California OAH special education order · May 3, 2022
Order Denying Peremptory Challenge
OAH Case No. 2021120672 · ALJ Joy Redmon
OAH denied Chino Valley's peremptory challenge to ALJ Rita Defilippis as untimely, finding the district had notice of the reassignment days earlier through the public calendar and a courtesy call.
This case went to decision
Student v. Chino Valley Unified School District: Chino Valley Unified wrongly found student ineligible for special education and must reimburse $35,920 plus mileage and fund staff training. (2022)
Summary
Chino Valley filed a peremptory challenge to ALJ Rita Defilippis on May 2, 2022. It said it learned of the judge change only when hearing invitations went out that day. OAH found the record did not support that claim. The case had been reassigned on April 26, 2022, the public calendar was updated that day, and the parties got a courtesy call about the change. OAH denied the challenge as untimely, and ALJ Defilippis will continue to preside.
Why it matters
Peremptory challenges to an ALJ have strict deadlines tied to the hearing date. OAH will treat its public calendar update and courtesy calls as notice of a reassignment, so parties should check the calendar closely and act quickly if they want to challenge a newly assigned judge.
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 ALJ)
- Tiffany Gilmartin, Administrative Law Judge (originally assigned)
- 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:
PARENTS ON BEHALF OF STUDENT,
v.
CHINO VALLEY UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021120672
ORDER DENYING PEREMPTORY CHALLENGE
MAY 3, 2022
On May 2, 2022, Chino Valley filed a notice of peremptory challenge to Administrative Law Judge Rita Defilippis in the above captioned matter. Chino Valley’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. Chino Valley represented it was only made aware of the ALJ change when invitations to attend the virtual hearing were sent on May 2, 2022.
Chino Valley’s representation is not supported by the record.
The matter was originally assigned to ALJ Tiffany Gilmartin. The matter was reassigned to ALJ Defilippis on April 26, 2022. OAH’s public calendar was updated on that date. A courtesy call was made to the parties on that date notifying them of the ALJ change and inquiring regarding the likelihood the matter would proceed to hearing.
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 the hearing is to be held at an OAH office, the preemptory challenge shall be made no later than two business days prior to the hearing, and if held at other than in an OAH regional office, the preemptory challenge shall be made no later than noon the Friday before the hearing. (Cal. Code Regs., tit. 1, § 1034, subds. (d) and (e).) A peremptory challenge is not allowed on reconsideration or remand. (Cal. Code Regs., tit. 1, § 1034, subd. (a).)
Chino Valley’s peremptory challenge is untimely made and is denied. The matter shall proceed with ALJ Defilippis presiding.
IT IS SO ORDERED.
Joy Redmon Presiding Administrative Law Judge Office of Administrative Hearings