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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39048
Experience:  Retired (mostly)
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Thank you.But Mosby does not address: 1) Whether mal pros

Resolved Question:

Thank you.But Mosby does not address:
1) Whether mal pros can be brought against WC attny in CA Superior Crt. Is the venue proper or must it or even can it be brought to the WCAB?

2)MalProsecution requires probable cause. But ALL S&W cases require
an underlying WC case so every WC automatically has a probable cause. Thus how can the probable cause apply. Every single WCAB case
could have PROBABLE CAUSE FOR S&W.IT IS AN ADD ON TO THE UNDERLYING CASE. So with S&W is tehre a higher standard needed to meet the
Probable cause issue ?
Seems like attorney can just rely on PROBABLE cause and proceed without doing any discovery. How can that be the intent of the
PROBAB;E CAUSE ISSUE ? If every case has a probable cause it would
defeat the purpose of the WCAB rule that ins carrier steps into emplpoyer's shoes in all WCAB cases.(In S&W the employer has no ins.
coverage.
.
Submitted: 6 years ago.
Category: California Employment Law
Expert:  socrateaser replied 6 years ago.
1) Whether mal pros can be brought against WC attny in CA Superior Crt. Is the venue proper or must it or even can it be brought to the WCAB?

A: The Superior Court is the only court of general jurisdiction in California. The WCAB can only hear administrative claims for WC. A common law tort action must be brought in Superior Court.

2) MalProsecution requires probable cause. But ALL S&W cases require an underlying WC case so every WC automatically has a probable cause. Thus how can the probable cause apply. Every single WCAB case could have PROBABLE CAUSE FOR S&W.IT IS AN ADD ON TO THE UNDERLYING CASE. So with S&W is tehre a higher standard needed to meet the Probable cause issue ?

A: Just because the prima facie S&W pleading requires an allegation of probable cause (i.e., that the employer failed to act even though it had information or knowledge that a serious injury would probably result), doesn't mean that this is ultimately proved to be true. And, if you, as defendant, prevailed , then the element of probable cause may not have been proved. Which means that your victory at the WCAB may help you prevail on a malicious pros claim.

Seems like attorney can just rely on PROBABLE cause and proceed without doing any discovery. How can that be the intent of the PROBAB;E CAUSE ISSUE ? If every case has a probable cause it would defeat the purpose of the WCAB rule that ins carrier steps into emplpoyer's shoes in all WCAB cases.(In S&W the employer has no ins. coverage.

A: I don't understand this question. Please rephrase.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 6 years ago.

for the S&W the attornry never served me in 2002 nor the WCAB with my name, He finally let me know of the case 6 years later. i filed for Dismissal of the S&W

but at trial the judge never heard the motion and he went right to susbstantive issues. I won on substantive issues. He did NO discovery except to fiannlt take my depo in 2008. Because of the delay i cost me $ 61 k to defend instead of a much lesser amount.

 

So the question is: Can I succesfully use the delay as part of evidence of mal prosecution because he NEVER did anything to establish PROBABLE CAUSE other than rely on the fact that there was an underlying WCAB case ?

Expert:  socrateaser replied 6 years ago.
Can I succesfully use the delay as part of evidence of mal prosecution because he NEVER did anything to establish PROBABLE CAUSE other than rely on the fact that there was an underlying WCAB case ?

A: Labor Code 4553.1(3) requires that the employee prove probable cause only where the claim is that the employer violated an IWC safety order or public safety statute. Probable cause is not necessarily an element of every S&W claim.

That said, if the original claim was based upon a safety order or statute, then the failure to prove the elements would demonstrate lack of probable cause in a subsequent malicious prosecution acton. But if the S&W claim was not based upon a safety order/statute violation, then the plaintiff would have to prove lack of probable cause from other evidence.

I don't see how a delay in prosecution of a case shows a lack of probable cause to pursue the case. It may, but you will have to "connect the dots" for the judge and jury, because it's not obvious.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!