What the panel ordered
Petition for Removal granted; discovery closed; matter returned to trial level for trial setting
Petition for Removal of June 28, 2021 Minute Order granted, discovery closed, matter returned to trial level for trial setting
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.
The WCAB found that discovery should be closed at the MSC date per Labor Code section 5502(e)(3) and granted the petition for removal to close discovery and return the matter to trial level for trial setting.
From the decision · page 2Labor Code section 5502(e)(3) provides: "Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference."
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant did not object to the Declaration of Readiness to Proceed filed by Ortiz Interpreting on April 14, 2021.
Favours Applicant prevailed
This showed defendant's acquiescence to proceeding and supported closing discovery at the MSC date.
Defendant's history of delay and failure to justify the necessity of depositions after the MSC.
Favours Applicant prevailed
Supported the decision to close discovery and require defendant to show due diligence before reopening discovery.
From the decision · page 2In this case, defendant did not object to the cost petitioner's DOR. The MSC Minutes of Hearing do not reflect that the WCJ required defendant to explain why these depositions are necessary and why it could not have obtained the depositions prior to the MSC. Given defendant's history of delay in this case, defendant should be required, at a minimum, to make a plausible argument regarding due diligence before proceeding with costly discovery. We note that, although we are closing discovery, defendant still retains the right to make arguments for reopening discovery at trial.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5502(e)(3)
Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.
Applied to close discovery at the MSC date and grant the petition for removal.
From the decision · page 2Labor Code section 5502(e)(3) provides: "Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference."
What proof carried it
The evidence the panel weighed, by kind.
Defendant's failure to object to the Declaration of Readiness to Proceed and history of delay
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About this page
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