditions.
4) With the first order after receipt of these contractual terms and conditions and each additional order, the Trader acknowledges these conditions as binding provisions of the business relationship with us and waives the provision and application of own preformulated contractual terms and conditions.
5) These contractual and delivery terms and conditions are exclusively valid for purchase contracts with entrepreneurs in accordance with § 14 BGB [German Civil Code], as well as public-law legal entities and special public-law funds.
6) All agreements that are concluded between us and the Trader for the purpose of executing this contract are laid down in writing.
1) The law of the Federal Republic of Germany applies; the application of the UN Sales Convention is excluded.
2) If the Trader is an entrepreneur, public-law legal entity or a special public-law fund, the exclusive legal jurisdiction for all disputes arising from this contract is our registered office. The same applies if the Trader has no general legal jurisdiction in Germany or its place of residence or usual abode at the time of claim being filed are not known.
3) Unless specified otherwise in the order confirmation, our registered office is the place of performance.
4) If a clause of these contractual and delivery terms and conditions should be or become void or invalid, the remaining conditions shall remain unaffected. The void or invalid clause shall be replaced by a legally valid provision that is as close as possible in commercial terms.
1) The Trader sells/distributes our products and performs the necessary customer services exclusively in its own name and for its own account and responsibility. The Trader is not entitled to act on our behalf or enter into obligations for us.
2) The Trader is a freelance entrepreneur. The Trader shall procure its personnel, required operating equipment and operating facilities at its own expense and under its own responsibility. The Trader is solely responsible for the economic opportunities and risks of its activity. Therefore, we do not guarantee the profitability of the Trader’s operation.
3) We only supply such traders that have been included on our list of traders. The precondition for this is an inclusion request and notification of the detailes requested from us for this purpose.
1) Our product prices for traders are shown in our non-binding recommended list price less the respective discount. The discount levels and their classification are shown by us in the discount list, which the Trader can request from us.
2) In its request for inclusion in the list of traders, the Trader shall disclose the information requested from us about its distribution, so that we can define the applicable discount level. We will notify the discount level with the notification regarding the inclusion in the list of traders, however, no later than in the first order confirmation. If the circumstances disclosed by the Trader regarding its distribution change, it shall notify us of this immediately. We can request suitable proof from the Trader regarding the accuracy of the details.
3) Bonus systems are announced by us with a sufficient lead time. No legal entitlement exists to a bonus system or continuation of an existing bonus system.
4) We can change the non-binding recommended list prices for our products, as well as discount levels and bonus systems on giving two months’ notice by means of written declaration. The orders from the Trader that have already been confirmed by us are not affected by this.
1) For shop premises, the Trader must have a business address, which is discernible as sales premises for end customers, which have regular opening times and can be visited by the end customers. In the sales premises, our products shall be appropriately referred to and our sales catalogue must be kept available. For sales within the course of the construction trade (electrical engineer inter alia) and construction planning (architects, inter alia), the Trader must visit the end customer in an appropriate manner, if it does not have sales premises, which can take place at the construction site, for example.
3) For sales in stationary distribution, the Trader must be able to give the end customer technical advice. This can be by reference to the product catalogue and with personal explanations.
1) If our products are sold on by way of online distribution or other distance selling, the Trader must also comply with the following online conditions. Sales via online distribution means the processing of the sales transaction via the Internet and a sale via distance selling means processing the sales transaction via other methods of distance selling (telephone, e-mail, fax etc.).
2) Traders, who sell our products via online and other distance selling, must have a business address, which is discernible as their sales premises, which has regular opening times and can also be visited by end customers for sales in person. In the sales premises, our products shall be appropriately referred to and our sales catalogue must be kept available.
- design of the Trader’s website, appropriate to the standard of our products; our products are in particular not permitted to be displayed together with completely different product types (e.g. clothing, sporting goods etc.).
- in the display of our products, our brands, including the logo and company name, as well as the product must be recognisable and distinguishable from competing products. Product images shall be shown by the Trader in an equivalent quality to the pictures published in our main catalogue. For the product description, the texts offered by us shall be adopted as a whole or with the significant parts. Our products shall be clearly delineated from No Name products.
- a prominent reference to the Trader Hotline, stating the telephone no. with opening times and an e-mail address.
- a prominent reference to the stationary sales premises with address and communication details, as well as the opening times for the public.
- compliance with the foregoing requirements when selling the products via sales platforms and auction platforms.
Traders in online and distance selling trading must furthermore maintain sufficient product advice for potential customers and end customers. This can be via the Internet with appropriate product descriptions, with other distance selling this can be technical advice by telephone, e-mail, fax etc.
4) Traders in online and distance selling trading must have a telephone customer service hotline for providing customer services over and above product advice, particularly warranty services, which is sufficiently manned at normal opening times in order to accept customer calls quickly. The hotline shall be manned with sufficient qualified personnel.
5) Traders in online and distance selling trading must make it possible for products to be returned to their business address.
1) Traders are not subject to any territorial or customer group restrictions, insofar as we or third parties have not explicitly reserved supply to specific territories or to specific customers. In a reserved territory, the Trader is not permitted to maintain branches, subsidiaries or delivery warehouses directly or indirectly nor to appoint third parties to distribute the contractual goods, and in particular not to appoint any sales agents.
2) Any restrictions shall not apply to passive sales. The Trader can process sales requests from customers from restricted territories. However, it is not permitted to solicit customers in such a territory. For online trading, the publication of offers via the Internet and the acceptance of orders through the Internet are deemed as passive sales; thie does not include approaching customers by sending e-mails.
3) The reserved territories are shown in the “Reserved Territories” appendix attached to these contractual and delivery terms and conditions. A list of the reserved customers can be requested from a Trader who is listed with us. The list is a business secret and must be treated with strict confidentiality by the Trader.
4) We are authorised to change the territories and customer groups that are reserved to us on giving notice of 2 months.
1) Our product illustrations (particularly product descriptions on our website, in brochures or catalogues) are subject to change. Technical changes and modifications to shape and/or colour and/or weight remain reserved until conclusion of the contract. In giving product descriptions, details in offer documentation or operating instructions, we do not assume any quality guarantee or durability guarantee, unless explicitly specified.
2) With the order of a product, the Trader bindingly states its intention to order the product (offer to contract). We are entitled to accept the offer to contract in the order within 2 weeks after receipt by us (contract acceptance). The contract acceptance can either be declared in written form, through the collection of a provided direct debit or by delivering the goods.
3) Conclusion of the contract is subject to correct and timely self-delivery by our upstream supplier. This only applies where the non-delivery is not our fault. This is particularly not our fault upon conclusion of a congruent cover transaction with our supplier and its incorrect or defaulting non-delivery.
4) If the Trader orders the goods electronically, the obligation to confirm the order in accordance with § 312 e I BGB [German Civil Code] is explicitly excluded.
1) We retain title to the purchased item until receipt of all payments from the business transaction with the Trader. If the Trader is in breach of contract, particularly payment default, we are entitled to demand the return of the purchased item. Our request for return is simultaneously our withdrawal from the contract. We are entitled to demand compensation from the Trader for all damages incurred by the rescission and offset them against any claims by the Trader for repayment of the purchase price.
2) The Trader is required to handle the purchased item with care during the term of the retention of title; it is particularly obligated to insure it against fire, water and theft damage sufficiently for the replacement value at its own expense. Insofar as servicing and inspection activities are necessary, the Trader must perform these promptly at its own expense.
3) In the case of pledges or other interventions by third parties, the Trader shall immediately notify us in written form, so that we can file legal proceedings in accordance with § 771 ZPO [German Code of Civil Procedure]. Insofar as the third party is not able to compensate us for the court and out-of-court costs of legal proceedings in accordance with § 771 ZPO [German Code of Civil Procedure], the Trader shall be liable to us for the loss that we have incurred.
4) The Trader is entitled to sell the purchased item on in the ordinary course of business; however, it now already assigns to us all claims in the amount of the final invoice (including VAT) of our claim, which it generates from the onward sale against its purchasers or third parties, regardless of whether the purchased item has been sold on without or after processing. The Trader also remains entitled to collect this debt after the assignment. Our authority to collect the debt ourselves remains unaffected by this. However, we undertake to refrain from collection, as long as the Trader complies with its payment obligations from the collected proceeds, does not enter into default and particularly that no discontinuation of payments takes place or an application for commencement of composition or insolvency proceedings is filed. However, if this is the case, we can demand that the purchaser discloses the assigned claims and their debtors, provides all necessary details for collection, surrenders the related documentation and notifies the debtors (third parties) about the assignment.
5) If the purchased item is inseparably combined with other items not belonging to us, we shall acquire co-ownership in the new item, in the proportion of the value of the purchased item (final invoice amount, including VAT) to the other combined items at the time of combining. If the combining takes place in such a way that the Trader’s item is regarded as the main item, it is deemed agreed that the Trader will transfer proportional co-ownership to us. The Trader shall safeguard the sole ownership or co-ownership created in this way for us.
6) The Trader also assigns to us the claims to secure our claims against it, which are generated against a third party by combining the purchased item with a property.
7) We undertake to release the security to which we are entitled upon request by the Trader, to the extent that the realisable value of our security exceeds the value of the claims being secured by more than 10%; the selection of the security to be released is at our discretion.
1) Our prices are stated “ex works”. Cash discounts require agreement. The value-added tax is not included; this is shown separately in the amount applicable on the day of invoicing. The due date of invoices and the cash discounts granted by us for specific payment dates are shown in the “Prices, payment terms and cash discounts” section in the appendix to these sales and delivery terms and conditions. The due date and cash discounts for the individual transaction that are notified with the order confirmation are decisive. Upon non-payment of an invoice that falls due, the Trader shall be in default, without a warning being required, if it does not prove that it is not responsible for the payment default.
2) The delivery takes place “ex works”. Shipping packaging, shipping and transport costs and insurance are subject to a separate charge. The prices are shown in the “Shipping costs” chapter in the appendix to these sales and purchasing terms and conditions.
3) In the event of payment default, the Trader shall pay interest on the outstanding purchase price in the amount of 8 percentage points above the respective applicable base interest rate. In addition to this, the Trader shall pay a flatrate fee of € 40.00 (§ 288 (5) BGB [German Civil Code]). We reserve the right to claim a higher default loss; in this case the flatrate fee of € 40.00 will be credited to the amount of compensation for damages, insofar as the loss is the costs of legal action.
4) The Trader shall only be entitled to set-off and retention rights, if its counter-claims are legally established, undisputed or accepted by us. The Trader’s rights in case of defects shall remain unaffected, particularly the right under § 13 (8).
5) We can adapt payment targets that are practised but not agreed at any time on giving adequate notice.
6) Insofar as a payment has been arranged by SEPA direct debit and the contracting party has issued a relevant SEPA direct debit mandate, the following applies: The imminent direct debit collection will usually be notified in advance with the invoice, in any case once again by no later than one calendar day prior to the due date of the direct debit (advance information/”pre-notification”). The Trader explicitly declares its agreement that to simplify the payment transactions, the basic 14-day time limit for notification regarding the collection of a due payment can be shortened to one day prior to the debit. The Trader is obligated to ensure that sufficient cover is on the account specified in the SEPA mandate and to ensure that the amounts falling due can be collected. This obligation also applies where the Trader does not receive pre-notification at all or not on time, in an individual case. The Trader shall immediately notify any change to its bank account details with a fully completed new SEPA mandate in written form.
7) If we have reasonable doubts regarding the Trader’s creditworthiness, or where insufficient cover or liquidity gaps become known after conclusion of the contract or if the original credit volume increases as a consequence of payment default, we are entitled to demand adequate security. If the Trader fails to satisfy such a demand within a reasonable period, we are entitled to withdraw from the contract. The same applies if other events occur with a Trader and we only become aware of these after conclusion of the contract. We are then entitled to invoice partial deliveries as special transactions. If our payment terms are not fulfilled or if other events occur with the trader, which make its creditworthiness appear doubtful or if such circumstances existing prior to conclusion of the contract only become known to us afterwards, notwithstanding our other statutory rights, we shall make further deliveries from the same legal relationship dependent on advance payment for the duration of the payment default until repayment of the resulting outstanding claims.
1) As a rule, we notify a delivery period on the basis of the following provisions, but reserve the right to refrain from specifying a delivery period.
2) Observance of our delivery obligation requires the timely and proper fulfilment of the Trader’s obligation. The plea of non-performance of the contract remains reserved. If we are hindered from effecting prompt delivery due to unforeseeable events or events not due to any fault of ours, which are unavoidable with reasonable diligence, the delivery period will extend accordingly.
3) The risk of accidental loss and accidental deterioration of the goods shall transfer to the purchaser on handover and in the event of sales by despatch it shall transfer with the delivery of the item to the freight carrier, the freight forwarder or other party appointed with the shipment.
4) If the Trader is in default of acceptance, this is equivalent to handover.
1) The statutory provisions apply for the rights of the Trader for material and legal defects (claims for defects), unless specified otherwise below. Claims for defects by the Trader require that it has properly fulfilled its investigation and complaint obligations in accordance with § 377 of the German Commercial Code (HGB).
2) For defects to the goods, we initially guarantee repair or replacement delivery. If the replacement delivery fails (§ 440 Sentence 2 BGB [German Civil Code]), the Trader may basically demand reduction of the remuneration (reduction) or cancellation of the contract (withdrawal) at its option. However, the Trader is not entitled to any right of withdrawal for only minor non-conformity with the contract, particularly for only minor defects.
3) In the event that the Trader chooses withdrawal from the contract due to a legal or material defect, it shall not be entitled to any additional compensation for damages as a result of the defect. In the event that the Trader chooses compensation for damages after failed supplementary performance, the goods shall remain with the Trader, if this is reasonable for the Trader. The compensation for damages is limited to the difference between the purchase price and the value of the defective goods. This shall not apply, if we have caused the breach of contract fraudulently.
4) The warranty period amounts to 2 years from delivery of the goods; unless the quality of the goods is shorter by reason of the usual working life (e.g. with light bulbs).
5) The basis of the warranty is the agreement concluded regarding the quality of the goods. All product descriptions that are the subject matter of the contract are deemed as an agreement regarding the quality. Insofar as the quality has not been agreed, it must be determined whether a defect exists or not on the basis of the statutory provision.
6) If the Trader receives defective assembly instructions, we shall only be obligated to deliver non-defective assembly instructions and only if the defect in the assembly instructions prevents proper assembly.
7) Our warranty only extends to the goods that we have delivered, but not to any consequential costs.
8) We reserve the right to only carry out supplementary performance, if the purchaser has paid the purchase price due. However, the purchaser is entitled to retain a part of the purchase price that is in proportion to the defect.
1) We, our lawful representatives and/or lawful agents shall only be liable for compensation for damages in the case of premeditation or gross negligence.
2) The liability limitation in accordance with 1) shall not apply to the breach of significant contractual duties (duties which must be properly fulfilled in order to make proper implementation of the contract possible, the breach of which jeopardises the achievement of the contractual purpose and compliance with which the Trader can usually rely on); however, in this case, our liability is limited to the foreseeable, typical contractual loss at the time of conclusion of the contract.
3) The liability limitation in accordance with 1) shall not apply to claims for compensation for damages on the grounds of injury to life, limb or health. Furthermore, the liability limitation from 1) shall not apply to claims for compensation for damages due to a breach of a guarantee or warranty. Ultimately, the liability under the German Product Liability Act, as well as on the basis of other legally mandatory grounds for liability, shall remain unaffected by the aforementioned liability limitation.
4) Claims for damages by the Trader due to a defect shall expire, insofar as it involves warranty claims, within one year after delivery of the goods; insofar as it involves claims under the law of torts, within one year from occurrence of the damage and awareness of the identity of the perpetrator. This shall not apply if we can be accused of fraud.
The return policy under slv.com shall apply to the return of our goods.
1) We shall be entitled to all property rights to the products, including copyrights, trademarks and company rights, as well as other marks and know-how.
2) The Trader undertakes to neither attack our property rights itself or arrange for them to be attacked by third parties or support third parties in any way with the attack. In the event of a breach, we shall decline to continue supplying the Trader.
3) The Trader is not permitted to protect or arrange for the registration of our brands, trade names or other symbols or any brands, trade names or other symbols that are identical or similar to ours. The Trader is not entitled to use or arrange for the registration of the mark specified above as part of its company name or domain name.


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M. Beche, Arnemann, J. A., Bevilaqua, C. B., Valmorbida, I., Costa, V. A., Ugalde, G. A., Gomez, R. V. S., Jahn, D. S., and Guedes, J. V. C., “Occurrence of Syntomopus parisii (Hymenoptera: Pteromalidae) parasitizing Melanagromyza sojae (Diptera: Agromyzidae) in Brazil and Paraguay”, Genetics and Molecular Research, vol. 17, no. 3, 2018.
J. A. Arnemann, James, W. J., Walsh, T. K., Guedes, J. V. C., Smagghe, G., Castiglioni, E., Tay, W. T., Arnemann, J. A., James, W. J., Walsh, T. K., Guedes, J. V. C., Smagghe, G., Castiglioni, E., Tay, W. T., Arnemann, J. A., James, W. J., Walsh, T. K., Guedes, J. V. C., Smagghe, G., Castiglioni, E., and Tay, W. T., “Mitochondrial DNA COI characterization of Helicoverpa armigera (Lepidoptera: Noctuidae) from Paraguay and Uruguay”, vol. 15, p. -, 2016.

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THENAMARIS PHILIPPINES, INC. (FORMERLY INTERMARE MARITIME AGENCIES, INC.)/ OCEANIC NAVIGATION LTD. AND NICANOR B. ALTARES, Petitioners, v. COURT OF APPEALS AND AMANDA C. MENDIGORIN (IN BEHALF OF HER DECEASED HUSBAND GUILLERMO MENDIGORIN), Respondents.
This Petition for Certiorari filed under Rule 65 of the Rules of Court assails the Resolution1 dated November 20, 2009 of the Court of Appeals (CA) in CA–G.R. SP No. 110808 for allegedly having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. The CA, through the said Resolution, entertained private respondent’s Petition for Certiorari2 despite having been filed 15 days late and allowed her to correct the technical infirmities therein. Also assailed is the CA’s February 10, 2010 Resolution3 denying petitioners’ Motion for Reconsideration with Prayer to Dismiss4 and giving private respondent another chance to cure the remaining deficiencies of the petition.
This case stemmed from a complaint for death benefits, unpaid salaries, sickness allowance, refund of medical expenses, damages and attorney’s fees filed by Amanda C. Mendigorin (private respondent) against petitioner Thenamaris Philippines, Inc., formerly Intermare Maritime Agencies, Inc./Oceanic Navigation Ltd., (Thenamaris), represented by its general manager, Capt. Nicanor B. Altares (petitioner), filed with the Labor Arbiter (LA). Private respondent is the widow of seafarer Guillermo M. Mendigorin (Guillermo) who was employed by Thenamaris for 27 years as an oiler and eventually, as second engineer in the latter’s vessels. Guillermo was diagnosed with and died of colon cancer during the term of the employment contract between him and Thenamaris.
WHEREFORE, the foregoing considered, judgment is hereby rendered in favor of the complainant [herein private respondent] and finding respondents [herein petitioners] liable to pay jointly and severally: (a) death benefits amounting to US $50,000.00 at its peso equivalent at the time of actual payment; (b) reimbursement of medical expenses amounting to P102,759.74; [(c)] moral and exemplary damages amounting to P100,000.00 and P50,000.00 respectively; and (d) attorney’s fees in the [amount of] ten percent (10%) of the total monetary award.
On appeal, the NLRC reversed7 the LA’s Decision.
Private respondent moved for reconsideration.8 In a Resolution9 dated June 29, 2009, however, her motion was denied for lack of merit.
Private respondent, through counsel, received the June 29, 2009 Resolution of the NLRC on July 8, 2009. Sixty–two days thereafter, or on September 8, 2009, she filed a Motion for Extension of Time to File Petition for Certiorari10 before the CA. Private respondent alleged that she had until September 7, 2009 (as September 6, 2009, the actual last day for filing, fell on a Sunday) within which to file a petition for certiorari. However, as her counsel was then saddled and occupied with equally important cases, it would be impossible for him to file the petition on time, especially since the case involves voluminous documents necessary in the preparation thereof. Accordingly, private respondent asked for an extension of 15 days from September 7, 2009, or until September 22, 2009, within which to file the petition.
On September 22, 2009, private respondent filed her Petition for Certiorari11 before the CA.
The Court, in the interest of justice, resolved to NOTE the petition for certiorari filed on September 22, 2009, albeit the same was filed fifteen (15) days late.
Except for the copy of the Motion for Reconsideration filed with the National Labor Relations Commission, no other copies of pertinent and relevant pleadings/documents are attached therewith, such as petitioner’s Complaint, respondent’s Memorandum of Appeal, petitioner’s Opposition to Respondent’s Appeal, if any, all of which may aid this Court in judiciously resolving the issues raised in the petition.
ACCORDINGLY, this Court, in line with the rule that cases should be determined on the merits, after full opportunity to all parties for ventilation of their causes and defenses have been given, rather than on technicality or some procedural imperfections, resolved to DIRECT petitioner to submit anew a Verification/Certification of Non–Forum Shopping which complies with the requirements of the rules, and clear and legible copies of the aforementioned pleadings/documents, within ten (10) days from receipt of notice hereof.
Petitioners also contended that even assuming that an extension is still allowable, private respondent’s motion for extension is nevertheless a useless piece of paper as it was filed beyond the 60–day period for filing a petition for certiorari.
Lastly, petitioners asserted that as private respondent’s motion for extension is a prohibited pleading, as well as one filed outside of the reglementary period, then private respondent’s Petition for Certiorari is a mere scrap of paper with no remedial value whatsoever. Consequently, the Decision of the NLRC has become final and executory and is beyond the ambit of judicial review.
In the meantime, private respondent submitted her Compliance18 with the CA’s Resolution of November 20, 2009. Nevertheless, she still failed to attach thereto copies of her Complaint filed before the LA and Memorandum filed with the NLRC.
In a Resolution19 dated February 10, 2010, the CA denied petitioners’ motion and, instead, gave private respondent one last opportunity to fully comply with its November 20, 2009 Resolution by submitting clear and legible copies of the still lacking pleadings within five days from notice thereof.
Thus, the present Petition for Certiorari.
Entry of Judgment20 was already issued by the NLRC on August 13, 2009. Per NLRC Rules, the June 29, 2009 Resolution became final and executory on July 18, 2009 and was recorded in the Book of Entries of Judgment.
THE PUBLIC RESPONDENT CA COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT NOTED THE PETITION FOR CERTIORARI FILED BY THE PRIVATE RESPONDENT INSTEAD OF DISMISSING IT OUTRIGHT FOR HAVING BEEN FILED BEYOND THE MANDATORY AND JURISDICTIONAL 60–DAY PERIOD REQUIRED BY SECTION 4, RULE 65 OF THE RULES OF COURT, AS AMENDED BY A.M. NO. 07–7–12–SC.
[T]here are recognized exceptions to their strict observance, such as: (1) most persuasive and weighty reasons; (2) to relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure; (3) good faith of the defaulting party by immediately paying within a reasonable time from the time of the default; (4) the existence of special or compelling circumstances; (5) the merits of the case; (6) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; (7) a lack of any showing that the review sought is merely frivolous and dilatory; (8) the other party will not be unjustly prejudiced thereby; (9) fraud, accident, mistake or excusable negligence without appellant’s fault; (10) peculiar legal and equitable circumstances attendant to each case; (11) in the name of substantial justice and fair play; (12) importance of the issues involved; and (13) exercise of sound discretion by the judge guided by all the attendant circumstances. Thus, there should be an effort on the part of the party invoking liberality to advance a reasonable or meritorious explanation for his/her failure to comply with the rules.
Additionally, as cited earlier in Labao, there should be an effort on the part of the litigant invoking liberality to satisfactorily explain why he or she was unable to abide by the rules.32 Here, the reason offered for availing of the motion for extension is the heavy workload of private respondent’s counsel, which is hardly a compelling or meritorious reason as enunciated in Labao. Time and again, we have held that the excuse of “[h]eavy workload is relative and often self–serving. Standing alone, it is not a sufficient reason to deviate from the 60–day rule.”33 Thus, private respondent’s motion for extension should have been denied outright.
Here, even assuming that the late filing of the petition would merit relaxation of the rules, the CA’s resolution would have only been acceptable had private respondent shown respect for the rules by submitting a petition for certiorari which is sufficient in form. In contrast, what private respondent filed was a petition plagued by several infirmities. Worse, when the CA allowed petitioner to cure the deficiencies, she failed to fully comply such that she had to be given, albeit undeservingly, one last chance to submit the still lacking copies of the pertinent pleadings required of her by the CA.
The NLRC’s resolution became final ten (10) days after counsel’s receipt, and the respondent’s failure to file the petition within the required (60)–day period rendered it impervious to any attack through a Rule 65 petition for certiorari. Thus, no court can exercise jurisdiction to review the resolution.
In sum, the CA committed grave abuse of discretion when it extended underserved and unwarranted liberality to private respondent. “There is grave abuse of discretion when there is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law and evidence but on caprice, whim and despotism x x x.”38 Such is present here as shown by the CA’s obstinate refusal to dismiss the case despite the late filing of the motion for extension and the flimsy excuse for the extension sought, the late filing of the petition and the numerous infirmities attending the same, and private respondent’s continued defiance of its directive. These circumstances serve to highlight private respondent’s propensity to disregard the very rules that the courts, the litigants and the lawyers are duty–bound to follow.
WHEREFORE, the petition is hereby GRANTED. The assailed Court of Appeals Resolutions dated November 20, 2009 and February 10, 2010 are REVERSED and SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. The Petition for Certiorari filed by private respondent Amanda C. Mendigorim in CA–G.R. SP No. 110808 is DISMISSED.
1 CA rollo, pp. 98–100; penned by Associate Justice Hakim S. Abdulwahid and concurred in by Associate Justices Sesinando E. Villon and Michael P. Elbinias.
5 Id. at 80–93; penned by Labor Arbiter Enrique L. Flores, Jr. The LA, however, disallowed private respondent’s claim for unpaid salaries corresponding to the unexpired portion of Guillermo’s employment contract for lack of basis as the same is only awarded in illegal dismissal cases.
7 See Decision dated March 31, 2009, id. at 28–36; penned by Commissioner Gregorio O. Bilog III and concurred in by Commissioner Pablo C. Espiritu, Jr. Presiding Commissioner Lourdes C. Javier took no part.
The NLRC disagreed with the LA’s application of the provisions of the 1996 POEA SEC and, instead, held that it is the 2000 POEA SEC that is controlling in this case as the employment contract was executed between petitioners and Guillermo on September 20, 2004 and Guillermo’s deployment was on October 22, 2004. While the 1996 POEA SEC covers all injuries or illnesses occurring during the term of the contract and there need not be a showing that the injury or illness is work–related, the 2000 POEA SEC requires that the death, injury or illness occurring during the term of the contract must be work–related.
c) His working conditions increased the risk of contracting the disease for which he died.
In this case, the CA found that colon cancer is not included in the list of occupational diseases under Sec. 32–A of the 2000 POEA SEC. Private respondent must, therefore, show a reasonable connection between the work of her deceased husband and the cause of his death or show that the risk of contracting colon cancer is increased by the seaman’s working conditions. Private respondent was unable to prove any of these. Thus, as Guillermo’s death was not work–related, the CA ruled that the hospital and medical expenses incurred by Guillermo after May 22, 2005 (the date when the company–designated physician proclaimed that Guillermo’s illness is not work–related) could not be passed on to petitioners. Likewise, the award of moral and exemplary damages and attorney’ fees was not proper.
8 See Motion for Reconsideration, id. at 37–42.
9 Id. at 43–44; penned by Commissioner Gregorio O. Bilog III and concurred in by Presiding Commissioner Alex A. Lopez and Commissioner Pablo C. Espiritu, Jr.
15 G.R. No. 185220, July 27, 2009, 594 SCRA 139.
16 AMENDMENTS TO RULES 41, 45, 58 AND 65 OF THE RULES OF COURT.
In granting the private respondent’s motion for extension of time to file petition for certiorari, the Court of Appeals disregarded A.M. No. 07–7–12–SC. The action amounted to a modification, if not outright reversal, by the Court of Appeals of A.M. No. 07–7–12–SC. In so doing, the Court of Appeals arrogated to itself a power it did not possess, a power that only this Court may exercise. For this reason, the challenged resolutions x x x were invalid as they were rendered by the Court of Appeals in excess of its jurisdiction.
18 CA rollo, pp. 115–183.
22 G.R. No. 192908, August 22, 2012, 678 SCRA 738, 747–750.
23 Supra note 15 at 144–146.
If the Court intended to retain the authority of the proper courts to grant extensions under Section 4 of Rule 65, the paragraph providing for such authority would have been preserved. The removal of the said paragraph under the amendment by A.M. No. 07–7–12–SC of Section 4, Rule 65 simply meant that there can no longer be any extension of the 60–day period within which to file a petition for certiorari.
Sec. 4. When and where petition filed. – The petition shall be filed not later than sixty (60) days from notice of the judgment or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from notice of the denial of the motion.
If the petition relates to an act or omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the court’s appellate jurisdiction. If the petition involves an act or omission of a quasi–judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals.
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi–judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals.
26 In Laguna Metts Corporation v. Court of Appeals, supra note 15, we explained that the amendments were necessary to prevent the use (or abuse) of the petition for certiorari under Rule 65 to delay a case or even defeat the ends of justice. Besides, the 60–day period provided under the Rules for filing a petition is already sufficient time for a party to ponder over the case and to prepare a petition imputing grave abuse of discretion on the part of the lower court or tribunal.
27 G.R. Nos. 182382–83, February 24, 2010, 613 SCRA 528.
29 G.R. No. 187984, November 15, 2010, 634 SCRA 723, 732.
31Vda. de Victoria v. Court of Appeals, 490 Phil. 210, 221–222.
32 See also Vda. de Victoria v. Court of Appeals, id. at 224.
33Laguna Metts Corporation v. Court of Appeals, supra note 15 at 146.
34 G.R. No. 187122, February 22, 2012, 666 SCRA 629, 639.
35 Id., citing Ong Lim Sing, Jr. v. FEB Leasing & Finance Corporation, G.R. No. 168115, June 8, 2007, 524 SCRA 333, 343.
37 Supra note 29 at 734–735.
38Sugar Regulatory Administration v. Tormon, G.R. No. 195640, December 4, 2012, 686 SCRA 854, 868.

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