California OAH special education order · January 2, 2019
Order Denying Motion to Strike, and Accepting Stipulation of Facts
OAH Case No. 2018050736 · ALJ Adrienne L. Krikorian
OAH denied Student's motion to strike District's post-hearing response but refused to consider District's new witness declarations as evidence because Student could not cross-examine them, and accepted the parties' joint stipulation of facts.
This case went to decision
Student v. Long Beach Unified School District: Long Beach Unified must fund 100 hours of compensatory speech services and increase school speech therapy; behavior and procedural claims denied. (2019)
Summary
After testimony ended, the ALJ ordered the parties to meet and confer about discrepancies between two versions of the January 31, 2018 IEP exhibit. Long Beach filed a response with three sworn declarations, and Student moved to strike it while also filing a joint stipulation of fact. The ALJ denied the motion to strike, so the filing stays in the record. However, she will not treat the declarations as evidence because they add testimony from two hearing witnesses whom Student's counsel could not cross-examine and whose accuracy Student never agreed to. The ALJ accepted the December 28, 2018 stipulation as controlling for her findings of fact and allowed both sides to argue about the IEP and related testimony in closing briefs.
Why it matters
A party cannot add new witness testimony through declarations after the hearing ends when the other side has had no chance to cross-examine. Agreeing on a joint stipulation is a dependable way to fix exhibit discrepancies discovered late in a case.
People named in the order
- Ms. Kutis, Witness who testified at hearing
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. 2018050736 v. ORDER DENYING MOTION TO
STRIKE, AND ACCEPTING
LONG BEACH UNIFIED SCHOOL STIPULATION OF FACTS
DISTRICT.
On the last day of hearing, the undersigned ALJ ordered the parties to meet and confer over discrepancies discovered after testimony had completed regarding Student’s Exhibit 66 (January 31, 2018 IEP) and District’s withdrawn Exhibit 19 (January 31, 2018 IEP). Specifically, the ALJ ordered the parties to meet and confer to resolve the discrepancies and to file a joint stipulation regarding their resolution of discrepancies. If necessary, the parties could include a declaration by the relevant witness in conjunction with the stipulation. Alternatively, the parties were to notify OAH if additional testimony was needed to resolve the discrepancy. The ALJ agreed to consider the parties’ positions and determine whether additional testimony was necessary before the record closed.
On December 20, 2018, Long Beach Unified School District filed a Response to ALJ’s Inquiry Re: Discrepancy in Documents accompanied by three sworn declarations. On December 31, 2018, Student filed a Motion to Strike Response to ALJ’s Inquiry Regarding Discrepancy, and concurrently filed a Joint Stipulation of Fact accompanied by a sworn declaration by Student’s attorney attaching District’s Exhibit 19.
After reviewing Long Beach District’s response, Student’s Motion to Strike, the December 28, 2018 Stipulation signed by counsel, and the relevant portions of the record, the ALJ makes the following orders:
1. The Motion to Strike is Denied. The Motion and its attachments will remain
part of the record. However, the ALJ will not consider the additional declarations as evidence because they include additional testimony by two witnesses called during hearing.
Student’s counsel has not had the opportunity to cross exam the witnesses on the additional declarations, and has not stipulated to their accuracy.
2. The parties may include in their closing briefs any argument regarding the
January 31, 2018 IEP and the related testimony of Ms. Kutis offered during hearing.
3. The December 28, 2018 Stipulation of Facts signed by both counsel will be
considered by the ALJ as part of her findings of fact for the Decision in this case. The December 28, 2018 Stipulation shall be controlling because it includes the facts of the December 3, 2018 Stipulation.
IT IS SO ORDERED.
DATE: January 2, 2019
ADRIENNE L. KRIKORIAN
Administrative Law Judge Office of Administrative Hearings