Petitions for Dismissal for Failure to Appear

In Nunez v Petrochem Insulation, Inc,  2016 Cal. Wrk. Comp P.D. LEXIS, the Court was presented with a scenario which did not result in the achievement of the objective of the California Constitution, Article 16, that cases be resolved expeditiously, inexpensively and without encumbrance of any character. Nearly seven years after the occurrence of an admitted injury, during which time frame the employee’s misrepresentations resulted in defendant’s expenditures of over $350,000 and led to his arrest, the case was set for trial on January 19, 2016, at which time he was represented by counsel but failed to personally appear. The Court did not issue a Notice of Intention to Dismiss. Instead, Defendant, on March 11, 2016 asserted a Petition for Dismissal based on Lack of Prosecution pursuant to CCR Section 10582. The Court issued its Notice of Intention to Dismiss stating that the case would be dismissed based on lack of prosecution unless the employee set forth good cause to the contrary within 10 days. An objection was filed by the employee’s attorney, which resulted in the case being set for an MSC on April 13, 2016 (there is no indication as to whether Mr. Nunez appeared) and ultimately set for trial on June 2, 2016, at which proceeding the employee was absent but was represented by counsel. The Court issued the Order of Dismissal, without issuing a Notice of Intent to Dismiss on the ground of failure to appear. Predictably, Mr. Nunez filed a Petition for Reconsideration, which resulted in the case being remanded to the Trial Court to allow the employee an opportunity to be heard on the issue of whether there was good cause in opposition to the Dismissal of his case.

A more expeditious and inexpensive resolution of this matter could have been achieved by recognizing the appropriate means of effectuating dismissal as well as the employee’s obligation to attend Court proceedings.

The Notice of Intention to issue an Order of Dismissal based on Lack of Prosecution was clearly inappropriate because the underlying Petition did not comply with CCR Section 10582, which requires that the employer transmit to the employee a letter notifying him/her of its intention to seek dismissal in 30 days. In this case, no such letter was sent and the Court’s Notice of Intention to Dismiss issued less than five days after the filing of the Petition.

Given this entire scenario, it can be reasonably assumed that the employee failed to attend the MSC. His absence at this proceeding was extremely significant and could have served as the basis upon which this case could have been dismissed at that juncture. In Orr v County of Los Angeles 2011 Cal. Wrk. Comp. P.D., it was held that the Court properly issued a Notice of Intention to Dismiss the case where the employee failed to attend the MSC. CCR Section 10562(b)(1) establishes that the Court can issue a Notice of Intention to Dismiss, and absent a demonstration of good cause, finally dismiss the case, regardless of whether the employee’s attorney attends the MSC, as long as the employee is provided notice of the MSC. The purpose of the MSC is to guarantee productive dialogue leading to a resolution of the dispute or the framing of the issues for trial neither of which can occur in the employee’s absence. (County of Sacramento v WCAB (Estrada) (1999) 64 CCC 26). Thus, a Petition for Dismissal should have been asserted based on the failure to attend the MSC and the Court had the power to issue a Notice of Intent to Dismiss, and, ultimately, absent a demonstration of good cause, to dismiss the case.

CCR Section 10562 does not require that a case be dismissed if the employee fails to appear at Trial. In fact, the Court, in Bland v WCAB (1970) 35 CCC 513 distinguished a non-appearance at trial from a non-appearance at an MSC on the grounds that hearsay is admissible at Trial and that CCR Section 10563(c) provides that an employee “shall” attend the MSC. (Labor Code Section 15 provides that “shall” is mandatory.) If the employer desires to construct the foundation upon which to predicate a basis upon which to favorable conclude the case based on the employee’s absence, it must compel the employee’s presence by either issuing a personal subpoena or transmitting to the allegedly injured worker a Notice to Appear more than 10 days prior to trial pursuant to California Code of Civil Procedure Section 1987(b). (Dole Bakersfield v WCAB (Arguelles) (1998) 63 CCC 698; Chamberlain v Humphrey & Giacopuzzi 2016 Cal. Wrk. Comp. P.D. LEXIS 226) Merely listing the employee on the Pre-Trial Conference Statement is insufficient. (Kusljugic v Community Assistance 2015 Cal. Wrk. Comp. P.D.LEXIS 135)

As long as the employee’s attorney appears at Trial, no Petition for Dismissal based on the employee’s non-appearance will be successful. (CCR Section 10562(a))

There is a strong public policy favoring disposition of workers’ compensation cases on their merits. (Litzman v WCAB (1968) 33 CCC 584) Due process requires that a party be provided with notice and an opportunity to be heard. (Katzin v WCAB (1992) 57 CCC 230) 

Accordingly, whenever an employee fails to appear at an MSC, or, at trial where he/she has been provided notice to appear or has been issued an personal subpoena, the employer has several remedies.

1. If the case is set for an MSC, a Petition for Dismissal pursuant to CCR Section 10562(b)(1) should be asserted followed by the Court’s Notice of Intention to Dismiss the case. If no good cause is communicated within the time frame set by the Court, the final Order of Dismissal can be issued.

2. If the case is set for trial and both the employee and his/her attorney fail to appear, a Petition for Dismissal should be communicated followed by the Court’s Notice of Intention to dismiss the case. If no good cause is communicated within the time frame set by the Court, the final Order of Dismissal will issue.

3. If the case is set for trial and the testimony of the employee is required on the issue of Injury AOE/COE or one of the affirmative defenses, applicant should be issued a Notice to Appear 10 days prior to trial or served with a personal subpoena. His/her failure to appear will generate a number of remedies available to the employer, including contempt pursuant to Labor Code Section 132, sanctions pursuant to Labor Code Section 5813 or a request that adverse inferences be drawn from the employee’s failure to testify, pursuant to Evidence Code Section 513

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