Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) On its own
motion or upon the filing of a petition pursuant to rule 10510, the Workers'
Compensation Appeals Board may order payment of reasonable expenses, including
attorney's fees and costs and, in addition, sanctions as provided in Labor Code
section 5813. 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.
(b) 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.
Violations subject to the provisions of Labor Code section 5813 shall include
but are not limited to the following:
(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.
(3) Failure to
timely serve documents (including but not limited to medical reports and
medical-legal reports) as required by the rules of the Workers' Compensation
Appeals Board, or the Administrative Director, where the documents are within
the party's possession or control, unless that failure resulted from mistake,
inadvertence or excusable neglect.
(4) Failing to comply with the Workers'
Compensation Appeals Board's Rules of Practice and Procedure, with the
regulations of the Administrative Director, 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,
unless that failure results from mistake, inadvertence, surprise or excusable
neglect.
(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; and
(B) Where a reasonable excuse is not offered
or where the offending party has demonstrated a pattern of such
conduct.
(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; and
(B) Where
a reasonable excuse is not offered or where the offending party has
demonstrated a pattern of such conduct.
(7) Presenting a claim or a defense, or
raising an issue or argument, that is not warranted under existing law --
unless it can be supported by a non-frivolous argument for an extension,
modification or reversal of the existing law or for the establishment of new
law -- and where a reasonable excuse is not offered or where the offending
party has demonstrated a pattern of such conduct. In determining whether a
claim, defense, issue or argument is warranted under existing law, or if there
is a reasonable excuse for it, consideration shall be given to:
(A) Whether there are reasonable ambiguities
or conflicts in the existing statutory, regulatory or case law, taking into
consideration the extent to which a litigant has researched the issues and
found some support for its theories; and
(B) Whether the claim, defense, issue or
argument is reasonably being asserted to preserve it for reconsideration or
appellate review.
This subdivision is specifically intended not to have a
"chilling effect" on a party's ability to raise and pursue legal arguments that
reasonably can be regarded as not settled.
(8) Asserting a position that misstates or
substantially misstates the law, and where a reasonable excuse is not offered
or where the offending party has demonstrated a pattern of such
conduct.
(9) Using any language or
gesture at or in connection with any hearing, or using any language in any
pleading or other document:
(A) Where the
language or gesture:
(i) Is directed to the
Workers' Compensation Appeals Board, to any of its officials or staff or to any
party (or the attorney or non-attorney representative for a party);
and
(ii) Is patently insulting,
offensive, insolent, intemperate, foul, vulgar, obscene, abusive or
disrespectful; or
(B)
Where the language or gesture impugns the integrity of the Workers'
Compensation Appeals Board or its commissioners, judges or
staff.
1.
Renumbering of former section
10561 to section 10421, including
amendment of section and NOTE, filed 12-17-2019; operative 1-1-2020. Submitted
to OAL for printing only pursuant to Government Code section
11351
(Register 2019, No. 51).
Note: Authority cited: Sections
133,
5307,
5309 and
5708, Labor
Code. Reference: Sections
4903.6(c),
5701,
5703.5,
5706,
5708,
5813 and
5906, Labor
Code.
