VALDEZ v. W.C.A.B. (WAREHOUSE DEMO SERVICES)Respondents, Warehouse Demo Services and Zurich North America, OppositionCal.May 14, 20135204387 SUPREME COU RT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME COURT FILED ELAYNE VALDEZ, MAY 14 2013 Petitioner and Applicant, y. Frank A. McGuire Clerk Deputy WORKERS’ COMPENSATION APPEALS BOARD; WAREHOUSE DEMO SERVICES; ZURICH NORTH AMERICA Respondents and Defendants. RESPONSE TO PETITIONER’S MOTION TO STRIKE PORTIONS OF RESPONDENTS’ OPENING BRIEF ON THE MERITS Ofa Published Decision by the Court ofAppeal _ Second Appellate District, Case No. B237147 (W.C.A.B. en bancdecisions, Case No. AD.J7048296) GRANCELL, LEBOVITZ, STANDER, ~ SEDGWICK LLP REUBENSand THOMAS Christina J. Imre (Bar No. 96496) Timothy E. Kinsey (Bar No. 155415) Michael M. Walsh (Bar No. 150865) Stewart R. Reubens (Bar No. 145672) 801 S. Figueroa Street, 19th Floor 7250 Redwood Boulevard, Suite 370 Los Angeles, CA 90017 Novato, California 94945 Telephone: (213) 426-6900 Telephone: (415) 892-7676 Facsimile: (213) 426-6921 Facsimile: (415) 892-7436 Attorneys for Respondents and Defendants WAREHOUSE DEMOSERVICES; ZURICH NORTH AMERICA, ADMINISTEREDBY ESIS F" RECEIVED MAY -9 2013 CLERK SUPREME COURT TABLE OF CONTENTS Page INTRODUCTION.....ocecccecceccecceceneenseeteeneeeeeneeneeenaseseeeeessneseeeaseeeeseseneaenseesesectineecee 1 LEGAL DISCUSSION 0... .eeeeeeceeeseseceerececerseeeesseeeceeeesesseesensaeseesesseeesarensenecsieeeeeee 3 1. THIS COURT CUSTOMARILY CONSIDERS AUTHORITATIVE REPORTS AND STUDIES IN CONSIDERATION OF THE POTENTIAL POLICY IMPLICATIONSOF ITS RULINGS........ cc ecceceeetesteeseeeeerseteeneeee 3 Il. THERE IS NO BASIS TO STRIKE REFERENCE TO AMICI LETTERS SUBMITTED IN COMPLIANCE WITH THE RULES OF COURT........cececceeceeseeesecesennecensessesenseeneeeneseessseesneaeees 5 WI. THE INEXPLICABLE ATTEMPT TO STRIKE THE CERTIFIED RECORD SUBMITTED BY THE WCAB MUSTBE REJECTED...0..eee cect ceenececeeeseeeeesenesnasreesseaeeenseesnaees 7 CONCLUSION0... ..cccceesccsecsssseeeeneceeeseeseeeseeseevseeseucessaeeeesaaaeenseseeesneeesnesnsaessasenisees 10 DECLARATION OF MICHAEL M. WALSH.......cecccccceesccesesteeseeeseeenenterneeeetens 1] TABLE OF AUTHORITIES Page(s) Cases Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 .0......ceeeceeeceecessceeeeerereceesescnsnecessceecessesseeeeasesseecseseesseseseegswA4 Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 CalApp.4th 97 oo. cccccceeececeeseeseeeesseesesscsseseseeeesecessessreneeesensesnesseeeaseneaney 3 In re Farm Raised Salmon Cases (2008) 42 Cal. 4th 1077ccc ccccccccscceescesteeececesesecceneeeceeeeceseeeesseeerssceesessesensgessasesseeeeenegs 6 Lockley v. Law Office ofCantrell (2001) 91 Cab.App.4th 875 ......cccccceccsceecteceneeceeseesseeeeesceeseseessereesseseesesasesessseseeeesenteey 3 Lona vy. Citibank, NA. (2011) 202 Cal.App.4th 89 oo. ceceecceeecsccsececseesessnesneceeesaeessressseseessesnseesseesseeneeegens 4,5 O'Neil v. Crane Co. (2012) 53 Cal4th 335 ..ccccccccccccescsescccseeseesesseseeeseeeseeceesecscecessseceseeeeesseseeesesesseseseesnesesesese 4 People v. Brown (1994) 8 Cal.4th 746...ceccccccceccccsccscccsscceeecesesseceeseeesceeeesaeeeseesessessseseseeecssaseeseseessseeneseae 5 People v. Holt (1997) 15 Cal.4th 619 ooo cccccccccsceccseceseeseeseeeeneeeneeseeeeeeesseeeseeessesseeseeesnaeeetessneeseneenneees 4 People v. Jones (1990) 51 Cal3d 294 ooeccecccccccscscsscessecsscsseseccsceseceseseeececenecsceesseeseesesssaqeseesssasseeeaseeeseeees 5 People v. Mooc (2001) 26 Cal4th 1216.0... ccccccccccccsccesseceeseceeeececeeeeaeeeecseeesaecsssusagesseeeeeesaeenesentesseaesensenes 6 Riverisland Cold Storage, Inc. vy. Fresno-Madera Production Credit Ass. (2013) 55 Cal 4th 1169 ....ccccccccccccscccssesssseceseeeeseeecseceeeseceeceresseensesseseeuseeressesneeseeasaseeseas 5 State Personnel Ba. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422 oooccccececcccsscesccesecesceseesecseeeseeeeeseseeeceeeseseeeesecssssesseseesseeseeesseeberenenseess 6 StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449occccccecccssccssecsseseceaceeeeeseseceeesceescescessaeeecesnsesaseneeseseseusesgessesees 3 Statutes and Rules California Rule of Court Rule 8.500(g) ...........-cesececeseeeeeseeeeseeceseeeessserseeseneeesenes 1,6 Evidence Code §45 10 o..c.cccccccccccessceeseeeseeseeseececenssesaececeeceeeeseseesssssesearenasensaseascenseaens 3 il TABLE OF AUTHORITIES (Continued) Page(s) Evidence Code §452 0... cccsccccseecesseneesteecesceeesaceeescessaneesonssaessessagensssueneneeessseesaeesaes 3 Labor Code §4616.6, subd. (b)(1).......ceecceccessescesseeseonseeeseveneeseaesnsetnaeaceneneseersseesaes 9 Labor Code §4616.3, subd. (D) o2.....e:cccecceccececeeeeeeeeeceeeeeseeeeaueeeesaesesuenpenneeneeseeeseeerees 9 Labor Code §4616.6........cccccscssssccecsceeesceeecesceecesesereseescesaeecsaeeesaseasenscenenseeeseeeirereeas 9 Labor Code §5950.........cccccssssssessceeseseecesceseeseceneeaseeecsceseneseacesaneeseeeaeceaeeeeesscenesereas 8 SB 863 ....ccccccccccssscssecsscceseescencescesceeeseseceecsecseesseeseeeeessesseeeeecaeessaessestssessatnsnveeeeeeansees 9 Other Authorities 2 Cal. Civil Appellate Practice (CEB 3rd ed. 2012), § 22.57, p. USO... ecseeseesceeeceeeeecceecreeteenecsseesseeseeeseeseessecaeesereeeseeeegensereceeenensess 5 il INTRODUCTION Aspart of Valdez’s efforts to undermine the Legislature’s reforms by creating the Medical Provider Network (MPN) system, she seeks to distract the Court by attacking references to materials to which she is otherwise unable to respond. Her misguided motion to strike attacks three categories of materials: reports and studies which reflect the broader practical and policy implications of a ruling on these issues; amici letters submitted pursuant to California Rule of Court Rule 8.500(g); and portions of the certified record filed by the Workers’ Compensation Appeals Board (WCAB)at the Court of Appeal’s request. The motion is mistaken onall counts and simply disregards the well established practice of this Court, the rules of court and, inexplicably, the certified record as prepared and submitted by the WCAB. The motion is a mere diversion and should be denied in its entirety. With regard to the first category, Valdez misunderstands judicial notice, which is a means of resolving factual or legal issues in a case by | accepting the truth and accuracy of designated materials, and thus avoids the burden of a formal proof on each point. This process is simply inapplicable to the reports commissioned or conducted by the Department of Industrial Relations regarding workers’ compensation. These reports are not referenced for the purpose of resolving a factual dispute regarding Valdez’s claim, but in consideration of the larger policy implications of the Court’s decision and, further, to provide the Department of Industrial Relations’ perspective on how MPNsoperate. In similar fashion, Valdez mistakenly argues that parties may not refer to any materials unless they are in the appellate record or judicially noticed. In fact, courts commonly rely upon andcite to a wide variety of authorities without the need for judicial notice, since the courts do not use the materials to make a factual determination in the case, but rather to better understand the issues, and the practical implications of their contemplated rulings. Valdez is likewise misguided in her request to strike any reference to the amici letters filed with the Court in support of granting review. She makes no claim that these letters were not properly submitted and served, or that Defendant misrepresented their contents. Despite the letters’ proper submission to the Court, Valdez argues, with little reasoning and no authority or rational basis, to ignore them. Lastly and most bizarrely, Valdez attacks the certified record itself, essentially arguing that thecertified record should be modified to delete those portions of the record that the Workers Compensation Judge (WCJ) erroneously ignored. However, the Court of Appeal instructed the WCAB to file a certified recordof all documents it reviewed in reaching its en banc decisions, and the WCAB complied. In any case, Defendant has challenged the WCJ’s error at every stage thereafter, putting these exhibits at issue. Notwithstanding, Valdez argues that the error of the WCJ in deferring the MPNissues should be compounded by barring any reviewing court from considering these documents. There plainly is no basis for deleting portionsofthe certified record as prepared by the WCAB. - In sum, Valdez.cannot. respond to the legitimate points Defendant raised in the Opening Brief on the Merits, and, instead, endeavors to avoid their import by having some of Defendant’s supporting materials taken out of consideration. These materials will assist the Court in resolving the issues at bar. The motionto strike should be denied. LEGAL DISCUSSION I. THIS COURT CUSTOMARILY CONSIDERS AUTHORITATIVE REPORTS AND STUDIES WHEN CONSIDERING THE POTENTIAL POLICY IMPLICATIONSOF ITS RULINGS. Judicial notice is a means by which a court can accept “the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Lockley v. Law Office of Cantrell (2001) 91 Cal.App.4th 875, 882.) It is a convenience that allows courts and parties to forgo the burden of a formal proof on issues which, based on the reliable and authoritative documents listed in Evidence Code sections 45] and 452, should not be controversial. In the same fashion, it also promotes consistency between decisions regarding such issues. However, this process has no application to the studies and reports that are the target of Valdez’s motion. Valdez confuses the nature of judicial notice (which is a means of addressing factual or legal disputes) with a broader consideration oflegal and policy issues from available authorities. Each case on which Valdez’s motion relies addresses judicial notice in the context of a specific factual dispute in the subject case. (E.g., Lockley v. Law Office of Cantrell (2001) 91 Cal.App.4th 875, 882-883 [error to take judicial notice of the truth of statements made in separate non-adversarial proceeding to resolve factual disputes in present case]; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114 [court unwilling to judicially notice the meaning of the subject letter agreement at demurrer stage]; StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 456, n.9 [court judicially noticed documents addressing the factual issues because both parties referred to them in their papers and judicial notice was not opposed].) None analyzes the propriety of citing materials relevant to deciding legal or policy issues. Also misplaced, and unsupported by the authorities she cites, is Valdez’s argument that only documents within the appellate record can be considered for any reason. For example, Valdez cites Lona v. Citibank, NA. (2011) 202 Cal.App.4th 89, in which claims ofjudicial bias against the trial judge were dismissed because there was nothing in the record to support the claim. (Id., at 102; and see Motion at 9.)' Similarly, Doppesv. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, declined to consider assertions about conduct and communications between the parties which were not supported by the record. (/d., at 990 and n. 4.) Neither case stands for the proposition that authoritative practice guides, commentaries, studies or reports cannot be considered when weighing the. implications of the Court’s decision or to provide additional perspective on the legal principles involved. In stark contrast to the cases above, the studies and reports which Valdez targets in her motion to strike do not address any factual dispute related to her claim; rather, they address the broader issues and legal principles involved in the operation and significance of MPNs. This Court has customarily cited to such outside studies, reports and law review articles when considering the broader policy implications of its rulings, without any request or grant ofjudicial notice. (E.g., O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 353-354, n 9 [citing numerous commentators, including a RAND study, on the practice of asbestos plaintiff litigants to sue “ever-more peripheral defendants” after the manufacturers went bankrupt.]; People v. Holt (1997) 15 Cal.4th 619, 702 [“Recent studies At the same time, the Zona court referenced different legal commentaries regarding the issues being considered without judicial notice. (d., at 105, 106-107, 113 and 114.) establish that even college-educated jurors are unable to define mitigation in a legally correct manner.”]; People v. Brown (1994) 8 Cal.4th 746, 757- 758, & n. 5 [relying on law review articles, commentators, and studies on sexual assault; see id., at p. 761: “recent studies demonstrate that the absence of such a prompt complaint is not a reliable indicator that a sexual offense has not occurred,...”]; People v. Jones (1990) 51 Cal.3d 294, 315 (citing recent empirical studies regarding reliability of child witnesses]; Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass. (2013) 55 Cal.4th 1169, 1179-1180 [noting “most commentators” rejected the prior California rule]; and see 2 Cal. Civil Appellate Practice (CEB 3rd ed. 2012), § 22.57, p. 1150 [this Court will frequently look to authoritative commentators to consider a broader context].) Valdez disregards this Court’s common (andjustifiable) practice of referring to practice guides, law review articles, legal commentators and authoritative reports and studies necessary for the court to consider the potential effects and merits of its decision — a practice whichhas nothing to do with judicial notice. Moretelling, perhaps, is that Valdez has no other response to these reports and the conclusions they reach, but to ask the Court to bury them.. IL. THERE IS NO BASIS TO STRIKE REFERENCE TO AMICI LETTERS SUBMITTED IN COMPLIANCE WITH THE RULES OF COURT. As the Court is aware, there were 19 amici curiae letters submitted in support of granting review in this matter, most on behalf of governmental agencies. Valdez cites no authority and offers only superficial and unpersuasive reasoning when she argues that these letters, served and In similar fashion the CAAA amicusbrief to the Court of Appeal cites to commentators and practice guides, as well as a dictionary, without seeking any judicial notice. (CAAAbriefat 7, 15 and 18.) submitted in compliance with California Rules of Court, Rule 8.500(g), nonetheless should be ignored and discarded. The letters, as referred to in the Opening Brief (at pp. 16-17), were not cited as evidence to address any question of fact regarding Valdez’s claim. Rather, Defendant referenced them in discussing the broader policy implications of this Court’s decision and the prevalent use of MPNs bypublic entities, as reported by those entities themselves. Indeed, the wide-spread concern about the policy implications of the Court of Appeal’s decision, which implicates the continued viability of MPNs, motivated the many amici letters urging “review. Consistent with Defendant’s reference to the amicus letters, this Court has previously acknowledged and commented on amicusletters when relevant to the issues. (E.g., In re Farm Raised Salmon Cases (2008) 42 Cal. 4th 1077, 1089, n 11 [court refers to an amicusletter as part of chain of discussion in which a specific issue was addressed]; State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 431, n 10 [court notes it received “numerous letters and briefs amicus curiae” and summarizes their common position on the issues]; People v. Mooc (2001) 26 Cal.4th 1216, 1220-1221, n 1 [listing the large number of amiciletters and briefs received in support of the petition for review].) In a similar fashion, this Court certainly can and should considerthe letters received in this case as statements by outside persons who havea tangible interest in the legal issues being reviewed, and a stake in its outcome, and take into consideration the concerns and statements of these interested persons. Til. THE INEXPLICABLE ATTEMPT TO STRIKE THE CERTIFIED RECORD SUBMITTED BY THE WCAB MUST BE REJECTED. On March 19, 2012, the Court of Appeal issued an order which stated, in pertinent part: “(The WCABis] hereby directed to certify and return to this court on or before April 12, 2012, a full and correct copy of the records and documents reviewed by the Board on the petition for reconsideration in the matter designated in your files as Elayne Valdez v. Workers’ Compensation Appeals Board etal., so that the same may be reviewed by this court.” (Ex. A, Court of Appeal Docket, Order 3/19/12.) (Emphasis added.) In compliance with this instruction, the WCAB filed two certified volumes of record with the court on April 9, 2012. (See, ex. B and Walsh Declaration, { 3.) Subsequently, on April 11, 2012, the WCAB served a copy of this record by email on each of the parties and an amicus. (Ex. C; Walsh Declaration, 4 4; and see Reply To WCAB Answer Brief On The Merits at p. 4, n 4.) Defendantcited to this record in subsequentbriefs, as did an amicus brief filed with the Court of Appeal. Valdez made no objection at that time to the certified record or any citations to it.> There is no basis for striking any portion of the certified record as prepared by the WCAB. Valdez offers two equally wrongheaded arguments for modifying the certified record by striking portions ofit. First, she claims that since the WCJ (improperly) ignored certain portions of the record relating to Defendant’s MPN, no reviewing court can consider them. Second, since 3 Oddly, nine months after it was provided to the parties and after multiple briefs had cited to it, Valdez claimed for the first time that she did not have the WCAB recordas part of a request for an extension oftime. Defendant supposedly failed to challenge the WCJ’s error in disregarding the MPN issues, they waived any consideration of the related exhibits. (Motionat 14.) Both arguments are nonsense. The documents in question were identified at trial as Defendant’s exhibits B and C. (WCAB Record at 103:19-22, and 121-129.) These documents primarily address Defendant’s MPN,including the MPN notices provided to Valdez, the written confirmation she signed acknowledging the MPN,and communications on how to schedule treatment within the MPN and listing her choices for medical care. (/d., and OpeningBrief at 3-6.) These documents were not admitted because the WCJ erroneously deferred the so-called “MPN” issues as “not relat[ing] to temporary disability.” (WCABRecord 103:7-9; and at 73, 74 and 76.) The WCJ then relied exclusively on the reports of the non-MPN physicians selected by Valdez's counsel to find that Valdez was entitled to temporary disability. (See ex. 6 at 31-32.) In fact, the WCJ should have confirmed that the MPN was properly established and that notice was provided to Valdez, and on that basis excluded those outside medical reports which addressed Valdez’s diagnosis and treatment. . Thefirst issue offered by Valdez simply disregards the nature ofthe Court of Appeal’s review. Pursuant to Labor Codesection 5950, the Court of Appeal is authorized to review the final decision of the “appeals board ... following reconsideration.” Therefore, the relevant judgment is the one entered by the WCAB andthe proper appellate record consists of whatthe WCABconsidered in making its decision on reconsideration. The WCAB has filed its certified record of those documents. Valdez offers no basis for disputing the recordcertification by the WCAB. The waiver argument is similarly unfounded. Valdez erroneously claims that the WCJ made an “evidentiary ruling” regarding the MPN documents. (Motion at 14.) In fact, there was no ruling on the admissibility | of this evidence. Instead, as noted above, the WCJ mistakenly set aside any consideration of MPN issues and the related documents. In doing so, the WCI disregarded Defendant’s repeated requests to address this issue. (WCAB Record 103:7-9; and at 73, 74 and 76.) Defendant directly challenged the WCJ’s actions in its Petition for Reconsideration to the WCAB, which argued that Valdez’s outside doctor reports must be excluded in light of the MPN. (WCAB Record at 139:12-20, 194:18-19, 195:23-196:3.) This argument necessarily challenged the WCJ’s error in failing to consider the MPN exhibits and in deferring the MPN issue. As such, these issues were actively pursued at all times by Defendant and, therefore, preserved for appellate review. With regard to the issue of Defendant’s MPN, there was never any dispute that Defendant has an MPN and that Valdez initially treated within it. (E.g., Valdez Ans. Brief at 7-8; Opinion at 2; and see Opening Briefat 4- 5.) The potential issues raised, as a matter of course by the applicants’ bar, is whether Defendant had properly established the MPN andalso satisfied the technical notice requirements for Valdez, since failure to do so would have allowed her to disregard the MPN. Defendant has always acknowledged that the issue of whether the MPN was properly established and noticed was never adjudicated. (E.g., Opening Brief at 4, n. 2; Pet. for Review at 5, n. 2.) Indeed, it is unnecessary to adjudicate this issue to address the meaning and effect of Labor Code section 4616.6. (See, WCAB Record at 195 n. 2.) In this context, it is proper to point outthat the evidence shows Valdez was given proper notice of the MPN,should the 4 Under SB 863, these loopholes have been closed. As of January 1, 2013, the validity of an MPN is conclusively presumed once approved by the director and the failure to satisfy the notice requirements, by itself, is insufficient to avoid treating within the MPN.so long there was no denial of medical care. (Lab. Code §§ 4616, subd. (b)(1) and 4616.3, subd. (b), respectively.) issue ever be adjudicated. Making this observation is not groundsto strike a portion ofthe brief. CONCLUSION Apparently concerned that her arguments cannot withstand scrutiny under review, with the complete certified record and consideration of the practical and policy implications of the Court’s decision, Valdez has moved to strike materials commonly and properly relied upon by the Court. For the reasons stated, the motion to strike should be denied in its entirety. DATED: May b. 2013 Respectfully submitted, GRANCELL, LEBOVITZ, STANDER, REUBENSand THOMAS SEDGWICK LL/, By: }y) ZLt Chfistina¥/Itnre “* Michael M. Walsh Attorneys for Respondent WAREHOUSE DEMOSERVICES; ZURICH NORTH AMERICA, ADMINISTERED BY ESIS 10 DECLARATION OF MICHAEL M. WALSH I, MICHAEL M. WALSH,declare: 1. I am an attorney licensed to practice law in California, and am an associate with the law firm Sedgwick LLP, appellate counsel of record for Defendants and Respondents Warehouse Demo Services and Zurich North America in this matter. I have personal knowledge of the facts stated in this declaration and if called as a witness, could and would competently testify thereto. 2. Attached hereto as exhibit A is a complete and correct copy of the docket for the Court of Appeal in this matter, Valdez v. Workers’ Compensation Appeals Board, Court of Appeal Case no. B237137, as printed on April 17, 2013. 3. Attached hereto as exhibit B is a complete and correct copy of the Certification for the record filed with the Court of Appealin this matter by the Workers’ Compensation Appeals Board on April 9, 2012. This certification was filed with a two volumecertified record in compliance with the order of the Court ofAppeal. (See, ex. A.) 4. On April 11, 2012 my office received an electronic copy of the certified record from the WCAB by email, with an index and certification. Given the size of the record, these documents were sent as attachments to two e-mails and the record was divided into three parts. A complete and correct copy ofthese emails is attached as exhibit C. These emails are addressedto all counsel for the parties and one amicus. Y declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. This declaration jvas executed on May( 2013, at Losmy1I MichaetS4AWalsh “oe LA/2223021v2 California Courts - Appellate Court Case Information Page 1 of 6 Appellate Courts Case Information 2nd Appellate District Change court : Court data last updated: 04/17/2013 01:05 PM Docket (Register of Actions) Valdez v. Workers’ Compensation Appeals_Board Division 7 Case Number B237147 Date Description Notes 11/09/2011 |Petition fora | writ of review filed (WCAB). 11/28/2011 Filed letter from W.C.A.B. valving answer. 12/02/2011 |Answerto petition filed by: 12/02/2011 Certificate of Stewart Reubens for respondents interested Warehouse DemoServices. Zurich entities or North America. *Original certificate personsfiled |under coverof the original answer. by: 12/16/2011 Reply filed to: by petitioner Elayne Valdez. 03/15/2012 |Letter sentto: All counsel and Appeals Board: Pursuant to Government Code section 68081, the court would like the parties and the Workers'Compensation Appeals Board to addressthe following issue: Is Labor Code section 4616.6 limited to cases where there has been an independent medical review under Labor Code section 4616.4? The parties and the Appeals Board mayfile briefs of no more than 15 pageslimited to this issue on or before April 9, 2012. 03/19/2012 1Orderfiled. Writ of Review: On December5, 2011, we received a petition alleging that the Workers’ Compensation Appeals Board (Board) exceeded its powers andjurisdiction in that certain proceeding described hereafter. Accordingly, you are hereby directed to certify and return to this court on or before April 12, 2012, a full and correct copy of the records and documents reviewed by the Board on the petition for reconsideration in the matter designated CALIFORNIA COURTS. THE JUDICIAL BRANCH OF CALIFORNIA http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1996764&... 4/ 1 7/2013 ‘California Courts - Appellate Court Case Information in yourfiles as Elayne Valdez v. Workers’ Compensation Appeals Board et al., so that the same may be reviewed by this court. Each volume of the return | shall contain no more than 300 pages. Respondent Board may appearin these proceedings andfile a response to the petition for writ of review. The response shall be filed and served nolater than April 12, 2012. Petitioner Elayne Valdez and respondent Warehouse Demo Services, may file and serve a reply within 10 days after service of respondent Board's response.This matter is set for oral argument before this court in its courtroom at 300 South Spring Street, Los Angeles, California 90013, on May 4, 2072, at 10:00 am. The court is willing to accept a submission of this case without oral argument. Any party who wishesto waive ora! argument should notify the court ai the earliest possible time. By order of this court. 04/03/2012 Calendar May 4, 2012.@ 10:60 a.m. notice sent. Calendar date: 04/09/2012 Response Appeals Board filed: [Responseto the March 15, 2012 letter] 04/09/2012 |Response Petitioner filed: [Response to the March 15, 2012 letter.] 04/09/2012 |Association Michael M. Walsh and Christina J. of attorneys Imre of Sedgwick LLP associated in for filed for: real parties in interest. 04/09/2012 |Response Respondent Warehouse Demo filed: Servicesetal. [Response to the March 15, 2012 letter.] Stylized as "Supplemental Brief requested by the Court" 04/09/2012 Supplemental Certified Record from the Workers’ writ record Compensation Appeals Board TWO filed VOLUMES 04/10/2012 Filed proof of For petitioner's April 9, 2012 service. supplementalbrief. 04/09/2012 |Application to California Applicants’ Attorneys file amicus Association, as amicus for petitioner curiae brief Brief submitted under same cover. filed by: 04/09/2012 Received: Motion by amicus California Applicants’ Attorneys Association requesting judicial notice of legislative history; two volumes of exhibits filed in support Notfiled, as court has not yet ruled on application to file amicus brief. 04/12/2012 |Application to California Workers' Compensation Page 2 of 6 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1996764&... 4/17/2013 California Courts - Appellate Court Case Information file amicus Institute in support of respondents curiae brief Warehouse Demo Services, Zurich, filed by: N.A., ef al. 04/16/2012 |Reply filed to: Petitioner Elayne Valdez's reply to Board's response to Writ of Review 04/17/2012 Order California Workers' Compensation granting Institute application for leave to file motion to file |amicus curiae brief is granted. The amicus amicusbrief is deemed filed as of the curiae brief. |date of this order. Petitioner mayfile a responsewithin 10 days of the date of this order. 04/17/2012 |Amicus Amicus curiae for respondent: California curiae brief Workers' Compensation Institute filed by: Attorney: Michael A. Marks California Workers’ CompensationInstitute 04/17/2012 |Note: No responsefiled by the Board - was due April 12, 2012. 04/17/2012 |Order California Applicants’ Attorneys granting Association application for leave tofile motion to file jamicus curiae brief is granted. The amicus amicusbrief is deemed filed as of the curiae brief, |date of this order. Respondent mayfile a response within 10 days of the date of this order. 04/17/2012 |Amicus Amicus curiae for petitioner: California curiae brief Appiicants' Attorneys Association filed by: Attorney: Charles R. Rondeau Attorney: Charles Edward Clark Attorney: Stuart !. Barth California Applicants’ Attorneys Association. 04/17/2012 |Request for Amicus curiae California Applicants’ judicial notice |Attorneys Association requestforjudicial filed. J notice. Two volumes of exhibits in support of request for judicial notice of legislative history. 04/19/2012 |Filed change Counselfor petitioner Perona Langer of firm name. |Beck & Lallande now Perona Langer Beck Serbin & Mendoza, A Professional Coporation. - 04/23/2012 |Reply filed to: Respondent Warehouse Demo Services’ reply to Board's response to Writ of Review 04/23/2012 |Motion filed. CAAA's motion for leaveto file reply as to: 1) Rebuttal to WCAB's responding reply to the Court's questions, 2) Response to CWCI's Amicus Brief and 3) Reply to respondent's brief in answer to the Court's question. Responding Reply Brief submitted concurrentiy with motion. 04/27/2012 |Response to Petitioner: Valdez, Elayne amicus Attorney: Ellen R. Serbin Petitioner curiae brief Valdez. filed by: Page 3 of 6 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1 996764... 4/17/2013 Califommia Courts - Appellate Court Case Information 04/27/2012 |Response to Respondent: Warehouse Demo ; - lamicus Services, Zurich North America curiae brief Attorney: Christina J. Imre filed by: Attorney: Michael M. Walsh Attorney: Stewart Ralph Reubens Respondent Warehouse Demo Services, Zurich North America 04/27/2012 Motion filed. Amicus Curiae CAAA's motion to allow CAAA permission to orally argue 04/30/2012 Orderfiled. Amicus California Applicants’ Attorneys Association may argue on May 4, 2012 if petitioner cedes time. The court expects the total time for petitioner and amicus,including rebuttal, not to exceed 15 minutes. 05/01/2012 Orderfiled. The motion of amicus curiae, CAAA - requesting leaveto file the Supplemental Response and Reply Brief submitted with the motion is granted. The combined Rebuttal, Supplemental Response and Reply Brief are deemed filed as of the date of this order. 05/02/2012 Application to United Services Plus, Inc. dba Ronco file amicus Drugs in support of petitioner. curiae brief filed by: 05/02/2012 Order United Services Pluc, Inc. dba Ronco granting Drugs’ requestfor leave to file an motion to file amicus curiae brief in support of amicus petitioner is granted. The amicus briefis curiae brief. |deemedfiled as of the date of this order. 05/02/2012 Amicus Amicus curiae for petitioner: United curiae brief Services Plus, Inc. dba Ronco Drugs filed by: Attorney: Carl A. Feldman United Services Plus, Inc. dba Ronco Drugs. 05/03/2012 Filed letter Ellen Serbin dated May 3, 2012 re: from: petitioner cedes 5 minutes of her time for oral argument to Amicus CAAA. 05/04/2012 Errata filed Amicuscuriae brief of United Services to: Plus, Inc. dba Ronco Drugs Corrects one sentence on page 2 in paragraph 3 that was missing the word “denied.” 05/04/2012 |Cause argued and submitted. 05/29/2012 Opinion filed. (Signed Unpublished) The decisions of the WCABare annulled and the case is remandedforfurther proceedings consistent with this opinion. 11 pages; ZPW Ordered published June 18, 2012. 06/01/2012 {Filed request Amicus CAAA to publish opinion. ; 06/04/2012 Filed letter CAAA,re enclosed amended proof of http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1996764&... Page 4 of 6 4/17/2013 California Courts - Appellate Court Case Information service of request for publication. (Letter from: submitted separately from amended proof of service.) Letter dated June 1, 2012. 06/04/2012 Filed proof of CAAA's amended proofof service for service. request for publication showing service of request on the California Supreme Court 06/05/2012 Filed joinder Petitioner, who joins in CAAA's of: request for publication and sets out her reasons why opinion should be published 06/18/2012 Order granting publication filed. 07/31/2012 Service copy Petitioner : Warehouse Demo of petition for |Services, Zurich North America, review Administerd By Esis received. 08/17/2012 Record 1x2" transmitted to Supreme Court 10/17/2012 |Record 1x6” transmitted to Supreme Court. 10/10/2012 Petition for $204387 - matter is being briefed. review Reply brief due March 19, 2013. granted in Supreme Court. 12/31/2012 |Received Service copy of word countre: document petition filed with Supreme Court. entitled: Click here to request automatic e-mail notifications about this case. Page 5 of 6 Careers | Contact Us | Accessibility | Public Access to Records | Terms of Use| Privacy ©2012 Judicial Council of California / Administrative Office of the Courts http://appellatecases.courtinfo.ca.gow/search/case/dockets.cfm?dist=2&doc_id=1996764&... 4/17/2013 California Courts - Appellate Court Case Information Page 6 of 6 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1996764&... 4/17/2013 ~ 10 11 12 13 18 19 20 21 22 WORKERS’ COMPENSATION APPEALS BOARD . STATE OF CALIFORNIA 2nd Civil Case No. —B237147 ELAYNE VALDEZ, (Elayne Valdez v. Workers’ Compensation _ Applicant, . Appeals Bd. and Warehouse Demo Services) vs. WCABCase. No. ADJ7048296 WORKERS’ COMPENSATION APPEALS , CERTIFICATION BOARD and WAREHOUSE DEMO SERVICES, Defendants. I, JAMES T. LOSEE, Assistant Secretary of the Appeals Board, hereby certify that the attached is a full, true and correct copy of the record of proceedings consisting of two volumes had before the Appeals Board in the above-entitled matter involving a claim by Elayne Valdez (WCAB Case No. ADJ7048296.) ATTEST my hand andthe seal of the Workers’ Compensation Appeals Board ofthe State of California. - (ree Se AMEST, LOSEE ‘Assistant Secretary (415) 703-5028 Dated at San Francisco, California, this 5th day of April, 2012. JTL/bea Walsh, Michael From: Sent: To: Ce: Subject: Attachments: Sullivan, Neil@DIR [NSullivan@dir.ca.gov] Wednesday, April 11, 2012 10:48 AM Ellen@PLBLaw.com; sreubens@glsbr.net; Walsh, Michael; Imre, Christina; charles@rondeaulawgroup.com Losee, Jim@DIR Elayne Valdez v. WCAB,2nd Civ. No. B237147 - WCAB's certified record Valdez Elayne - Certification Index.pdf; Valdez Elayne - Return 1.pdf; Valdez Elayne - Return 2.pdf Dear Counsel: This is the first of two e-mails by which the WCABis sending you an electronic copy of the certified recordit filed with the Court of Appeal. It is being sent in two e-mails because oflimits that the WCAB’s serverplaces on attachments. This first e-mail consists of the certification and index and parts 1 and 2 of the record itself. The second e-mail will include part 3 of the record. Please reply to this e-mail if you do not receive all of the attachments orif you otherwise have any problems. PS to Mr. Rondeau: The emailsfor Mr. Clark and Mr. Barth were not on the State Bar website, so I will leaveit to you toforwardthis to them ifyou seefit. Neil P. Sullivan, Deputy Commissioner Workers’ Compensation Appeals Board (415) 703-5028 Walsh, Michael From: Sullivan, Neil@DIR [NSullivan@dir.ca.gov] Sent: | Wednesday, April 11, 2012 10:51 AM To: Ellen@PLBLaw.com; sreubens@glsbr.net; Walsh, Michael; Imre, Christina; charles@rondeaulawgroup.com Cc: Losee, Jim@DIR Subject: Etayne Valdez v. WCAB,2nd Civ. No. B237147 - WCAB's certified record (second e-mail) Attachments: Vaidez Elayne - Return 3, pdf Please see myprior e-mail. This is a follow-up e-mail containing part 3 of the WCAB’scertified record. Neil P. Sullivan, Deputy Commissioner Workers’ Compensation Appeals Board (415) 703-5028 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Sedgwick LLP, 801 South Figueroa Street, 19th Floor, Los Angeles, CA 90017-5556. On May 8, 2013, I served the within document(s): RESPONSE TO PETITIONER’S MOTION TO STRIKE PORTIONS OF RESPONDENTS’ OPENING BRIEF ON THE MERITS oO FACSIMILE- by transmitting via facsimile the document(s) listed above to the fax number(s) set forth on the attached Telecommunications Cover Page(s) on this date before 5:00 p.m. wi MAIL- by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth below. SEE ATTACHED SERVICE LIST I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaidin the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 8, 2013, at Los Angeles, California. Bulou 4iGL Barbara Fergerso, LA/2223021v2 12 SERVICE LIST Ellen R. Serbin John Mendoza Perona, Langer, Beck, Serbin & Mendoza 300 East San Antonio Drive Long Beach, California 90807-0948 Workers’ Compensation Appeals Board Respondent P.O. Box 429459 San Francisco, CA 94142-9459 Contact Name: Attn.: James Losee Clerk of Court Court of Appeal State of California, Second Appellate District, Division Seven Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 LA/2223021v2 13
