Chapter 3.3. Occupational Safety and Health Appeals Board
Article 3. Prehearing Procedure Discovery, and Motions

§ 371.1. Motions Concerning Hearing Dates.

(a) Continuances are disfavored.

(b) A motion for a continuance shall be in writing and made promptly once the reason necessitating the continuance is ascertained. The motion shall be filed with the Appeals Board as required in Section 355.4. Service shall be in a manner as prescribed in Section 355.3 and proof of such service meeting the requirements of Section 355.3 shall be filed with the Appeals Board. In the case of an emergency where the time for the hearing does not permit service as set forth above, service may be made upon a party by fax, email, or personal service. Motions to the Board, however, may not be made by email. The motion shall contain:

(1) The date(s) presently assigned for hearing and the date(s) to which continuance is sought;

(2) A declaration signed under penalty of perjury containing 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. Absent exigent circumstances, the Appeals Board will not rule on the motion without notification of the other party's position or until the time to oppose the motion as provided in (c) has run, whichever comes first.

(c) Any opposition to a motion for continuance shall be filed with the Appeals Board immediately but no later than ten (10) days from service of the motion. Service shall be in a manner as prescribed in Section 355.3 and proof of such service meeting the requirements of Section 355.3 shall be filed with the Appeals Board.

(d) The motion shall be ruled on promptly and not delayed once the Board has received all information needed to rule on the motion.

(e) Each request for a continuance shall be considered on its own merits. The motion shall be granted on an affirmative showing of good cause. The following circumstances shall be considered when determining whether good cause exists for the granting of the continuance:

(1) The unavailability of an essential witness, party, counsel or representative because an emergency arises, including, but not limited to, death or incapacitating illness.

(2) The addition of a new party who has not had notice of the hearing date and an adequate opportunity to prepare for the hearing.

(3) The age of the case and whether there were any previous continuances.

(4) The ability of the parties to agree on at least three (3) alternative hearing dates in the immediate future and the Appeals Board's ability to calendar the case on one of the dates.

(5) The prejudice that parties or witnesses will suffer as a result of the continuance being granted or denied.

(6) Whether the party's counsel is calendared in another hearing which conflicts with the Appeals Board's scheduled hearing, including administrative, civil or criminal matters, the specific attempts made by counsel to continue the other matter, and the results of such attempts.

(7) Whether an alternative short of continuing the entire hearing, such as leaving the record open to allow testimony of an unavailable witness or witnesses at a later time, would accommodate the needs of the moving party while allowing the matter to proceed in the meantime.

(8) Whether the employer has abated the alleged unsafe condition or conditions.

(9) The status of any related criminal investigations or proceedings.

(10) Whether the conflict necessitating the continuance was either foreseeable or created by the party(ies) or the party(ies) representative(s).

(11) Any other fact or circumstance relevant to the fair determination of the motion.

(f) 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 the Appeals Board orders a continuance of the hearing after a motion to compel discovery has been filed pursuant to Section 372.6. A continuance of the hearing may be ordered only if:

(A) a motion to compel discovery was filed at a time which would not have foreseeably delayed the hearing, or good cause for such later filing is shown, and

(B) the matters sought to be discovered are of sufficient importance to warrant a continuance of the hearing.

Note: At-hearing sanctions for discovery abuses are specified in Section 372.7 of these regulations.

(g) 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. If the motion was denied without prejudice a party may renew the motion and submit additional information supporting the request including, but not limited to, changed circumstances or new information not formerly available.

Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 149.5 and 6603, Labor Code.

HISTORY

1. New section filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

2. Amendment of subsection (e)(2) and new subsections (e)(2)(A)-(B) filed 8-16-99; operative 9-15-99 (Register 99, No. 34).

3. Amendment filed 2-8-2012; operative 3-9-2012 (Register 2012, No. 6).

4. Amendment of subsections (b) and (c) and amendment of Note filed 8-2-2016; operative 10-1-2016 (Register 2016, No. 32).