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Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 1985, 1987 and 1988, Code of Civil Procedure; Section 1563, Evidence Code; Sections 11181, 11184, 11450.10, 11450.20, 11450.30, 11450.40, 11450.50, 68093, 68097.1 and 68097.2, Government Code; and Sections 148.7, 148.8, 149.5 and 6603(a), Labor Code.






s 372.3. Deposition.
(a) The Appeals Board or a party to the proceeding may cause the deposition of a person to be taken. At the request of a party, the Appeals Board may issue a subpoena re deposition and subpoena duces tecum re deposition to compel the person to appear for deposition, and to produce books, documents, or other things. Compliance with the provisions of Section 1985 of the Code of Civil Procedure shall be a condition precedent to the issuance of a subpoena duces tecum re deposition.
(b) When a person resides outside the state, the Appeals Board, if requested by a party to the proceeding, shall attempt, when possible, to have a like agency in the other state take the deposition.
(c) A person who is subpoenaed and required to give a deposition is entitled to receive the same witness fees and mileage as if the subpoena required the person to attend and testify at the hearing. See Section 382 for amount of witness fees and mileage.
(d) No person is obligated to attend at a place out of the county of residence unless the distance is less than 75 miles from the place of residence except that the Appeals Board, upon affidavit or declaration of a party showing good cause, may endorse on the subpoena re deposition an order requiring the attendance of such person.
(e) Depositions shall be noticed, taken, filed, and used in the manner prescribed by Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure.
(f) Upon timely motion of a party or the person to be examined or notified to produce books, documents, or other things, or upon its own motion, after notice to the parties and an opportunity to be heard, upon a showing of good cause, the Appeals Board may order that the deposition not be taken, or that it may be taken only at some designated time or place other than stated in the notice of taking deposition or subpoena, or that the deposition may be taken outside the county of residence of the person to be examined and at a place more than 150 miles from the place of residence, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, books, documents, or other things, or that the confidentiality of evidence described at Section 376.6(a) be appropriately protected. In addition, the Appeals Board may make any other order as may be appropriate to protect a party or person from unreasonable or oppressive demands.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 1985, 1987.5 and 2016-2036, Code of Civil Procedure; Sections 11181, 11184, 68093, 68097.1 and 68097.2, Government Code; and Sections 148.7, 148.8, 149.5 and 6613, Labor Code.






s 372.4. Evidence by Affidavit or Declaration.
(a) At any time 10 or more days prior to a hearing or a continued hearing, a party may mail or deliver to the opposing party or parties a copy of any affidavit or declaration which the proponent proposes to introduce in evidence, together with a notice as provided in subdivision (b). Unless an opposing party, within 7 days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine the affiant or declarant, the opposing party's right to cross-examine such affiant or declarant is waived and the affidavit or declaration, if introduced in evidence, shall be given the same effect as if the affiant or declarant had testified orally. If an opportunity to cross-examine an affiant or declarant is not afforded after request therefor is made as herein provided, the affidavit or declaration may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.
(b) The notice referred to in subdivision (a) shall be substantially in the following form:
"The accompanying affidavit or declaration of (here insert name of affiant or declarant) will be introduced as evidence at the hearing in (here insert title and docket number or petition number of proceeding). (Here insert name) will not be called to testify orally and you will not be entitled to question the affiant or declarant unless you notify (name of the proponent, representative, agent or attorney) at (here insert address) that you wish to cross-examine the affiant or declarant. To be effective, your request must be mailed or delivered to (here insert name of proponent, representative, agent or attorney) on or before (here insert a date 7 days after the date of mailing or delivering the affidavit to the opposing party)."
(c) Nothing in this section shall be construed to limit or restrict the use of affidavits pursuant to Labor Code Section 6611.




Note: Authority cited: Sections 148.7, 149.5 and 6603(a), Labor Code. Reference: Section 11514, Government Code; and Sections 148.7, 149.5 and 6603(a), Labor Code.






s 372.5. Judicial Enforcement.
(a) If any witness refuses to attend or testify or produce any papers required by a subpoena issued by the Appeals Board, a party may file with the Appeals Board a petition for judicial enforcement. The petition shall be verified and shall set forth that due notice of the time and place of attendance of the person or the production of the papers has been given, that the person has been subpoenaed in the manner prescribed by law and these rules, and that the person has failed and refused to attend or produce the papers required by the subpoena in the cause or proceeding named in the subpoena, or has refused to answer the questions propounded in the course of the hearing or deposition.
(b) If the Appeals Board determines that judicial enforcement is appropriate, it will petition the superior court in the county in which the hearing is pending for an order compelling the person to attend and testify or produce the papers pursuant to Government Code Sections 11186 through 11188, inclusive.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 11186-11188, 11455.10 and 11455.20, Government Code; and Sections 148.7, 148.8, 149.5 and 6603, Labor Code.






s 372.6. Proceeding to Compel Discovery.
(a) A party claiming that its request for discovery pursuant to Sections 372 and 372.1 has not been complied with may serve and file with the Administrative Law Judge or the Appeals Board, if the Appeals Board is hearing the case, a motion to compel discovery naming as respondent the party refusing to comply. The motion shall comply with Section 11507.7 of the Government Code and shall state:
(1) Facts showing that respondent refused or failed to comply with Section 372 or Section 372.1;

(2) A description of the matters sought to be discovered;
(3) The reason or reasons why such matter is discoverable under these rules; and
(4) A reasonable and good faith attempt to contact the respondent for an informal resolution of the issue has been made; and
(5) The ground or grounds of respondent's refusal so far as known.
(b) The motion to compel discovery shall be served upon respondent and filed within 15 days after respondent first evidenced a refusal or failure to comply with Sections 372 and 372.1, or within 30 days after the discovery request was made and respondent has failed to reply to the request, or within another time stipulated by the parties with the approval of the Administrative Law Judge or the Appeals Board, whichever period is longer. The motion shall comply with Section 371(a) and (b).
(c) The hearing on the motion to compel discovery shall be held within 15 days after the motion is made, or a later time that the Administrative Law Judge or the Appeals Board may, on its own motion for good cause determine. Respondent shall have the right to serve and file a written answer or other response to the motion before or at the time of hearing. The answer must comply with Section 371(a) and (b). The hearing may be conducted by telephone or other electronic means as provided in Government Code Section 11140.30. The parties may stipulate, with the approval of the Administrative Law Judge or the Appeals Board, to waive a hearing on the motion to compel discovery, provided that the stipulation provides a date by which respondent shall file its response and requires that the order on the motion shall issue within 30 days of the date the motion was filed.
(d) Where the matter sought to be discovered is under the custody or control of respondent and respondent asserts that the matter is not a discoverable matter under the provisions of Section 372.1(a) through (d), or is privileged against disclosure under (f), the Administrative Law Judge or the Appeals Board may order that the matter be lodged with it and examined in accordance with the provisions of Subdivision (b) of Section 915 of the Evidence Code. The Administrative Law Judge or the Appeals Board shall decide the motion based upon the matters examined in camera, the papers filed by the parties, and such oral argument and additional evidence as the Administrative Law Judge or the Appeals Board may allow.
(e) Unless otherwise stipulated by the parties with the approval of the Administrative Law Judge or the Appeals Board, the Administrative Law Judge or the Appeals Board shall, no later than 15 days after the hearing, issue a written order denying or granting the motion. The Administrative Law Judge or the Appeals Board shall promptly serve a copy of the order to each party or representative. Where the order grants the motion, in whole or in part, the order shall set forth the matters the moving party is entitled to discover under Sections 372 and 372.1. The order shall not become effective until 10 days after the date the order is served. Where the order denies the motion in its entirety, the order shall be effective on the date it is served.




Note: Authority cited: Sections 148.7, 149.5 and 6603(a), Labor Code. Reference: Section 11507.7, Government Code; and Sections 148.7, 149.5 and 6603(a), Labor Code.






s 372.7. Discovery Abuses.
(a) The Administrative Law Judge or the Appeals Board may impose sanctions on a party who fails to respond to an authorized request for discovery or makes an evasive or incomplete response to discovery where such action results in surprise to the requesting party at the hearing.
(b) Such sanctions may include:
(1) An order prohibiting the introduction of designated matters into evidence by the abusing party; and/or

(2) An order establishing designated facts, claims, or defenses against the abusing party in accordance with the claim of a party adversely affected.
(3) Any other order as the Administrative Law Judge or the Appeals Board may deem appropriate under the circumstances.




Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.






s 373. Expedited Proceeding.
Upon motion of a party or upon its own motion, the Appeals Board may order an expedited proceeding. All parties shall be notified and shall be expected to do all things necessary to complete the proceeding in the minimum time consistent with fairness. Time limits for filing a motion to compel discovery, and for responsive filings under Section 372.6 may be shortened as necessary to accommodate the expedited date for disposition of the case.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 374. Prehearing Conference.
(a) At any time before a hearing, upon motion of a party or upon its own motion, the Appeals Board may notice and order a prehearing conference for the purposes of simplifying the issues, expediting a hearing and affording parties an opportunity to participate in the disposition of the appeal. The prehearing conference may be conducted by means of a telephone conference call.
(b) Each party to a prehearing conference shall be prepared to discuss the issues, stipulate to any factual or legal issue about which there is no dispute, stipulate to the identification and admissibility of documentary evidence, comply with any request for discovery, and to do such other things as may aid in the disposition of the proceeding.
(c) The failure of a party or its representative to prepare for and participate in the prehearing conference shall be grounds for the imposition of such sanctions, inferences or other orders, then or during the hearing, as the Appeals Board may deem appropriate. These sanctions may include striking or excluding evidence offered by the non-complying party on that dispute, or precluding that party from contesting the position or information on that issue provided by the complying party.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 374.1. Prehearing Statement.
At any time before a hearing, a party may file with the Appeals Board a statement of position or trial brief with respect to any issue to be decided.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 374.3. Settlement Conference.
The Appeals Board on its own motion, or upon written request of a party, may schedule a settlement conference to be held before an administrative law judge who shall not hear the appeal, unless otherwise stipulated by the parties. Each party shall attend or be represented by a person authorized to negotiate regarding settlement. The settlement conference may be conducted by means of a telephone conference call.




Note: Authority cited: Section 148.7, Labor Code. Reference: Section 148.7, Labor Code.






s 375. Application of Article.
This article applies to all hearings before the Appeals Board, including a further hearing during reconsideration pursuant to Article 5 and a hearing on petition for costs pursuant to Article 6.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 375.1. Assignment to Administrative Law Judge.
(a) The Appeals Board may assign to an Administrative Law Judge for hearing and order or decision, or for hearing and proposed order or decision, or for hearing before the Appeals Board itself, any proceeding, any further hearing during reconsideration pursuant to Article 5, and hearing on petition for costs pursuant to Article 6.
(b) The Appeals Board may assign to an Administrative Law Judge any other proceeding that requires a hearing and order or decision.
(c) The Appeals Board may transfer to another Administrative Law Judge any proceeding if no oral testimony has been received. In the event proceedings have commenced and the assigned Administrative Law Judge is unable to complete the proceeding because of death, extended absence or disqualification, the Appeals Board may reassign such proceedings to another Administrative Law Judge who shall conduct a hearing de novo. The hearing de novo may be waived if all parties stipulate that the newly assigned Administrative Law Judge may review the hearing record and all of the evidence received, and that the hearing may proceed as if he had presided from the beginning.
(d) The Appeals Board may assign a further hearing or supplemental proceedings to the Administrative Law Judge who heard the original proceeding.




Note: Authority cited: Sections 148.7, 149.5, 6604 and 6605, Labor Code. Reference: Section 11182, Government Code; and Sections 148.7, 148.8, 149.5, 6604, 6605 and 6607, Labor Code.






s 375.2. Objections to Particular Administrative Law Judge.
(a) The name of the particular Administrative Law Judge assigned by the Appeals Board to a proceeding is available upon request at the time the proceeding is noticed for hearing.
(b) A party wishing to object to the assignment of any proceeding to a particular Administrative Law Judge upon any one or more of the grounds specified in Government Code Section 11425.40 shall, at least 5 working days prior to the scheduled hearing, file with the Appeals Board or Administrative Law Judge a motion to disqualify the assigned Administrative Law Judge together with supporting affidavit or declaration. The hearing shall not begin until the Appeals Board has ruled on the motion.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Section 641, Code of Civil Procedure; and Sections 148.7, 149.5, and 6606, Labor Code.






s 376. Time and Place of Hearing.
(a) Appeals shall be heard promptly.
(b) Appeals relating to a special order, order to take special action, the reasonableness of the abatement period and an expedited proceeding shall be given priority over other proceedings.
(c) In cases being reviewed by the Bureau of Investigations, unless the employer submits a written request that its appeal go forward in the normal course, the Appeals Board shall delay the hearing until the conclusion of a review of the case by the Bureau of Investigations or for a period not exceeding 2 years, whichever occurs earlier. The period may be extended beyond 2 years at a party's request if necessary to allow the Bureau of Investigations to conclude its review of the case.
(d) The Appeals Board shall set the place of the hearing at a location as near as practicable to the place of employment where the violation is alleged to have occurred.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 149.5 and 6308(c), Labor Code.






s 376.1. Conduct of Hearing.
(a) Testimony shall be taken only on oath, affirmation, or penalty of perjury.
(b) Each party shall have these rights: To call and examine witnesses; to introduce exhibits; to question opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examinations; to impeach any witness regardless of which party first called the witness to testify; and to rebut any opposing evidence. If a party does not testify on his or her behalf, the party may be called and examined as if under cross-examination.
(c) The Appeals Board may call and examine a party or witness and may, on its own motion, admit any relevant and material evidence.
(d) The taking of evidence in a hearing shall be controlled by the Appeals Board in the manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the Appeals Board shall define the issues and explain the order in which evidence will be received.
(e) Once a hearing has commenced and until a decision is issued, all motions or questions regarding the proceeding shall be referred to the assigned administrative law judge. If written, the motion shall be served in a manner as prescribed in Section 355(c) and proof of service meeting the requirements of Section 355(e) shall be filed with the Appeals Board. An opposing party may respond in the manner and within such time as the administrative law judge may direct.
(f) Continuance requests shall be entertained at the hearing only in cases of: (1) unforeseen emergencies, including, but not limited to, death or illness of a party, witness, or representative, or (2) non-appearance of a subpoenaed witness whose testimony is material to the outcome of the proceeding.




Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Section 11513, Government Code; and Sections 148.7, 149.5 and 6603(a), Labor Code.






s 376.2. Evidence Rules.
The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection to hearsay evidence is timely if made before submission of the case or raised in a petition for reconsideration. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing and irrelevant evidence shall be excluded. The Appeals Board may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.




Note: Authority cited: Sections 148.7, 149.5 and 6603(a), Labor Code. Reference: Section 11513, Government Code; and Sections 148.7, 149.5, 6603(a) and 6612, Labor Code.






s 376.3. Official Notice.
(a) In reaching a decision, official notice may be taken, either before or after submission of the proceeding for decision, of any generally accepted technical or scientific matter within the field of occupational safety and health, and determinations, rulings, orders, findings and decisions, required by law to be made by the Division, the Appeals Board or the Standards Board.
(b) The Appeals Board shall take official notice of those matters set forth in Section 451 of the Evidence Code, including but not limited to:

(1) The decisional, constitutional, and public statutory law of this State and of the United States and the provisions of any county or city charter;
(2) The contents of each occupational safety and health standard and order or notice of the repeal of such standard and order;
(3) The true signification of all English words and phrases and of all legal expressions;
(4) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.
(c) The Appeals Board may take official notice of those matters set forth in Section 452 of the Evidence Code, including but not limited to:
(1) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States;
(2) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States;

(3) Records of any court of this state or any court of record of the United States or of any state of the United States;
(4) Facts and propositions that are of such common knowledge within California that they cannot reasonably be the subject of dispute;
(5) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.
(d) Each party shall give notice of a request to take official notice and be given reasonable opportunity on request to present information relevant to
(1) the propriety of taking official notice, and
(2) the tenor of the matter to be noticed.




Note: Authority cited: Sections 148.7, 149.5 and 6603(a), Labor Code. Reference: Sections 451, 452 and 455, Evidence Code; Section 11515, Government Code; Sections 148.7, 149.5 and 6603(a), Labor Code.






s 376.4. Return of Exhibit.
(a) During the pendency of any proceeding, no exhibit filed or received in evidence shall be released into the custody of a party or representative except upon stipulation of all parties or upon order of the Appeals Board.
(b) At any time after a proceeding becomes final, the Appeals Board may, upon request or on its own motion, with or without notice, return to the owner or proponent, all exhibits of a physical, mechanical, or demonstrative character, unless the parties stipulate to some other disposition. The owner or proponent shall bear the cost of return of the exhibit.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 376.5. Interpreters.
(a) The hearing and prehearing conference shall be conducted in the English language. The Appeals Board shall notify each party of the right to an interpreter at the time they are notified of the date of the prehearing conference and of the hearing date.
(b) A party who does not proficiently speak or understand the English language or who requests an interpreter shall be provided, during the hearing or prehearing conference, an interpreter approved by the Appeals Board. A request for an interpreter shall be made to the Appeals Board no later than 10 working days prior to the date the interpreter is needed. The cost of providing the interpreter for a party shall be paid by the party requesting the interpreter unless the Appeals Board directs that the Appeals Board shall pay the cost of providing the interpreter due to financial hardship of the requesting party.
(c) If a party's witness does not proficiently speak or understand the English language, the terms and conditions set forth in subsection (b) shall apply. The party presenting the witness may request the Appeals Board to provide an interpreter under those terms and conditions. The cost of providing the interpreter for a witness shall be paid by the party presenting the witness unless the Appeals Board directs that the Appeals Board shall pay the cost of providing the interpreter due to financial hardship of that party.
(d) Language assistance for a party or a party's witness includes oral interpretation or written translation of a language other than English into English or of English into another language, and provision of sign interpreters for deaf or hard-of-hearing parties or persons.
(e) A person whose name appears on the list of interpreters known to be proficient in various languages published by the State Personnel Board shall be eligible to be examined by the Appeals Board relating to terminology and procedures generally used in hearings before the Appeals Board.
(f) In the event that interpreters on the approved list cannot be present at the hearing or the prehearing conference, or if there is no interpreter on the approved list for a particular language, the Appeals Board may qualify and appoint other interpreters.
(g) Before appointment of an interpreter, the Appeals Board or a party may conduct a brief supplemental examination of the prospective interpreter to see if the person has the qualifications necessary to serve as an interpreter in the hearing or prehearing conference and to see if the person understands terms and procedures generally used in hearings and prehearing conferences before the Appeals Board, can explain these terms and procedures in English and the other language being used, and can interpret these terms and procedures into the other language. An interpreter shall not have had any involvement in the issues of the proceeding prior to the hearing or prehearing conference, and shall disclose to the Appeals Board and to all parties any actual or apparent conflict of interest. Any condition that interferes with the objectivity of an interpreter constitutes a conflict of interest. A conflict may exist if an interpreter is acquainted with or related to a party or witness to the proceeding or if an interpreter has an interest in the outcome of the proceeding.
(h) The Appeals Board shall disqualify an interpreter if the interpreter cannot understand and interpret the terms and procedures used in the hearing or prehearing conference, has engaged in conduct creating the appearance of bias, prejudice, or partiality, or has disclosed privileged or confidential communications.




Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 11435.15, 11435.20, 11435.25, 11435.30(a), 11435.55(a), 11435.60 and 11435.65, Government Code; and Sections 148.7, 149.5 and 6603(a), Labor Code.






s 376.6. Confidential Evidence.
(a) Any exhibit which contains or which might reveal a trade secret referred to in Section 1905 of Title 18 of the United States Code, information that is confidential pursuant to Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code, or photographs taken by the Division during the course of any inspection or investigation, shall be considered confidential.
(b) The Appeals Board shall issue such orders as may be appropriate to protect the confidentiality of trade secrets or other such confidential information.
(c) If testimony is taken which would reveal the substance of trade secrets or other such confidential information, the Appeals Board may exclude from the hearing room any person or witness; but a party to the proceeding, the party's representative, and the inspector or investigator for the Division and the Division's representative shall not be excluded.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5, 6314(a) and 6322, Labor Code.






s 376.7. Hearing Record.
The Appeals Board shall make the official record for hearings. The record shall be made by means of an electronic device or by a court reporter. A party desiring the presence of a court reporter must make its own arrangements.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 6608, 6620, 6621 and 6629, Labor Code.






s 377. Continuance of Hearing.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 378. Representation at Hearing.
(a) A party may appear in person or through a representative who is not required to be an attorney at law.
(b) A representative of a party shall be deemed to control all matters respecting the interest of such party in the proceeding.
(c) An employee who is represented by an authorized employee representative may appear through such authorized employee representative.
(d) A representative may withdraw an appearance by filing a written notice of withdrawal with the Appeals Board and by serving a copy on all parties. Service shall be in a manner as prescribed in Section 353(e) and proof of such service shall be filed with the Appeals Board.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 379. Exclusion of Witnesses.
Upon motion of a party, the Appeals Board may exclude from the hearing room any witnesses not at the time under examination; but a party to the proceeding, the party's representative, and the inspector or investigator for the Division and the Division's representative shall not be excluded.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 380. Briefs.
A motion for leave to submit a written post-hearing brief shall be made prior to the close of the hearing and shall be granted in the discretion of the Administrative Law Judge or the Appeals Board upon a determination that the brief will be productive and will not unreasonably delay the disposition of the proceeding. A party shall file its brief within 15 working days from the date of the hearing. Opposing parties may file an answer within 10 working days from service of the brief. The Administrative Law Judge or the Appeals Board, upon a showing of good cause, may extend or reduce the above filing dates for submission of a brief. Service on a party shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Administrative Law Judge or the Appeals Board. An original brief shall be filed with the Appeals Board in Sacramento, with a copy provided to the administrative law judge assigned to the hearing.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 381. Contempt; Bad Faith Actions and Tactics.
(a) If any person in proceedings before the Appeals Board disobeys or resists any lawful order or refuses, without substantial justification, to respond to a subpoena, subpoena duces tecum, or refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing or so near the place thereof as to obstruct the proceedings, the Administrative Law Judge or the Appeals Board may, on its own motion or the motion of a party:
(1) Certify the facts to the Superior Court in and for the county where the proceedings are held for contempt proceedings pursuant to Government Code Section 11455.20;
(2) Exclude the person from the hearing room;
(3) Prohibit the person from testifying or introducing designated matters in evidence;
(4) Establish designated facts, claims, or defenses if the person is a party;
(5) Grant the appeal without further proceedings if the person is a representative of the Division; or
(6) Dismiss the appeal without further proceedings if the person is the Employer or a representative of the Employer.
(b) If, after the docketing of an appeal and before submission of the appeal proceeding as provided in section 385, a party, representative or both engage in bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, the Administrative Law Judge or the Appeals Board may order that party, representative or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of those bad faith actions or tactics.
(1) "Frivolous" means totally and completely without merit or for the sole purpose of harassing an opposing party.
(c) For purposes of subsection (b), before an order for reasonable costs is issued, a noticed hearing will be scheduled. An order to show cause will be issued stating the date, time, and place of the hearing at which all parties will have an opportunity to be heard as to whether or not reasonable costs should be ordered.
(d) A decision ordering or denying the payment of reasonable expenses incurred shall be in writing and comply with the provisions of Section 385. A decision ordering a party to pay reasonable expenses incurred by another party shall state in detail the conduct or circumstances justifying the order. A decision by an Administrative Law Judge under this section shall be subject to review by a petition for reconsideration under Article 5 of the Appeals Board's regulations. A final decision, as defined in Section 396(c), is enforceable as provided in Section 11455.30 of the Government Code.




Note: Authority cited: Sections 148.7 and 6603, Labor Code. Reference: Sections 11186-11188, 11455.10, 11455.20 and 11455.30, Government Code; and Sections 148.7, 148.8, 149.5 and 6603, Labor Code.






s 382. Witness Fees.
(a) Witnesses subpoenaed for any deposition or hearing are entitled to the following fees and mileage, payable in advance:
(1) Witness fee for each day's actual attendance of thirty-five dollars ($35);
(2) Mileage actually traveled, both ways, of twenty cents ($.20) a mile;
(b) A party who subpoenas a peace officer as listed at Government Code Section 68097.1 shall reimburse the public entity for the full cost to the public entity incurred in paying the officer his salary or other compensation and traveling expenses for each day that such officer is required to remain in attendance. The amount of one hundred and fifty dollars ($150), together with the subpoena, shall be tendered to the person accepting the subpoena for each day that the officer is required to remain in attendance pursuant to the subpoena. If the actual expenses should later prove to be less than the amount tendered, the difference shall be refunded; or if the actual expenses should later prove to be more than the amount tendered, the difference shall be paid to the public entity by the party at whose request the subpoena was issued.




Note: Authority cited: Sections 148.7, 149.5 and 6603(a), Labor Code. Reference: Sections 11191, 11450.40, 68093, 68097.1 and 68097.2, Government Code; and Sections 148.7, 148.8, 149.5 and 6603(a), Labor Code.






s 383. Failure to Appear.
(a) If after service of a notice of hearing, notice of consolidated hearing, or continuance, a party fails to appear at a hearing either in person or by representative, the Appeals Board may take the proceeding off calendar; may, after notice, dismiss the proceeding; or may receive evidence from any party that appears.
(b) Any proceeding may be reinstated by the Appeals Board if the non-appearing party files a written motion, no later than ten (10) days after receipt of notification of intent to dismiss, that contains sufficient facts to establish a reasonable basis for the failure to appear at the hearing. A party opposing the reinstatement of any proceeding may file a response no later than ten (10) days from service of the reinstatement request. The motion and response shall be accompanied by a declaration containing a statement that any facts therein are based upon the personal knowledge of the delcarant. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 149.5 and 6611, Labor Code.






s 384. Proposed Decisions; Action on by Appeals Board.
(a) If a proceeding is referred to an Administrative Law Judge for hearing and preparation of a proposed order or decision pursuant to Labor Code Section 6604(b), the judge shall prepare a proposed order or decision in such form that it may be adopted as the order or decision in the case. A copy of the proposed order or decision shall be a public record. The Appeals Board may confirm, adopt, modify or set aside the proposed order or decision of the Administrative Law Judge and may, with or without further proceedings and with or without notice, enter its order, findings, or decision based upon the record in the case. Whenever the Appeals Board determines that additional evidence is necessary, it may take additional evidence in the case, or it may reassign the case to the same or to another Administrative Law Judge to take additional evidence. If the case is so reassigned to an Administrative Law Judge, the judge shall prepare a proposed order or decision.
(b) The Appeals Board shall take action on a proposed order or decision as described in subsection (a) above within 30 days after the case is submitted.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5, 6604(b), 6608 and 6609, Labor Code.






s 385. Decisions.
(a) Unless otherwise ordered, all proceedings shall be submitted at the close of the hearing. The Appeals Board or Administrative Law Judge may extend the submission date and shall, within 30 days after the proceeding is submitted, summarize the evidence received and relied upon, make findings upon all facts involved in the appeal, and file an order or decision with the reasons or grounds upon which the order or decision was made.
(b) The order or decision shall be in writing, signed and dated by the Administrative Law Judge or the members of the Appeals Board deciding the proceeding.
(c) A copy of the order or decision shall be served on each party or representative together with a statement informing the parties of their right to petition the Appeals Board for reconsideration of the order or decision within 30 days of service of the order or decision.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5, 6608 and 6609, Labor Code.






s 386. Post-Submission Amendments.
(a) The Appeals Board may amend the issues on appeal or the Division action after a proceeding is submitted for decision in order to:
(1) Correct a clerical error;
(2) Address an issue litigated by the parties;
(3) Amend the section number cited in the citation if the same set of facts apply to both the cited and proposed sections; or

(4) Amend any part of the Division action to conform it to a statutory requirement.
(b) Each party shall be given notice of the intended amendment and the opportunity to show that the party will be prejudiced thereby. If such prejudice is shown, the amendment shall not be made .




Note: Authority cited: Section 148.7, Labor Code. Reference: Section 6603(a), Labor Code; Section 11516, Government Code.






s 389. Application of Article.
This article applies to all petitions for reconsideration, all orders of reconsideration on the Appeals Board's own motion, all answers in response, if any, and the taking of additional evidence by further hearing.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7 and 149.5, Labor Code.






s 390. Filing of Petition and Answer.
(a) A party aggrieved by an order or decision may, within 30 days of service of such order or decision, petition the Appeals Board for reconsideration with respect to any matters determined or covered by the order or decision. The petition for reconsideration shall be filed at the Appeals Board in Sacramento, California, and shall be deemed filed on the date it is delivered or mailed to the Appeals Board.
(b) A party may, within 30 days of service of any petition for reconsideration, file an answer with the Appeals Board.
(c) Any petition for reconsideration and answer shall be signed by the party filing or by his representative and, except for those agencies listed at Section 446 of the Code of Civil Procedure, verified upon oath.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Section 446, Code of Civil Procedure; Sections 148.7, 149.5, 661(a), 6616 and 6619, Labor Code.






s 390.1. Reconsideration: General.
(a) The petition for reconsideration shall be based upon one or more of the following grounds:
(1) That by the order or decision the Appeals Board acted without or in excess of its powers;
(2) That the order or decision was procured by fraud;
(3) That the evidence received by the Appeals Board does not justify the findings of fact;
(4) That petitioner has discovered new material evidence which the petitioner could not, with reasonable diligence, have discovered and produced at the hearing;
(5) That the findings of fact do not support the order or decision.
(b) Upon reconsideration, the Appeals Board may:
(1) Affirm, rescind, alter, or amend the findings, order or decision, or
(2) Request oral argument, the filing of briefs and amicus curiae (amicus) briefs, or other proceedings not involving the taking of additional evidence.
(3) Direct the taking of additional evidence either by submission or by further hearing as provided in Sections 393 and 394.
(c) If the Appeals Board is satisfied that no additional evidence is necessary, after considering the record, with or without further proceedings, it may enter its order, findings, or decision after reconsideration.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5, 6617, 6620 and 6621, Labor Code.






s 390.2. Appeals Board Reconsideration on Its Own Motion.
(a) At any time within 30 days of the filing of any order or decision, the Appeals Board may, on its own motion, order reconsideration with respect to any matters determined or covered by the order or decision. The Appeals Board shall notify the parties if it orders reconsideration.
(b) A party may, within 30 days of service of any order of reconsideration, file an answer with the Appeals Board.
(c) Any answer shall be signed by the party filing or by the representative and, except for those agencies listed at Section 446 of the Code of Civil Procedure, verified upon oath.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Section 446, Code of Civil Procedure; Sections 148.7, 149.5, 6614(b) and 6619, Labor Code.






s 390.3. Final Order or Decision.
(a) If within 30 days of the filing of an order or decision no petition for reconsideration has been filed, and no reconsideration has been ordered on the Appeals Board's own motion, the order or decision is a final order of the Appeals Board and not subject to review by any court or agency.
(b) Any petition for reconsideration shall be deemed to have been denied by the Appeals Board if it is not acted upon within 45 days of service and the order or decision is a final order of the Appeals Board and not subject to review by any court or agency. The Appeals Board may, however, upon a showing of good cause, extend the time within which it may act upon the petition for a period not exceeding 15 days.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 149.5, 6615 and 6624, Labor Code.






s 390.9. Suspension of Order or Decision.
The Appeals Board may stay, suspend or postpone the order or decision pending an order, findings, or decision after reconsideration.




Note: Authority cited: Sections 148.7 and 149.5, Labor Code. Reference: Sections 148.7, 149.5 and 6625, Labor Code.






s 391. Format of Petition for Reconsideration.
A petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the order or decision to be unjust or unlawful, and every issue to be considered by the Appeals Board on reconsideration. Any objection or issue not raised in the petition for reconsideration is deemed waived by the petitioner. The petition for reconsideration will be denied if it contains no more than allegations of the statutory grounds for reconsideration, unsupported by specific references to the record and principles of law involved.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 149.5 and 6618, Labor Code.






s 391.1. Filing of Petition for Reconsideration - Date.
(a) A petition meeting all requirements of these regulations and the Labor Code shall be deemed filed on the date indicated on the proof of service. If there is no proof of service, the date of filing shall be the date of hand delivery to the Sacramento Office of the Appeals Board or the mailing date.
(b) A petition that is not properly verified upon oath and/or not accompanied by a proof of service shall be considered filed in accordance with subsection (a) if the petitioner perfects the petition by filing the verification and/or proof of service within five days of the date of service of a letter from the Appeals Board noting the omission(s).
(c) Failure to perfect a petition in accordance with Subsection (b) shall result in the dismissal of the petition.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 6614, 6615, 6620, 6624, and 6625, Labor Code.






s 392. Proof of Service.
A petition for reconsideration, supplemental petition, answer, and supplemental answer shall be served on all parties who have been joined in the proceeding at the time of filing. Service shall be in a manner as prescribed in Section 355(c) and proof of such service meeting the requirements of Section 355(e) shall be filed with the Appeals Board.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 149.5, and 6619, Labor Code.






s 392.3. Motion to File Supplemental Petition or Answer.
(a) If a petition for reconsideration has been timely filed, a motion to file a supplemental petition may be granted at the discretion of the Appeals Board. If the motion is granted, the Appeals Board shall include in the order the date by which the supplemental petition must be received.
(b) An opposing party may file an answer to a supplemental petition no later than 30 days from the service of the supplemental petition, regardless of whether an initial answer was filed.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7 and 6620, Labor Code.






s 392.5. Availability of Hearing Tapes.
(a) The Appeals Board shall promptly mail a copy of the hearing tape(s) to any requesting party upon receipt of a written request. The request may be made in person, by mail, or by facsimile.
(b) A party may request that the tape(s) be sent via overnight delivery.
(c) The requesting party shall bear the cost of reproduction and postage.




Note: Authority cited: Section 148.7, Labor Code. Reference: Sections 149.5, 6621 and 6629, Labor Code.






s 393. Oral Argument on Reconsideration; Amicus Curiae Briefs; Taking of Additional Evidence by Submission.
(a) The Appeals Board may, at the request of a party or on its own motion, hear oral argument before the Board. The Appeals Board need not grant oral argument in any case, but may request argument in cases in which, in its judgment, oral argumentmay be helpful in deciding issues important to the administration of Division 5 of the Labor Code. Oral argument shall not be ordered if either the Division or the employer notifies the Appeals Board in writing that it declines to participate within 10 days of the issuance of the request for oral argument. (continued)