California OAH special education order · March 6, 2014
Order Denying Student's Motion to Strike District's Reply Brief
OAH Case No. 2013101083, 2013110340 · ALJ Robert Helfand
OAH denied Student's motion to strike District's post-hearing reply brief, which was filed less than half a day late, because Student showed no prejudice and the brief did not respond to Student's rebuttal.
This case went to decision
Student v. San Marcos Unified School District (consolidated): San Marcos Unified may place student in high school special day classes; ALJ denies all of Student's claims. (2014)
Summary
After a consolidated due process hearing, the ALJ set March 4, 2014 as the deadline for rebuttal briefs. District filed its rebuttal brief late on the morning of March 5. Student asked OAH to strike it, arguing District's counsel may have read Student's rebuttal brief first. OAH treated Student's filing as a motion to strike and denied it: Student offered no evidence, District's brief addressed only Student's closing brief, and nothing showed it took Student's rebuttal into account, so Student suffered no prejudice.
Why it matters
A party seeking to strike a slightly late brief must show actual prejudice. Guessing that the other side gained an advantage is not enough when the late brief does not respond to the moving party's filing.
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Consolidated Matters of:
PARENT) ON BEHALF STUDENT, OAH CASE NO. 2013101083
v.
SAN MARCOS UNIFIED SCHOOL
DISTRICT,
SAN MARCOS UNIFIED SCHOOL OAH CASE NO. 2013110340
DISTRICT,
v.
ORDER DENYING STUDENT’S
PARENT ON BEHALF OF STUDENT. MOTION TO STRIKE DISTRICT’S
REPLY BRIEF
On January 28 through 30, 2014 and February 3 through 5, 2014, Office of Administrative Hearings (OAH), by the undersigned Administrative Law Judge (ALJ), conducted the due process hearing in this consolidated matter. The ALJ ordered that closing briefs be filed with the OAH on February 26, 2014, and rebuttal, or reply, briefs be filed with OAH by the close of business on March 4, 2014. Both parties filed their closing briefs timely. Student filed her rebuttal brief on March 4, 2014. The District filed its rebuttal brief on March 5, 2014, at approximately 11:34 a.m.
On March 5, 2014, Student filed with OAH a pleading titled “Petitioner’s Opposition to District’s Reply Brief.” Student requests that OAH strike District’s rebuttal brief on grounds that it is untimely causing unfair prejudice to Student. Student claims that the prejudice was because District’s counsel may have read Student’s rebuttal brief prior to filing the District’s rebuttal brief. Student’s opposition is hereby deemed a motion to strike the District’s rebuttal brief.
Student cites no evidence to support her position. The District rebuttal brief addresses only the issues raised in Student’s closing brief. In reading the District reply brief, there is no evidence that it took into account the Student’s rebuttal brief. Accordingly, Student has not suffered any prejudice by the District filing its rebuttal brief less than a half day late.
Student’s motion to strike the District’s rebuttal brief is DENIED.
DATE: March 06, 2014 /s/
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings