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A worker is represented and the parties agree on an AME. The…

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A worker is represented and...
A worker is represented and the parties agree on an AME. The worker lives in Michigan and the employer has agreed to pay for his transportation to California (where the claim is filed) for his AME. The worker has missed the AME twice. Is there any statute or rules that would allow the employer to file a Motion to Dismiss the Application for benefits or Motion to Compel or Motion to get the employer's costs for the AME ?
Submitted: 8 years ago.Category: Employment Law
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Answered in 34 minutes by:
6/17/2010
Employment Lawyer: Barrister, Lawyer replied 8 years ago
Barrister
Barrister, Lawyer
Category: Employment Law
Satisfied Customers: 43,063
Experience: 17 years practicing attorney
Verified

Hello,

.

Yes, the employer could definitely file a Motion to Dismiss based on the bad faith conduct of the Plaintiff as well as a Motion for Sanctions to recover any expenses that the employer has incurred in the case. Attorney's fees and costs are harder to obtain in California, but an award is more probable if bad faith is present

.

In California, the imposition of sanctions is governed by the Code of Civil Procedure, Section 128.5. The court, in Brewster v. Southern Pacific Transportation Co., 1 Cal.Rptr.2d 89 (Cal.App.4Dist. 1991), held that Section 128.5 allows a court to order sanctions when expenses are incurred by the opposing party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. Thus, a bad faith subjective standard is still in place in California.

.

The CA statute states:

.

California Code of Civil Procedure Section 128.5

.

a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.

.
(b) For purposes of this section:

.
(1) "Actions or tactics" include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. The mere filing of a complaint without service thereof on an opposing party does not constitute "actions or tactics" for purposes of this section.

.
(2) "Frivolous" means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.

.
(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers; or the court's own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.

.
(d) In addition to any award pursuant to this section for conduct described in subdivision (a), the court may assess punitive damages against the plaintiff upon a determination by the court that the plaintiff's action was an action maintained by a person convicted of a felony against the person's victim, or the victim's heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action.

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(e) The liability imposed by this section is in addition to any other liability imposed by law for acts or omissions within the purview of this section.

.

.

Thanks

Matt

 

 

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Customer reply replied 8 years ago
Thank you. Can you tell me the statute and/or case to be cited in order to file a Motion to Dismiss and in CA would it be a Motion to Dismiss Application ? Also, I understand obtaining attys fees and costs but is this the section of the statute I would use to recover the costs of the no show for the medical exam and the plane tickets my client purchased on two ocassions ? Thank you so much for your help - this is an emergency for the partner in charge so you are really helping me !
Employment Lawyer: Barrister, Lawyer replied 8 years ago

I might have gotten ahead of myself a bit...

 

Has the worker filed suit in CA Superior court for damages?

Or is this still in the Application for Worker's Comp stage?

 

I am assuming the worker was somehow injured?

 

If you can give me a few more details, I can figure out where in the process you are.

 

Thanks

Matt

 

 

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Customer reply replied 8 years ago
It is still a workers' compensation claim with the work comp appeals board. The worker was injured and the parties agreed to an AME. The worker moved from CA to Michigan. The employer provided transportation on two ocassions for the worker to travel to CA for the AME. The worker has refused to use the tickets. My boss wants to file a Motion to Dismiss and a Motion to get our costs back for the no shows to AME and travel expenses laid out. I practice in FL so this is very different for me. That is why I need code sections and what I can do to force this workers' atty to do somethng
Employment Lawyer: Barrister, Lawyer replied 8 years ago

Ok, I am going to have to opt out as I have a conf call in the next minute or so.

 

I will get you to another Expert who should be able to assist.

 

Don't reply or it will direct the question back to me.

 

Thanks.

Matt

 

 

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