Judge: Thomas D. Long, Case: 22STCP03530, Date: 2022-12-13 Tentative Ruling

Case Number: 22STCP03530    Hearing Date: December 13, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 29, 2022, Petitioner Jeremy Cotter filed a Notice of Appeal of the Order, Decision, or Award of the Labor Commissioner, naming Fitlab LLC and Brian Kirkbride as Respondents.

On November 7, 2022, Petitioner filed a motion to correct the date of his appeal.

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).)  According to the Award and Certificate of Mailing attached to Petitioner’s Notice of Appeal, the Labor Commissioner served notice via mail on August 26, 2022.  Therefore, any appeal was due by September 10, 2022.  (See Lab. Code, § 98.2, subd. (a); Code Civ. Proc., § 1013.)  Petitioner did not file this action until September 29, 2022.

Petitioner asks the Court to backdate his filing to September 2, 2022 because “[a] delay was caused by the e-file review process,” and he seeks a correction “to reflect the actual date that Plaintiff filed his appeal of the Labor Commissioner’s decision.”

Petitioner purports to provide “a true and correct copy” of emails.  None of Petitioner’s exhibits are full copies of the emails in their original format.  Instead, Petitioner appears to paste portions of text into a new document page.

Exhibit A is described as, “This exhibit displays the initial e-file submission on 9/2/2022.”  It shows text from an email from US Legal Pro to Petitioner on September 2, 2022 with the subject line “eFile Notice: Received Under Review.”  It also states, “Status: Received Under Review,” “Case Title: JEREMY COTTER vs FITLAB, LLC et al.,” “Submitted Date: 2022-09-02 04:45 PM PDT,” and the total fee paid.  This does not show that the case was actually filed.

Exhibit B is described as, “Below is another e-file submission on 9/19/2022.  Here the case title ‘Brian Kirkbride’ was used as that is the defendant’s name, who is a Chief Executive Officer of the defending company.”  It shows text from an email from US Legal Pro to Petitioner on September 19, 2022, with the subject line “eFile Notice: Received Under Review.”  It also states, “Status: Received Under Review,” “Case Title: JEREMY COTTER vs BRIAN KIRKBRIDE, et al.,” “Submitted Date: 2022-09-19 11:26 AM PDT,” and the total fee paid.  This does not show that the case was actually filed.

Exhibit C is described as, “This exhibit displays the email, dated 8/30/2022 to the Labor Board deputy indicating I was moving forward with the appeal.”  It is also text in the form of an email header from Petitioner to “Nova, Brian@DIR,” on August 30, 2022, with the subject of “Re: Labor Board case # WC-CM-780151” and text stating, “Hi Brian, I will choose to respectfully appeal the judgement. . . .”  This does not show that an appeal was actually filed.  At most, it shows him expressing his intent to appeal.

Even if Petitioner’s exhibits showed mistakes made during filing, this Court still lacks jurisdiction for the untimely appeal.  “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 Petitioner may have encountered errors when using a third-party service for filing, “[f]iling a document electronically does not alter any filing deadline.”  (California Rules of Court, rule 2.252(c).)

Moreover, the Labor Commissioner Award was made against only Fitplan Technologies Inc. (USA).  Petitioner’s appeal is brought against Fitlab LLC and Brian Kirkbride.  The Respondents here were not parties to the Labor Commissioner Award.  Respondent Fitlab LLC explains that it is a minority stockholder of FitLab Inc. (the parent company of Fitplan Technologies Inc. (USA)) and is a separate and distinct legal entity.  (Melby Decl. ¶ 2.)  Accordingly, even if the Court could change the appeal date, Respondents Fitlab LLC and Brian Kirkbride are not proper parties and would be subject to dismissal.

“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 Fitlab LLC requests attorney fees of $3,850.00 for 7 hours billed at $550/hour.  (Speier Decl. ¶ 7.)  The 5 hours billed for the opposition is excessive, as is the 2 hours anticipatorily billed for the hearing.  The hourly rate of $550 is also excessive for this type of case and motion.  The Court finds that a reasonable amount of attorney fees is $1,600.00 (4 hours at $400/hour).  Petitioner is ordered to pay attorney fees of $1,600.00 to Respondent Fitlab LLC within 21 days.

The motion is DENIED.

This action 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 13th day of December 2022