California: Continuances; COVID-19 Restrictions; Due Process

Zaldana is another “Covid-19” panel decision that raises due process considerations when the trial is conducted via video/telephonic means.  Applicant wanted the hearing postponed until such time as live testimony can be safely provided.  The panel applies the Gao standard (significant panel decision), and determined that applicant failed to demonstrate why the trial in this case should be continued.  The decision indicates that applicant made some vague remarks to the effect that a remote hearing would require a party to have to purchase expensive electronic equipment; however, he didn’t state that he lacked the means to participate in such hearing.  Had applicant claimed that he does not have access to a computer or tablet, it is likely the result would have been different. Plain and simple—applicant failed to show exactly why due process mandates a continuance of his trial.

Lexis headnote below, with link to case on Lexis Advance/Lexis+:

Zaldana v. Cali Concrete, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 29. Hearings—Continuances—COVID-19 Restrictions—Due Process—WCAB, denying applicant’s Petition for Removal, held that WCJ did not err in setting applicant’s case for remote video trial due to COVID-19 restrictions and refusing to continue trial until it could be conducted in-person with live testimony, when WCAB applied standard set forth in Gao v. Chevron Corporation (2021) 86 Cal. Comp. Cases 44 (Appeals Board Significant Panel Decision), and found that in light of Governor Newsom’s 5/7/2020 Executive Order N-63-20 suspending in-person testimony, purposes of workers’ compensation system, and current conditions, trials should proceed remotely unless there is some clear reason why facts of specific case require continuance, that burden was on applicant, as party seeking continuance in this case, to show clear reason why facts of his case required continuance, that although applicant raised various theoretical objections to proceeding via remote testimony, he did not allege any particular facts about his case that would require continuance to provide for in-person hearing, and that because applicant failed to identify clear reason why facts of this case require continuance, he failed to demonstrate that he would suffer significant prejudice or irreparable harm if required to proceed via remote video trial.