Preview
DIVISION OF LABOR STANDARDS ENFORCEMENT E-FILED
Department of Industrial Relations
State 0f California 4/16/2019 9:02 AM
By: Patrick C. McManaman, SBN 254821 Superior Court of California
Scott L. Jones, SBN 250974
Shaw Avenue, Suite 222
County of Fresno
770 E.
Fresno, California 937 1 0 By: C. York, Deputy
Tel.: (559) 244-5348
Attorne for the State Labor Commissioner
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and on ehalf of Plaintiff/ Respondent
SUPERIOR COURT 0F THE STATE 0F CALIFORNIA
COUNTY 0F FRESNO
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SUDARSHAN TOOR, Case N0. 19CECG00819
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Plaintiff / Respondent, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
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MOTION T0 DISMISS UNTIMELY
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APPEAL OF THE LABOR
H COMMISSIONER’S ORDER,
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TIRATH SINGH, an individual dba DECISION OR AWARD; AND
H SANGHERA TRUCK LINE, REQUEST FOR ATTORNEY’S FEES
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Section 101 et seq]
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Defendant / Appellant.
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Filed Concurrently Herewith:
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Notice ofMolion
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Declaration ofCounsel in Support
[Proposed] Order
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NH Hearing Schedule:
Date : May 16, 2019
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NA Trial: June 5, 2019
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Memorandum of Points and Authorities Recycled Paper
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Introduction
AWN This matter presents itself to this Court for a trial de novo, resulting from an appeal by Defendant
/ Appellant, TIRATH SINGH, an individual dba SANGHERA TRUCK LINE, (hereinafter referred t0 as
“Mr. Singh” or “Defendant”), of the State Labor Commissioner’s award in favor of Plaintiff /
Respondent, SUDARSHAN TOOR (hereinafter referred to as “Mr. Toor” or “Respondent”). And as this
Court may expect, the appeal relates t0 hours worked and wages unpaid. Mr. Toor believes the evidence
\COOQCN
will show Defendant unlawfully failed to comply with California fninimum wage standards, withholding
regular wages.
10 Labor Code section 98.2 recites the manner in which the Labor COmmissioner’s Order, Decision
11 or Award(s) may be appealed.1 In order t0 maintain an action before this Court, pursuant to Section
12 98.2(a) the Labor Code provides that the appeal be filed “[w]ithin 10 days after service of notice of an
13 order, decision or award,” with 5 additional days where the order, decision or award was served by mail
14 (Code of Civ. Proc. §1013). Because the Order, Decision or Award in this matter was served by mail,
15 Defendant had 15 days from February 21, 2019, (service date) to file the appeal and post the required
16 bond. Defendant needed to file the appeal and post the required bond on 0r before March 8, 2019.
17 Although, Defendant filed the appeal on March 6, 2019, Defendant to date, has not posted the required
I
18 bond.
19 2.
20 Brief Statement of Relévant Facts
21 Defendant employed Mr. Toor t0 perform personal services as a truck driver. As a result of
22 Defendant’s failure to pay wages, Mr. Toor filed a claim for those earnings against his former employer
23 in the Fresno office of the State Labor Commissioner on February 7, 2018. An administrative
24 adjudicative hearing was held before the Labor Commissioner on July 3, 2018. Plaintiff Mr. Toor
25 appeared in pro per. Defendant, Tirath Singh appeared in persofi and was represented by attorney,
26 Rajinder Sungu. On November 27, 2018, the Labor Commissioner issued an Order, Decision 0r Award
27
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Al] further references shall be to the California Labor Code unless otherwise indicated.
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Memorandum of Points and Authorities Recycled Paper
(ODA) in favor of Mr. Toor against Defendant in the amount 0f $10,355.24 which represented unpaid
wages, liquidated damages on failure t0 pay minimum wage, statutory penalties for not paying all wages
AWN owed (“waiting time penalties”), and accrued interest. (ODA, McManaman Decl. at Exhibit 1 .)2
On February 21, 201 9, the ODA was served by first-class mail to Defendant. The order informed
Defendant of its appeal rights and outlined the procedures which included the statutory language ofLabor
Code section 98.2(b), notifying that an undertaking must first be posted as a “condition to filing an
appeal.”
\OOOQOxM
(Proof ofServz'ce, McManaman Decl. at Exhibit 2.) Based on timing requirements imposed
under Labor Code section 98.2(a), the 15 day deadline for the filing of the appeal and posting ofthe bond
expired on March 8, 2019.3 Defendant to date, has not posted a bond. Accordingly, as explained below,
10 the Court has no jurisdiction to hear the merits of the case.
11 3.
12 Defendant has Failed to Comply with Mandatory
13 Requirements to Maintain the Current Appeal
14 The timely filing 0f an appeal bond is both mandatory and jurisdictional as reflected by the
15 express language of Labor Code §98.2(b), which state; in relevant part:
16
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
17
the order, decision 0r award. The undertaking shall consist 0f an appeal
18 bond issued by a licensed surety or a cash deposit with the court in the
amount of the order, decision 0r award. The employer shall provide
19 written notification to the other parties and the Labor Commissioner
of the posting of the undertaking . .. .
20
21 (Id., emphasis added.) And with a deferential eye turned toward public policy, legislative history and the
22 plain language of the statute, our appellate courts have instructed in accord:
23
The purpose of Section 98.2(b), as described by our Supreme Court, is t0
24 ‘discourage employers from filing frivolous appeals and from hiding
assets in order to avoid enforcement of the judgment.’ As mentioned, this
25 purpose is furthered if the deadline for posting the undertaking is
jurisdictional: precluding judicial extension of the deadline discourages
26
employers from filing frivolous appeals for purposes 0f delay (at least
27 2
Hereinafter, cited to in the following format: McManaman Decl. at Exhibit Number.
3
When an ODA isserved by mail, as itwas here, the ten-day statutory deadline is extended by five days. (Code
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Civ. Proc. §1013.)
Memorandum of Points and Authorities Recycled Paper
without an undertaking) and minimizes the time in which an employer
might hide assets.
* * *
hum By precluding an employer from even filing a notice of appeal without an
undertaking, the employee does not have to expend time and money in
procuring a dismissal . . .. Similarly, recognizing the requirement of a
timely undertaking t0 be jurisdictional, rather than directory, avoids delay
in the finality and enforcement of the Commissioner’s wage order. The
Ox longer that an employer may string out the process by filing a notice 0f
appeal and obtaining extensions to post an undertaking, the longer and
N’ more expensive the process for the employee (and the court) and the
greater the opportunity for the employer t0 avoid the consequences and
00
purpose of the order .. .
0
'
10 (Palagz'n v.Pam'agua Construction, Inc. (2013) 222 Cal.App.4th 124, 137 [165 Cal.Rptr.3d 612], citing
11 Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 673 [121 Cal.Rptr.3d 58, 247 P.3d 130].)
12 Further, the California Supreme Court has clearly outlined: Trial courts may also not consider an
13 untimely filed appeal. “The time for filing a notice 0f appeal from the decision of the Labor
14 Commissioner is mandatory and jurisdictional. A late filing may not be excused on the grounds of
1:5 mistake, inadvertence or excusable neglect.” (Pressler v.Donald L. Bren C0. (1982) 32 Ca1.3d 83 1, 837
16 [187 Ca1.Rptr. 449, 654 P.2d 219].)
17 A11 employer who wishes to file an appeal against the Labor Commissioner’s Order, Decision 0r
18 Award - as Defendant has done here - must first post a bond 0r undertaking in the amount 0f the award.
19 This is the express, condition-precedent, mandatory instruction of Section 98.2(b). Accordingly, the
20 Court should now, upon Mr. Toor’s motion, dismiss this appeal based on Defendant's failure to post a
21 timely bond. (See Williams v. Freedom Card, Inc. (2004) 123 Cal.App.4th 609, 615 [20 Ca1.Rptr.3d
22 220] (appropriate remedy isdismissal of appeal deficiently maintained Without bond 0r undertaking).
23 4.
24 The ODA Should be Deemed a Final Order with Judgment in Favor
25 of Plaintiff Pursuant t0 Labor Code sections 98.2(d) and (e)
26 Labor Code section 98.2(d) provides, “If no notice 0f appeal of the order, decision, 0r award is
27 filed within the period set forth in subdivision (a), the order, decision, or award shall . ..be deemed the
28 final order.” Because the appeal in this matter was filed after the period set forth in subdivision (a), the
4
Memorandum of Points and Authorities Recycled Paper
fl ODA in favor of Mr. Toor must be deemed the final order. Pursuant to Labor Code section 98.2(e),
judgment should be entered in favor of Mr. Toor.
5.
Reasonable Attorney’s Fees Should Be Awarded
Upon Dismissal 0f the Appeal
COOflQUl-AUJN
Labor Code section 98.2(0) provides:
Ifthe party seeking review [ofthe Labor Commissioner’ s award] by filing
an appeal to the superior 001111; 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 that the amount as a cost 0f the party filing
the appeal. An employee is successful if the court awards an amount
greater than zero.
(Lab. Code § 982(0).)
Although it isthe Labor Commissioner, rather than private counsel, who advances her request
under Labor Code section 98.4, such status not defeat the statutory right to reasonable attorney’s fees.
(Folsom v. Butte County Association ofGovernments (1982) 32 Ca1.3d. 66 [186 Ca1.Rptr.589]; Serrano
v. Unruh (1982) 32 Ca1.3d. 623 [186 Cal.Rptr. 754].)
Here, Defendant’s noncompliance with the express statutory elements has necessitated, without
cause, a preliminary defense to an improperly maintained appeal. The Labor Commissioner, thus,
respectfully requests an
NNNNNNNNNHF—‘HfiHr—HHr—npn award of attorney’s fees in the amount of $900.00 ($300.00 per hour x 3.00 hours
to prepare, file and appear) upon dismissal of the
OONQUI-bWNHOK'DOOQONUI-PUJNHO
instant action.
6.
Conclusion
For the foregoing reasons, Mr. Toor requests the appeal filed by Defendant TIRATH SINGI-I, an
Individual dba SANGI-IERA TRUCK LINE, in the instant case be DISMISSED. in its entirety. Mr. Toor
further respectfully advances a request for an order of costs, including attorney fees in the amount of
$900.00 for the cost of filing and appearing in this matter.
Memorandum of Points and Authorities Recycled Paper
Dated: April ,
2019. DIVISION OF LABOR STANDARDS ENFORCEMENT
Department 0f Industrial Relations
State 0f California
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By:
PATRICK C. MCMANAMAN, Attorney for the
State Labor Commissioner and on behalf of
Respondent / Plaintiff, SUDARSHAN TOOR
\OOOQON
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Memorandum 0F Points and Authorities Recycled Paper
Dated; April ll ,
2019. DIVISION OF LABOR STANDARDS ENFORCEMENT
Department of Industrial Relations
State of California
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Byzfiv/M’;
PATRICK C. McMANAMAN, Attorney for the
State Labor Commissioner and on behalf of
Respondent I Plaintiff, SUDARSHAN TOOR
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Memorandum of Points and. Authorities
Recycled Paper
Preview
DIVISION OF LABOR STANDARDS ENFORCEMENT E-FILED Department of Industrial Relations State 0f California 4/16/2019 9:02 AM By: Patrick C. McManaman, SBN 254821 Superior Court of California Scott L. Jones, SBN 250974 Shaw Avenue, Suite 222 County of Fresno 770 E. Fresno, California 937 1 0 By: C. York, Deputy Tel.: (559) 244-5348 Attorne for the State Labor Commissioner ‘oocqofim-pwm— and on ehalf of Plaintiff/ Respondent SUPERIOR COURT 0F THE STATE 0F CALIFORNIA COUNTY 0F FRESNO o )—I SUDARSHAN TOOR, Case N0. 19CECG00819 p—I u—n N t—t Plaintiff / Respondent, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF m )—- V MOTION T0 DISMISS UNTIMELY . APPEAL OF THE LABOR H COMMISSIONER’S ORDER, m~4> TIRATH SINGH, an individual dba DECISION OR AWARD; AND H SANGHERA TRUCK LINE, REQUEST FOR ATTORNEY’S FEES Ho [Exempt‘fromfees pursuant t0 Labor Code Section 101 et seq] \l )— Defendant / Appellant. co Filed Concurrently Herewith: H Notice ofMolion o h—I Declaration ofCounsel in Support [Proposed] Order No NH Hearing Schedule: Date : May 16, 2019 NN Time : 10:00 a.m. Dept. :404 NL») NA Trial: June 5, 2019 N U- Mm h) Q /// 00 [\J /// Memorandum of Points and Authorities Recycled Paper l. Introduction AWN This matter presents itself to this Court for a trial de novo, resulting from an appeal by Defendant / Appellant, TIRATH SINGH, an individual dba SANGHERA TRUCK LINE, (hereinafter referred t0 as “Mr. Singh” or “Defendant”), of the State Labor Commissioner’s award in favor of Plaintiff / Respondent, SUDARSHAN TOOR (hereinafter referred to as “Mr. Toor” or “Respondent”). And as this Court may expect, the appeal relates t0 hours worked and wages unpaid. Mr. Toor believes the evidence \COOQCN will show Defendant unlawfully failed to comply with California fninimum wage standards, withholding regular wages. 10 Labor Code section 98.2 recites the manner in which the Labor COmmissioner’s Order, Decision 11 or Award(s) may be appealed.1 In order t0 maintain an action before this Court, pursuant to Section 12 98.2(a) the Labor Code provides that the appeal be filed “[w]ithin 10 days after service of notice of an 13 order, decision or award,” with 5 additional days where the order, decision or award was served by mail 14 (Code of Civ. Proc. §1013). Because the Order, Decision or Award in this matter was served by mail, 15 Defendant had 15 days from February 21, 2019, (service date) to file the appeal and post the required 16 bond. Defendant needed to file the appeal and post the required bond on 0r before March 8, 2019. 17 Although, Defendant filed the appeal on March 6, 2019, Defendant to date, has not posted the required I 18 bond. 19 2. 20 Brief Statement of Relévant Facts 21 Defendant employed Mr. Toor t0 perform personal services as a truck driver. As a result of 22 Defendant’s failure to pay wages, Mr. Toor filed a claim for those earnings against his former employer 23 in the Fresno office of the State Labor Commissioner on February 7, 2018. An administrative 24 adjudicative hearing was held before the Labor Commissioner on July 3, 2018. Plaintiff Mr. Toor 25 appeared in pro per. Defendant, Tirath Singh appeared in persofi and was represented by attorney, 26 Rajinder Sungu. On November 27, 2018, the Labor Commissioner issued an Order, Decision 0r Award 27 1 Al] further references shall be to the California Labor Code unless otherwise indicated. 28 Memorandum of Points and Authorities Recycled Paper (ODA) in favor of Mr. Toor against Defendant in the amount 0f $10,355.24 which represented unpaid wages, liquidated damages on failure t0 pay minimum wage, statutory penalties for not paying all wages AWN owed (“waiting time penalties”), and accrued interest. (ODA, McManaman Decl. at Exhibit 1 .)2 On February 21, 201 9, the ODA was served by first-class mail to Defendant. The order informed Defendant of its appeal rights and outlined the procedures which included the statutory language ofLabor Code section 98.2(b), notifying that an undertaking must first be posted as a “condition to filing an appeal.” \OOOQOxM (Proof ofServz'ce, McManaman Decl. at Exhibit 2.) Based on timing requirements imposed under Labor Code section 98.2(a), the 15 day deadline for the filing of the appeal and posting ofthe bond expired on March 8, 2019.3 Defendant to date, has not posted a bond. Accordingly, as explained below, 10 the Court has no jurisdiction to hear the merits of the case. 11 3. 12 Defendant has Failed to Comply with Mandatory 13 Requirements to Maintain the Current Appeal 14 The timely filing 0f an appeal bond is both mandatory and jurisdictional as reflected by the 15 express language of Labor Code §98.2(b), which state; in relevant part: 16 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 17 the order, decision 0r award. The undertaking shall consist 0f an appeal 18 bond issued by a licensed surety or a cash deposit with the court in the amount of the order, decision 0r award. The employer shall provide 19 written notification to the other parties and the Labor Commissioner of the posting of the undertaking . .. . 20 21 (Id., emphasis added.) And with a deferential eye turned toward public policy, legislative history and the 22 plain language of the statute, our appellate courts have instructed in accord: 23 The purpose of Section 98.2(b), as described by our Supreme Court, is t0 24 ‘discourage employers from filing frivolous appeals and from hiding assets in order to avoid enforcement of the judgment.’ As mentioned, this 25 purpose is furthered if the deadline for posting the undertaking is jurisdictional: precluding judicial extension of the deadline discourages 26 employers from filing frivolous appeals for purposes 0f delay (at least 27 2 Hereinafter, cited to in the following format: McManaman Decl. at Exhibit Number. 3 When an ODA isserved by mail, as itwas here, the ten-day statutory deadline is extended by five days. (Code 28 Civ. Proc. §1013.) Memorandum of Points and Authorities Recycled Paper without an undertaking) and minimizes the time in which an employer might hide assets. * * * hum By precluding an employer from even filing a notice of appeal without an undertaking, the employee does not have to expend time and money in procuring a dismissal . . .. Similarly, recognizing the requirement of a timely undertaking t0 be jurisdictional, rather than directory, avoids delay in the finality and enforcement of the Commissioner’s wage order. The Ox longer that an employer may string out the process by filing a notice 0f appeal and obtaining extensions to post an undertaking, the longer and N’ more expensive the process for the employee (and the court) and the greater the opportunity for the employer t0 avoid the consequences and 00 purpose of the order .. . 0 ' 10 (Palagz'n v.Pam'agua Construction, Inc. (2013) 222 Cal.App.4th 124, 137 [165 Cal.Rptr.3d 612], citing 11 Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 673 [121 Cal.Rptr.3d 58, 247 P.3d 130].) 12 Further, the California Supreme Court has clearly outlined: Trial courts may also not consider an 13 untimely filed appeal. “The time for filing a notice 0f appeal from the decision of the Labor 14 Commissioner is mandatory and jurisdictional. A late filing may not be excused on the grounds of 1:5 mistake, inadvertence or excusable neglect.” (Pressler v.Donald L. Bren C0. (1982) 32 Ca1.3d 83 1, 837 16 [187 Ca1.Rptr. 449, 654 P.2d 219].) 17 A11 employer who wishes to file an appeal against the Labor Commissioner’s Order, Decision 0r 18 Award - as Defendant has done here - must first post a bond 0r undertaking in the amount 0f the award. 19 This is the express, condition-precedent, mandatory instruction of Section 98.2(b). Accordingly, the 20 Court should now, upon Mr. Toor’s motion, dismiss this appeal based on Defendant's failure to post a 21 timely bond. (See Williams v. Freedom Card, Inc. (2004) 123 Cal.App.4th 609, 615 [20 Ca1.Rptr.3d 22 220] (appropriate remedy isdismissal of appeal deficiently maintained Without bond 0r undertaking). 23 4. 24 The ODA Should be Deemed a Final Order with Judgment in Favor 25 of Plaintiff Pursuant t0 Labor Code sections 98.2(d) and (e) 26 Labor Code section 98.2(d) provides, “If no notice 0f appeal of the order, decision, 0r award is 27 filed within the period set forth in subdivision (a), the order, decision, or award shall . ..be deemed the 28 final order.” Because the appeal in this matter was filed after the period set forth in subdivision (a), the 4 Memorandum of Points and Authorities Recycled Paper fl ODA in favor of Mr. Toor must be deemed the final order. Pursuant to Labor Code section 98.2(e), judgment should be entered in favor of Mr. Toor. 5. Reasonable Attorney’s Fees Should Be Awarded Upon Dismissal 0f the Appeal COOflQUl-AUJN Labor Code section 98.2(0) provides: Ifthe party seeking review [ofthe Labor Commissioner’ s award] by filing an appeal to the superior 001111; 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 that the amount as a cost 0f the party filing the appeal. An employee is successful if the court awards an amount greater than zero. (Lab. Code § 982(0).) Although it isthe Labor Commissioner, rather than private counsel, who advances her request under Labor Code section 98.4, such status not defeat the statutory right to reasonable attorney’s fees. (Folsom v. Butte County Association ofGovernments (1982) 32 Ca1.3d. 66 [186 Ca1.Rptr.589]; Serrano v. Unruh (1982) 32 Ca1.3d. 623 [186 Cal.Rptr. 754].) Here, Defendant’s noncompliance with the express statutory elements has necessitated, without cause, a preliminary defense to an improperly maintained appeal. The Labor Commissioner, thus, respectfully requests an NNNNNNNNNHF—‘HfiHr—HHr—npn award of attorney’s fees in the amount of $900.00 ($300.00 per hour x 3.00 hours to prepare, file and appear) upon dismissal of the OONQUI-bWNHOK'DOOQONUI-PUJNHO instant action. 6. Conclusion For the foregoing reasons, Mr. Toor requests the appeal filed by Defendant TIRATH SINGI-I, an Individual dba SANGI-IERA TRUCK LINE, in the instant case be DISMISSED. in its entirety. Mr. Toor further respectfully advances a request for an order of costs, including attorney fees in the amount of $900.00 for the cost of filing and appearing in this matter. Memorandum of Points and Authorities Recycled Paper Dated: April , 2019. DIVISION OF LABOR STANDARDS ENFORCEMENT Department 0f Industrial Relations State 0f California .pw By: PATRICK C. MCMANAMAN, Attorney for the State Labor Commissioner and on behalf of Respondent / Plaintiff, SUDARSHAN TOOR \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 Memorandum 0F Points and Authorities Recycled Paper Dated; April ll , 2019. DIVISION OF LABOR STANDARDS ENFORCEMENT Department of Industrial Relations State of California \oooqcxuzhwmy—n Byzfiv/M’; PATRICK C. McMANAMAN, Attorney for the State Labor Commissioner and on behalf of Respondent I Plaintiff, SUDARSHAN TOOR NNNNNNNNNHHHp—IHHHy—np—np‘ OOQQM-PWNHOWOOQQm-FWNF—‘O Memorandum of Points and. Authorities Recycled Paper