Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) An initial hearing date will be scheduled as soon as a case is ready for presentation. Once that hearing date has been finalized as provided below, the case should proceed to hearing as scheduled. Hearing dates will be assigned so that all cases set for a particular date can proceed on that date. Finalized hearing dates should therefore be regarded by counsel as firm dates.
(b) When a notice of hearing issues for an unfair labor practice or representation case, the dates indicated in the notice of hearing and any scheduled prehearing conference, including any scheduled settlement conference in an unfair labor practice case, will be finalized unless the executive secretary receives a written communication within 10 days of the issuance of the notice of hearing, indicating that the parties have mutually agreed to a new hearing and/or prehearing date. It is the responsibility of the party objecting to the initial date(s) to contact the other parties and obtain their agreement for a modification. The objecting party is also responsible for communicating the new, agreed upon date(s) to the executive secretary.
(1) If a new date for the hearing and/or any scheduled settlement or prehearing conference is mutually agreed to and communicated to the executive secretary within the 10-day period, that date will be finalized by the issuance of a confirming notice of hearing.
(2) If the parties are unable to agree on a new date for the hearing and/or any scheduled settlement or prehearing conference, the objecting party may submit a written request to the executive secretary within the 10-day period, with copies to the other parties, indicating the reasons the initial date(s) are objected to and requesting date(s) which are more convenient. The request will be treated as a motion to continue, and all parties will be contacted by telephone and given an opportunity to respond. No further pleading in support of or in opposition to the continuance shall be filed unless requested by the executive secretary. In ruling on the request, the executive secretary may grant the continuance to the date(s) requested, select other date(s), or retain the initial date(s). The executive secretary's ruling will be finalized by issuance of a confirming notice of hearing.
(3) If the dates set for the hearing and/or any scheduled settlement or prehearing conference in the initial notice of hearing are not objected to within the 10-day period, they will be finalized by the issuance of a confirming notice of hearing.
(4) In unusual situations where it is urgent that the hearing be held as soon as possible, (e.g., related court proceedings involving interlocutory relief), or when the agreed to dates would create scheduling conflicts, the executive secretary may decline to accept the dates mutually agreed to by the parties and instead select other dates.
(5) In computing the 10-day period, section 20170(b) allowing five additional days to respond to papers served by mail, shall not apply. The date(s) mutually agreed to must be communicated to the executive secretary within the 10-day period.
(c) Once the dates for the hearing and any scheduled settlement or prehearing conference have been finalized as provided in subdivision (b), the scheduled dates will not be subject to change unless extraordinary circumstances are established.
(1) The party seeking a continuance for extraordinary circumstances shall do so by written motion directed to the executive secretary with proof of service on all parties.
(2) The motion shall contain:
(i) the dates presently assigned for hearing and any scheduled settlement or prehearing conference and the dates to which continuance is sought;
(ii) the facts on which the moving party relies, stated in sufficient detail to permit the executive secretary to determine whether the conditions set forth in the applicable guidelines have been met; and
(iii) the positions of all other parties or an explanation of any unsuccessful attempt made to contact a party or the circumstances excusing such attempt.
(3) Where required by this regulation or where appropriate under the circumstances, supporting declarations shall accompany the motion.
(4) Motions for continuance shall be made as soon as possible after the moving party learns the facts necessitating the motion. Except in emergencies, motions shall be received no less than five calendar days prior to the scheduled hearing.
(5) Once a motion for continuance has been ruled on by the executive secretary, a motion based on the same grounds shall not again be requested at the hearing.
(6) Any party opposing a motion for continuance shall notify the executive secretary as soon as possible. Depending on the proximity to the hearing, the opposing party will be allowed to respond in writing or orally as the executive secretary may determine. Written responses shall be served on the other parties.
(7) Where there is agreement on the terms of a settlement but there is insufficient time to file a written continuance motion, the moving party may present it orally by telephone to the executive secretary. The moving party shall thereafter promptly reduce the motion to writing and serve it on the executive secretary and the other parties.
(d) After the opening of hearing, continuances of up to 10 business days may be granted by the assigned administrative law judge or investigative hearing examiner upon oral motion for good cause. The record of the hearing shall reflect the reasons given for the request, the agreement or absence of agreement of the other parties to the hearing, the reasons given for the granting or denial of the motion, and the date, time and location to which the hearing is continued. After the opening of a hearing, requests for continuances for periods longer than 10 business days shall be in writing directed to the executive secretary with proof of service on all parties. Such motions shall not be granted unless extraordinary circumstances are established. The executive secretary may delegate the authority to rule on such motions to the assigned administrative law judge. The procedures set forth in subdivision (c) shall be followed and the guidelines set forth in subdivision (e), (f) and (g), shall apply.
(e) In ruling on a motion for a continuance of longer than 10 business days, all matters relevant to a proper determination of the motions will be taken into consideration, including:
(1) The official case file and any supporting declaration submitted with the motion.
(2) The diligence of counsel in bringing the extraordinary circumstances to the attention of the executive secretary and opposing counsel at the first available opportunity and in attempting otherwise to meet those circumstances.
(3) The extent of and reasons for any previous continuances, extensions of time or other delay attributable to any party.
(4) The proximity of the hearing date.
(5) The condition of the hearing calendar.
(6) Whether the continuance may properly be avoided by the substitution of attorneys or witnesses, or by some other method.
(7) Whether the interests of justice are best served by a continuance, by proceeding to hearing, or by imposing conditions on the continuance.
(8) Any other facts or circumstances relevant to a fair determination of the motion.
(f) The following circumstances shall not constitute extraordinary circumstances warranting a continuance:
(1) The fact that all parties have agreed to continue a hearing which has already been set pursuant to a notice of hearing.
(2) Scheduling conflicts which could have been avoided by prompt action either during or after the 10-day period, or which can still be avoided by rescheduling.
(3) Circumstances which would normally constitute good cause, as described below, but which were known or should have been known to the requesting party prior to the expiration of the 10 day period or prior to the granting of any previous continuance.
(4) The willingness of the parties to enter into settlement negotiations. Continuances for settlement will only be granted to consummate a settlement, the basic terms of which have already been agreed to.
(g) The following circumstances will normally be considered extraordinary circumstances warranting the granting of a continuance; provided, however, that the conditions specified for each have been met:
(1) Unavailability of a witness only where:
(i) the witness has been subpoenaed and will be absent due to an unavoidable emergency of which the subpoenaing counsel or representative did not know, and could not reasonably have known, when the hearing date was finalized or any previous continuance was granted;
(ii) the witness will present testimony essential to the case, and
(iii) it is not possible to obtain a substitute witness.
(2) Illness that is supported by an appropriate declaration of a medical doctor, or by bona fide representations of parties or their counsel or representative, stating the nature of the illness and the anticipated period of any incapacity under the following circumstances:
(i) the illness of a party or of a witness who will present testimony essential to the case except that, when it is anticipated that the incapacity of such party or witness will continue for an extended period, the continuance should be granted on condition of taking the deposition of the party or witness in order that the hearing may proceed on the date set; with respect to such an essential witness, it must also be established that there is insufficient time to obtain a substitute witness;
(ii) the illness of the hearing attorney or representative, except that the substitution of another attorney should be considered in lieu of a continuance depending on the proximity of the illness to the date of hearing, the anticipated duration of the incapacity, the complexity of the case, and the availability of a substitute attorney.
(3) Death of the hearing attorney or representative where, because of the proximity of such death to the date of hearing, it is not feasible to substitute another attorney or representative. The death of a witness only where the witness will present testimony essential to the case and where, because of the proximity of death to the date of hearing, there has been no reasonable opportunity to obtain a substitute witness.
(4) Unavailability of administrative law judge or investigative hearing examiner where there is no other available administrative law judge or investigative hearing examiner or where there is insufficient time for an otherwise available administrative law judge or investigative hearing examiner to become familiar with the case in time for the hearing. The executive secretary may act sua sponte in continuing a hearing pursuant to this subparagraph.
(5) Substitution of trial counsel or representative only where there is an affirmative showing that the substitution is required in the interests of justice, and there is insufficient time for the new counsel or representative to become familiar with the case prior to the scheduled hearing date.
(6) A significant change in the status of the case where, because of the addition of a named party or the need to amend the pleadings to add a new issue or allegation, a continuance is required in the interests of justice. The executive secretary may act sua sponte in continuing a hearing pursuant to this paragraph.
1. New section filed 9-20-91; operative 10-21-91 (Register 92, No. 4).
2. Amendment of subsection (b)(2) filed 10-19-95; operative 11-18-95 (Register 95, No. 42).
3. Amendment of subsections (c)(3) and (f)(1) filed 7-8-99; operative 8-7-99 (Register 99, No. 28).
4. Amendment of section and NOTE filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35).
Note: Authority cited: Section 1144, Labor Code. Reference: Sections 1142, 1156.3, 1160.2 and 1160.5, Labor Code.
