California OAH special education order · February 3, 2017
Order Granting Request for Reconsideration and Reaffirming Denial of Peremptory
OAH Case No. 2016090258, 2016050770 · ALJ June R. Lehrman
OAH granted District's reconsideration request but again denied its peremptory challenge, finding no record of a proper fax filing and that the challenge was buried inside a different case's filing.
This case went to decision
Student v. Anaheim City School District (consolidated): Anaheim City School District cannot implement its vague placement offer without consent, but Student's three FAPE claims are denied. (2017)
Summary
After OAH denied District's peremptory challenge as not properly and timely filed, District sent a letter, treated as a motion for reconsideration, with fax transmission reports claiming the challenge was faxed to OAH on January 24, 2017. OAH granted reconsideration to review the reports. OAH's fax system showed no filing at the claimed time. Instead, the challenge had been sent as the last four pages of a 12-page fax attached to District's opposition to a motion to dismiss in a different OAH case, so the denial stood.
Why it matters
A peremptory challenge must be filed correctly and on time as its own document in the right case. Attaching it to a filing in another matter, or relying on a sender's fax confirmation, may not be enough to preserve the right to disqualify an ALJ.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
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 OF STUDENT, OAH Case No. 2016090258 v.
ANAHEIM CITY SCHOOL DISTRICT,
ANAHEIM CITY SCHOOL DISTRICT, OAH Case No. 2016050770 v.
PARENT ON BEHALF OF STUDENT. ORDER GRANTING REQUEST FOR
RECONSIDERATION AND
REAFFIRMING DENIAL OF
PEREMPTORY
On February 3, 2017, the undersigned administrative law judge issued an order denying a peremptory challenge on the grounds that it had not been properly and timely filed.
On February 3, 2017, District filed a letter that is treated as a motion for reconsideration, attaching documents that purport to be fax confirmations that the peremptory was properly and timely filed.
Reconsideration is granted to review the purported fax confirmation sheets. Upon reconsideration, the peremptory is again denied as it was not properly and timely filed.
APPLICABLE LAW
The Office of Administrative Hearings 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
On reconsideration, the documents submitted by District, in pertinent part, contain two “Transmission Reports” that purport to show that the four-page peremptory challenge was faxed at 1:23:32 PM (to Student’s fax number 714-698-0243) and at 1:48:19 PM to “faxination,” (which is presumed refer to the OAH faxination number 916-376-6319) on January 24, 2017.
No such filings at or around these times appeared, in OAH’s internal faxination system.
On the other hand, OAH’s internal faxination system did reveal that the document was improperly filed as the last four pages of a 12-page fax attached to a different filing (District’s Opposition to a Motion to Dismiss in OAH Case No. 2017010004).
No confirmation can be located for the purported fax purportedly filed at or around 1:48:19 PM on January 24, 2017. Therefore on reconsideration, the motion is again denied.
IT IS SO ORDERED.
DATE: February 3, 2017
JUNE R. LEHRMAN
Presiding Administrative Law Judge Office of Administrative Hearings