California OAH special education order · April 13, 2015

Order Denying Request for Reconsideration of April 6, 2015 Order Denying Peremptory Challenge and Challenge for Cause

OAH Case No. 2014100290 · ALJ Adrienne L. Krikorian

OAH denied Student's request to reconsider the denial of a peremptory challenge and a challenge for cause against the ALJ. Student offered no new facts or law and did not explain why the alleged facts were raised late.

Denied Reconsideration

This case went to decision

Student v. Panama-Buena Vista Union School District: Panama-Buena Vista Union must fund 35 hours of counseling and tutoring for a seven-week child find failure; other claims denied. (2015)

Summary

At an April 3, 2015 prehearing conference, Student's counsel made oral challenges to the ALJ: a peremptory challenge and a challenge for cause based on alleged bias. The ALJ denied both in an April 6, 2015 order, and Student asked for reconsideration. OAH denied the request. The peremptory challenge was untimely because the hearing had already begun in January 2015 on the expedited issues. The alleged bias facts dated back to at least the start of that hearing, could have been raised earlier, and counsel's declaration gave no reason for not raising them before.

Why it matters

A challenge to a judge must be timely, and a peremptory challenge is lost once the hearing has started. To get reconsideration, a party must show truly new facts or law and explain why they were not raised earlier, so bias concerns should be raised promptly, in writing, as soon as they come up.

Key authority cited

Gov. Code, § 11521
Code Civ. Proc., § 1008
Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192

Topics

reconsideration challenge for cause peremptory challenge alj bias timeliness

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. 2014100290 v. ORDER DENYING REQUEST FOR

RECONSIDERATION OF APRIL 6,

PANAMA-BUENA VISTA UNION 2015 ORDER DENYING

SCHOOL DISTRICT. PEREMPTORY CHALLENGE AND

CHALLENGE FOR CAUSE

On April 6, 2015, the Office of Administrative Hearings issued an order (Order)

following a prehearing conference on April 3, 2015, held by the undersigned administrative law judge. The Order included an order denying Student’s oral peremptory challenge and oral challenge for cause made during the prehearing conference. On April 10, 2015, Student’s counsel timely filed a motion for reconsideration of the order denying the peremptory challenge and challenge for cause. The Motion included a declaration under penalty of perjury from Student’s attorney. The hearing in this matter, which began on January 6, 2015, on the expedited issues, is scheduled to recommence as to non-expedited issues on April 15, 2015. Although District did not file an opposition before this Order was drafted, an opposition is not necessary because, as discussed below, the motion is denied.

APPLICABLE LAW

OAH will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)

DISCUSSION AND ORDER

Student’s counsel asserts and requests that the presiding administrative law judge should reconsider the Order denying her challenges for cause based on alleged bias or prejudice by the ALJ against Student and his attorney. The request is denied.

Student’s counsel has offered no new facts or law that justifies reconsideration of the order denying Student’s peremptory challenge, because the matter has already commenced hearing and the peremptory challenge was therefore untimely, as noted in the Order.

Similarly, Student’s counsel offered no new facts or law that arose at any time during or after the January 6, 2015 hearing commenced that would justify reconsideration of the undersigned’s denial of her challenge for cause. Instead, Student’s counsel has asserted allegations of fact dating back to at least the start of the hearing on the expedited issues that were or should have been known to her when she made her oral challenge for cause at the April 3, 2015 prehearing conference. More specifically, the alleged new facts asserted in the Motion could have been raised by Student’s counsel as grounds for a challenge for cause at the time the alleged facts arose, in a written challenge for cause filed with OAH prior to the prehearing conference on the non-expedited issues, or at the time the challenges were originally orally asserted at the April 6, 2015 prehearing conference.

Student’s counsel offered no explanation in her declaration to this Motion as to why those facts were not offered prior to when the undersigned denied Student’s challenge for cause. As a result, Student has not established a valid basis for reconsideration and Student’s request for reconsideration is denied.