California OAH special education order · February 1, 2024
Order Denying Motion to Reopen Record
OAH Case No. 2023110049 · ALJ Tiffany Gilmartin
OAH denied Student's motion to reopen the hearing record to correct Parent's testimony. The change was substantive, not clerical, and Student gave no reason for waiting until after closing briefs were filed.
This case went to decision
Student v. Fremont Unified School District: Fremont Unified prevails on every claim; ALJ finds fifth grader with ADHD did not need special education. (2024)
Summary
After both sides filed closing briefs, Student moved to reopen the hearing record to correct Parent's earlier testimony. Fremont did not respond. OAH applied a three-factor test: whether the evidence is important and probative, whether there is a good-faith explanation for not offering it earlier, and whether reopening would unfairly prejudice the other side. OAH denied the motion because Student did not show the evidence was important or probative, the rule Student relied on covers only clerical or minor technical fixes rather than changes to substantive testimony, and Student never explained why she waited until after closing briefs to raise the issue.
Why it matters
If a parent's testimony needs correcting, raise it right away, before the record closes and before closing briefs are filed. Be ready to explain why the correction matters and why it was not made sooner. The clerical-error rule cannot be used to change the substance of testimony.
Key authority cited
- Rivera-Flores v. Puerto-Rico Tel. Co., 64 F.3d 742 (1st Cir. 1995)
- Gas Ridge, Inc. v. Suburban Agric. Properties, Inc., 150 F.2d 363 (5th Cir. 1945)
- Fed. Trade Com. v. Infinity Group Services, 2011 WL 13341069 (C.D. Cal. 2011)
- USA v. Montrose Chem., 2019 WL 13116388 (C.D. Cal. 2019)
- Cal. Code Regs., tit. 1, § 1048(b)
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,
v.
FREMONT UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2023110049
ORDER DENYING MOTION TO REOPEN RECORD
FEBRUARY 1, 2024
On January 9, 2024, Administrative Law Judge Tiffany Gilmartin, Office of Administrative Hearings, continued the due process hearing until January 29, 2024, to allow parties to file their closing arguments. On January 29, 2024, Student filed her closing brief. Fremont filed its closing brief approximately six minutes after Student.
Following the submission of her closing brief, Student filed a motion to reopen the record to correct Parent’s testimony. Fremont did not respond to Student’s motion to reopen the record.
Requests to reopen a trial record is a flexible and case specific matter. A court abuses its discretion if its refusal to reopen works an ‘injustice’ in the particular circumstances. Rivera-Flores v. Puerto-Rico Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995)
(citing Gas Ridge, Inc. v. Suburban Agric. Properties, Inc., 150 F.2d 363, 366 (5th Cir.
1945)). The Individuals with Disabilities Education Act does not specifically address reopening the record after the evidentiary phase is complete but before a final decision is issued. Legal guidance exists that helps inform the appropriate course. Specifically, three factors are considered when reviewing a motion to reopen the record. The evidence introduced is especially important and probative; the moving party’s explanation for failing to introduce the evidence earlier is bona fide; and reopening the case will cause no undue prejudice to the nonmoving party. (Id.; see also Fed. Trade Com. v. Infinity Group Services, No. SA CV 09-0977 DOC (MLGx), 2011 WL 13341069, at *2 (C.D. Cal. Sept. 26, 2011). USA v. Montrose Chem., No. 2:90-CV-03122-R, 2019 WL 13116388, at *2 (C.D. Cal. Oct. 16, 2019).)
In the instant case, Parent testified on January 2, 2024. The hearing reconvened on January 9, 2024. Parent was not present on January 9, 2024. The matter was continued until January 29, 2024, for parties closing briefs. Student filed her motion on January 29, 2024, after she filed her closing brief with OAH. At no time did counsel for Student raise concern about the correctness of Parent’s testimony until after both parties had submitted their closing briefs.
Student failed to demonstrate the proffered evidence was important or probative.
Student relied on Cal. Code Regs. Tit 1 § 1048 (b) which provides a mechanism for fixing a “clerical error or make minor or technical changes.” Student did not seek to fix a clerical error but sought to amend her substantive testimony. Moreover, Student was silent as to why she failed to correct the testimony until after both parties submitted their closing arguments. For the above reasons, Student’s motion to reopen the record is denied.
IT IS SO ORDERED.
Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings