Judge: Stephen I. Goorvitch, Case: 23STCP02557, Date: 2024-05-17 Tentative Ruling
Case Number: 23STCP02557 Hearing Date: May 17, 2024 Dept: 82
Grigor Ter Oganesyan, et al. v. Department of
Labor Standards Enforcement
Case No. 23STCP02557
[Tentative] Order Granting Motion to Dismiss
Grigor Ter Oganesyan (the
“individual petitioner”) and Cypress S.B. Car Spa, Inc. (the “corporate
petitioner”) (collectively, “Petitioners”) operated a car wash in Cerritos,
California. On February 20, 2019, the
Department of Industrial Relations, Division of Labor Standards (the “Labor
Commissioner” or “Respondent”) conducted an audit and issued a citation in the
amount of $442,682.85 for various labor violations. Petitioners challenged the citation, and
following an administrative hearing, a hearing officer ordered Petitioners to
pay $414,585.91 to the Labor Commissioner plus any accrued interest. The order was served on Petitioners on June
8, 2023, by mail. Therefore, Petitioners
had 50 days to appeal and to post a bond with the Labor Commissioner’s Office. Petitioners failed to post the bond, based
upon which Petitioners move to dismiss the petition for writ of mandate.
Petitioners were required to post a
bond as a condition to filing the instant petition. Labor Code section 1197.1 states in relevant
part:
“As a condition to filing a petition for a writ of mandate, the
petitioner seeking the writ shall first post a bond with the Labor Commissioner
equal to the total amount of any minimum wages, contract wages, liquidated
damages, and overtime compensation that are due and owing as determined
pursuant to subdivision (b) of Section 558, as specified in the citation being
challenged. The bond shall not include
amounts for penalties.”
(Lab. Code §
1197.1(c)(3).) According to the Labor
Commissioner, the required bond was in the amount of $198,233.01. In interpreting similar language in Labor Code
section 98.2—which governs appeals rather than petitions for writs of mandate—the
Court of Appeal has held that the bond requirement is “mandatory and
jurisdictional.” (Palagin v. Paniagua Construction, Inc. (2013) 222 Cal.App.4th 124,
126, 140.)
Petitioners do not dispute this
authority. Instead, Petitioners argue:
“Petitioner is indigent and has no ability to acquire the required bond.” (Petitioners’ Opposition, p. 2.) The individual petitioner provided a
declaration to that effect but is has no accompanying documentation. The court has discretion to waive the bond
with respect to the individual petitioner.
(See Code Civ. Proc. § 995.240; Burkes v. Robertson (2018) 26
Cal.App.5th 334, 346.) Respondent
concedes this point, but argues that the corporate petitioner is not a
“principal” within the meaning of section 995.240 and therefore the bond
requirement cannot be waived with respect to that petitioner. In addition, there is no evidence in the
record concerning any inability to pay by the corporate petitioner.
As an initial matter, Petitioners
did not file a timely request to waive the bond. In Burkes v. Robertson (2018) 26
Cal.App.5th 334, the Court of Appeal stated:
“[T]he plain meaning of the language in section 98.2(b)
establishes that the requirement of posting an undertaking by the deadline of a
notice of appeal is jurisdictional. The
only exception is established by Code of Civil Procedure section 995.240 for
relief from undertaking requirements generally, and that application for relief
must be made prior to the expiration of the time provided for appeal under
section 98.2.”
(Id., p.
347, citations and emphasis omitted.)
Given the similarity in language and purpose of Labor Code section 98.2
and 1197.1(c)(3), the court finds that Petitioners were required to seek a
waiver within 50 days of service of the final order. In the alternative, the court denies the requests
for waiver from the bond requirement, as Petitioners do not establish to the
court’s satisfaction that they lack an ability to pay the bond.
Based upon the foregoing, the court
orders as follows:
1. Respondent’s
motion to dismiss is granted.
2. The court
dismisses this case with prejudice.
3. Respondent’s
counsel shall provide notice and file proof of service with the court.