Judge: Richard S. Whitney, Case: 37-2023-00004665-CU-JR-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Judicial Review - Other Motion Hearing (Civil) 37-2023-00004665-CU-JR-CTL AMERICAN PROFESSIONAL AMBULANCE CORPORATION VS HUFF [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: Labor Commissioner's UNOPPOSED Motion to Dismiss Defendant / Appellant's Appeal of the Order is GRANTED.

The Labor Commissioner issued an 'Order, Decision or Award of the Labor Commissioner' ('ODA'), which was served on Defendant/Appellant American Professional Ambulance Corporation ('Appellant') by mail on January 17, 2023. Failure to file any opposition to the motion indicates Appellant's acquiescence that the motion is meritorious. (L.R. 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious']; See California Rules of Court, Rule 8.54(c).) Appellant did not file a Notice of Appeal in this Court until February 1, 2023. 'As a condition to filing an appeal pursuant to this section, an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award.' (Lab. Code, § 98.2(a).) This requirement is mandatory and jurisdictional. (Palagin v. Paniagua Construction, Inc. (2013) 222 Cal.App.4th 124, 129-140.) 'A copy of the appeal request shall be served upon the Labor Commissioner by the appellant. For purposes of computing the 10-day period after service, Section 1013 of the Code of Civil Procedure is applicable.' (Lab. Code, § 98.2(a).) 'If the employer fails to pay the amount owed within 10 days of entry of the judgment, dismissal, or withdrawal of the appeal, or the execution of a settlement agreement, a portion of the undertaking equal to the amount owed, or the entire undertaking if the amount owed exceeds the undertaking, is forfeited to the employee.' (Lab. Code, § 98.2(b).) Appellant does not dispute that it failed to timely post an undertaking such that this Court did not obtain jurisdiction such that the case must be dismissed. The motion is granted. The dismissal of this action requires Appellant's forfeiture of the undertaking. (Chavez v. Sarumi (2018) 248 Cal.Rptr.3d 581, 584-586.) 'If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney's fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.' (Lab. Code, § 98.2(c).) The Labor Commissioner, on behalf of Royal Huff, is awarded attorneys' fees in the amount of $1,100.

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