California OAH special education order · November 26, 2018
Order Denying Request for Judicial Notice
OAH Case No. 2018050541 · ALJ Cynthia Fritz
OAH denied Student's post-hearing request for judicial notice of a 2011 California Department of Education investigation report as untimely, because Student never disclosed it five business days before hearing.
This case went to decision
Student v. Antioch Unified School District: Antioch Unified wrongly found first grader ineligible; must fund 250 compensatory hours and a $450 speech assessment. (2018)
Summary
In the closing brief and a separate filing, Student asked the ALJ to take judicial notice of a 2011 California Department of Education investigation report. Antioch did not respond. OAH denied the request as untimely. Student had not disclosed the report at least five business days before hearing and had not produced it at hearing, so Antioch had no chance to question witnesses, submit documents, or argue in response.
Why it matters
Evidence, including government reports, must be disclosed at least five business days before hearing. Trying to bring it in afterward through a closing brief or a request for judicial notice will likely fail, even if the other side does not object.
Key authority cited
- Ed. Code, § 56505, subd. (e)(7)
- J.W. v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431
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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2018050541 v. ORDER DENYING REQUEST FOR
JUDICIAL NOTICE
ANTIOCH UNIFIED SCHOOL DISTRICT.
On November 19, 2018, in Student’s closing brief and in a separate pleading, counsel requested that the administrative law judge take judicial notice of a 2011 Investigation Report, Case R-0347-11 for Case s-0089-11/12, issued by the California Department of Education. Antioch did not respond to Student’s request.
Student’s failure to timely disclose this information at least five business days prior to hearing as required by Education Code section 56505, subdivision (e)(7), and failure to produce this document at hearing, deprived Antioch of the opportunity to question witnesses, submit documents, or raise arguments in response to this proposed evidence. Thus, the request is denied as untimely. (Ed. Code, § 56505, subd. (e)(7); J.W. v. Fresno Unified School Dist. (9th Cir. 2010) 626, F.3d 431, 440.)
IT IS SO ORDERED.
DATE: November 26, 2018
CYNTHIA FRITZ
Administrative Law Judge Office of Administrative Hearings