California OAH special education order · April 11, 2017
Order Denying Temecula Valley Unified School District's Peremptory Challenge
OAH Case No. 2016100111, 2016120478 · ALJ Peter Paul Castillo
OAH denied District's peremptory challenge to ALJ Paul Kamoroff as untimely, because parties must check ALJ assignments themselves and OAH's phone call about the change was only a courtesy.
This case went to decision
Student v. Temecula Valley Unified School District (consolidated): Temecula Valley Unified must fund a year of nonpublic school tuition and 36 hours of OT, but its 2016 special day class offer is upheld (2017)
Summary
District filed a peremptory challenge to disqualify ALJ Paul Kamoroff from hearing these consolidated cases, and Student objected. District argued the challenge was timely because its counsel was out of the office and did not hear OAH's April 6, 2017, voicemail about the assignment change until the following Monday. OAH found the challenge untimely under Government Code section 11425.40 and California Code of Regulations, title 1, section 1034. It explained that OAH's call was merely a courtesy and the regulation puts the duty on the party to check the ALJ assignment. All previously set dates stayed on calendar.
Why it matters
Parties get only one peremptory challenge, and it can be lost if they miss the deadline. Counsel should check ALJ assignments themselves rather than wait for notice from OAH, because an absent attorney or a missed voicemail will not excuse a late challenge.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Paul Kamoroff, Administrative Law Judge (challenged)
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. 2016100111 v.
TEMECULA VALLEY UNIFIED SCHOOL
DISTRICT,
TEMECULA VALLEY UNIFIED SCHOOL OAH Case No. 2016120478
DISTRICT,
ORDER DENYING TEMECULA
v. VALLEY UNIFIED SCHOOL
DISTRICT’S PEREMPTORY
PARENT ON BEHALF OF STUDENT. CHALLENGE
On April 10, 2017, Temecula Valley Unified School District filed a peremptory challenge seeking to disqualify Administrative Law Judge Paul Kamoroff from hearing this case. District’s peremptory challenge is made pursuant to Government Code section 11425.40, subdivision (d), of the Administrative Procedures Act, and California Code of Regulations, title 1, section 1034. On April 11, 2017, Student filed an objection to District’s challenge.
Government Code section 11425.40, subdivision (d), establishes the criteria for disqualification of the presiding officer. A party is entitled to one peremptory challenge (disqualification without cause) to an ALJ assigned to an Office of Administrative Hearings hearing. (Cal. Code Regs., tit. 1, § 1034, subds. (a) & (b); Gov. Code, § 11425.40, subd. (d).) In no event will a peremptory challenge be allowed if it is made after the hearing has commenced. In addition, if at the time of a scheduled prehearing conference, an ALJ has been assigned to the Hearing, any challenge to the assigned ALJ shall be made no later than commencement of that prehearing conference. (Cal. Code Regs., tit. 1, § 1034, subd. (c).) A peremptory challenge is not allowed on reconsideration or remand, and cannot be made after a hearing has begun. (Cal. Code Regs., tit. 1, § 1034, subd. (a).)
Student’s peremptory challenge is untimely made and denied pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivisions (c) and (e). District contended that its peremptory challenge was timely as its counsel was not made aware of ALJ Kamoroff’s assignment until Monday as the phone call of April 6, 2017, to inform counsel of the assignment change was left on counsel’s voicemail who was out of the office last week. However, OAH’s call to inform the parties’ of the change of ALJ assignment is merely a courtesy as pursuant to California Code of Regulations, title 1, section 1034, subdivision (f), the obligation is on District to check the assignment. Accordingly, District’s peremptory challenge is denied.
ORDER
District’s challenge of ALJ Kamoroff is denied. All dates previously set in this matter will remain on calendar.
IT IS SO ORDERED.
DATE: April 11, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings