Never Forget the Strength of an Affirmative Defense

While our statute of limitations defense was built upon a mountain of applicant’s errors, not every case is so clear-cut and you may have questions about the viability of your defense.

As defense attorneys, we know how difficult it can be to argue a statute of limitations defense. Judges find the defense distasteful, as a “form over substance” defense, and often look for loopholes to defeat the defense. For example, we frequently argue the statute of limitations has tolled when the injured fails to file an Application within one year of the date of injury. However, if a Reynolds notice did not issue advising him of the statute of limitations, the statute will be tolled until the date the notice is actually issued – usually after the Application has already been filed. Similarly, the statute can be tolled for failure to provide a claim form after notice of an injury – even implied notice!

Sometimes, however, the defense prevails. When an applicant has knowledge of a cumulative trauma claim (via a medical-legal opinion) but fails to file the claim within one year, the defense is more likely to succeed. Likewise, when other contemporaneous evidence shows that the applicant had notice of the statute of limitations (e.g. has filed prior claims, is represented, etc.), the defense is more likely to succeed.

Mullen & Filippi recently succeeded in defeating a Labor Code Section 132a (“132a”) claim on a statute of limitations (“SOL”) defense. With this victory, we wanted to provide you with some guidance on how to successfully argue a SOL defense, and to avoid blowing your own statute of limitations.

1. Know your deadline. Depending on what action is being asserted, filing deadlines vary. For example, you *must* file a Petition for Reconsideration within 20 days. An Application must be filed within one year of the alleged date of injury. A Petition to reopen must be filed within 5 years of the date of injury. A 132(a) claim must be filed within one year of the alleged discriminatory act. Every deadline is extended by 5 days for service by mail – however, this does not apply to in situations of personal service. So, when you are personally served a document in court, the 5-day extension does not apply to you, although it may apply to other parties who were not present.

2. Know what “filing” means. Regulation 10615 provides, in pertinent part, . . .
(b) A document is deemed filed on the date it is received, if received prior to 5:00 p.m. on a court day (i.e., Monday through Friday, except designated State holidays). An electronically transmitted document shall be deemed to have been received by EAMS when the electronic transmission of the document into EAMS is complete. A document received after 5:00 p.m. of a court day shall be deemed filed as of the next court day.

(c) When a paper document is filed by mail or by personal service, the Workers’ Compensation Appeals Board shall affix on it an appropriate endorsement as evidence of receipt. The endorsement may be made by handwriting, handstamp, electronic date stamp or by other means. The endorsement shall serve as confirmation of successful filing unless the Administrative Director returns the document to the filer and notifies the filer, through the service of a Notice of Document Discrepancy, that the document has not been accepted for filing and the filer fails to correct the discrepancy within 15 days.

If the document is mailed to all parties but never received by the WCAB, it is not “filed”. In our recent 132a victory, the applicant attorney had mailed the petition to the WCAB but had the incorrect zip code; thus, the WCAB never received the Petition. Applicant argued that by serving the Petition on all parties, the parties had adequate notice of the Petition, and the service date should toll the statute. The trial judge disagreed and ruled the Petition had not been timely filed.

3. Know your service rules. Failure to serve all parties on the Official Address Record can result in a dismissal of your filing. Regulation 10510 provides, in pertinent part,

(b) All petitions, and answers shall be filed in accordance with rule 10615 and served on all parties in accordance with rule 10625. A failure to concurrently file a proof of service with a petition or answer constitutes a valid ground for summarily dismissing or denying the petition or summarily rejecting the answer.
and
(d) All petitions and answers shall be verified under penalty of perjury in the manner required for verified pleadings in courts of record. A failure to comply with the verification requirement constitutes a valid ground for summarily dismissing or denying a petition or summarily rejecting an answer.

Even if the employer or applicant is served, if the attorney of record is not served, this can be grounds for dismissal. In our 132a victory, applicant attorney had served the employer and carrier, but not Mullen & Filippi.

4. Make sure you verify your pleadings. Pursuant to Code of Civil Procedure Sections 446 and 2015.5, a verification should be filed with a pleading stating that the signatory has read the foregoing document and verifies its accuracy to the best of their knowledge/belief. Not every pleading requires a verification, but if you are unsure, attach a verification anyway; no filing has ever been dismissed because it included a verification in error. On the other hand, failure to attach a verification may be grounds for dismissal. Generally, failure to attach a verification is a correctable error and is not fatal to the filing. However, failure to correct the error may be fatal. In our 132a victory, applicant attorney had failed to verify the 132a Petition. He argued that it was a correctable error, but he failed to actually correct the error. In addition, he failed to verify his pleadings that argued the verification was correctable. Such repeated failures will surely not work in anyone’s favor.

5. If possible, show that you have given the party an opportunity to correct the filing error.
In our 132a victory, applicant sought discovery on the 132a claim before he had filed the claim. When we filed a motion to quash the deposition of employer witnesses, we noted that there was no jurisdiction for board to order discovery. While we did not spell it out, it was implied that there was no jurisdiction on the 132a issue because no 132a had been filed. We raised this issue before the statute of limitations had run. Raising the jurisdictional issue should have raised a red flag for the applicant to make sure his filings were in order. Thus, we were able to show that we had advised applicant of a jurisdictional issue before the statue ran on the filing, and he still failed to correct his error.

6. If you are filing something by mail or by hand, request a conformed copy. When filing electronically, you will receive a filing confirmation. However, when filing by mail or by hand, you must obtain proof of filing. In our 132a victory, the applicant attorney had filed his pleading by mail but did not request a conformed copy. Had he requested, and waited for receipt of, a conformed copy, he would have realized that something had gone wrong, and he could have timely corrected the filing error.

While our statute of limitations defense was built upon a mountain of applicant’s errors, not every case is so clear-cut and you may have questions about the viability of your defense. The attorneys at Mullen & Filippi are happy to provide advice and to defend your position. File referrals can be made on our website at www.mulfil.com.

By:  Sara W. Angelini, Esq.,  Associate Attorney, Stockton Office, August 2020

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