Happy Wednesday, dear readers!
Your humble blogger is one of those many, many, many, many, many people that don’t like liens. But, of course, you knew that, as I sometimes call my readers, randomly, and let them know. So, if you get a phone call at 2:00 a.m. and the caller ID says “humble blogger”, it’s probably just me letting you know how I feel about liens.
That being said, your humble blogger was just tickled pink at the suggestion that a lien can be dismissed for failure to appear if the notice of representation is not properly executed.
Well, as appealing as that idea is to your humble blogger, not everyone has the same level of enthusiasm for liens being dismissed without being paid.
In the matter of Herrera v. International Institute of Los Angeles, a recent panel decision, the WCAB reversed the WCJ’s barring of one lien claimant from participating in the lien trial at a lien conference. The original lien did not list an attorney or lien representative, but was signed by a person who did not list the title or position with the lien claimant. Subsequently, a lien representative filed a notice of representation with the WCAB asserting it represented the lien claimant.
However, the language and filed documents at the time of the lien conference was confusing, to say the least. One party was listed as the representative of the lien claimant for purposes of collection and a different entity for litigation. Your humble blogger could be reading this wrong, but it does not appear that there was a filed notice of representation signed by the lien claimant allowing the “litigation” representation.
After strongly admonishing the lien claimants and lien reps for wasting the WCAB’s time and resources with poorly drafted notices of representation that do not comply with the applicable regulations, the WCAB decided to afford the lien claimant involved a second bite and the proverbial apple by granting removal and returning the lien to the WCJ for further proceedings.
The lesson here, however, is that the defense should continue to require a notice of representation, signed by both the lien claimant AND the non-attorney lien representative, for all liens. Absent this, defendants should seek to have discovery closed and impose discovery sanctions for failure to appear.
Why? After all, the lien claimant here still got its very-much undeserved day in court.
Because the lien representative now has a record with the WCAB. There can be no further claims of inadvertence or excusable neglect. The lien rep used its one chance to waste the WCAB’s time. So, next time, perhaps the discovery sanction can stick?
Onwards towards Friday, dear readers!