Espino, Javier, Applicant v. KRAFT FOODS dba FULLERTON FOODS; ACE AMERICAN INSURANCE COMPANY, administered by BROADSPIRE, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
JAVIER ESPINO, Applicant
vs.
KRAFT FOODS dba FULLERTON FOODS; ACE AMERICAN INSURANCE
COMPANY, administered by BROADSPIRE, Defendants
Adjudication Numbers: ADJ326655 (LAO 0798972), ADJ439309 (LAO 0798973)
Los Angeles District Office
OPINION AND ORDERS
DENYING PETITIONS
FOR REMOVAL AND
DISQUALIFICATION
Defendant seeks removal of the order setting this matter for trial issued by the workers’
compensation administrative law judge (WCJ) on September 17, 2025.
Defendant further seeks disqualification based upon the allegation that the WCJ has
demonstrated actual bias and expressed unqualified opinions as to the merits of the claim.
We have not received an answer from applicant to either petition. The WCJ filed a Report
and Recommendation on Petition for Disqualification (Disqualification Report) recommending
that we deny disqualification. The WCJ filed a separate Report and Recommendation on Petition
for Removal (Removal Report) recommending that we deny removal.
We have considered the allegations of the Petitions for Removal and Disqualification and
the contents of the WCJ’s Reports. Based on our review of the record and based upon the WCJ’s
analysis 	of 	the 	merits 	contained 	in 	the 	WCJ’s 	Disqualification 	Report, 	we 	will 	deny
disqualification. Based upon the WCJ’s analysis of the merits contained in the WCJ’s Removal
Report, we will deny removal.
Labor Code1 section 5311 provides that a party may seek to disqualify a WCJ upon any
one or more of the grounds specified in Code of Civil Procedure section 641. (§ 5311; see also
1 All future references are to the Labor Code unless noted.

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Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the
WCJ has “formed or expressed an unqualified opinion or belief as to the merits of the action”
(Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated “[t]he existence of a state of mind
… evincing enmity against or bias toward either party.” (Code Civ. Proc., § 641(g)).
Under WCAB Rule 10960, proceedings to disqualify a WCJ “shall be initiated by the
filing of a petition for disqualification supported by an affidavit or declaration under penalty
of perjury stating in detail facts establishing one or more of the grounds for disqualification
… .” (Cal. Code Regs., tit. 8, § 10960, emphasis added.) It has long been recognized that “[t]he
allegations in a statement charging bias and prejudice of a judge must set forth specifically the
facts on which the charge is predicated,” that “[a] statement containing nothing but conclusions
and setting forth no facts constituting a ground for disqualification may be ignored,” and that
“[w]here no facts are set forth in the statement there is no issue of fact to be determined.” (Mackie
v. Dyer (1957) 154 Cal.App.2d 395, 399.) Here, defendant has failed to include the required
affidavit.
Next, petitions for disqualification must be timely filed: “If the workers' compensation
judge assigned to hear the matter and the grounds for disqualification are known, the petition for
disqualification shall be filed not more than 10 days after service of notice of hearing or after
grounds for disqualification are known.” (Cal. Code Regs., tit. 8, § 10960.)
Furthermore, even if detailed and verified allegations of fact have been made, it is settled
law that a WCJ is not subject to disqualification under section 641(f) if, prior to rendering a
decision, the WCJ expresses an opinion regarding a legal or factual issue but the petitioner fails to
show that this opinion is a fixed one that could not be changed upon the production of evidence
and the presentation of arguments at or after further hearing. (Taylor v. Industrial Acc. Com.
(Thomas) (1940) 38 Cal.App.2d 75, 79–80 [5 Cal.Comp.Cases 61].) 	Additionally, even if the
WCJ expresses an unqualified opinion on the merits, the WCJ is not subject to disqualification
under section 641(f) if that opinion is “based upon the evidence then before [the WCJ] and upon
the [WCJ's] conception of the law as applied to such evidence.” (Id.; cf. Kreling v. Superior Court
(1944) 25 Cal.2d 305, 312 [“It is [a judge’s] duty to consider and pass upon the evidence produced
before him, and when the evidence is in conflict, to resolve that conflict in favor of the party whose
evidence outweighs that of the opposing party.”].)

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Also, it is “well settled … that the expressions of opinion uttered by a judge, in what he
conceives to be a discharge of his official duties, are not evidence of bias or prejudice” under
section 641(g) (Kreling, supra, 25 Cal.2d at pp. 310–311; accord: Mackie, supra, 154 Cal.App.2d
at p. 400) and that “[e]rroneous rulings against a litigant, even when numerous and continuous,
form no ground for a charge of bias or prejudice, especially when they are subject to review.”
(McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11; accord: Mackie, supra, 154 Cal.App.2d
at p. 400 (emphasis added).) Similarly, “when the state of mind of the trial judge appears to be
adverse to one of the parties but is based upon actual observance of the witnesses and the evidence
given during the trial of an action, it does not amount to that prejudice against a litigant which
disqualifies” the judge under section 641(g). (Kreling, supra, 25 Cal.2d at p. 312; see also Moulton
Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219 [“When making a ruling, a
judge interprets the evidence, weighs credibility, and makes findings. In doing so, the judge
necessarily makes and expresses determinations in favor of and against parties. How could it be
otherwise? We will not hold that every statement a judge makes to explain his or her reasons for
ruling against a party constitutes evidence of judicial bias.”].)
Under no circumstances may a party’s unilateral and subjective perception of bias afford a
basis for disqualification. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1034;
Robbins v. Sharp Healthcare (2006) 71 Cal.Comp.Cases 1291, 1310–1311 (Significant Panel
Decision).)
Here, and based upon the analysis contained in the WCJ’s Report we deny the Petition for
Disqualification.
As to defendant’s petition for removal, removal is an extraordinary remedy rarely exercised
by the Appeals Board. (Cortez v. Workers’ Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599,
fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th
274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the
petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted.
(Cal. Code Regs., tit. 8, 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner
must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse
to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, based upon the
WCJ’s analysis of the merits of petitioner’s arguments, we are not persuaded that substantial

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prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not
be an adequate remedy if the matter ultimately proceeds to a final decision adverse to petitioner.
Decisions 	of 	the 	Appeals 	Board 	“must 	be 	based 	on 	admitted 	evidence 	in 	the
record.” (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476
(Appeals Board en banc).) Furthermore, decisions of the Appeals Board must be supported by
substantial evidence. (§§ 5903, 5952(d); Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d
274 [39 Cal.Comp.Cases 310]; Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35
Cal.Comp.Cases 500]; LeVesque v. Workmen’s Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35
Cal.Comp.Cases 16].) An adequate and complete record is necessary to understand the basis for
the WCJ’s decision. (§ 5313; see also Cal. Code Regs., tit. 8, § 10761.)
Here, once the parties proceed to trial, they will have an opportunity to create a record,
raise all relevant issues, and submit evidence. Specifically, as part of that process, the parties will
have an opportunity to raise the issue of whether further development of the record is appropriate.
The trial WCJ can then consider the evidence and the legal arguments raised by the parties and
determine how best to proceed.
We make no judgment at this time whether additional discovery is warranted since without
a formal record available to review, we have no ability to make this determination.

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For the foregoing reasons,
IT IS ORDERED that defendant’s Petition for Disqualification of the WCJ filed on
September 24, 2025, is DENIED.
IT IS FURTHER ORDERED that defendant’s Petition for Removal of the order setting
this matter for trial issued by the WCJ on September 17, 2025, is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ JOSÉ H. RAZO, COMMISSIONER
I CONCUR,
/s/ ANNE SCHMITZ, DEPUTY COMMISSIONER
/s/ KATHERINE A. ZALEWSKI, CHAIR
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
November 20, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
JAVIER ESPINO
GRAIWER & KAPLAN
LEWIS BRISBOIS BISGAARD & SMITH LLP
EDL/mc
I certify that I affixed the official seal of
the Workers’ Compensation Appeals
Board to this original decision on this
date. 	o.o