Yeny Garcia resolved his industrial claim against Securitas Security Services USA by way of compromise and release on September 10, 2015.
On October 21, 2016, Delmar Medical Imaging filed its Notice and Request for Allowance of Lien. The declaration attached by the notice did not include the language found in section 4903.8(d)(1) or (d)(2).
On August 21, 2017, Delmar submitted an “Amended Declaration Pursuant to Labor Code Section 4903.8(d),” which included the language found in section 4903.8(d)(1) and (d)(2).
The WCJ found that lien claimant’s lien was invalid when filed on October 21, 2016 and that the “amended” lien filed on August 21, 2017, was untimely. The lien claimant was required to file its lien no later than 18 months after the last day of service. Thus the lien claimant’s lien was barred by the statute of limitations and the provisions of Code of Civil Procedure section 473 were not met, and thus could not be used to allow them to amend the lien.
Based on these findings, the WCJ ordered lien claimant’s lien dismissed, and that it take nothing on its lien.
The Petition for Reconsideration filed by Delmar was denied in the panel decision of Garcia v Securitas Security Services USA.
“A lien claimant may seek relief . . . by utilizing a procedure substantially similar to Code of Civil Procedure section 473 . . . .” (Fox v. Workers’ Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196, 1205-1206.) Code of Civil Procedure section 473(b).
CCP 473 allows a party to be relieved from “a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect” provided the “application for relief is made no more than six months after entry of judgment….”
In this case Delmar called Ms. Ghorbanian as a witness to support relief pursuant to CCP 473.
“This WCJ assessed Ms. Ghorbanian’s overall testimony, demeanor and determined that it was self-serving and did not demonstrate inadvertence, surprise, mistake or excusable neglect required by Code of Civil Procedure section 473.”
“She made contradictory statements about her knowledge of requirements for the Declaration. She placed reliance on a filing and document system authorized by an approved vendor. There was no testimony about any independent investigation, research, training, or other attempts to verify that the lien was properly filed with complete, accurate and required documents at the time of filing. She further justified the lack of her own verification of a proper filing because there was no contemporaneous objection made by Defendant when the lien was filed and served.”