Judge: Thomas D. Long, Case: 21STCP03735, Date: 2022-07-29 Tentative Ruling

Case Number: 21STCP03735    Hearing Date: July 29, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On November 8, 2021, Appellant J.K. Residential Services, Inc. filed this appeal of the August 12, 2021 Order, Decision, or Award of the Labor Commissioner in favor of Respondent Cynthis Saucedo.  On May 2, 2022, Respondent filed a motion to dismiss due to Appellant’s failure to post a timely undertaking.  Appellant did not file an opposition.  At the original hearing on May 27, 2022, the Court continued the hearing so Appellant could file an opposition by July 8, 2022, and Respondent could file a reply by July 22, 2022.  Appellant filed a late opposition on July 15, 2022.

A party may appeal the Labor Commissioner’s order, decision, or award to the superior court within 10 days after service of notice of the order, decision, or award.  (Lab. Code, § 98.2, subd. (a).)  As a condition to filing an appeal, “an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award.”  (Lab. Code, § 98.2, subd. (b).)  “[T]he requirement of posting an undertaking by the deadline for a notice of appeal is jurisdictional.”  (Palagin v. Paniagua Construction, Inc. (2013) 222 Cal.App.4th 124, 132 (Palagin).)

Appellant was served with a copy of the Order, Decision, or Award of the Labor Commissioner by mail on October 25, 2021.  The deadline for filing the appeal and undertaking was therefore 15 days later on November 9, 2021.  (See Code Civ. Proc., § 1013, subd. (a); Lab. Code, § 98.2, subd. (a).)  Appellant posted an untimely undertaking of $10,372.55 on November 16, 2021.  (Nassar Decl. ¶ 7.)

Appellant argues the bond was timely under the circumstances and its late posting of bond is excused by the doctrine of impossibility.  (Opposition at p. 2.)  Counsel declares that although it timely filed the notice of appeal, the Clerk’s Office took a week to process the appeal and issue a case number, and Appellant could not post a bond until the case number was assigned on November 15, 2021.  (Evans Decl. ¶¶ 3-5.)  Even so, Appellant provides no evidence of impossibility that prevented its filing of the appeal earlier, between its receipt of the Order, Decision, or Award and its eventual November 8, 2021 filing.  Instead, it provides copies of internal emails beginning on November 1, 2021, indicating an intent to file and actual filing of the notice of appeal during the late afternoon of November 8, 2021.  (Evans Decl., Ex A.)

And even if Appellant had submitted additional evidence, this Court is without jurisdiction and cannot extend any deadlines.  “The statute now plainly provides that the Commissioner’s order is final unless a notice of appeal is timely filed, and the filing of a notice of appeal by an employer is conditioned on the posting of an undertaking first.  The obvious consequence of not posting the undertaking is that a notice of appeal cannot be filed, the court never obtains jurisdiction, and the Commissioner’s order becomes final.”  (Id. at p. 138.)  “[S]ince the statutory language plainly states that the appeal cannot be filed without the undertaking, the plain meaning is that the court never acquires jurisdiction to extend the deadline.”  (Palagin, supra, 222 Cal.App.4th at p. 132.)

Because Appellant did not timely post an undertaking in the amount of the award, this Court lacks jurisdiction for the appeal.

“If the employer fails to pay the amount owed within 10 days of entry of the judgment, dismissal, or withdrawal of the appeal, . . . 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, subd. (b).)  Respondent is therefore entitled to the $10,372.55 undertaking, which equals the amount of the award owed to Respondent, if Petitioner fails to otherwise pay the amount owed to Respondent within 10 days.

Respondent also seeks $462.80 in interest on her unpaid wages.  (See Lab. Code, § 98.1, subd. (c).)  Respondent provides the calculation for 10-percent interest on her $5,865.30 in unpaid wages, accruing from the August 12, 2021 award to the original May 27, 2021 hearing on this motion.  (Motion at p. 7.)

 “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 the amount as a cost upon the party filing the appeal.”  (Lab. Code, § 98.2, subd. (c).)  Respondent requests attorney fees of $1,200.00.  Counsel declares his hourly rate is $400, and he expects to spend more than three hours preparing the motion, replying to an opposition, and appearing at the hearing.  This amount is reasonable.

The motion to dismiss is GRANTED.  Respondent is entitled to the $10,372.55 undertaking if Petitioner does not pay her the amount owed within 10 days, plus $462.80 in interest and $1,200.00 in attorney fees.

The appeal filed on November 8, 2021 is DISMISSED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 29th day of July 2022