Petitioner failed to appear at the May 19, 2021 lien conference despite proper notice.
Favours Defendant prevailed
This failure justified dismissal of the lien claim under CCR 10888 and Labor Code section 5313.
From the decision · page 4Here, Petitioner has failed to show good cause for the non-appearance at the lien conference
on May 19, 2021. Petitioner's alleged lack of knowledge of the hearing holds no merit for various
reasons. First, Petitioner was the moving party for the lien conference. Next, Petitioner
acknowledged being present at the hearing on March 30, 2021, and knew that it was to be
continued. Additionally, NOH was issued by the WCAB.2 Finally, Defendant also served with
POS a dated and verified declaration identifying that the MOH and NOH was served upon
Petitioner. Defendant's POS creates a presumption of receipt and pursuant to California Evidence
Code § 641, a letter correctly addressed and properly mailed is presumed to have been received. It
is highly unlikely that Petitioner would not have received any of the notices mailed by the Court
and Defendant.
Defendant's proof of service established a presumption that Petitioner received the notices of hearing.
Favours Defendant prevailed
Presumption of receipt under California Evidence Code section 641 supports the validity of the dismissal.
From the decision · page 4Here, Petitioner has failed to show good cause for the non-appearance at the lien conference
on May 19, 2021. Petitioner's alleged lack of knowledge of the hearing holds no merit for various
reasons. First, Petitioner was the moving party for the lien conference. Next, Petitioner
acknowledged being present at the hearing on March 30, 2021, and knew that it was to be
continued. Additionally, NOH was issued by the WCAB.2 Finally, Defendant also served with
POS a dated and verified declaration identifying that the MOH and NOH was served upon
Petitioner. Defendant's POS creates a presumption of receipt and pursuant to California Evidence
Code § 641, a letter correctly addressed and properly mailed is presumed to have been received. It
is highly unlikely that Petitioner would not have received any of the notices mailed by the Court
and Defendant.
Petitioner was present at the initial lien conference and had actual knowledge of the continued hearing date.
Favours Defendant prevailed
Knowledge of the hearing date negates Petitioner's claim of lack of notice and supports dismissal.
Petitioner did not timely respond to the Notice of Intention to Dismiss.
Favours Defendant prevailed
Untimely response fails to excuse failure to appear and supports dismissal.
From the decision · page 4With respect to Petitioners contention that excusable neglect should prevent the dismissal
of its lien as prescribed in Labor Code § 5506 in a procedural manner similar to Code Civ. Proc.
§ 473, it should be noted that "when a lien claimant seeks relief utilizing this procedure, the
WCAB's authority to grant such relief is permissive, not mandatory." [Benschine] supra at 9. As
put in the Benschine case, "this procedure cannot be used indiscriminately as a 'perfect escape
hatch' to undo dismissal of a lien." Id. Based on the facts outlined supra, it is the undersigned's
position that Petitioner's failure to appear constitutes an error within its control and falls below
the standard of reasonableness to constitute excusable neglect. See Davis v. Kay, (1973) 34 Cal.
App. 3d 680 (finding that defendant's failure to calendar a hearing on the plaintiffs motion for
summary judgment was deemed inexcusably neglectful). Moreover, even after its failure to appear,
Petitioner did not timely respond to the court's NOI.