Judge Virginia Keeny, Case 21VECP00029 2022-10-18 Tentative Ruling

Judge: Virginia Keeny, Case: 21VECP00029, Date: 2022-10-18 Tentative Ruling

Case Number: 21VECP00029 Hearing Date: October 18, 2022 Dept: W

SARKISSIAN v. LAW OFFICES OF ADELA Z. ULLOA, APC

MOTION TO DISMISS

Date of Hearing: October 18, 2022 Trial Date: TBD

Department: W Case No.: 21VECP00029

Moving Party: Respondent Law Offices of Adela Z. Ulloa, APC

Responding Party: Petitioner Areg A. Sarkissian

BACKGROUND

Petitioner Areg A. Sarkissian filed a Notice of Appeal from the Labor Commissioner Award on January 22, 2021. Plaintiff alleges he was hired as an employee for the Defendant law firm. He claims he was unpaid and seeks payment for the work he had done.

On November 15, 2021, an uncontested bench trial was held, and the court entered judgment in favor of Petitioner on December 15, 2021. Respondent did not make an appearance.

On June 22, 2022, the court granted Respondent’s motion to vacate judgment. On the same date, the court continued Respondent’s motion to dismiss to August 23, 2022, directing the petitioner to file any declaration or evidence in support of his assertion that the appeal was timely at least five court days prior to the hearing. On August 12, 2022, petitioner filed a supplemental declaration in opposition to the request to dismiss. Repondent’s counsel filed a request to continue the August 23, 2022 hearing due to health issues, a request that the court granted. The court ordered that any objection to petitioner’s supplemental declaration had to be filed no more than 14 days prior to the hearing, which was set for October 18, 2022. On October 11, 2023, respondent filed objections and a further reply brief.

[Tentative] Ruling

Respondent’s Motion to Dismiss is GRANTED.

LEGAL STANDARD

Labor Code §§ 98 through 98.2 provide for a mechanism where the Commissioner may hold a hearing and enter a judgment which the Commissioner must then file with the clerk of the superior court. The judgment “has the same force and effect as, and is subject to all of the provisions of law relating to, a judgment in a civil action, and may be enforced in the same manner…” (Lab. Code § 98.2.)

Under Labor Code § 98, the Labor Commissioner is authorized to investigate employee complaints and may provide for a hearing in “any action to recover wages, penalties, and other demands for compensation” as well as to recover civil penalties pursuant to section 558. (Lab. Code, § 98(a).) Within 15 days of the conclusion of the hearing, the Commissioner must an enter an order, and a party may then appeal the order within 10 days of receiving notice. (Lab. Code §§ 98.1-98.2.) Once the time to file a notice of appeal has passed, the Commissioner’s order is “deemed the final order,” and the Commissioner must then file a copy with the clerk of the superior court. (Lab. Code § 98.2(d).) Specifically, Labor Code § 98.2, subdivision (e) provides:

“The Labor Commissioner shall file, within 10 days of the order becoming final pursuant to subdivision (d), a certified copy of the final order with the clerk of the superior court of the appropriate county unless a settlement has been reached by the parties and approved by the Labor Commissioner. Judgment shall be entered immediately by the court clerk in conformity therewith. The judgment so entered has the same force and effect as, and is subject to all of the provisions of law relating to, a judgment in a civil action, and may be enforced in the same manner as any other judgment of the court in which it is entered. Enforcement of the judgment shall receive court priority.”

ANALYSIS

As a preliminary matter, it is noted the Petitioner’s declaration filed in support of his opposition to the Motion to Dismiss was untimely filed by two court days. (See June 22, 2022 Minute Order at pg. 2; Code Civ. Proc. § 1005(b).) Respondent’s objection and reply brief was filed after the deadline set by the court (fourteen days prior to the October 18 hearing.) Nevertheless, exercising its discretion, the court shall consider the merits of Petitioner’s declaration, as well as respondent’s October 11 objections and reply brief. (Cal. Rules of Court, rule 3.1300(d); Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168 [“(E)ven if the service had been untimely, the trial court was vested with discretion to overlook the defect”].)

It is undisputed that the petition/notice of appeal was not filed until January 22, 2021. The last day to file the notice of appeal, by petitioner’s own admission, was January 19, 2021.

Here, Petitioner seeks the court to apply the doctrine of equitable tolling to excuse his failure to timely file his notice of appeal pursuant to Labor Code § 98.2.

The doctrine of equitable tolling “suspends or extends a statute of limitations as necessary to ensure fundamental practicality and fairness.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.”

In effect, Petitioner contends that he abided by the statutory requirement and that the failure to timely submit his appeal of the Labor Commissions’ order was not due to fault of his own. Petitioner asserts that the Order, Decision or Award of the Labor Commissioner was served on all parties on January 4, 2021 by mail. (Sarkissian Decl. ¶ 4, Exh. A.) Thus, the deadline to file any appeal with the superior court was January 19, 2021, inclusive of the extension provided by mailing. (Lab. Code § 98.2.) Petitioner further contends that he prepared the notice of appeal on January 8, 2021 and served the notice on Respondent and the Labor Commissioner by mail. (Sarkissian Decl. ¶ 7, Exh. B.) Thereafter, on January 11, 2021, Petitioner secured the services of an attorney service to file the notice of appeal at the Stanley Mosk Courthouse. (Sarkisian Decl. ¶ 9, Exh. C.) He believed that the notice of appeal was properly served. (Id.) However, he later discovered on January 22, 2022 that the notice of appeal had to be filed at the Van Nuys Courthouse and so was never filed in any courthouse until later that day. (Sarkissian Decl. ¶ 11, Exh. D.)

The court finds that the doctrine of equitable tolling does not apply in these circumstances. First, Petitioner fails to cite to any legal authority that suggests that the doctrine of equitable tolling applies where an appeal is untimely filed. In fact, “filing [of] a timely notice of appeal from the Commissioner's final determination is jurisdictional, and such requirement cannot be disregarded even on the grounds of the appellant's excusable neglect which resulted in the belated filing.” (REO Broadcasting Consultants v. Martin (1999) 69 Cal. App. 489, 492; see also, Pressler v. Donald L. Bren Co. (1982) 32 Cal. 3d 831, 836.) Thus, because the statutory deadline to file a notice of appeal is jurisdictional, it cannot be tolled or extended by the court based on its equitable powers.

Second, even if the doctrine of equitable tolling could apply or if Petitioner’s neglect could be excused, the declaration does not confirm the fact that the initial notice of appeal was filed and rejected. Based on the notes on the work order, it merely states that the notice of filing was left in a drop box on January 11, 2021. (Sarkissian Decl., Exh. C.) Later, the attorney service claimed that the “court runner got turned away because it had to be taken to Van Nuys.” (Id., Exh. D.) A notice of rejection was not included as evidence. Thus, based on the conflicting evidence, it is unclear if the notice of appeal was filed or if the court runner was simply turned away, preventing the filing from even occurring.

Based on the foregoing, the court grants Respondent’s motion to dismiss. Consequently, the court declines to address Petitioner’s request for reconsideration.

CONCLUSION

Accordingly, Respondent’s Motion to Dismiss is GRANTED.