Juan Chavez, vs. Frank Fiala Roofing; Cypress Insurance Company Administered By Berkshire Hathaway Homestate Companies,

In this case, Frank Fiala Roofing and Cypress Insurance Company, administered by Berkshire Hathaway Homestate Companies, sought to subpoena Maria Guadalupe Ortiz for a deposition. The Workers' Compensation Appeals Board granted the Petition for Removal to amend the Order to clarify that the subpoena was quashed because it was legally inadequate. The Board found that the subpoena was procedurally inadequate as it was not signed by an attorney of record and there was no proof of personal service of the subpoena on the deponent. The Board also found that the applicant's wife may have a privilege not to testify against her spouse and that there is no exception to the privilege under Evidence Code section 973(b) because a workers' compensation case is not for the "

Frank Fiala Roofing; Cypress Insurance Company administered by Berkshire Hathaway Homestate Companies, Juan Chavez, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAJUAN CHAVEZ,Applicant,vs.FRANK FIALA ROOFING; CYPRESS INSURANCE COMP ANY administered by BERKSHIRE HATHAWAY HOMESTATE COMPANIES,Defendants.Case No. ADJ8264036(Oakland District Office)OPINION AND ORDER GRANTING PETITION FOR REMOVAL AND DECISION AFTER REMOVAL            Defendant seeks removal of the Order Quashing Subpoena Duces Tecum issued on January 30, 2017 (“Order”) by a workers’ compensation administrative law judge (“WCJ”). The WCJ found good cause to quash the Subpoena and Notice of Taking Deposition of Maria Guadalupe Ortiz issued on January 13, 2007 by an entity identified as RSP & Associates, because RSP & Associates is neither a party nor representative of a party in this action.            Defendant contends that it was not given the opportunity to respond to applicant’s Petition for Protective Order (Cal. Evid. Code Sections 970-971 and 980) (“applicant’s Petition”) and was thereby denied due process resulting in significant prejudice and irreparable harm. Defendant also contends that it is entitled to depose applicant’s wife pursuant to the exception to the spousal testimony privilege (Evid. Code, §§ 970-971) defined in Evidence Code section 973(b) and Hand v. Superior Court of San Joaquin County (Boles) (1982) 134 Cal.App.3d 436 when a claim is made for the “immediate benefit” of the non- party spouse; and while it concedes that the scope of testimony by applicant’s wife may be limited by the marital communication privilege (Ev. Code,§ 980), a spouse may testify as a percipient witness and as to any communication not intended to be confidential.            Applicant filed an answer to defendant’s Petition for Removal (“Answer”). The WCJ filed a Report and Recommendation on Petition for Removal (“Report”) wherein he recommends that the , Petition for Removal be denied because defen

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