Opinion
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ALFREDO LEDEZMA, et al., Applicants v. KAREEM CART COMMISSARY AND MFG; STATE COMPENSATION INSURANCE FUND, et al., Defendants Adjudication Nos. ADJ8965291; ADJ10451326; ADJ10750348; ADJ15382349; ADJ15382351; ADJ16951068; ADJ16951573; ADJ16953628; ADJ16953629; ADJ16124753; ADJ16124750; ADJ17290772; ADJ16953860 Workers' Compensation Appeals Board State of California April 10, 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 eight (8) 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 eight (8) instances where it appears that she filed petitions for reconsideration with willful intent to disrupt or delay
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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 $20,000.00 total). We will also issue a notice of intent to impose sanctions of up to $2,500.00 against Lance Garrett in eight (8) 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 $20,000.00 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 course of conduct that appears to have occurred across eight (8) cases, involving attorney Susan Garrett and hearing representative Lance Garrett's representation of seven applicants and one lien claimant. The Appeals Board takes judicial notice of the Electronic Adjudication Management System ("EAMS") files in each of these cases.
Garrett Law Group is the law firm, which is apparently operated by Susan Garrett.
1. Alfredo Ledezma - ADJ15382349; ADJ15382351
On November 4, 2021, Susan Garrett filed an application for adjudication of claim ("application") alleging that applicant sustained a specific injury to the hands and fingers. (Application, ADJ15382349, November 4, 2021.) That same day, Susan Garrett filed a second application alleging that applicant sustained a cumulative injury to the back, shoulders, hand, and fingers. (Application, ADJ15382351, November 4, 2021.)
On May 25, 2023, these matters were jointly set for trial, which was scheduled for June 29, 2023. (Pre-trial Conference Statement, ADJ15382349; ADJ15382351, May 25, 2023.) On the day of trial, June 29, 2023, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" objecting to the order closing discovery and setting the matter for trial. (Petition for Reconsideration or in the alternative Petition for Removal, ADJ15382349; ADJ15382351, June 29, 2023.)
On August 28, 2023, the Appeals Board issued an "Opinion and Order Dismissing Petition for Reconsideration and Dismissing Petition for Removal" (Opinion). The Petition for Reconsideration was dismissed as it was not timely filed. The Appeals Board noted that decisions
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involving intermediate procedural or evidentiary issues are not final orders and are not appropriate for reconsideration. (Opinion, August 28, 2023, p. 2 (emphasis added).) The Opinion expressly stated that: "Such interlocutory decisions include, but are not limited to, pre-trial orders regarding evidence, discovery, trial setting, venue, or similar issues." (Id. at p. 2, (emphasis added).) The Appeals Board noted that had the petition not been dismissed as untimely, it would have been dismissed as applicant improperly sought reconsideration of a non-final order. (Ibid., (emphasis added).) The Appeals Board further denied removal as applicant failed to demonstrate irreparable harm. (Id. at p. 3.)
This matter was reset for trial on September 27, 2023. Lance Garrett requested a continuance due to illness. (Minutes of Hearing, ADJ15382349; ADJ15382351, September 27, 2023.) Over defendant's objection, the WCJ continued the trial to November 2, 2023. (Ibid.)
On October 23, 2023, Susan Garrett requested another continuance of the trial due to calendar conflict. Although minutes of hearing were not prepared, it appears that the WCJ granted the continuance request as the trial date was reset to November 28, 2023.
On November 16, 2023, Susan Garrett asked for a continuance of the November 28, 2023 trial date due to calendar conflict. The WCJ denied this continuance request via email to the parties. On November 28, 2023, Lance Garrett appeared on applicant's behalf; however, he claimed that he was too ill to go forward with trial. (Order Denying Petition to Dismiss, November 28, 2023; Minutes of Hearing, ADJ15382351, November 28, 2023.) Applicant's attorney was ordered to have a representative present at the next trial date. (Ibid.) The matter was reset for trial to occur on January 11, 2024.
On January 3, 2024, Susan Garrett again requested a continuance of the trial date due to calendar conflict. On January 5, 2024, the WCJ issued an order denying the continuance request. (Joint Order, ADJ15382349; ADJ15382351, January 5, 2024.)
On the day of trial, January 11, 2024, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the order denying her request for continuance. Applicant did not appear and no one from Garrett Law Group appeared for trial.
2. Roberto Beltran - ADJ8965291
On June 7, 2013, Susan Garrett filed an application alleging that applicant sustained a cumulative injury to the right shoulder, back, knees, legs, head, right hand, chest, neck, and in the form of diabetes. (Application, ADJ8965291, June 7, 2013.)
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Following years of discovery, defendant filed a Declaration of Readiness to Proceed (DOR) on October 6, 2023, requesting to proceed to trial on all issues. Applicant did not object.
A mandatory settlement conference occurred on December 13, 2023, where it appears that Lance Garrett disappeared. The minutes note the following:
MR GARRETT DID NOT CHECK BACK IN WITH THE COURT AT THE APPOINTED TIME FOR SECOND CALL (9:45 AM). THE COURT WAITED UNTIL 10:00 AM TO HEAR BACK, THEN SET THE MATTER FOR TRIAL. THE MATTER HAD ALREADY BEEN CONTINUED ONCE BEFORE. PTCS DUE BY 5:00 PM.
(Minutes of Hearing, ADJ8965291, December 13, 2023.)
The matter was set for trial on January 11, 2024. On January 8, 2024, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the order closing discovery and setting the matter for trial. Applicant did not appear at trial, nor did any representative of Garrett Law Group.
3. Pedro Reyes - ADJ10451326; ADJ10750348
Lien claimant, AV Management, filed a lien in ADJ10451326 on September 26, 2018. AV Management designated Nina Kavorkian and Lance Garrett as authorized representatives on its lien. The matter proceeded to a lien conference on September 27, 2023. (Minutes of Hearing, ADJ10451326, September 27, 2023.) The hearing was continued to the next day, September 28, 2023, where the parties completed the Pre-Trial Conference Statement and set the matter for lien trial on November 6, 2023.
On the day of the lien trial, lien claimant's representative emailed the court saying they were sick. (Minutes of Hearing, ADJ10451326, November 6, 2023.) A new trial date was set for December 4, 2023. (Ibid.)
The minutes of hearing do not identify the lien representative that contacted the court.
On December 1, 2023, defendant wrote to the court advising that lien claimant had a calendar conflict, and thus, defendant requested a continuance. The matter was reset for lien trial on January 10, 2024.
On the day of trial, January 10, 2024, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the September 28, 2023 order closing discovery
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and setting the matter for lien trial. Lien claimant did not appear and no one from Garrett Law Group appeared for trial.
4. Ever Meza, aka Heber Valladares - ADJ16951068; ADJ16951573
On October 7, 2022, Susan Garrett filed an application alleging that applicant sustained a specific injury to the neck, back, and left shoulder. (Application, ADJ16951068, October 7, 2022.) That same day, Susan Garrett filed a second application alleging that applicant sustained a cumulative injury to the arms, wrists, hands, fingers, back, and feet. (Application, ADJ16951573, October 7, 2022.)
On December 1, 2022, Susan Garrett filed a section 132a claim in these cases.
On May 23, 2023, defendant filed a DOR and a petition for costs alleging that Susan Garrett cancelled a qualified medical evaluator ("QME") appointment the day before it was scheduled. Defendant further alleged that applicant did not attend the appointment. Applicant did not object to the DOR.
At the mandatory settlement conference, the matter was set for trial on the issues of costs and sanctions. (Pre-Trial Conference Statement, ADJ16951068; ADJ16951573, August 2, 2023.) The trial was set for September 5, 2023. On the day of trial, no one appeared for applicant. The minutes reflect the following:
EMAIL FROM A/A OFFICE AT 6:50 AM THIS MORNING ADVISING OF FAMILY MEDICAL EMERGENCY AND REQUESTING CONTINUANCE. WCJ NOTES THAT A/A DID NOT PARTICIPATE IN PTCS THAT WAS UPLOADED AS PER WCJ DAVID ORDER AT MSC.
(Minutes of Hearing, ADJ16951573, September 5, 2023.)
Trial was reset for October 11, 2023. The October 11, 2023 trial did not proceed on the record. The minutes reflect the following:
APPLICANT'S REPRESENTATIVE HAVING MEDICAL ISSUES; MATTER CONTINUED ON THAT BASIS; PTCS BEGAN TO BE REVIEWED WITH PARTIES BUT NOT COMPLETED.
(Minutes of Hearing, ADJ16951573, October 11, 2023.)
The trial was reset for November 1, 2023. It appears that on October 20, 2023, applicant's attorney requested another continuance due to calendar conflict. (Objection to Continuance
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Request, October 24, 2023.) No one appeared for applicant at the November 1, 2023 trial. The minutes of hearing reflect the following:
AT DISCUSSION WITH PARTIES AT APPROX 9:00 AM MR GARRETT ASSERTED THAT HE WAS AT A PERSONAL MEDICAL EVALUATION. I ASKED PARTIES TO CALL BACK AT 11:00 AM. D/A CALLED BACK FOR THE 11 AM DISCUSSION BUT NEITHER MR GARRETT NOR THE INTERPRETER CALLED BACK IN. WCJ WAITED WITH D/A UNTIL APPROX 11:15 AM AND AT THAT TIME INSTRUCTED D/A TO ADVISE MR GARRETT THAT THEY SHOULD BOTH CALL BACK AT 1:30 PM. IT IS NOW 2:12 PM AND THERE HAS BEEN NO CONTACT BY ANYONE FROM GARRETT LAW (INCLUDING ATTORNEY GARRETT, HEARING REPRESENTATIVE GARRETT, NOR ANYONE ELSE ON THE APPLICANT'S BEHALF) NOR BY THE INTERPRETER. NOI TO ISSUE SANCTIONS ISSUING CONCURRENTLY AND MATTER CONTINUED TO ADDRESS THE OUTSTANDING PANEL QME ISSUES THAT ARE THE BASIS FOR THIS MATTER BEING PLACED ON THE TRIAL CALENDAR. MATTER TO BE HEARD REMOTELY.
(Minutes of Hearing, ADJ16951573, November 1, 2023.)
The trial was reset for December 20, 2023. On December 14, 2023, Susan Garrett requested another continuance of the trial due to calendar conflict. The record is unclear, but it appears that the WCJ granted this request for continuance as the trial was rescheduled for January 22, 2024.
On January 12, 2024, Susan Garrett requested another continuance due to calendar conflict. The WCJ issued an order denying the continuance request on January 16, 2024.
On the day of trial, January 22, 2024, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the WCJ's order denying her request for continuance. Applicant did not appear and no one from Garrett Law Group appeared for trial.
5. Sandra De Rivas - ADJ16953628; ADJ16953629
On October 21, 2022, Susan Garrett filed an application alleging that applicant sustained a specific injury to the neck and right shoulder. (Application, ADJ16953628, October 21, 2022.) That same day, Susan Garrett filed a second application alleging that applicant sustained a cumulative injury to the neck, right shoulder, right arm, back, chest, and in the form of anxiety and headaches. (Application, ADJ16953629, October 21, 2022).
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On May 8, 2023, defendant filed a DOR requesting an expedited hearing on a QME panel dispute. Applicant did not object to the DOR. The hearing was set for August 7, 2023. Per the minutes of hearing:
PRIOR TO CALLING CASE, LANCE GARRETT WAS ON AT&T AND STATED "TURN SIGNAL DUMB ASS." COURT TO ISSUE NOI SANCTIONS $250.00. WHEN MR. GARRETT APPERED (sic) ON THIS CASE, HE INITIALLY INDICATED A HEARING REP AUTHORIZATION FORM IS IN EAMS, AND THEN INDICATED IT MAY NOT BE. AS IT IS NOT IN EAMS, AN ATTORNEY WILL NEED TO APPEAR. PER DEFENSE, ISSUE RELATES TO ADDITIONAL PANEL WERE NOTICED IN BOTH CASES. PER AA, THEY WERE NOT NOTICED. MATTER IS SET FOR TRIAL ON ISSUES RELATED TO QME PANEL/PANELS, AND TRIAL JUDGE TO REVIEW DOCUMENTS TO DETERMINE IF MATTER SHOULD PROCCED TO TRIAL. PTCS DUE TODAY BY 5:00 PM AND EXHIBITS ARE DUE AT LEAST 20 DAYS BEFORE TRIAL. TRIAL IS IN PERSON ABSENT ORDER FROM TRIAL JUDGE.
(Minutes of Hearing, ADJ16953628; ADJ16953629, August 7, 2023.)
The parties completed the PTCS and the matter was set for trial on September 12, 2023. At the trial, applicant did not appear. The minutes reflect the following:
After submitting the matter, I was reminded that counsel did bring up earlier that he received an email from Mr. Garrett, and counsel indicated that there was a family matter that prevented Mr. Garrett from appearing today.
(Minutes of Hearing, ADJ16953628; ADJ16953629, September 12, 2023, p. 5, lines 10-12.)
On September 15, 2023, the WCJ issued two notices of intent to impose sanctions. The first notice was to impose sanctions of $250.00 against Lance Garrett for his use of foul language in court. The next notice was against Susan Garrett and Garrett Law Group, P.C., for their failure to appear at trial.
Susan Garrett filed an objection and explained that the failure to appear was because Lance Garrett was scheduled to appear for trial but was sick. (Response to Notice of Intent to Sanction, filed October 6, 2023, p. 2.) Susan Garrett questioned whether sanctions may issue against a supervising attorney when it is based on the conduct of a hearing representative. (Ibid.) Susan Garrett objected to the sanctions due to Lance Garrett's use of profane language on the grounds
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that it was an inadvertent and isolated incident. (Second Response to Notice of Intent to Sanction, filed October 6, 2023.)
On October 6, 2023, the WCJ signed the Findings and Order from the September 12, 2023 trial. The Findings and Order was served on October 10, 2023.
That same day, October 10, 2023, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the WCJ's order submitting the matter for decision on September 12, 2023.
The WCJ vacated the Findings and Order and reset the matter for hearing with an order to show cause why the matter should not be resubmitted and why sanctions should not issue. (Order Vacating Order Submitting September 12, 2023 Trial; Order to Show Cause Why the Matter Should Not Be Submitted and Why Sanctions Should Not Be Imposed, October 16, 2023.) The WCJ ordered all parties to appear in person at the next hearing. (Ibid.)
The matter was set for hearing on November 30, 2023, wherein the minutes reflect the following disposition:
ALL PARTIES WERE ORDERED TO APPEAR IN PERSON TODAY. INTERPRETER APPEARED, IN PERSON, BASED ON A REQUEST FROM AA. APPLICANT FAILED TO APPEAR. LANCE GARRETT APPEARED ON AT&T LINE, INDICATING HE IS AWAITING ADA ACCOMODATION AND ASSERTED HE AND SUSAN HAVE FLU LIKE SYMPTOMS. SUSAN GARRETT LATER APPEARED THROUGH AT&T, AND WHEN ASKED WHY SHE WAS NOT PERSONALLY PRESENT, SHE INDICATED SHE HAS RECEIVED AN ADA ACCOMODATION, ALLOWING HER TO APPEAR THROUGH AT&T. MATTER IS CONTINUED BY JUDGE, AND ALL PARTIES ARE ORDERED TO APPEAR AT FUTURE DATE. ISSUES ARE IN REFERENCE TO SANCTIONS AND RESUBMISSION OF PROR TRIAL. AS THE COURT HAS BEEN ADVISED ADA ACCOMODATIONS HAVE NOT BEEN GRANTED, FUTURE FAILURE TO APPEAR, ABSENT VALID ADA ACCOMODATION, SHALL RESULT IN ADDITIONAL NOI FOR SANCTIONS. PARTIES INDICATE THE DATE IS CLEAR.
(Minutes of Hearing, ADJ16953628; ADJ16953629, November 30, 2023.)
The matter was continued again with a new trial date set for January 18, 2024. Susan Garrett wrote a letter dated January 5, 2024, requesting a continuance due to calendar conflict. The trial was rescheduled for January 25, 2024. Susan Garrett requested another continuance on
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January 12, 2024, again due to calendar conflict. On January 16, 2024, the WCJ issued an order denying the continuance request.
On the day of trial, January 25, 2024, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the WCJ's order denying her request for continuance. Applicant did not appear and no one from Garrett Law Group appeared for trial.
6. Josefa Flores - ADJ16124753; ADJ16124750
On April 22, 2022, Susan Garrett filed an application alleging that applicant sustained a specific injury to the hands and fingers. (Application, ADJ16124753, April 22, 2022.) That same day, Susan Garrett filed a second application alleging that applicant sustained a cumulative injury to the neck, back, shoulders, and heels. (Application, ADJ16124750, April 22, 2022).
On September 29, 2023, defendant filed a DOR, checking all issues on the form. Applicant did not object. At the hearing on November 29, 2023, the WCJ set the matter for trial, which was to occur on January 8, 2024. On January 3, 2024, Susan Garrett requested a continuance of the trial due to calendar conflict. The trial was rescheduled for January 24, 2024.
On January 12, 2024, Susan Garrett asked for another continuance due to calendar conflict. The WCJ denied the continuance request on January 17, 2024.
On the day of trial, January 24, 2024, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the WCJ's order denying her request for continuance. Applicant did not appear and no one from Garrett Law Group appeared for trial.
7. Lennoris Doss - ADJ17290772
On January 31, 2023, Susan Garrett filed an application alleging that applicant sustained a cumulative injury to the eyes, hands, bilateral thumbs, and respiratory system. (Application, ADJ17290772, January 31, 2023.)
On August 14, 2023, defendant filed a DOR to proceed on a panel QME dispute. At the hearing on September 25, 2023, no one for applicant appeared. (Minutes of Hearing, ADJ17290772, September 25, 2023.)
The matter was continued to November 1, 2023, where applicant again failed to appear. The WCJ issued a notice of intent to impose sanctions against Susan Garrett and Garrett Law Group, P.C., in the amount of $750.00. Susan Garrett did not respond to the notice of intent.
Lance Garrett appeared at the next hearing on December 12, 2023, wherein the panel dispute was set for trial. Trial was scheduled for January 11, 2024.
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On January 3, 2024, Susan Garrett requested a continuance of the trial due to calendar conflict. The WCJ granted the continuance request and reset the trial for January 24, 2024. (Minutes of Hearing, ADJ17290772, January 11, 2024.)
On January 12, 2024, Susan Garrett requested another continuance due to calendar conflict. The WCJ issued an order denying the continuance request on January 16, 2024.
On the day of trial, January 24, 2024, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the WCJ's order denying her request for continuance. Applicant did not appear and no one from Garrett Law Group appeared for trial.
8. Jovanni Hernandez - ADJ16953860
On October 28, 2022, Susan Garrett filed an application alleging that applicant sustained a cumulative injury to the left arm, shoulders, and feet. (Application, ADJ16953860, October 28, 2022.)
On April 14, 2023, defendant filed a DOR to set the matter for trial on the issue of injury arising out of and occurring in the course of employment. Applicant did not object to the DOR.
Trial was scheduled for July 24, 2023, wherein the first day of trial proceeded with applicant's testimony. The trial was continued to September 13, 2023 for further testimony. (Minutes of Hearing and Summary of Evidence, July 24, 2023, p. 1.)
On September 13, 2023, the trial was continued to October 17, 2023, with the following notation on the minutes:
APPLICANT REP REACHED OUT TO COURT TO REQUEST CONTINUANCE DUE TO FAMILY MEDICAL MATTERS. DA DOES NOT HAVE AN OBJECTION TO CONTINUANCE. NEXT TRIAL DATE IS IN PERSON.
(Minutes of Hearing, ADJ16953860, September 13, 2023.)
On September 20, 2023, defendant requested a continuance due to calendar conflict; however, that request was not acted upon. The minutes of the continued trial date note as follows:
TRIAL WAS ORDERED TO BE IN PERSON. APPLICANT HEARING REP MR. GARRETT CALLED IN AND INDICATED THAT HE COULD NOT APPEAR DUE TO MEDICAL REASONS. PER HEARING REP, APPLICANT IS AVAILABLE BY PHONE TODAY. DA REQUESTS AN NOI TO DISMISS THE CASE DUE TO NON-APPEARANCE IN PERSON.
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TRIAL IS CONTINUED TO IN PERSON DATE. APPLICANT JOVANNI HERNANDEZ IS ORDERED TO APPEAR IN PERSON AND ON TIME AT 8:30AM ON THE NEXT DAY OF TRIAL.
(Minutes of Hearing, ADJ16953860, October 17, 2023.)
The trial was continued to December 20, 2023. On December 14, 2023, Susan Garrett requested a continuance of the trial due to calendar conflict. On December 15, 2023, the WCJ issued an order denying the request for continuance.
On the day of trial, December 20, 2023, Susan Garrett filed a "Petition for Reconsideration or in the alternative Petition for Removal" from the WCJ's order denying her request for continuance. Applicant did not appear and no one from Garrett Law Group appeared for trial.
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 ofjudicial 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, eight (8) instances total, attorney Susan Garrett and hearing representative Lance Garrett each appear to have engaged in the similar tactic of requesting trial continuances, then filing a petition for reconsideration of the order denying the trial continuance on or near the day of trial and then failing to appear at 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 a trial date after being denied a continuance. The sheer volume of petitions being filed by Susan Garrett and Lance Garrett with similar fact patterns appears to evidence an intentional course of conduct, which further warrants consolidation of these proceedings.
Thus, we issue an order consolidating the eight (8) cases discussed above so that we may address the issues of sanctions and reasonable expenses, including costs and attorney's fees.
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II.
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 agents." 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. 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:
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
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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. . .
(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 . . .
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(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).)
WCAB Rule 10748 states in pertinent part that:
Requests for continuances are inconsistent with the requirement that workers' compensation proceedings be expeditious and are not favored. Continuances will be granted only upon a clear showing of good cause.
(Cal. Code Regs., tit. 8, § 10748.)
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, 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
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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. In sum, an order denying a request for continuance is not a final order because it does not resolve a threshold issue in a case. Thus, a party who disagrees with an order denying a continuance should only seek removal in response to that order, not 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.
In some cases, a WCJ may issue a hybrid decision that includes both final and non-final orders, or awards. For example, a decision that finds industrial injury (a final finding), but orders further development of the record on nature and extent of injury (an interlocutory order) would be a hybrid decision. Where a party is appealing a hybrid decision, but only seeks relief with respect to an interlocutory order, or where there is genuine confusion as to whether a decision is final, a party may file a petition seeking both reconsideration and/or removal. A party may only file an alternative petition for reconsideration where good cause exists to believe that a final decision, order, or award issued. When a petition is titled as a petition for reconsideration, even in the alternative, the Appeals Board must process it as a petition for reconsideration, which halts proceedings at the trial level. (Cal. Code Regs., tit. 8, § 10961 [limiting the WCJ's power to act upon filing a petition for reconsideration].) Filing an alternative petition for reconsideration when it is not warranted is sanctionable. When a party files for reconsideration in response to a denied continuance, it would appear that the sole purpose is to obtain their initial objective: stop the trial
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from proceeding. Here, the only orders that issued were orders denying requests for continuance. In response to these orders, Lance and Susan Garrett filed alternative petitions for reconsideration.
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, requested a series of continuances of multiple trial dates. However, the requests for continuance due to calendar conflict were not filed when the notice of hearing was issued. Instead, they waited until days before trial to request a continuance. When the WCJ denied the request for continuance, they waited until the day of trial to file petitions for reconsideration in lieu of appearing for trial and to prevent the matters from proceeding, even though they were given notice by the Appeals Board in a prior decision that reconsideration is not proper from an order setting the matter for trial. 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 appearing at trial in each case and not ensuring that their client appeared. 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. Moreover, their delay in seeking a continuance and filing for removal on or near the day of trial would not have provided sufficient time for the Appeals Board to act.
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 Alfredo Ledezma (ADJ15382349; ADJ15382351), 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
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Appeals Board or with an improper motive, or was an action that appears to be indisputably without merit.
2. In Roberto Beltran (ADJ8965291), 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.
3. In Pedro Reyes (ADJ10451326; ADJ10750348), it appears that Lance Garrett signed a petition for reconsideration, which was verified by a non-attorney, Sako Arutyunyan, that was filed by Susan Garrett of Garret Law Group, as identified in the case caption, 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.
4. In Ever Meza, aka Heber Valladares (ADJ16951068; ADJ16951573), it appears that Lance Garrett signed a petition for reconsideration, which was verified by Susan Garrett, that was 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.
5. In Sandra De Rivas (ADJ16953628; ADJ16953629), it appears that Lance Garrett signed a petition for reconsideration, which was verified by Susan Garrett, that was 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.
6. In Josefa Flores (ADJ16124753; ADJ16124750), it appears that Lance Garrett signed a petition for reconsideration, which was verified by Susan Garrett, that was 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.
7. In Lennoris Doss (ADJ17290772), it appears that Lance Garrett signed a petition for reconsideration, which was verified by Susan Garrett, that was 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.
8. In Jovanni Hernandez (ADJ16953860), it appears that Lance Garrett signed a petition for reconsideration, which was verified by Susan Garrett, that was 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.
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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.
Thus, we issue notice of our intent to impose sanctions as follows:
(1) Sanctions of up to $2,500.00 against Susan Garrett in eight (8) 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 $20,000.00 total).
(2) Sanctions of up to $2,500.00 against Lance Garrett in eight (8) 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 $20,000.00 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
19
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.
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)
ADJ15382349; ADJ15382351
Alfredo Ledezma
Kareem Cart Commissary and MFG; SCIF
ADJ8965291
Roberto Beltran
Paint and Body; Clarendon National Ins. Co.
ADJ10451326; ADJ10750348
Pedro Reyes
Garden Fresh Restaurant Corp.; Travelers
ADJ16951068; ADJ16951573
Ever Meza, aka Heber Valladares
Homestate Hospitalities; Hartford Sacramento
ADJ16124753; ADJ16124750
Josefa Flores
Partners Personnel Management Services, LLC; StarrSpecialty Ins. Co.
ADJ16953628; ADJ16953629
Sandra De Rivas
KHRG Wilshire LLC; Indemnity Ins. Co. of NorthAmerica; ESIS
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ADJ17290772
Lennoris Doss
Yo Fab; Hartford
ADJ16953860
Jovanni Hernandez
Partners Personnel Management Services, LLC; StarrSpecialty 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 Alfredo Ledezma (ADJ15382349; ADJ15382351), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
2. In Roberto Beltran (ADJ8965291), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
3. In Pedro Reyes (ADJ10451326; ADJ10750348), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
4. In Ever Meza, aka Heber Valladares (ADJ16951068; ADJ16951573), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
5. In Sandra De Rivas (ADJ16953628; ADJ16953629), sanctions of up to $2,500.00 payable to the General Fund reasonable expenses, including costs and attorney's fees.
6. In Josefa Flores (ADJ16124753; ADJ16124750), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
7. In Lennoris Doss (ADJ17290772), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
8. In Jovanni Hernandez (ADJ16953860), 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)
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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 LANCE GARRETT, to pay sanctions and reasonable expenses, including attorney's fees and costs, as follows:
1. In Alfredo Ledezma (ADJ15382349; ADJ15382351), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
2. In Roberto Beltran (ADJ8965291), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
3. In Pedro Reyes (ADJ10451326; ADJ10750348), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
4. In Ever Meza, aka Heber Valladares (ADJ16951068; ADJ16951573), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
5. In Sandra De Rivas (ADJ16953628; ADJ16953629), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
6. In Josefa Flores (ADJ16124753; ADJ16124750), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
7. In Lennoris Doss (ADJ17290772), sanctions of up to $2,500.00 payable to the General Fund and reasonable expenses, including costs and attorney's fees.
8. In Jovanni Hernandez (ADJ16953860), 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.
Untimely or misfiled responses may not be accepted or considered.
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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
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SERVICE LIST
GARRETT LAW
INJURED WORKERS LAW
AV MANAGEMENT COLLECTION
DIMACULANGAN ASSOCIATES
STATE COMPENSATION INSURANCE FUND
GILSON DAUB
NEWHOUSE AND CREAGER
TESTAN LAW
SAMUELSEN, GONZALEZ, VALENZUELA &BROWN
ALFREDO LEDEZMA
ROBERTO BELTRAN
PEDRO REYES
EVER MEZA AKA HEBER VALLADARES
SANDRA DE RIVAS
JOSEFA PERDOMO FLORES
LENNORIS DOSS
JOVANNI HERNANDEZ
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."
"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).)