California OAH special education order · November 16, 2018
Order Denying Request for Reconsideration
OAH Case No. 2018090670 · ALJ Joy Redmon
OAH denied Student's request to reconsider the denial of a peremptory challenge, finding no new facts or law and that the challenge was untimely because it came after the prehearing conference convened.
This case went to decision
Student v. Fremont Union High School District: Fremont Union High must provide door-adjacent curb-to-curb transportation inside a gated complex and reimburse the family's mileage. (2018)
Summary
OAH denied Student's peremptory challenge on November 13, 2018. Student asked for reconsideration, arguing that because the hearing was continued, a peremptory challenge could still be filed up to the time of hearing. OAH denied the request because Student offered no new facts, circumstances, or law. The challenge was untimely because it was filed after the prehearing conference convened, and a second prehearing conference set because Student failed to appear did not make it timely.
Why it matters
A peremptory challenge to an ALJ must be filed before the prehearing conference convenes. A later continuance or a rescheduled prehearing conference does not reopen that deadline, and reconsideration requires genuinely new facts, circumstances, or law.
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 Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2018090670 v. ORDER DENYING REQUEST FOR
RECONSIDERATION
FREMONT UNION HIGH SCHOOL
DISTRICT.
On November 13, 2018, the undersigned issued an order denying Student’s peremptory challenge. On November 14, 2018, Student filed a motion to reconsider the order. Student asserts the law was misapplied because the hearing was continued and Student is entitled to exercise a peremptory challenge up to the time of the hearing. The hearing was continued to November 27, 2018.
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.)
Student alleges no new facts, circumstances, or law in support of the request reconsideration. The peremptory challenge was denied as untimely because it was filed after the prehearing conference in this matter convened. The fact that a second PHC was scheduled due to Student’s failure to appear does not render the challenge timely.
Accordingly, the request for reconsideration is DENIED.
IT IS SO ORDERED.
DATE: November 16, 2018
JOY REDMON
Presiding Administrative Law Judge Office of Administrative Hearings