California OAH special education order · August 14, 2020
Order Denying Peremptory Challenge
OAH Case No. 2019110836 · ALJ Joy Redmon
OAH denied Bellflower's peremptory challenge to ALJ Rita Defilippis as untimely because it was filed at 1:25 PM, after the noon Friday deadline before the hearing week.
This case went to decision
Student v. Bellflower Unified School District: Bellflower Unified must fund an independent vision and orientation and mobility assessment of up to $6,000; psychoeducational and implementation claims denied. (2020)
Summary
Bellflower filed a peremptory challenge to ALJ Rita Defilippis at 1:25 PM on Friday, August 14, 2020. ALJ Defilippis had been assigned two days earlier, and the videoconference hearing was set to start Tuesday, August 18. For hearings not held at an OAH regional office, a peremptory challenge must be filed by noon on the Friday before the hearing week. OAH denied the challenge as late, noting that its external calendar gives official notice of ALJ assignments and that both parties also got a courtesy call more than 24 hours before the deadline. All dates stayed on calendar.
Why it matters
The deadline for a peremptory challenge is strict. When the hearing is not at an OAH regional office, including videoconference hearings, the challenge is due by noon on the Friday before the hearing week. Parties should watch OAH's external calendar for ALJ assignment changes and act quickly.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Rita Defilippis, Administrative Law Judge (challenged)
- Joy Redmon, Presiding Administrative Law Judge
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,
v.
BELLFLOWER UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2019110836
ORDER DENYING PEREMPTORY CHALLENGE
AUGUST 14, 2020
On August 14, 2020, at 1:25 PM, Bellflower filed a notice of peremptory challenge to Administrative Law Judge Rita Defilippis. ALJ Defilippis was assigned to the matter on Wednesday, August 12, 2020. The due process hearing is scheduled to commence on Tuesday, August 18, 2020, via videoconference and not at an OAH regional office. The Office of Administrative Hearings notified both parties of ALJ Defilippis’ assignment via a courtesy telephone call before 9 AM on Thursday, August 13, 2020.
Bellflower’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.
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).) Additionally, if the hearing is to be held at a site other than an OAH regional office, the peremptory challenge shall be made by noon on the Friday prior to the week in which the hearing is to commence. (Cal. Code Regs., tit. 1, § 1034, subd. (e).) A peremptory challenge is not allowed on reconsideration or remand. (Cal. Code Regs., tit. 1, § 1034, subd. (a).)
Bellflower’s peremptory challenge was not timely made as it was filed after noon the Friday before the hearing is scheduled to commence. OAH’s external calendar provides official notice to the parties of ALJ assignment changes. Additionally, in this case, both parties received a courtesy call notifying them of the change more than 24 hours before the deadline to exercise the challenge.
ORDER
1. Bellflower's challenge of ALJ Defilippis is denied.
2. All dates previously set in this matter will remain on calendar.
IT IS SO ORDERED.
Joy Redmon Presiding Administrative Law Judge Office of Administrative Hearings