A Petition for Writ of Review was recently denied in Nicolas M.W. Di Bella v. Workers' Comp. Appeals Bd. (2008) 10 WCAB Rptr. 10,169, in which the Appeals Board upheld sanctions imposed on an attorney for interrupting trial proceeding by the ringing of his cell phone.

During trial and despite numerous warnings to the parties in general to keep their cell phones off during hearings, a State Fund attorney's phone rang, interrupting the proceedings. WCJ Sala immediately sanctioned the attorney $50.00. The attorney filed a Petition for Reconsideration challenging the sanctions. An Appeals Board panel granted reconsideration and rescinded the sanction, finding in pertinent part that WCJ Sala did not provide sufficient notice prior to issuance of the sanction and that a Notice of Intent to Impose Sanctions should have been issued before the sanction was imposed. The panel cited Board Rule 10561, which provides that before issuing an order for sanctions "the alleged offending party or attorney must be given notice and an opportunity to be heard."

After the matter was returned to the trial level, WCJ Sala issued a Notice of Intent to Impose Sanction for the previously alleged offense. The attorney did not request a hearing or opportunity to offer evidence but did file an Objection, contending essentially that a "general warning" regarding ringing cell phones was not sufficient, and a rather garbled explanation contending that (1) he did not know the cell phone was on, (2) he did not know which of several cell phones he had with him was on, and (3) in any event, he did not know how to turn the cell phone off.

WCJ Sala, after considering these explanations and finding them inadequate, imposed the sanction by order, which stated:

"Notice having been previously given and it appearing that State Compensation Insurance defense attorney, Nicholas DiBella having had his cell phone ring without permission or cause and after ongoing and general warning against same, and having thereby disrupted the orderly proceedings of the court during trial in which he was engaged, and objection to notice having been made, but no offer of good cause appearing therein, and sole excuse being ignorance of the working of the offending gadget, all other explanations being without legal merit, and good cause appearing thereby, it is hereby ordered that a sanction in the sum of $50.00, less credit for any sums previously paid, is hereby imposed.

The attorney again sought reconsideration. In her Report and Recommendation, WCJ Sala pointed out:

"A cell phone ringing during a trial is per se disruptive. The only issue is whether there is some viable excuse, such as prior request for exigent circumstances or unexpected emergency call.

Yet herein, no reasonable excuse is offered. No request was made prior to hearing, no explanation of necessity or exigency offered at the time, no apology has even been rendered. Even post facto, any of the above would have been accepted. Instead Mr. DiBella attempts to bluster through.

. . . Certainly, a WCJ has the ability to reasonably control her courtroom and protect it from unwarranted interruption and delay. Cell phones, especially during the pendency of a hearing, are precisely that type of interruption and delay. Certainly there are other potential remedies, such as contempt; however these seem unduly harsh. The WCJ does not believe Mr. DiBella kept his phone on with the intent that it should ring and interrupt proceeding (although she may be in error here). Nevertheless, keeping it on is in blatant disregard of an oft expressed policy, and in violation of common courtesy exceeds mere negligence, but borders on intentional disregard."

The WCAB panel summarily denied reconsideration, adopting and incorporating WCJ Sala's reasoning.

In a rambling brief, Mr. DiBella contended that WCJ Sala, "without sufficient basis and contrary to Labor Code 5313, unlawfully imposed a $50.00 sanction." He also argued that "there was no substantial evidence to support a sanction based on a cell phone ringing during the trial because there was no proof of bad faith, intent to delay or any expense incurred by the opposing party.

The Petition for Writ of Review was summarily denied by the Third Appellate District Court of Appeal.