ADJ9910901 — California WCAB decision

What the panel ordered

Findings of Fact and Order issued on February 24, 2020, rescinded; matter returned to trial level for further proceedings; petition for removal of Notice of Intention to Impose Sanctions, Costs, and Fees denied.

Petition for reconsideration filed by lien claimant Citywide Scanning Service, Inc. seeking reconsideration of Findings and Order Notice of Intention to Impose Sanctions, Costs and Fees issued by WCJ on February 24, 2020.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Penalties under Labor Code §5814Mixed

The WCJ's findings on sanctions and costs were rescinded due to insufficient evidence and the need for further record development; the notice of intent to impose sanctions was not removed as it was not a final order.

From the decision · page 4(Maranian, supra, 81 Cal.App.4th at p. 1075 [65 Cal.Comp.Cases at p. 655] ("interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final' "); Rymer, supra, 211 Cal.App.3d at p. 1180 ("[t]he term [`final'] does not include intermediate procedural orders or discovery orders"); Kaiser Foundation Hospitals (Kramer), supra, 82 Cal.App.3d at p. 45 [43 Cal.Comp.Cases at p. 665] ("[t]he term [`final'] does not include intermediate procedural orders").) Such interlocutory decisions include pre-trial orders regarding evidence, discovery, trial setting, venue, and similar issues. Here a notice of intent issued, which is not a final order. Accordingly, reconsideration is not proper.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Lien claimant asserted a lien for pre-application services during litigation but withdrew the claim at trial.

Favours Defendant prevailed

This conduct was found to constitute bad faith, supporting the imposition of sanctions and costs against lien claimant.

From the decision · page 6points out that they withdrew their claim for pre-application invoices on the day of trial and only proceeded to trial on the issues of penalties, interest, sanctions, and costs. Lien claimant's argument is technically correct but misses the point. Lien claimant ignores its conduct on prior trial days, where it clearly asserted a lien for services performed pre-application. This appears to constitute bad-faith conduct. Lien claimant cannot litigate a bad-faith argument and then absolve itself of costs and/or sanctions by dropping the issue at the last minute.

No evidence explaining defendant's delay in payment; no exhibits or testimony from defendant; parties noted no outstanding balance but that alone does not preclude penalties and interest.

Favours Applicant prevailed

The record was insufficient to determine entitlement to penalties and interest, requiring further development of the record.

From the decision · page 5The reasons why lien claimant is not entitled to penalties and/or interest on the amounts that defendant paid are not clear in the present record. It appears that defendant paid lien claimant on multiple invoices. It further appears that such payments may have been years after the invoices were billed. No reason exists in the record establishing defendant's delay. While it is true that the parties noted at trial that no outstanding balance was due, that fact alone does not support the finding that no interest and penalties are due for the alleged late payment by defendant. Defendant offered no exhibits or testimony in evidence. The issue of penalties and interest on the amount paid by defendant warrants further development of the record.

ADJ9910901 · March 5, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

What proof carried it

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