Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. No. BAK 0112784 Frank M. Brass, James C. Cuneo, and Alfonso J. Moresi, Commissioners. Robert K. Norton, Workers’ Compensation Administrative Law Judge.
Barbara Clark, in propria persona, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Law Offices of Dennis J. Hershewe and Dennis J. Hershewe, for Respondents San Joaquin Community Hospital and Adventist Health System-West.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Kane, J.
Barbara Clark petitions this court for a writ of review from an “Opinion and Orders Dismissing Petition for Reconsideration and Denying Removal” of the Workers’ Compensation Appeals Board (WCAB). (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494.) In addition to answering the petition, respondent Adventist Health, which operates San Joaquin Community Hospital in Kern County, filed a motion requesting this court to declare Clark a vexatious litigant. Based on our review of Clark’s deficient petition for writ of review, her record of redundant filings with this and other courts, and our prior admonition that we would sanction her for filing further documents with this court lacking legal grounds for review, we will deny the petition and order her to pay Adventist Health’s attorney fees associated in defending a meritless petition for writ of review. Although we will deny Adventist Health’s motion to declare Clark a vexatious litigant, we do so without prejudice and will reconsider the request if she files future petitions, motions, or other filings without a legal basis.
Further statutory references are to the Labor Code unless otherwise stated.
BACKGROUND
This court summarized Clark’s appellate court history in a November 16, 2007, opinion arising out of the same workers’ compensation matter between the same parties in Clark v. Workers’ Compensation Appeals Bd. (F054070):
“Unconvinced by earlier denials from this court and the Supreme Court, Barbara Clark, in propia persona, again petitions this court for a writ of review. As with her last two filings with this court, we still lack jurisdiction to review her claim.
“Taking judicial notice of prior court records (Evid. Code, § 452, subd. (d)), this court recalls Clark worked as a registered nurse for San Joaquin Community Hospital (Hospital) when she sustained an admitted industrial injury on February 16, 1994, to her ‘head, jaw, teeth, neck, headaches, and psyche.’ In December 2001, both Clark and the Hospital concurrently petitioned this court for writs of review from a November 6, 2001, WCAB opinion and order granting reconsideration. The Hospital alleged the WCAB erred by awarding Clark particular medical treatment, that she did not suffer from fibromyalgia as a compensable consequence from the original injury, and that she was not entitled to a 10 percent penalty for failing to provide treatment. Clark alleged she should have received two 10 percent penalties as originally awarded by the Workers Compensation Administrative Law Judge (WCJ). We denied both petitions on the merits on February 21, 2002. (Clark v. Workers’ Comp. Appeals Bd. (F039561); San Joaquin Community Hospital v. Workers’ Comp. Appeals Bd. (F039566).) The Hospital petitioned the Supreme Court for review, which it denied on May 15, 2002. (San Joaquin Community Hospital v. Workers’ Comp. Appeals Bd. (S104826).)
“Apparently, the denials did not end matters. On August 21, 2007, Clark returned to this court with a defective Petition for Writ of Review lacking any statement of facts, issues, or argument. The only exhibit, an August 3, 2007, Opinion and Order from the WCAB, explained that Clark had filed three Petitions for Reconsideration, and that the latest June 4, 2007, petition was denied as ‘an unauthorized successive petition for reconsideration.’ This court summarily denied Clark’s Petition for Writ of Review on August 28, 2007. (Clark v. Workers’ Comp. Appeals Bd. (F053530).)
“The following week, on September 5, 2007, this court received a packet of documents from Clark. Our Clerk/Administrator notified Clark by letter dated September 11, 2007, that ‘[t]he order of this court became final on the day it was filed, and this court lacks legal authority to conduct further review of the matter. (Cal. Rules of Court, rule 8.265(b)(2)(A).)’
“Supreme Court records indicate that it received an untimely Petition for Review from Clark on September 12, 2007. The Supreme Court denied Clark’s Application for Relief from Default on September 27, 2007. (Clark v. Workers’ Comp. Appeals Bd. (S156663).)
“Clark filed yet another Petition for Writ of Review with this court on November 5, 2007, alleging fraud and collusion between the workers’ compensation administrative law judge, a qualified medical examiner, and an individual she refers to as a ‘civilian’ that appears to this court to be lien claimant. Clark offered new ‘evidence’ of printed computer screen images purporting to demonstrate that her medical documents were altered.
“As our court Clerk/Administrator notified Clark previously, there are no legal grounds for this court to further review a decision of the WCAB. (Cal. Rules of Court, rule 8.265(b)(2)(A).)”
We then denied Clark’s defective petition for writ of review and warned her:
“Clark is advised that further filings with this court lacking legal grounds for review will result in an award of attorney fees, costs, or sanctions against her in favor of the Hospital. (See Blanpea v. Workers’ Comp. Appeals Bd. (2006) 71 Cal.Comp.Cases 1441 [review den.].)”
On November 28, 2007, Clark wrote this court and demanded an immediate copy of the decision in case No. F053530, threatening to hold the “court accountable for the lack of properly forwarding to [her] the appeal order.” By letter dated December 3, 2007, we advised Clark that the referenced case No. F053530 was actually denied on August 28, 2007, but that if she was inquiring about her more recent case No. F054070, our records indicated the decision was mailed to her private mail box number on file and that this court’s rulings are nevertheless available to the public on the internet. Our letter reminded Clark that, “As the opinion explained, this court lacks legal jurisdiction to review your successive petitions.”
Meanwhile, Clark was actively filing claims with the federal courts, alleging conspiracy and collusion against numerous officials and employees of the Department of Industrial Relations and other individuals involved with her workers’ compensation claim. On October 16, 2007, a federal magistrate recommended Clark be declared a vexatious litigant. The magistrate noted in a lengthy Findings and Recommendation:
“Plaintiff repeatedly raises unmeritorious claims as evidenced by plaintiff’s attempts to relitigate issues previously and finally decided by the district court in case no. CIV S-05-2410 FCD KJM PS. Moreover, as evident from the numerous amendments in the prior federal action, the instant action, and the state court actions, plaintiff repeatedly makes claim after claim against various constellations of defendants associated with her workers’ compensation proceedings and appears intent on using litigation to harass her perceived adversaries. At the very least, plaintiff is unwilling or unable to accept the final resolution of fully adjudicated actions and motions against her. The legally frivolous and harassing nature of plaintiff’s litigation tactics is evidenced by her failure to properly serve the defendants once naming them in the original and amended complaints.” (Clark v. Nevans (E.D. Cal. Oct. 16, 2007, No. CIV S-07-1086 FCD KJM PS) 2007 WL 3034807, p. 3.)
A federal district court judge agreed with the magistrate and declared Clark a vexatious litigant on November 14, 2007. The district court removed her ability to ever file “any claims relating to her workers’ compensation dispute, including claims of conspiracy related thereto,” and ordered her to submit a pre-filing request before any future unrelated federal claims would be considered by that court. Clark subsequently filed two petitions for writ of certiorari with the United States Supreme Court, which the high court denied on February 25, 2008.
On January 17, 2008, a WCJ agreed to entertain Clark’s complaints, at least insofar as to her allegations regarding her medical condition, and ordered her to submit to medical legal re-examinations with two of her original examining physicians. Apparently unhappy with the order, Clark refused and instead petitioned the WCAB for reconsideration and removal of the WCJ.
On February 29, 2008, the WCAB dismissed the petition for reconsideration because the WCJ had not issued a final decision and had simply issued a procedural order for Clark to attend the medical examinations. (§§ 5900, 5903.) The WCAB also found no grounds to exercise its discretionary authority to remove the matter from the WCJ. (§ 5310.)
Clark subsequently filed the present petition for writ of review. She contends this court maintains jurisdiction for “good cause shown.” Her showing of good cause deals exclusively with the federal district court declaring her a vexatious litigant, which she claims has deprived her of any rights of redress against Adventist Health’s defense counsel, a qualified medical examiner who previously examined her, and the WCJ. Clark argues:
“Even if the applicant/appellate had signed confessions by theses three (3) individuals, that attested to a civil conspiracy to violate the Constitutional rights of the appellant/appellate, there is NOTHING Barbara Clark could do about it. Clark would be UNABLE to take these signed confession to the federal court, as [the district court judge] has forbidden Clark from ever raising questions about her workers[’] compensation case in federal court ever again. [¶] This means, of all the individuals in the United States, these three will enjoin [sic] unfettered immunity to do to Barbara Clark as they see fit.”
Clark then asks this court to annul the February 29, 2008, WCAB decision and to remand the matter to the “WCAB with instructions to use their discretionary powers and remove this case to themselves.”
As Clark should be aware, this court has no authority over the actions of the federal district court. That court’s decision to declare Clark a vexatious litigant and to subject her to a pre-filing order is beyond the appellate scope of this court. A writ of review only inquires into the lawfulness of the orders, decisions, and awards issued by the WCAB. (§§ 5950, 5952.) Even if we could look to the federal court’s decision, Clark has not shown any legal basis to bring her action to federal court and her federal claims appear to be similar to those already raised and rejected by this court.
Given Clark’s 14-year history pursuing her workers’ compensation claim, she should be aware of the roles of the WCJ and WCAB. Upon a timely and meritorious petition for reconsideration, the WCAB will reconsider Clark’s allegations after the WCJ first issues a final order, decision, or award. (§§ 5900, 5903.) She has not shown any reason to bypass an initial determination by the WCJ, and we will not order the WCAB to do so. (§ 5310.)
In our last decision in this matter, we warned Clark “that further filings with this court lacking legal grounds for review will result in an award of attorney fees, costs, or sanctions against her in favor of the Hospital.” She ignored our advice and again presented a writ of review which lacks any legal basis, forcing the Hospital to expend its resources to defend against a frivolous petition. Clark’s actions appear to be taken solely to harass Adventist Health and to delay ultimate resolution of the matter. We therefore remand the matter to the WCAB to issue an award of reasonable costs and attorney fees against Clark for services rendered by Adventist Health in answering a meritless petition for writ of review as it would if the employer had filed a petition lacking a reasonable basis under section 5801. (§§ 5811, 5813, 5954; Code Civ. Proc., §§ 907, 1027, 1034; Cal. Rules of Court, rules 8.276, 8.278; Johnson v. Workers’ Comp. Appeals Bd. (1984) 37 Cal.3d 235, 238, 241; Ulrich v. Workmen’s Comp. Appeals Bd. (1975) 50 Cal.App.3d 643, 653, fn. 8; Blanpea v. Workers’ Comp. Appeals Bd. (2006) 71 Cal.Comp.Cases 1441 [review den.].)
DISPOSITION
The petition for writ of review, filed March 7, 2008, is denied.
Respondent Adventist Health’s March 28, 2008, motion to declare petitioner Barbara Clark a vexatious litigant is denied without prejudice.
The matter is remanded to the WCAB to conduct any further proceedings it deems appropriate under its February 29, 2008, opinion and orders, and to award reasonable costs and attorney fees against Clark in connection with Adventist Health’s expenses associated with responding to the March 7, 2008, petition for writ of review.
This opinion is final forthwith as to this court.