ADJ13967400 — California WCAB decision

What the panel ordered

Petition for Removal granted, January 26, 2022 Order Denying Petitions to Quash rescinded, matter returned to trial level for further proceedings

Petition for Removal of the Order Denying Petitions to Quash granted, WCJ's decision rescinded, matter returned to WCJ for further proceedings

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This docket was decided more than once. Shown here is the latest released decision; we also hold October 5, 2022.

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Jurisdiction / venueDefendant prevailed

The WCJ denied the petitions for failure to attach meet and confer declarations as required by Code of Civil Procedure section 2025.410(c), but the Appeals Board found the WCJ's denial improper and granted removal to allow further proceedings and clarification of the applicable rules.

From the decision · page 1Defendant seeks removal of the January 26, 2022 Order Denying Petitions to Quash and Notice of Intent to Impose Sanctions (Order). Therein the workers' compensation administrative law judge (WCJ) denied eight petitions filed by defendant seeking to quash various subpoenas duces tecum directed to third-parties, because the defendant failed to file meet and confer declarations in support of its petitions as required by Code of Civil Procedure section 2025.410(c). The Order further noticed the court's intention to impose monetary sanctions on defendant. Defendant contends the subpoenas should be quashed because they are duplicative, and because defendant received inadequate notice of the subpoenas due to defective service. (Petition for Removal, dated February 28, 2022, at 5:11.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Code of Civil Procedure

Code of Civil Procedure section 2025.410(c)

Requires meet and confer declaration to accompany motions to stay or quash depositions; central to the denial of the petitions to quash in this case.

From the decision · page 1Defendant seeks removal of the January 26, 2022 Order Denying Petitions to Quash and Notice of Intent to Impose Sanctions (Order). Therein the workers' compensation administrative law judge (WCJ) denied eight petitions filed by defendant seeking to quash various subpoenas duces tecum directed to third-parties, because the defendant failed to file meet and confer declarations in support of its petitions as required by Code of Civil Procedure section 2025.410(c). The Order further noticed the court's intention to impose monetary sanctions on defendant. Defendant contends the subpoenas should be quashed because they are duplicative, and because defendant received inadequate notice of the subpoenas due to defective service. (Petition for Removal, dated February 28, 2022, at 5:11.)

Labor Code

Labor Code section 5710

Amended to conform deposition procedures in workers' compensation to civil discovery rules; relevant to the WCJ's and Appeals Board's analysis.

From the decision · page 4DISCUSSION Labor Code section 5710 provides for the taking of depositions in workers' compensation proceedings. In 2004, AB 3081 amended Section 5710 to provide for "deposition of witnesses...to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure." (Lab. Code § 5710(a).) Citing to this section, the WCJ denied the defendant's multiple petitions to quash for failure of compliance with Code of Civ. Proc. Section 2025.410(c), which requires a meet and confer declaration under section 2016.040 to accompany any motion to stay. Defendant's Petition for Removal primarily addresses the NIT re sanctions, but also discusses defendant's rationale for the filing of eight separate petitions. The WCJ later vacated his NIT re sanctions. (Order Vacating Notice of Intent, dated February 17, 2022.) However, the defendant continues to request relief from the order denying the petitions to quash.

WCAB Rule 10640

Rule governing subpoenas in workers' compensation proceedings, found to be outdated and recommended to be conformed to Labor Code section 5710.

From the decision · page 3Rule 10640 should be deemed amended to conform with Labor Code § 5710. Parties in litigation are required to meet and confer and to attach a meet and confer declaration to any Petition to Quash a Subpoena. (Code. Civ. Proc., § 2025.410.) Defendant failed to attach any meet and confer declaration to any of its petitions in this case. Accordingly, it was proper to deny the petitions. Failure to meet and confer, and failure to act with substantial justification may also result in the court ordering sanctions. I respectfully recommend that removal be granted in this case and that the Appeals Board address Rule 10640, which appears to be an anachronism. (Report at p. 5.)

ADJ13967400 · October 17, 2022

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