California OAH special education order · July 1, 2013
Order Denying Student's Motion to Strike Notice of Insufficiency
OAH Case No. 2013060510 · ALJ Marian H. Tully
OAH denied Student's motion to strike San Luis Coastal's notice of insufficiency because the motion was not authorized and was moot, since OAH had already found Student's complaint sufficient.
Summary
Student asked OAH to strike the notice of insufficiency filed by San Luis Coastal (SLC). Student argued that Student had no chance to respond and would be harmed by delays if the complaint were found insufficient. OAH had already found the complaint sufficient on the same day the notice was filed. OAH ruled that Code of Civil Procedure section 436 does not authorize this kind of motion, that resolving the notice caused no delay, and that all issues were moot, so it denied the motion.
Why it matters
Parents do not need to rush to strike a district's notice of insufficiency. OAH usually rules on sufficiency quickly, and a motion to strike is not an available tool under the special education rules.
Key authority cited
- Code Civ. Proc. § 436
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013060510
v. ORDER DENYING STUDENT’S
MOTION TO STRIKE NOTICE OF
SAN LUIS COASTAL UNIFIED SCHOOL INSUFFICIENCY
DISTRICT AND LAKE ELSINORE
UNIFIED SCHOOL DISTRICT.
On June 11, 2013, Student filed a Request for Due Process Hearing (complaint)
naming San Luis Coastal School District (SLC) and Lake Elsinore Unified School District.
On June 24, 2013, SLC filed a notice of insufficiency (NOI). On June 24, 2013, OAH issued an Order finding Student’s complaint sufficient.
On June 25, 2013, Student filed a Motion to Strike the NOI filed by SLC on the grounds Student had no opportunity to respond and Student would be prejudiced by delays in the due process procedures if the complaint was found insufficient.
There are no provisions governing a motion to strike in special education due process hearings. Therefore, OAH looks to the California Code of Civil Procedure for guidance.
Section 436 of the Code of Civil Procedure authorizes a court to strike “any irrelevant, false, or improper material inserted in any pleading . . . or any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.” Student’s Motion to Strike is not authorized by Code of Civil Procedure section 436. In any event, Student’s complaint was determined to be sufficient and there is no delay in the proceedings by virtue of having resolved the NOI. Accordingly, all issues presented in Student’s Motion to Strike are moot. Student’s Motion to Strike is denied.
SO ORDERED
Dated: July 01, 2013 /s/
MARIAN H. TULLY
Administrative Law Judge Office of Administrative Hearings