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ADJ9602230 — California WCAB decision · SimilarCase

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California WCABPanel decision

ADJ9602230 · April 13, 2021

Order Dismissing Lien affirmed

Issues decided: 1
Medical opinions weighed: 0
Authorities named: 2
District office: Los Angeles

What the panel ordered

Order Dismissing Lien affirmed

Petition for Reconsideration filed by lien claimant after Order Dismissing Lien by WCJ

Read the official decision →

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.

Reconsideration / removalDefendant prevailed

Lien claimant's objection to the Notice of Intention to Dismiss Lien was untimely by 14 days and no sworn affidavit was submitted to establish excusable neglect under Code of Civil Procedure section 473(b).

From the decision · page 2In the NIT, the WCJ allowed lien claimant to file a written response to the NIT to establish good cause for failing to appear at the August 1, 2019 lien conference. The WCJ required lien claimant to file its response within 10 days of service of the NIT with an additional five days pursuant to former WCAB Rule 10507(a)(1). (Cal. Code Regs., tit. 8, former § 10507(a)(1).)2 Defendant served the NIT via mail on August 8, 2019. Thus, lien claimant had until August 23, 2019, to file its Objection to the NIT.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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Lien claimant filed its Objection to the Notice of Intention to Dismiss Lien on September 6, 2019, which was 14 days late beyond the deadline of August 23, 2019.

Favours Defendant prevailed

This untimeliness justified dismissal of the lien claim.

From the decision · page 2In the NIT, the WCJ allowed lien claimant to file a written response to the NIT to establish good cause for failing to appear at the August 1, 2019 lien conference. The WCJ required lien claimant to file its response within 10 days of service of the NIT with an additional five days pursuant to former WCAB Rule 10507(a)(1). (Cal. Code Regs., tit. 8, former § 10507(a)(1).)2 Defendant served the NIT via mail on August 8, 2019. Thus, lien claimant had until August 23, 2019, to file its Objection to the NIT.

Lien claimant failed to submit a sworn affidavit explaining its failure to appear at the lien conference as required for relief under Code of Civil Procedure section 473(b).

Favours Defendant prevailed

Without such affidavit, relief from dismissal could not be granted.

From the decision · page 3(Code Civ. Proc., § 473(b).) The burden of proof rests on the party with the affirmative of the issue. (Lab. Code, § 5705.) "All parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence." (Lab. Code, § 3202.5.) Lien claimant thus holds the burden of proof to establish all elements necessary to establish its claim. (See Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, 1117 [2012 Cal. Wrk. Comp. LEXIS 160] (Appeals Board en banc).) Here, lien claimant seeks relief pursuant to Code of Civil Procedure section 473(b). Thus, lien claimant has the burden of proof of its alleged mistake, inadvertence, surprise, or neglect with a sworn affidavit. (See Code Civ. Proc., § 473(b).) Lien claimant failed to submit a sworn affidavit explaining why it failed to attend the August 1, 2019 lien conference. Thus, lien claimant failed to meets its burden of proof pursuant to Code Civil Procedure section 473(b). Accordingly, we affirm the Order Dismissing Lien.