State of california in re: daniel escamilla

<sup>WORKERS’ COMPENSATION APPEALS BOARD

STATE OF CALIFORNIA</sup>

IN RE: DANIEL ESCAMILLA, Respondent.

Misc. No. 254 OPINION AND ORDERS DENYING PETITIONS FILED ON MARCH 16, 2012 AND MARCH 30, 2012 (EN BANC)

Daniel Escamilla, in propria persona, has filed two petitions. The first, filed on March 16, 2012, is captioned Petition for Order Requiring Board to Produce All Case Documents Relating to Sanction Proceedings in Eleven Cases Being Used Against Respondent. The second, filed on March 30, 2012, is captioned Objection to Order Requiring Submission of Offer of Proof and Petition for Removal to Obtain Ruling on Petition to Produce and to Obtain Clarification of Specific Issues to be Determined by Board in Connection with its Determination under Labor Code Section 4907. Although the relief sought by Mr. Escamilla is not clearly stated, in the March 16, 2012 petition, Mr. Escamilla seeks production of “a complete file of the documents relating to the eleven sanctions orders.” In the March 30, 2012 petition, Mr. Escamilla (1) “objects to, and seeks removal of, the WCJ’s order of March 16, 2012 requiring ‘a written, specific and non-generalized offer of proof as to the expected testimony of each person he desires to call as a witness in these proceedings,’” (2) “seeks removal of the WCJ’s refusal to rule on the Petition for Order Requiring Board to Produce All Case Documents Relating to Sanction Proceedings in Eleven Cases Being Used Against [Respondent],” and (3) “seeks an opinion from the Board providing clarification of the specific issues to be determined in this matter, including an opinion as to whether Respondent’s moral character is at issue.”

We have considered the petitions and the written reply to Mr. Escamilla’s March 30, 2012 petition filed by John Shields, prosecuting attorney for the Workers’ Compensation Appeals Board (WCAB), and we have reviewed the record in this matter.

For the reasons discussed below, we will deny Mr. Escamilla’s petitions.

The specific pattern of conduct at issue was set forth in the September 21, 2011 Notice of Hearing Regarding Suspension or Removal of Privilege of Daniel Escamilla to Appear in any Proceeding as a Representative of any Party before the Appeals Board or any Workers’ Compensation Administrative Law Judge (NOH). Only Mr. Escamilla’s pattern of conduct before the WCAB, and therefore whether or not he should be suspended or removed under Labor Code section 4907, are at issue. Mr. Escamilla’s “moral character” is not at issue.

Mr. Escamilla requests an order requiring that “all case documents relating to sanction proceedings in eleven cases” be produced.

The NOH was served by mail upon Mr. Escamilla on September 21, 2011, and personally served on Mr. Escamilla on October 18, 2011. Eleven sanctions orders were attached as exhibits to the NOH. Additionally, the NOH included as exhibits a number of case documents underlying the sanctions orders in four of the cases.¹ With the exception of rebuttal evidence, Mr. Shields has indicated that the exhibits to the NOH, which were provided to Mr. Escamilla several months ago, are the only documents that the WCAB intends to submit. (Transcript of December 2, 2011 Proceedings at p. 10.) Furthermore, these proceedings involve only cases in which Mr. Escamilla was involved, and he should already have any documents associated with these cases. Additionally, pursuant to Court Administrator Rule 10270, Mr. Escamilla has access, without need for any order from the Appeals Board, to the paper or electronic adjudication files in all of these matters. (Cal. Code Regs., tit. 8, § 10270.) Mr. Escamilla is free to inspect these files during the regular business hours of the various district offices at his convenience.² No order producing these documents is necessary.

With regard to Mr. Escamilla’s objection to the requirement that he provide a “a written, specific and non-generalized offer of proof as to the expected testimony of each person he desires to call as a witness in these proceedings,” we note that on December 20, 2011, the Honorable David Hettick, a workers’ compensation administrative law judge who is serving as hearing officer in this matter pursuant to a delegation of authority conferred in the NOH, ordered Mr. Escamilla to “disclose the names and work addresses of any witnesses that he will call at trial, and to make a short concise Offer of Proof as to the anticipated testimony of such witnesses” by January 6, 2012. (Transcript of December 20, 2011 Proceedings at p. 23.) On January 9, 2012, Mr. Escamilla filed a Petition for Removal and Request for Immediate Stay of Proceedings challenging the January 6, 2012 deadline, stating that it gave him “insufficient time to conduct pretrial discovery or otherwise prepare his defense to the Board’s action….” (January 9. 2012 Petition for Removal at p. 14.) Mr. Escamilla did not challenge the substance of Judge Hettick’s order. In our Decision after Removal, we extended the deadline for Mr. Escamilla to present his list of witnesses and their addresses and offer of proof to March 16, 2012. Now, for the first time, more than three months after Judge Hettick’s original order, and two weeks after the response was due, Mr. Escamilla objects to the substance of the order.

Appeals Board Rule 10843(a) requires that a petition for removal challenging an interim order be filed within 20 days of service of the order. (Cal. Code Regs., tit. 8, § 10843, subd. (a).) Judge Hettick ordered Mr. Escamilla to provide his witness list and offer of proof more than three months prior to the filing of the March 30, 2012 petition for removal. Mr. Escamilla’s challenge to the order on substantive grounds is untimely.

In any case, we reject Mr. Escamilla’s argument that he does not have sufficient notice of the issues in these proceedings to adequately prepare a witness list or an offer of proof of the witnesses’ expected testimony. The NOH thoroughly details Mr. Escamilla’s conduct in eleven cases which resulted in sanctions. The NOH raises his “continuing sanctionable conduct” and “repeated misconduct, with no attempt to reform.” It also raises the facts that he has “repeatedly executed, verified and willfully filed pleadings containing misrepresentations of material facts made with reckless indifference as to their truth or falsity,” has been “sanctioned numerous times for filing frivolous petitions,” and has evinced “a pattern of disciplinary actions and repeated misconduct with no apparent attempt to reform.” In fact, at the March 16, 2012 pre-hearing conference in this matter, Mr. Escamilla acknowledged that he was aware of what is at issue, stating:

“I’m prepared to, yes, go to each witness and state the extent to which that witness has testimonial evidence and would be able to present testimonial evidence before the Court on the very limited issues of whether I have a pattern and practice of filing papers which are frivolous or contain misrepresentations, whether I have a pattern and practice of wasting judicial resources, and just generally as the Board has stated, whether there is good cause to remove me or suspend me from practice before the Board.” (Transcript of March 16, 2012 Proceedings at p. 8.)
The issues in this hearing are the ones that are enumerated in the NOH. Any conduct not listed in the NOH, including Mr. Escamilla’s “moral character,” is not at issue. Moreover, the prior sanctions orders are final and not subject to relitigation. However, despite his arguments to the contrary, it is clear that Mr. Escamilla is quite aware of the issues in these proceedings, and the NOH has given him more than adequate notice and opportunity to prepare a defense against them. Mr. Escamilla has been provided all of the evidence that will be introduced by the WCAB in this proceeding, save any rebuttal evidence, and was afforded the opportunity to procure and present his own evidence in this matter.

We therefore deny Mr. Escamilla’s March 16, 2012 and March 30, 2012 petitions.

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For the foregoing reasons,

IT IS ORDERED that Daniel Escamilla’s Petition for Order Requiring Board to Produce All Case Documents Relating to Sanction Proceedings in Eleven Cases Being Used Against Respondent is DENIED.

IT IS FURTHER ORDERED that Daniel Escamilla’s Objection to Order Requiring Submission of Offer of Proof and Petition for Removal to Obtain Ruling on Petition to Produce and to Obtain Clarification of Specific Issues to be Determined by Board is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD

/s/ Ronnie G. Caplane________________________

RONNIE G. CAPLANE, Chairwoman

/s/ Frank M. Brass___________________________

FRANK M. BRASS, Commissioner

/s/ Alfonso J. Moresi__________________________

ALFONSO J. MORESI, Commissioner

/s/ Deidra S. Lowe___________________________

DEIDRA E. LOWE, Commissioner

/s/ Marguerite_Sweeney_______________________

MARGUERITE SWEENEY, Commissioner

DATED AND FILED AT SAN FRANCISCO, CALIFORNIA

04/20/2012
SERVICE BY MAIL EFFECTED ON ABOVE DATE ON THE FOLLOWING PARTIES:
DANIEL ESCAMILLA

JOHN SHIELDS, Staff Attorney

HONORABLE DAVID HETTICK

DW/bgr

1 These documents include a transcript of a hearing before Appeals Board commissioners in Case No. LAO 0829698 (Rozenblat), a petition for reconsideration, minutes of hearing, and correspondence from Mr. Escamilla filed in Case No. ADJ1194116/LAO 0797672 (Ortiz), two petitions for reconsideration, a petition for removal and a declaration submitted by Mr. Escamilla in Case No. ADJ3897299 (Santangelo), and a petition for reconsideration, minutes of hearing and a partial transcript of proceedings in case Nos. ADJ4517161/ADJ3871851 (Chavez).

2 In any case, in our January 20, 2012 Decision after Removal, we ordered that all documentary evidence was to be presented at a pre-hearing conference to be held within 45 days of service of our January 20, 2012 opinion, and that Mr. Escamilla was to provide Mr. Shields with said documentary evidence at least 15 days before the pre-hearing conference. The pre-hearing conference took place on March 16, 2012. Thus, although Mr. Escamilla is free to inspect the adjudication files of any case he participated in at his convenience, the deadline to disclose and present documentary evidence has already come and gone.