WCDefenseCA

Welcome back from the Holidays, dear readers!  The kids are still home from school, the tree is still in your living room (and will remain there for the next month), and your humble blogger has vexatious litigants on his mind.

When vexatious litigants appeal, they don’t pull any punches.  My diligent readers may recall an earlier post on a certain vexatious litigant, and now your humble blogger brings you the story of yet another one.  A Mr. Hamid Khazaeli, a sales representative employed by Symaster Corporation, has conducted a merciless war on time and paper with his multiple filings in the workers’ compensation system.

An in pro per applicant, his actions resulted in a “vexatious litigant” finding, resulting in all filings having to be approved by the presiding judge in Oakland.

In retaliation, Mr. Khazaeli filed “Petitions for Reconsideration, Removal, Disqualification And To Compel Testimony of Judicial Or Quasi-Judicial Officers”, only to be followed by another petition, just three weeks later: “Petitions for Removal, Disqualification And To Compel Testimony Of Judicial Or Quasi-Judicial Officers.”

Applicant alleged that the dismissal of his applications was based on bias, fraud, ex parte communications on the parts of several WCJs, Commissioners, and Department of Industrial Relations employees.  He demanded that they be disqualified and submit themselves to deposition.  (He also demanded to know who the second shooter was in the Kennedy assassination, the location of Jimmy Hoffa’s final resting place, and why kids love Cinnamon Toast Crunch).

Anywho, this case wasn’t much for substantive law, but it did provide an opportunity for the WCAB to lay out some of the rules for disqualifying workers’ compensation Judges, which applicant did not appear to observe.  In its wisdom, the legislature set out higher standards than “[b]are allegations of bias and prejudice,” but instead require an affidavit which includes specific facts which lay out the cause for disqualification.  (See Labor Code section 5311; Code of Regulations section 10452.)

For example, if your humble blogger were to appear before a WCJ in his finest bow tie, and the WCJ were to glare at it with obvious envy, unconsciously tugging at his bolo tie as he said “no bow ties in my court!” there may just be grounds for disqualification.  (General Practice Tip: The California Supreme Court has ruled that there is an un-rebuttable presumption that bow ties are superior to bolo ties in all respects.)

The WCAB noted that applicant also failed to request automatic reassignment of the WCJ, nor did he provide any reasonable excuse for his failure to appear at two hearings scheduled to address his claims.

So, the WCAB ordered that the doors be closed in applicant’s face… but not until he had paid sanctions for his failures to appear.

Now, my readers of the softer heart might say: but he’s not an attorney, he doesn’t know the rules.  For that reason, your humble blogger does not perform his own dentistry work, nor does he neglect to retain the services of an auto-mechanic.   If he were to undertake an important operation in either field, he would suffer disastrous consequences – as applicant did in this case.

My readers of the still softer heart might say: but what if he couldn’t find an attorney?  Applicants’ attorneys do not take retainers, they don’t charge by the hour, and they don’t get an interest in applicant’s future earnings of naming rights to their yet-to-be-born children.  Applicants’ attorneys were for a percentage of the cut.  Upon retaining an attorney, the applicant and attorney are bound by sacred oaths of fiduciary duty and ethical conduct, and their fates are intertwined – when applicant wins, the attorney wins (and, sometimes, the applicant’s attorney wins even when the applicant loses).

So, if Mr. Khazaeli did not retain an attorney, it is either because he thought he was very smart and didn’t want to share his potential recovery, or no attorney saw any likelihood in his case prevailing and did not want to invest the time.

Several hundred hours later, having burdened the workers’ compensation system and the litigation budget of the defense, Mr. Khazaeli faces yet another defeat.  On the bright side, before too long, the type of person to be declared a vexatious litigant will show his true colors and incur the justified attention of the WCJs — so keep a good log of those hours wasted responding to frivolous papers!