ARTICLE 3. PREHEARING PROCEDURE, DISCOVERY, AND MOTIONS
370. Application of Article.
This article applies to all proceedings before the Appeals Board brought pursuant to Part I (commencing with section 6300) of Division 5 of the Labor Code, section 2950 of the Health and Safety Code and a petition for costs pursuant to Article 6 but not a proceeding under reconsideration pursuant to Article 5.
NOTE: Authority cited: sections 148.7 and 149.5, Labor Code. Reference: sections 148.7 and 149.5,
371. Prehearing Motions.
(a) Any motion or request for action, any opposition thereto, and any reply relating to any proceeding shall be in writing and directed to the Appeals Board. The caption of each motion or request shall contain the title and docket or petition number of the proceeding and a clear and plain statement of the relief sought, together with the grounds therefor.
(b) Any motion or request, any opposition thereto, and any reply shall be signed by the party filing or by the party’s representative, and a copy shall be served on all parties. Service shall be in a manner as prescribed in section 355© and proof of such service meeting the requirements of section 355(e) shall be filed with the Appeals Board.
© Unless otherwise ordered, the following dates shall apply to prehearing motions or requests:
(1) A motion or request shall be served and filed no later than 20 days before the hearing date.
(2) Any opposition to the motion shall be served and filed no later than 10 days from service of the motion or request.
(3) Any reply papers shall be served and filed no later than 5 days before the hearing date.
(d) A request to file a motion, opposition, or reply later than the times specified in © shall be granted if accompanied by a declaration showing good cause for the late filing.
NOTE: Authority cited: section 148.7, Labor Code. Reference: sections 148.7 and 149.5, Labor code.
371.1. Motions Concerning Hearing Dates.
(a) Continuances are disfavored.
(b) A motion for a continuance shall be made in writing and shall be made promptly once the reason necessitating a continuance is ascertained. The motion shall be directed to the Appeals Board. Service shall be in a manner as prescribed in section 355© and proof of such service meeting the requirements of section 355(e) shall be filed with the Appeals Board. It shall contain:
(1) The date(s) presently assigned for hearing and the date(s) to which continuance is sought;
(2) Facts in support of the motion; and
(3) An indication of whether the other parties to the appeal were contacted, and if so, their position on the motion.
© Any opposition to a motion for continuance shall be filed with the Appeals Board at any time prior to a ruling on the motion. Service shall be in a manner as prescribed in section 355© and proof of such service meeting the requirements of section 355(e) shall be filed with the Appeals Board.
(d) The motion shall be granted in the following circumstances:
(1) An emergency arises, including, but not limited to, death or illness of a party, witness, or representative; or
(2) Any other reason constituting good cause, if the motion is made no later than 15 days after service of the hearing notice.
(e) The following circumstances shall not constitute good cause:
(1) Failure to obtain representation, unless a substitution is required through no fault of the party.
(2) Failure of another party to comply with a request for discovery, unless a court of competent jurisdiction orders a continuance of the hearing pursuant to section 372.6.
Note: At-hearing sanctions for discovery abuses are specified in section 372.7 of these regulations.
(f) Once a motion for continuance has been ruled on by the Appeals Board, a motion for continuance based on the same grounds shall not be entertained at the hearing.
NOTE: Authority cited: section 148.7, Labor Code. Reference: sections 148.7 and 149.5, Labor Code.
371.2. Prehearing Amendments.
(a) Once an appeal is docketed amendment of the citation or appeal shall be set forth in section 371. An amendment by the Division that alleges a new violation may be permitted by the Appeals Board, but not after six months have elapsed since the occurrence of the alleged violation.
(b) Each party shall be given notice of the intended amendment and an opportunity to prepare a response to an amendment which presents a new charge or defense. Any new charges or defenses shall be deemed controverted.
NOTE: Authority cited: section 148.7, Labor Code. Reference: section 11507, Government Code; sections 6317 and 6603(a), Labor Code.
372. Identity of Witnesses.
After initiation of a proceeding, a party, upon written request made to another party, is entitled to obtain prior to the hearing the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing. Nothing in this section requires the disclosure of the identity of a person who submitted a complaint regarding the unsafeness of an employment or place of employment unless that person requests otherwise.
NOTE: Authority cited: sections 148.7, 149.5 and 6603(a), Labor Code. Reference: section 11507.6, Government Code; and sections 148.7, 149.5, 6309 and 6603(a) Labor Code.
372.1. Access to Documents.
After initiation of a proceeding and prior to the hearing, a party, upon written request made to another party, is entitled to inspect and make a copy of any of the following in the possession or custody or under the control of the other party:
(a) Any statements of parties or witnesses relating to the subject matter of the proceeding;
(b) All writings or things which the party then proposes to offer in evidence;
© Any other writing or thing which is relevant and which would be admissible in evidence;
(d) Inspection and investigative reports made by or on behalf of the Division or other party pertaining to the subject matter of the proceeding, to the extent that such reports
(1) Contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis of the proceeding, or
(2) Reflect matters perceived by the Division in the course of its inspection, investigation or survey, or
(3) Contain or include by attachment any statement or writing described in (a) to ©, inclusive, or summary thereof.
(e) For the purpose of this section, "statements" INCLUDE WRITTEN STATEMENTS BY THE PERSON, SIGNED OR OTHERWISE AUTHENTICATED, STENOGRAPHIC, MECHANICAL, ELECTRICAL OR OTHER RECORDINGS OR TRANSCRIPTS THEREOF, OF ORAL STATEMENTS BY THE PERSON, AND WRITTEN REPORTS OR SUMMARIES OF SUCH ORAL STATEMENTS.
(f) Nothing in this section requires the disclosure of the identity of a person who submitted a complaint regarding an unsafe condition in an employment or place of
employment unless that person requests otherwise. Nothing in this section authorizes the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as attorney’s work product.
(g) Parties shall arrange a mutually convenient time for inspecting and copying the writings or things within 30 days of service of the written request. Unless other arrangements are made, the party requesting the writings must pay for the copying.
(h) Within 30 days of service of the written request, a party claiming that certain writings or things are privileged against disclosure shall serve on the requesting party a written statement setting forth what matters are claimed to be privileged and the reasons therefor.
NOTE: Authority cited: sections 148.7 and 6603(a), Labor Code. Reference: section 11507.6, Government Code; and sections 148.7, 149.5, 6309, 6322, and 6603(a), Labor Code.
372.2. Subpoena and Subpoena Duces Tecum.
(a) Before the hearing has commenced, the Appeals Board shall issue a subpoena and subpoena duces tecum at the request of a party for attendance of a person at a hearing and for production of a document or thing at the hearing or prehearing conference or at any reasonable time and place. After the hearing has commenced, the Appeals Board may, upon a showing of good cause by the requesting party, issue a subpoena or subpoena duces tecum.
(b) Application for a subpoena duces tecum requires:
(1) Compliance with the provisions of section 1985 to 1985.4, inclusive, of the Code of Civil Procedure as a condition precedent to the issuance of a subpoena duces tecum; and that
(2) The application for a subpoena duces tecum shall be in the form of an affidavit or declaration under penalty of perjury and shall show good cause for the production of the document or thing requested, specifying the exact document or thing desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the proceeding, and stating that the witness has the desired document or thing in the possession or control of the witness. The application shall also state that if the personal attendance of the witness or other qualified custodian of the records is not required, compliance pursuant to Article 4 (commencing with section 1560) of the Evidence Code will be permitted.
© Any subpoena or subpoena duces tecum issued pursuant to subdivision (a) extends to all parts of the State. The provisions of sections 1987 and 1988 of the Code of Civil Procedure are applicable to the service of a subpoena or a subpoena duces tecum. Service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Service of a subpoena or subpoena duces tecum is made by delivering a copy to the witness together with a copy of the affidavit or declaration upon which the subpoena duces tecum is based, giving or offering at the same time, if demanded, the fees to which the witness is entitled for travel to and from the place designated. See section 382 for amount of witness fees and mileage. Service shall be made by personal delivery or by certified mail return receipt requested or by messenger.
(1) Service by personal delivery may be made by any person.
(2) Service by messenger shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, or in person, and identifies himself or herself either by reference to date of birth and driver’s license number or Department of Motor Vehicles identification number, or the sender may verify receipt of the subpoena by obtaining other identifying information from the recipient. The sender shall make a written notation of the acknowledgment. A subpoena issued and acknowledged pursuant to this subsection has the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state.
(d) All witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the State or any political subdivision thereof, shall receive fees, and all witnesses appearing pursuant to subpoena, except the parties, shall receive mileage in the same amount and under the same circumstances as prescribed by law for witnesses in civil actions in a superior court. Fees and mileage shall be paid by the party at whose request the witness is subpoenaed. See section 382 for amount of witness fees and mileage. All reasonable costs, as defined at section 1563(b)(1) of the Evidence Code, incurred by a witness not a party, with respect to the production of a business record pursuant to a subpoena duces tecum, shall be paid to the witness before being required to deliver the document.
(e) No witness shall be obligated to attend unless the witness is a resident of the state at the time of service.
(f) Upon timely motion of a party or witness, or upon its own motion, after notice to the parties and an opportunity to be heard, upon a showing of good cause, the Appeals Board may order the quashing of a subpoena or subpoena duces tecum entirely, may modify it, or may direct compliance with it upon other terms or conditions. In addition, the Appeals Board may make any other order as may be appropriate to protect a party or witness from unreasonable or oppressive demands.
NOTE: Authority cited: sections 148.7 and 6603(a), Labor Code. Reference: sections 1985, 1987 and 1988, Code of Civil Procedure; section 1563, Evidence Code; sections 11181, 11184, 11450.10, 11450.20, 11450.30, 11450.40, 11450.50, 68093, 68097.1 and 68097.2, Government Code; and sections 148.7, 148.8, 149.5 and 6603(a), Labor Code.
(a) The Appeals Board or a party to the proceeding may cause the deposition of a person to be taken. At the request of a party, the Appeals Board may issue a subpoena re deposition and subpoena duces tecum re deposition to compel the person to appear for deposition, and to produce books, documents, or other things. Compliance with the provisions of section 1985 of the Code of Civil Procedure shall be a condition precedent to the issuance of a subpoena duces tecum re deposition.
(b) When a person resides outside the state, the Appeals Board, if requested by a party to the proceeding, shall attempt, when possible, to have a like agency in the other state take the deposition.
© A person who is subpoenaed and required to give a deposition is entitled to receive the same witness fees and mileage as if the subpoena required the person to attend and testify at the hearing. See section 382 for amount of witness fees and mileage.
(d) No person is obligated to attend at a place out of the county of residence unless the distance is less than 75 miles from the place of residence except that the Appeals Board, upon affidavit or declaration of a party showing good cause, may endorse on the subpoena re deposition an order requiring the attendance of such person.
(e) Depositions shall be noticed, taken, filed, and used in the manner prescribed by Article 3 (commencing with section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure.
(f) Upon timely motion of a party or the person to be examined or notified to produce books, documents, or other things, or upon its own motion, after notice to the parties and an opportunity to be heard, upon a showing of good cause, the Appeals Board may order that the deposition not be taken, or that it may be taken only at some designated time or place other than stated in the notice of taking deposition or subpoena, or that the deposition may be taken outside the county of residence of the person to be examined and at a place more than 150 miles from the place of residence, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, books, documents, or other things, or that the confidentiality of evidence described at section 376.6(a) be appropriately protected. In addition, the Appeals Board may make any other order as may be appropriate to protect a party or person from unreasonable or oppressive demands.
NOTE: Authority cited: sections 148.7 and 149.5, Labor Code. Reference: sections 1985, 1987.5 and 2016-2036, Code of Civil Procedure; sections 11181, 11184, 68093, 68097.1 and 68097.2, Government Code; and sections 148.7, 148.8, and 149.5 and 6613, Labor Code.
372.4. Evidence by Affidavit or Declaration.
(a) At any time 10 or more days prior to a hearing or a continued hearing, a party may mail or deliver to the opposing party or parties a copy of any affidavit or declaration which the proponent proposes to introduce in evidence, together with a notice as provided in subdivision (b). Unless an opposing party, within 7 days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine the affiant or declarant, the opposing party’s right to cross-examine such affiant or declarant is waived and the affidavit or declaration, if introduced in evidence, shall be given the same effect as if the affiant or declarant had testified orally. If an opportunity to cross-examine an affiant or declarant is not afforded after request therefor is made as herein provided, the affidavit or declaration may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.
(b) The notice referred to in subdivision (a) shall be substantially in the following form:
"The accompanying affidavit or declaration of (here insert name of affiant or declarant) will be introduced as evidence at the hearing in (here insert title and docket number or petition number of proceeding). (Here insert name) will not be called to testify orally and you will not be entitled to question the affiant or declarant unless you notify (name of the proponent, representative, agent or attorney) at (here insert address) that you wish to cross-examine the affiant or declarant. To be effective, your request must be mailed or delivered to (here insert name of proponent, representative, agent or attorney) on or before (here insert a date 7 days after the date of mailing or delivering the affidavit to the opposing party.)"
© Nothing in this section shall be construed to limit or restrict the use of affidavits pursuant to Labor Code section 6611.
NOTE: Authority cited: sections 148.7, 149.5 and 6603(a), Labor Code. Reference: section 11514, Government Code; and sections 148.7, 149.5 and 6603(a). Labor Code.
372.5. Judicial Enforcement.
(a) If any witness refuses to attend or testify or produce any papers required by a subpoena issued by the Appeals Board, a party may file with the Appeals Board a petition for judicial enforcement. The petition shall be verified and shall set forth that due notice of the time and place of attendance of the person or the production of the papers has been given, that the person has been subpoenaed in the manner prescribed by law and these rules, and that the person has failed and refused to attend or produce the papers required by the subpoena in the cause or proceeding named in the subpoena, or has refused to answer the questions propounded in the course of the hearing or deposition.
(b) If the Appeals Board determines that judicial enforcement is appropriate, it will petition the superior court in the county in which the hearing is pending for an order compelling the person to attend and testify or produce the papers pursuant to Government Code sections 11186 through 11188, inclusive.
NOTE: Authority cited: sections 148.7 and 149.5, Labor Code. Reference: sections 11186-11188, 11455.10 and 11455.20, Government Code; and sections 148.7, 148.8, 149.5 and 6603, Labor Code.
372.6. Proceeding to Compel Discovery.
(a) A party claiming that its request for discovery pursuant to sections 372 and 372.1 has not been complied with may serve and file with the Appeals Board a motion to compel discovery naming as respondent the party refusing to comply. The motion shall comply with section 11507.7 of the Government Code and shall state:
(1) Facts showing that respondent refused or failed to comply with section 372 or section 372.1;
(2) A description of the matters sought to be discovered;
(3) The reason or reasons why such matter is discoverable under these rules;
(4) A reasonable and good faith attempt to contact the respondent for an informal resolution of the issue has been made; and
(5) The ground or grounds of respondent’s refusal so far as known.
(b) The motion to compel discovery shall be served upon respondent and filed within 15 days after respondent first evidenced a refusal or failure to comply with sections 372 and 372.1, or within 30 days after the discovery request was made and respondent has failed to reply to the request, or within another time stipulated by the
parties with the approval of the Appeals Board, whichever period is longer. The motion shall comply with section 371(a) and (b).
© The hearing on the motion to compel discovery shall be held within 15 days after the motion is made, or a later time that the Appeals Board may, on its own motion, determine. Respondent shall have the right to serve and file a written answer or other response to the motion before or at the time of hearing. The answer must comply with section 371(a) and (b). The hearing may be conducted by telephone or other electronic means as provided in Government Code section 11440.30. The parties may stipulate, with the approval of the Appeals Board, to waive a hearing on the motion to compel discovery, provided that the stipulation requires that the order on the motion shall issue within 30 days of the date the motion was filed.
(d) Where the matter sought to be discovered is under the custody or control of respondent and respondent asserts that the matter is not a discoverable matter under the provisions of section 372.1(a) through (d), or is privileged against disclosure under (f), the Appeals Board may order that the matter be lodged with it and examined in accordance with the provisions of Subdivision (b) of section 915 of the Evidence Code. The Appeals Board shall decide the motion based upon the matters examined in camera, the papers filed by the parties, and such oral argument and additional evidence as the Appeals Board may allow.
(e) Unless otherwise stipulated by the parties with the approval of the Appeals Board, the Appeals Board shall, no later than 15 days after the hearing, issue a written order denying or granting the motion. The Appeals Board shall promptly serve a copy of the order to each party or representative. Where the order grants the motion, in whole or in part, the order shall set forth the matters the moving party is entitled to discover under sections 372 and 372.1. The order shall not become effective until 10 days after the date the order is served. Where the order denies the motion in its entirety, the order shall be effective on the date it is served.
NOTE: Authority cited: sections 148.7, 149.5 and 6603(a), Labor Code. Reference: section 11507.7, Government Code; and sections 148.7, 149.5 and 6603(a), Labor Code.
372.7. Discovery Abuses.
(a) The Appeals Board may impose sanctions on a party who fails to respond to an authorized request for discovery or makes an evasive or incomplete response to discovery where such action results in surprise to the requesting party at the hearing.
(b) Such sanctions may include:
(1) An order prohibiting the introduction of designated matters into evidence by the abusing party; and/or
(2) An order establishing designated facts, claims, or defenses against the abusing party in accordance with the claim of a party adversely affected.
(3) Any other order as the Appeals Board may deem appropriate under the circumstances.
NOTE: Authority cited: section 148.7, Labor Code. Reference: section 148.7, Labor Code.
373. Expedited Proceeding.
Upon motion of a party or upon its own motion, the Appeals Board may order an expedited proceeding. All parties shall be notified and shall be expected to do all things necessary to complete the proceeding in the minimum time consistent with fairness.
NOTE: Authority cited: sections 148.7 and 149.5, Labor Code. Reference: sections 148.7 and 149.5, Labor Code.
374. Prehearing Conference.
(a) At any time before a hearing, upon motion of a party or upon its own motion, the Appeals Board may notice and order a prehearing conference for the purposes of simplifying the issues, expediting a hearing and affording parties an opportunity to participate in the disposition of the appeal. The prehearing conference may be conducted by means of a telephone conference call.
(b) Each party to a prehearing conference shall be prepared to discuss the issues, stipulate to any factual or legal issue about which there is no dispute, stipulate to the identification and admissibility of documentary evidence, comply with any request for discovery, and to do such other things as may aid in the disposition of the proceeding.
© The failure of a party or its representative to prepare for and participate in the prehearing conference shall be grounds for the imposition of such sanctions, inferences or other orders, then or during the hearing, as the Appeals Board may deem appropriate. These sanctions may include striking or excluding evidence offered by the non-complying party on that dispute, or precluding that party from contesting the position or information on that issue provided by the complying party.
NOTE: Authority cited: section 148.7, Labor Code. Reference: sections 148.7 and 149.5, Labor Code.
374.1. Prehearing Statement.
At any time before a hearing, a party may file with the Appeals Board a statement of position or trial brief with respect to any issue to be decided.
NOTE: Authority cited: section 148.7 and 149.5,Labor Code. Reference: sections 148.7 and 149.5, Labor Code.
374.3. Settlement Conference.
The Appeals Board on its own motion, or upon written request of a party, may schedule a settlement conference to be held before an Administrative Law Judge who shall not hear the appeal, unless otherwise stipulated by the parties. Each party shall attend or be represented by a person authorized to negotiate regarding settlement. The settlement conference may be conducted by means of a telephone conference call.
NOTE: Authority cited: section 148.7, Labor Code. Reference: section 148.7, Labor Code.