Judge: Thomas D. Long, Case: 22STCP02287, Date: 2023-02-23 Tentative Ruling

Case Number: 22STCP02287    Hearing Date: February 23, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On June 16, 2022, Appellant California Offset Printers, Inc. filed a Notice of Appeal of the Order, Decision, or Award of the Labor Commissioner.

On September 15, 2022, Respondent filed a motion to dismiss due to Appellant’s late appeal and failure to post an undertaking.

A.        Appellant’s Appeal Is Untimely.

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).)  Appellant was served with the order, decision, or award by mail on May 25, 2022.  (Hernandez Decl. ¶ 11 & Ex. B.)  Therefore, any appeal was due by June 9, 2022.  (Code Civ. Proc., § 1013, subd. (a) [deadline extended five days for service by mail].)  Appellant did not file this action until June 16, 2022.

Appellant asserts that it electronically filed its appeal on June 9, 2022 at 6:29 p.m., but the next morning, it was notified that the filing was rejected for “Incorrect Court District/Court Location.”  (Opposition at p. 3; Niebow Decl. ¶¶ 6-7 & Ex. A.)  Appellant refiled three times until the filing was accepted on June 16, 2022.  (Opposition at p. 3; Niebow Decl. ¶¶ 8-14 & Exs. B-D.)  Appellant argues that the Clerk’s rejection of its filing is a purely ministerial function and the Clerk had no proper basis to reject the filing.  (Opposition at pp. 2-4.)

 “The time for filing a notice of appeal from a decision of the Labor Commissioner is mandatory and jurisdictional.  A late filing may not be excused on the grounds of mistake, inadvertence or excusable neglect.”  (Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 837.)  Although Appellant may have encountered errors when filing, “[f]iling a document electronically does not alter any filing deadline.”  (California Rules of Court, rule 2.252(c).)  Regardless of the reasons for (and Appellant’s perceived impropriety of) the subsequent rejections, it is undisputed that Appellant’s June 6, 2022 filing was rejected was due to counsel filing the appeal in the incorrect court location.  (See Niebow Decl., Ex. A.)  Counsel’s mistake, inadvertence, or neglect cannot excuse the late filing.

Because Appellant’s appeal is untimely, the motion is granted.

B.        Appellant Failed to Post an Undertaking.

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 argues that the failure to post bond is not jurisdictional, and it asks the Court to issue an OSC for it to post the required bond.  (Opposition at p. 4.)  In making this argument, Appellant relies on Progressive Concrete, Inc. v. Parker (2006) 136 Cal.App.4th 540, 547 (Progressive Concrete), which found that under a prior version of Labor Code section 98.2 (effective January 1, 2008 to December 31, 2010), the posting of an undertaking was not mandatory and jurisdictional.

Subsequent amendments, which are now effective, have made it clear that the bond is indeed mandatory and jurisdictional.  “After Progressive Concrete had stated the Legislature in section 2673.1 ‘provided the posting of that required appeal bond is mandatory and jurisdictional’ by using language that makes the posting of the undertaking a ‘condition precedent to an appeal [citation], the Legislature changed section 98.2(b) so that it now reads: ‘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’ [citation].  Just as section 2673.1 and Progressive Concrete referred to a ‘condition precedent,’ the Legislature used the equivalent words ‘condition’ and “first.’  The clear implication is that the Legislature intended, by using language nearly identical to that embraced by Progressive Concrete, to make the undertaking requirement ‘mandatory and jurisdictional.’  [Citation.]”  (Palagin, supra, 222 Cal.App.4th at p. 134.)

Additionally, “the legislative history makes it crystal clear that the 2010 amendment of section 98.2(b) was to cure the perceived evils wrought by Progressive Concrete, and to accomplish the following purposes: (1) to emphasize that the undertaking was mandatory and that it would have to be filed ‘first,’ as a condition to filing the appeal; (2) to minimize the need for an employee to file a motion to dismiss; (3) to avoid delays in the dismissal of frivolous appeals for which no bond has been posted; and (4) to make sure employers would not have time to ‘hide or transfer assets, resulting in uncollectible judgments.’”  (Id. at p. 136.)

Appellant’s failure to post an undertaking is another basis for granting the motion.

C.        Respondent is Entitled to Attorney Fees.

“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 for 3 hours billed at $400/hour.  (Hernandez Decl. ¶¶ 13-14.)  This amount is reasonable, and the Court awards Respondent $1,200.00 in attorney fees.

D.        Conclusion.

The motion is GRANTED.

Appellant is ordered to pay attorney fees of $1,200.00 to Respondent within 21 days.

This action is DISMISSED with prejudice.

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 23rd day of February 2023