What the panel ordered
First Amended Order Imposing Sanctions and Costs Against Asvar Law, Christopher Asvar and Theresia Falter issued on February 11, 2022 is rescinded and the matter is returned to the trial level for further proceedings
Petition for Reconsideration of the First Amended Order Imposing Sanctions and Costs Against Asvar Law, Christopher Asvar and Theresia Falter issued on February 11, 2022
This docket was decided more than once. Shown here is the latest released decision; we also hold January 12, 2022.
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 Board found that the sanctions order was issued without proper due process and that the attorneys' right to discovery was effectively denied. The Board granted reconsideration, rescinded the sanctions order, and returned the matter for further proceedings to develop the record on sanctions issues.
From the decision · page 10For the foregoing reasons, IT IS ORDERED that the Petition for Reconsideration of the First Amended Order Imposing Sanctions and Costs Against Asvar Law, Christopher Asvar and Theresia Falter issued on February 11, 2022 is GRANTED. IT IS FURTHER ORDERED that First Amended Order Imposing Sanctions and Costs Against Asvar Law, Christopher Asvar and Theresia Falter issued on February 11, 2022 is RESCINDED and that this matter is RETURNED to the trial level for further proceedings consistent with this decision.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's attorneys attempted to depose defendant's attorney without a motion or order allowing the deposition and without showing 'extremely' good cause as required by law.
Favours Defendant prevailed
This failure undermined the basis for imposing sanctions and supported the Board's decision to rescind the sanctions order.
From the decision · page 6Notably, the party seeking to depose the opposing attorney holds the burden to show "'extremely' good cause" for the deposition; namely, that the opposing attorney has information "crucial to the preparation of the case" and that deposing the attorney is the only means to obtain the information. (Carehouse, supra, 143 Cal.App.4th at pp. 1562-1563.) If the party seeking to depose the opposing attorney establishes these elements, the burden falls on the opposing attorney to prove that the deposition would impinge upon privileged information. (Id. at p. 1563.)
The pleadings record showed that defendant's attorney sought sanctions before applicant's attorneys made any attempt to establish entitlement to depose him.
Favours Defendant prevailed
This procedural posture indicated that sanctions were premature and lacked proper foundation, supporting rescission.
From the decision · page 6Hence, the pleadings posture in this case is that defendant's attorney sought sanctions against applicant's attorneys before applicant's attorneys made any attempt, much less a successful one, to establish their alleged entitlement to depose him.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, former 10561, now 10421 (eff. Jan. 1, 2020)
Before imposing sanctions under Labor Code section 5813, the offending party must be given notice and an opportunity to be heard, and sanctions shall not be imposed if the party acted with reasonable justification or if imposition would be unjust.
The Board found that the sanctions order was issued without proper due process and that the attorneys' right to discovery was effectively denied, warranting reconsideration and rescission of the sanctions order.
From the decision · page 7On 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. (Cal. Code Regs., tit. 8, former § 10561, now § 10421 (eff. Jan. 1, 2020) [Emphasis added.].)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's attorneys' failure to show 'extremely' good cause to depose defendant's attorney and lack of evidence that defendant's attorney possessed information crucial to the case preparation
From the decision · page 6Notably, the party seeking to depose the opposing attorney holds the burden to show "'extremely' good cause" for the deposition; namely, that the opposing attorney has information "crucial to the preparation of the case" and that deposing the attorney is the only means to obtain the information. (Carehouse, supra, 143 Cal.App.4th at pp. 1562-1563.) If the party seeking to depose the opposing attorney establishes these elements, the burden falls on the opposing attorney to prove that the deposition would impinge upon privileged information. (Id. at p. 1563.)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
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