Opinion
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GUILLERMO GONZALEZ, et al., Applicants v. THE BICYCLE CASINO; ARCH INDEMNITY INS. CO., administered by GALLAGHER BASSETT, et al., Defendants Adjudication Nos. ADJ12226694, ADJ12414651, ADJ12414992, ADJ12414993 Workers' Compensation Appeals Board State of California June 17, 2024ORDER OF CONSOLIDATION AND NOTICE OF INTENT TO IMPOSE SANCTIONS AND COSTS (EN BANC)
KATHERINE A. ZALEWSKI, CHAIR
We previously granted removal in these matters on our own motion to provide an opportunity to study and address the issues of sanctions and costs under Labor Code section 5813 . Having completed our review, we now issue an Order of Consolidation and a Notice of Intent to Impose Sanctions and Costs (En Banc).
All future references are to the Labor Code unless noted.
To secure uniformity of decisions in the future, the Chair of the Appeals Board, upon a unanimous vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision. (§ 115.)
En banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and workers' compensation administrative law judges. (Cal. Code Regs., tit. 8, § 10325; City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 316, fn. 5 [70 Cal.Comp.Cases 109]; Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1424, fn. 6 [67 Cal.Comp.Cases 236].) This en banc decision is also adopted as a precedent decision pursuant to Government Code section 11425.60(b).
We will issue an order consolidating two (2) cases to decide the common issues of sanctions and reasonable expenses, including costs and attorney's fees. Thereafter, we will issue a notice of intent to impose sanctions of up to $2,500.00 against Susan Garrett in two (2) instances where it appears that she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board or with an improper motive, or
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where it appears that such actions were indisputably without merit (up to $5,000.00 total). We will also issue a notice of intent to impose sanctions of up to $2,500.00 against Lance Garrett in two (2) instances where it appears that he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board or with an improper motive, or where it appears that such actions were indisputably without merit (up to $5,000.00 total). Lastly, we will issue a notice of intent to award reasonable expenses, including attorney's fees and costs, associated with the petitions for reconsideration filed in each of these matters. If awarded, the issue of the amount of expenses will be deferred to the trial level, so that no response to the issue of the amount of expenses shall be filed at this time.
FACTS
These matters involve a continuing course of conduct that appears to have occurred across two (2) cases, involving attorney Susan Garrett and hearing representative Lance Garrett's representation. The Appeals Board takes judicial notice of the Electronic Adjudication Management System ("EAMS") files in each of these cases and of the Appeals Board's en banc notice of intent and subsequent order imposing sanctions and costs in Alfredo Ledezma et al. v. Kareem Cart Commissary and Mfg. et al., 2024 Cal. Wrk. Comp. LEXIS 12 (Appeals Board En Banc) [Notice of Intent]; Alfredo Ledezma et al. v. Kareem Cart Commissary and Mfg. et al., 2024 Cal. Wrk. Comp. LEXIS (Appeals Board En Banc) [Order Imposing Sanctions and Costs].
Garrett Law Group is the law firm, which is apparently operated by Susan Garrett.
1. Guillermo Gonzalez - ADJ12226694
On May 24, 2019, Susan Garrett filed an Application for Adjudication of Claim (Application) alleging that applicant sustained a specific injury to the neck, back, shoulders, waist, left arm, and left hand. (Application, ADJ12226694, May 24, 2019.)
On March 24, 2022, the parties filed a Compromise and Release ("C&R"). An Order Approving C&R issued on April 11, 2022. The C&R contained an addendum with a provision stating that all issues surrounding attorney's fees under section 5710 were resolved.
On November 4, 2022, Lance Garrett filed a DOR requesting a mandatory settlement conference be set on the issue of an unresolved 5710 fee. At the resulting hearing, the matter was taken off calendar with the following note: "DEF AGREES TO SERVE A/A WITH A COPY OF THE DEPO TRANSCRIPT." (Minutes of Hearing, ADJ12226694, January 9, 2023.)
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On August 15, 2023, Lance Garrett filed another DOR requesting a mandatory settlement conference be set on the issue of an unresolved 5710 fee.
The matter was set for trial to occur on November 7, 2023 on the issue of whether the C&R resolved the issue of 5710 fees. On November 1, 2023, Susan Garrett filed a letter requesting a continuance of the trial date due to a calendar conflict. The trial was continued to November 30, 2023. On November 7, 2023, defendant requested a continuance due to calendar conflict. The matter was reset for January 4, 2024.
At the trial on January 4, 2024, the WCJ noted the following on the minutes:
PARTIES APPEARED VIRTUALLY EVEN THOUGH THERE IS NO VIRTUAL TRIAL ORDER 5710 FEE DISPUTE. NEXT TRIAL TO BE IN PERSON. PARTIES HAVE 30 DAYS OR UNTIL 2/5/2024 TO UPLOAD A TRIAL BRIEF TO EAMS NLT 5 PM. ANY RESPONSE IS PERMISSIVE AND IS TO BE UPLOADED TO EAMS NLT 2/20/2024 NLT 5 PM. PARTIES STATE THERE WILL BE NO WITNESS TESTIMONY.
(Minutes of Hearing, ADJ12226694, January 4, 2024.)
The trial was continued to February 8, 2024. On January 26, 2024, Susan Garrett filed a letter requesting a continuance of the trial date due to calendar conflict. Ms. Garrett's letter said that defendant had been informed of the request, but failed to state whether defendant agreed or opposed the request. The WCJ issued an order denying the request for continuance absent mutual agreement of the parties.
On the morning of trial of February 8, 2024, Susan Garrett filed a Petition for Reconsideration from the Order Approving Compromise and Release that issued nearly two years prior on April 7, 2022. The Petition is signed by Lance Garrett. No one from Garrett Law appeared for trial.
Although the Petition states it seeks to set aside the Order Approving Compromise and Release, the issue actually raised in the Petition is whether they are entitled to Labor Code section 5710 fees. The issue of Labor Code section 5710 fees was the issue that was set for trial on November 7, 2023, November 30, 2023, January 4, 2023, and February 8, 2024.
2. Jessica Ordenana - ADJ12414651, ADJ12414992, ADJ12414993
On July 31, 2019, Susan Garrett filed three Applications, the first alleging that applicant sustained a specific injury to right ring and right pinky fingers. (Application, ADJ12414651, July 31, 2019.)
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The second Application alleged specific injury to the right shoulder. (Application, ADJ12414992, July 31, 2019.) The third Application alleged cumulative injury to the arms, wrist, hands, and in the form of anxiety. (Application, ADJ12414993, July 31, 2019.) On August 26, 2019, applicant filed a claim for benefits pursuant to Labor Code, section 132a.
Applicant filed a substitution of attorney on June 22, 2023, and Garrett Law subsequently filed a lien for attorney fees.
All three matters ultimately settled via Compromise and Release, which was approved on October 19, 2023. Applicant's attorney was to hold applicant's attorney fee in trust pending resolution of the lien of Garrett Law.
The parties did not resolve the attorney fee lien and the matter was set for trial to occur on February 7, 2024. On the morning of trial, Susan Garrett filed a Petition for Reconsideration from the Order Approving Compromise and Release (OACR). The Petition was signed by Lance Garrett. It does not appear that Susan Garrett or anyone from Garrett Law appeared for trial. Although the Petition states it seeks to set aside the Order Approving Compromise and Release, the issue actually raised in the Petition is the attorney's fees. The issue of attorney's fees is the same issue that was set for trial on February 7, 2024.
DISCUSSION
I.
"Consolidation may be ordered by the Workers' Compensation Appeals Board on its own motion[.]" (Cal. Code Regs., tit. 8, § 10396(b).) Here, consolidation is appropriate as these matters involve common issues of fact and law, and consolidation avoids the issuance of duplicate or inconsistent orders and promotes the efficient use of judicial resources by deciding these matters in a single proceeding. (Cal. Code Regs., tit. 8, § 10396(a).)
As discussed further below, in each of these cases, two (2) instances total, attorney Susan Garrett and hearing representative Lance Garrett each appear to have engaged in the similar tactic of petitions for reconsideration of Orders Approving Compromise and Release when the substance of their dispute was already set for trial. It appears that Susan Garrett and Lance Garrett are each aware that the effect of filing a petition for reconsideration is to halt further proceedings at the trial level. (Cal. Code Regs., tit. 8, § 10961.) It appears that the sole purpose for seeking reconsideration was to delay the trial dates. The sheer volume of petitions being filed by Susan
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Garrett and Lance Garrett with similar fact patterns appears to evidence an intentional course of conduct, which further warrants consolidation of these proceedings. (See Ledezma, supra.)
Thus, we issue an order consolidating the two (2) cases discussed above so that we may address the issues of sanctions and reasonable expenses, including costs and attorney's fees.
II.
We have previously stated the standard for reconsideration in Alfredo Ledezma et al. v. Kareem Cart Commissary and Mfg. et al., 2024 Cal. Wrk. Comp. LEXIS 12 (Appeals Board en banc).
As the grounds for sanctions here appear are very similar to those found in Ledezma, the following is adopted nearly verbatim from the opinion in Ledezma. However, for ease of reading we have omitted block quoting and citations.
It is every attorney's duty to supervise non-attorneys in their firm and ensure that the nonattorney's conduct "is compatible with the professional obligations of the lawyer." (Cal. Rules of Prof'l Conduct, Rule 5.3(a).) Section 5700 provides that a party "may be present at any hearing, in person, by attorney, or by any other agent..." Section 4907 provides that "[non-attorney] representatives shall be held to the same professional standards of conduct as attorneys." (See Cal. Code Regs., tit. 8, § 10401(b).) Per WCAB Rule 10401, "a non-attorney representative may act on behalf of a party in proceedings before the Workers' Compensation Appeals Board if the party has been informed that the non-attorney representative is not licensed to practice law by the State of California." (Cal. Code Regs., tit. 8, § 10401(a).)
Business and Professions Code section 6068 provides in part that an attorney must respect the courts of justice and judicial officers (subdivision (b)); maintain only actions that are legal or just (subdivision (c)); be truthful at all times, including never to mislead a judge or judicial officer by false statement of fact or law (subdivision (d)); and, refrain from beginning or continuing a proceeding from "any corrupt motive" (subdivision (g)).
We note that in most of these cases, it does not appear that Susan Garrett has filed the appropriate notices required to allow a hearing representative to appear on her behalf. In many of these cases, we were unable to identify anything in the record indicating that applicant was informed that a hearing representative would appear on their behalf.
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Section 5813 permits the Workers' Compensation Appeals Board to award reasonable expenses, including attorney's fees and costs to any party, which result from ". . . bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." (§ 5813, (emphasis added).)
WCAB Rule 10421(b) states in relevant part that:
Bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay include actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done for an improper motive or are indisputably without merit.
WCAB Rule 10421(b) then provides a comprehensive but non-exclusive list of actions that could be subject to sanctions. As applicable here, subdivision (b) states that a party may be subject to sanctions where the party has engaged in the following actions:
(1) Failure to appear or appearing late at a conference or trial where a reasonable excuse is not offered or the offending party has demonstrated a pattern of such conduct.
(2) Filing a pleading, petition or legal document unless there is some reasonable justification for filing the document.
(4) Failing to comply with the Workers' Compensation Appeals Board's Rules of Practice and Procedure . . . or with any award or order of the Workers' Compensation Appeals Board, including an order of discovery, which is not pending on reconsideration, removal or appellate review and which is not subject to a timely petition for reconsideration, removal or appellate review. . .
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(5) Executing a declaration or verification to any petition, pleading or other document filed with the Workers' Compensation Appeals Board: (A) That:
(i) Contains false or substantially false statements of fact;
(ii) Contains statements of fact that are substantially misleading;
(iii) Contains substantial misrepresentations of fact;
(iv) Contains statements of fact that are made without any reasonable basis or with reckless indifference as to their truth or falsity;
(v) Contains statements of fact that are literally true, but are intentionally presented in a manner reasonably calculated to deceive; and/or
(vi) Conceals or substantially conceals material facts . . .
(6) Bringing a claim, conducting a defense or asserting a position:
(A) That is:
(i) Indisputably without merit;
(ii) Done solely or primarily for the purpose of harassing or maliciously injuring any person; and/or
(iii) Done solely or primarily for the purpose of causing unnecessary delay or a needless increase in the cost of litigation . . .
(7) Presenting a claim or a defense, or raising an issue or argument, that is not warranted under existing law . . .
(8) Asserting a position that misstates or substantially misstates the law . . .
(Cal. Code Regs., tit. 8, § 10421(b).)
A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, §§ 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p. 1075 ["interim orders,
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which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not 'final' "]; Rymer, supra, at p. 1180 ["[t]he term ['final'] does not include intermediate procedural orders or discovery orders"]; Kramer, supra, at p. 45 ["[t]he term ['final'] does not include intermediate procedural orders"].) Such interlocutory decisions include, but are not limited to, pre-trial orders regarding evidence, discovery, trial setting, venue, or similar issues.
The above language has been used in dozens, if not hundreds of panel decisions issued by the Appeals Board, including the August 28, 2023 Opinion served upon Garrett Law Group in Alfredo Ledezma (ADJ15382349; ADJ15382351). (See, e.g., Navroth v. Mervyn's Stores, 2023 Cal. Wrk. Comp. P.D. LEXIS 318, *4; Mendoza v. Rapid Manufacturing, 2023 Cal. Wrk. Comp. P.D. LEXIS 240, *2; Ramirez v. Vons, PSI, 2022 Cal. Wrk. Comp. P.D. LEXIS 316, *5.) The Appeals Board has consistently issued opinions stating that orders affecting trial setting are not final orders subject to reconsideration.
Unlike en banc decisions, panel decisions are not binding precedent on other Appeals Board panels and WCJs. (See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425 fn. 6 [67 Cal.Comp.Cases 236].) However, panel decisions are citable authority, and the Appeals Board may consider these decisions to the extent that their reasoning is found persuasive, particularly on issues of contemporaneous administrative construction of statutory language. (See Guitron v. Santa Fe Extruders (2011) 76 Cal.Comp.Cases 228, fn. 7 (Appeals Board en banc); Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260, 1264, fn. 2 [54 Cal.Comp.Cases 145].) Here, we refer to these panel decisions to show continuity amongst our prior panel decisions, which have repeatedly stated that orders affecting trial setting are not final orders.
While it is true that an Order Approving Compromise and Release (OACR) is a final order, and thus subject to reconsideration, one may only file for reconsideration in good faith. Every issue raised in the Petitions for Reconsideration were issues set for trial. No reasonable explanation exists for filing a petition for reconsideration of an issue set for trial on the morning of trial. Such conduct defies logic. It appears that the Petitions for Reconsideration in these matters were filed as subterfuge, and that the true motive was to achieve a delay in the trial. This appears particularly true, given the overall pattern of conduct in that Susan Garrett and Lance Garrett filed at least eight other petitions for reconsideration within this same time frame, all of which were filed to delay trial settings. (See Ledezma, supra.)
It appears that in each of these cases Garrett Law Group through Susan Garrett or its hearing representative Lance Garrett, while supervised by attorney Susan Garrett, set issues for trial, and then on the day of trial, filed for reconsideration as a means of preventing the trial from
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moving forward. That is, based upon the timing of their filings, it appears that they filed the petitions for reconsideration solely to delay the trial proceedings in each case, as evidenced by their action of not proceeding to trial in each case. We emphasize that filing a petition for reconsideration does not by itself excuse any party from appearing at a properly noticed hearing because only the Workers' Compensation Appeals Board can excuse an appearance.
WCAB Rule 10745 (Cal. Code Regs., tit. 8, § 10745) states in pertinent part that: "The Workers' Compensation Appeals Board may, on its own motion with or without notice, set any case for any type of hearing and may order that hearings be conducted electronically." WCAB Rule 10752(a) (Cal. Code Regs., tit. 8, § 10752(a)) requires that every party appear or have a representative appear at all hearings. Subdivision (d) states in part that: "[a]ny appearance required by this rule may be excused by the Workers' Compensation Appeals Board." When a petition for reconsideration is filed and a hearing is on calendar, parties must diligently coordinate with opposing counsel and the court and request that the matter be taken off calendar. Otherwise, they must appear until excused by the court.
Filing petitions for reconsideration designed to delay a trial can be described as frivolous and/or bad-faith conduct, which is sanctionable. (See United States Fire Ins. Co. v. Workers' Comp. Appeals Bd. (Palafox) (2013), 78 Cal.Comp.Cases 1021 [2013 Cal. Wrk. Comp. LEXIS 137].) Based upon our review of the record, it appears that the following same or similar sanctionable conduct has occurred in each of these cases:
1. In Guillermo Gonzalez (ADJ12226694), it appears that Lance Garrett signed a petition for reconsideration, which was verified by Susan Garrett, that appears to have been filed with willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board or with an improper motive, or was an action that appears to be indisputably without merit.
2. In Jessica Ordenana (ADJ12414651, ADJ12414992, ADJ12414993), it appears that Lance Garrett signed a petition for reconsideration, which was verified by Susan Garrett, that appears to have been filed with willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board or with an improper motive, or was an action that appears to be indisputably without merit.
To be clear, the sole issue for sanctions and costs before us is the filing of petitions for reconsideration with what appears to be willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board or with an improper motive, or which appear to be actions that were indisputably without merit. Other issues involving sanctions and costs may exist in the record of each case and it appears that in some cases, petitions for sanctions and/or costs have been filed regarding other conduct. Our notice of intent does not preclude further action for other alleged conduct by us or once the matters are returned to the trial level.
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Thus, we issue notice of our intent to impose sanctions as follows:
(1) Sanctions of up to $2,500.00 against Susan Garrett in two (2) instances where it appears that she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board or with an improper motive, or where it appears that such actions were indisputably without merit (up to $5,000.00 total).
(2) Sanctions of up to $2,500.00 against Lance Garrett in two (2) instances where it appears that he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board or with an improper motive, or where it appears that such actions were indisputably without merit (up to $5,000.00 total).
(3) Reasonable expenses, including attorney's fees and costs, associated with the petitions for reconsideration filed in each of these matters. If awarded, the issue of the amount of expenses will be deferred to the trial level.
WCAB Rule 10421(a) (Cal. Code Regs., tit. 8, § 10421(a)) requires that: "Before issuing such an order, the alleged offending party or attorney must be given notice and an opportunity to be heard. In no event shall the Workers' Compensation Appeals Board impose a monetary sanction pursuant to Labor Code section 5813 where the one subject to the sanction acted with reasonable justification or other circumstances make imposition of the sanction unjust."
Therefore, Susan Garrett and Lance Garrett each may file separate written objections in which good cause is demonstrated, within twenty (20) days plus five (5) additional days for mailing (Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10600) after service of this Notice. The objections shall be filed only with the Office of the Commissioners of the Workers' Compensation Appeals Board at its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102), its e-mail address (WCABgrantforstudy@dir.ca.gov), or electronically filed in the Electronic Adjudication System (EAMS). To be timely, any written response must be received at one of those addresses or electronically filed in EAMS within twenty (20) days plus five (5) additional days for mailing (Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10600) after service of this Notice. Untimely or misfiled responses may not be accepted or considered.
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If awarded, the issue of the amount of expenses will be deferred to the trial level, so that any response raising the issue of the amount of expenses shall not be filed at this time and will not be considered.
Accordingly, we order consolidation of these matters, and issue notices of intent to impose sanctions up to $2,500.00 for each action and award reasonable expenses, including attorney's fees and costs against Susan Garrett and separately against Lance Garrett.
For the foregoing reasons,
IT IS ORDERED that per WCAB Rule 10396 (Cal. Code Regs., tit. 8, § 10396), the following cases are CONSOLIDATED for the limited purpose of deciding the issues of sanctions and reasonable expenses, including attorney's fees and costs, related to the filing of petitions for reconsideration:
Case Number(s)
Applicant
Defendant(s)
ADJ12226694
Guillermo Gonzalez
The Bicycle Casino; Arch Ins. Co.
ADJ12414651, ADJ12414992, ADJ12414993
Jessica Ordenana
Royal Airline Linen; Utica Mutual Ins. Co.
NOTICE IS HEREBY GIVEN that absent written objection in which good cause to the contrary is demonstrated, within twenty (20) days plus five (5) additional days for mailing (Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10600) after service of this Notice that pursuant to Labor Code section 5813 and Appeals Board Rule 10421 (Cal. Code Regs., tit. 8, § 10421) the Workers' Compensation Appeals Board will order SUSAN GARRETT (CA BAR #195580), to pay sanctions and reasonable expenses, including attorney's fees and costs, as follows:
1. In Guillermo Gonzalez (ADJ12226694), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
2. In Jessica Ordenana (ADJ12414651, ADJ12414992, ADJ12414993), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
NOTICE IS HEREBY GIVEN that absent written objection in which good cause to the contrary is demonstrated, within twenty (20) days plus five (5) additional days for mailing (Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10600) after service of this Notice that pursuant to Labor Code section 5813 and Appeals Board Rule 10421 (Cal. Code Regs., tit. 8, § 10421) the Workers'
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Compensation Appeals Board will order LANCE GARRETT, to pay sanctions and reasonable expenses, including attorney's fees and costs, as follows:
1. In Guillermo Gonzalez (ADJ12226694), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
2. In Jessica Ordenana (ADJ12414651, ADJ12414992, ADJ12414993), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
IT IS FURTHER ORDERED that all responses to these notices by any party must be filed within twenty (20) days plus five (5) additional days for mailing (Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10600) after service of these Notices, and shall be filed only with the Office of the Commissioners of the Workers' Compensation Appeals Board at its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102), its e-mail address (WCABgrantforstudy@dir.ca.gov), or electronically filed in the Electronic Adjudication System (EAMS). To be timely, any written response must be received at one of those addresses or electronically filed in EAMS within twenty (20) days plus five (5) additional days for mailing (Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10600) after service of this Notice.
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Untimely or misfiled responses may not be accepted or considered.
No response to the issue of the amount of expenses shall be filed at this time, and any response to this notice that raises the issue of the amount of expenses will not be considered.
JOSE H. RAZO, COMMISSIONER, KATHERINE WILLIAMS DODD, COMMISSIONER, CRAIG SNELLINGS, COMMISSIONER, JOSEPH V. CAPURRO, COMMISSIONER
Rule 3.3 of the California Rules of Professional Conduct provides in part that a lawyer shall not: "(1) knowingly make a false statement of fact or law to a tribunal. . ." Rule 5.3 requires that: (a) "a lawyer who . . . possesses managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer, whether or not an employee of the same law firm, shall make reasonable efforts to ensure that person's conduct is compatible with professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of these rules or the State Bar Act if engaged in by a lawyer if: (1) the lawyer orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved; or (2) the lawyer. . .possesses managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person whether or not an employee of the same law firm, and knows of the conduct at a time when its consequences be avoided or mitigated but fails to take reasonable remedial action."
Moreover, in those cases where the applicant is not informed of the use of hearing representatives and a notice of representation is not on file, it is unclear why Lance Garrett is signing petitions for reconsideration. Susan Garrett and Lance Garrett are admonished that they are required to comply with WCAB Rules, specifically:
"A non-attorney representative shall file and serve a notice of representation before filing a document or appearing on behalf of a party unless the information required to be included in the notice of representation is set forth on an opening document." (Cal. Code Regs., tit. 8, § 10401(c), (emphasis added).)
"A non-attorney representative whose name is not on the notice of representation must file a notice of appearance as provided in rule 10751 before appearing before the Workers' Compensation Appeals Board." (Cal. Code Regs., tit. 8, § 10401(f), (emphasis added).)