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1 MOLLIE M. BURKS (SBN 222112)
NEDA HEFZI (SBN 323787)
2 GORDON REES SCULLY MANSUKHANI, LLP
ELECTRONICALLY
275 Battery Street, Suite 2000
3 San Francisco, CA 94111 F I L E D
Superior Court of California,
Telephone: (415) 986-5900 County of San Francisco
4 Facsimile: (415) 986-8054
mburks@grsm.com 11/22/2021
5 nhefzi@grsm.com Clerk of the Court
BY: EDWARD SANTOS
Deputy Clerk
6 Attorneys for Defendants
INDEPENDENT TELEVISION SERVICE, INC.,
7 SARAH MCNAMARA, JAMEDRA BROWN
FLEISCHMAN
8
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SAN FRANCISCO
10
)
11 DANIELLE L. JONES ) Case No. CGC-21-591050
)
12 Plaintiff, ) REQUEST FOR JUDICIAL NOTICE
) IN SUPPORT OF DEFENDANTS’
13 vs. DEMURRER TO PLAINTIFF’S
)
FIRST AMENDED COMPLAINT
14 )
INDEPENDENT TELEVISION SERVICE,
INC., SARAH MCNAMARA, JAMEDRA )
Accompanying documents: Notice of
15 BROWN FLEISCHMAN, and DOES 1 ) Demurrer and Demurrer; Memorandum
through 25, inclusive, ) of Points and Authorities; [Proposed]
16 ) Order
Defendants. )
17 ) Date: January 20, 2022
) Time: 9:30 a.m.
18 ) Dept.: 302
)
19 ) Complaint Filed: June 15, 2021
)
20 )
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22 I. REQUEST FOR JUDICIAL NOTICE
23 Pursuant to Code of Civil Procedure section 430.70, Evidence Code sections 452 and
24 453, and Rule of Court, rule 3.1306, subdivision (c), Defendants Sarah McNamara, and Jamedra
25 Brown (“Defendants”) by and through their attorneys hereby request the Court to take judicial
26 notice of the following:
27 1. Senate Bill No. 588 (2015-2016 Reg. Sess.) Legislative Counsel’s Digest,
28 attached as Exhibit 1 to the Declaration of Neda Hefzi in Support of Request for Judicial
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT MAST OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRT
AMENDED COMPLAINT
1 Notice.
2 II. MEMORANDUM OF POINTS AND AUTHORITIES
3 A. Legislative History of a Senate Bill is Properly Subject to Judicial Notice and
4 Therefore this Court May Consider it on Demurrer
5 Sections 430.30(a) and 430.70 of the Code of Civil Procedure expressly provide that a
6 demurrer may be based on matters of which a court may take judicial notice. Only relevant
7 material may be judicially noticed. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal. 4th
8 1057, 1063.) Additionally, “[j]udicial notice may not be taken of any matter unless authorized
9 or required by law.” (Evid. Code section 450.). Evidence Code section 452 authorizes courts
10 to take judicial notice of certain matters, including: (1) official acts of the legislative, executive,
11 and judicial departments of the United States and of any state of the United States; and (2)
275 Battery Street, Suite 2000
12 records of any California court. (Evidence Code § 452(a-d).
San Francisco, CA 94111
Gordon & Rees LLP
13 Here, the Court may take judicial notice of Senate Bill No. 588 (2015-2016 Reg. Sess.)
14 attached as Exhibit 1 to the Declaration of Neda Hefzi pursuant to Evidence Code section
15 452(a) and (c), as official acts and decisional of the Legislature of this state. (Los Angeles
16 Unified School District v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 494 [Court
17 of Appeal would take judicial notice of legislative history of bill]; People v. Weaver (App. 6
18 Dist. 2019) 249 Cal.Rptr.3d 223 [the Court of Appeal would take judicial notice of assembly
19 floor analysis of certain assembly bill].) The legislative history is relevant in understanding
20 that no private right of action exists under Labor Code section 558.1.
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S
COMPLAINT
1 I. CONCLUSION
2 For the reasons set forth above, Defendants’ Request for Judicial Notice, in connection
3 with Defendants’ Demurrer to Plaintiff’s First Amended Complaint, should be granted.
4 Dated: November 22, 2021 GORDON REES SCULLY MANSUKHANI LLP
5
By: __________________________________
6 MOLLIE M. BURKS
NEDA HEFZI
7 Attorneys for Defendants
INDEPENDENT TELEVISION SERVICE,
8 INC., SARAH MCNAMARA, JAMEDRA
BROWN FLEISCHMAN
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275 Battery Street, Suite 2000
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San Francisco, CA 94111
Gordon & Rees LLP
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MAST
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S
COMPLAINT
1 DECLARATION OF NEDA HEFZI IN SUPPORT OF REQUEST FOR JUDICIAL
2 NOTICE
3 I, Neda Hefzi, declare as follows:
4 1. I am an attorney at GORDON REES SCULLY MANSUKHANI LLP, counsel
5 of record for Defendants INDEPENDENT TELEVISION SERVICE, INC., SARAH
6 MCNAMARA, JAMEDRA BROWN FLEISCHMAN in this action. I have personal
7 knowledge of the matters set forth in this Declaration except those matter except those matters
8 stated on information and belief, and as to those matters, I am informed and believe that they
9 are true. If called as a witness, I could and would testify competently to the matters set forth
10 in this Declaration.
11 2. Attached hereto as Exhibit 1 is a true and correct copy of the Senate Bill No.
275 Battery Street, Suite 2000
12 588 (2015-2016 Reg. Sess.) Legislative Counsel’s Digest as obtained from the California
San Francisco, CA 94111
Gordon & Rees LLP
13 Legislative Information website.1
14 I declare under penalty of perjury under the laws of the State of California that the
15 foregoing is true and correct.
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Executed this 22nd day of November 2021 in San Francisco, California.
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Neda Hefzi
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See, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB588.
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S
COMPLAINT
EXHIBIT 1
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SB-588 Employment: nonpayment of wages: Labor Commissioner: judgment enforcement. (2015-2016)
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Senate Bill No. 588
CHAPTER 803
An act to add Chapter 10 (commencing with Section 690.020) to Division 1 of Title 9 of Part 2 of the
Code of Civil Procedure, and to amend Section 98 of, and to add Sections 96.8, 238, 238.1, 238.2,
238.3, 238.4, 238.5, and 558.1 to, the Labor Code, relating to employment.
[ Approved by Governor October 11, 2015. Filed with Secretary of State
October 11, 2015. ]
LEGISLATIVE COUNSEL'S DIGEST
SB 588, De León. Employment: nonpayment of wages: Labor Commissioner: judgment enforcement.
(1) The Enforcement of Judgments Law provides for the enforcement of money judgments and other civil
judgments. Under that law, a judgment creditor may levy upon the property of a judgment debtor to satisfy a
judgment, and a levying officer holds the property until the final determination of any exemptions claimed by the
judgment debtor.
This bill would enact special provisions for the enforcement of judgments against an employer arising from the
employer’s nonpayment of wages for work performed in this state. The bill would authorize the Labor
Commissioner to use any of the existing remedies available to a judgment creditor and to act as a levying officer
when enforcing a judgment pursuant to a writ of execution, as provided.
The bill would also authorize the Labor Commissioner to issue a notice of levy, as specified, if the levy is for a
deposit, credits, money, or property in the possession or under the control of a bank or savings and loan
association or for an account receivable or other general intangible owed to the judgment debtor by an account
debtor.
(2) Existing law authorizes the Labor Commissioner to investigate employee complaints and to provide for a
hearing in any action to recover wages, penalties, and other demands for compensation. Existing law requires
the Labor Commissioner to determine all matters arising under his or her jurisdiction. Existing law makes any
employer or other person acting on behalf of an employer who violates or causes to be violated specified
provisions regulating hours and days of work in any order of the Industrial Welfare Commission to be subject to
a civil penalty, as specified. A violation of the general provisions governing working hours is a crime.
This bill would authorize the Labor Commissioner to provide for a hearing to recover civil penalties against any
employer or other person acting on behalf of an employer, as defined, for a violation of those provisions
regulating hours and days of work in any order of the Industrial Welfare Commission, as specified. This bill would
provide that any employer or other person acting on behalf of an employer, as defined, who violates, or causes
to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial
Welfare Commission, or violates, or causes to be violated, other related provisions of law is authorized to be held
liableas the employer for such violation. Because the billexpands liabilityand a violationof those provisions
would be a crime, the bill would impose a state-mandated local program.
Under existing law, within a specified period of time after service of notice of an order, decision, or award, the
parties are authorized to seek review by filing an appeal to the superior court, where the appeal is required to be
heard de novo.
This bill, beginning 20 days after a judgment is entered by a court of competent jurisdiction in favor of the Labor
Commissioner, or in favor of any employee pursuant to an appeal, would authorize the Labor Commissioner to,
with the consent of any employee in whose favor the judgment is entered, collect any outstanding amount of the
judgment by mailing a notice of levy upon allpersons having in theirpossession, or who will have in their
possession or under their control, any credits, money, or property, belonging to the judgment debtor, or who owe
any debt to the judgment debtor at the time they receive the notice of levy. The billwould also require the
judgment debtor to be served with a copy of the notice of levy. The bill would require any person who surrenders
to the Labor Commissioner any credits, money, or property, or pays the debts owed to the judgment debtor to
be discharged from any obligation or liability to the judgment debtor to the extent of the amount paid to the
Labor Commissioner as a result of the levy. The billwould make any person noticed with a levy who failsor
refuses to surrender any credits, money, or property or pay any debts owed to the judgment debtor liable in his
or her own person or estate to the Labor Commissioner in an amount equal to the value of the credits, money, or
property or in the amount of the levy, as provided.
If a final judgment against an employer arising from the employer’s nonpayment of wages for work performed in
this state remains unsatisfied after a specified period of time after the time to appeal has expired and no appeal
is pending, the bill would prohibit an employer from continuing to conduct business in this state, as specified,
unless the employer has obtained a bond from a surety company and has fileda copy of that bond with the
Labor Commissioner, as provided. As an alternative to the bond requirement, the billwould authorize the
employer to provide the Labor Commissioner with a notarized copy of an accord reached with an individual
holding an unsatisfied final judgment. The bill would make any employer conducting business without satisfying
the bond requirement subject to a specified civil penalty, as provided. The bill, where an employer is conducting
business in violation of the bond requirement, would authorize the Labor Commissioner to issue and serve on
such employer a stop order prohibiting the use of employee labor by the employer until the employer complies
with the bond requirement provided that the stop order would not compromise or imperil public safety or the life,
health, and care of vulnerable individuals. The bill would make the failure of an employer, owner, director, officer,
or managing agent of the employer to observe a stop order guilty of a misdemeanor. By creating a new crime,
the bill would impose a state-mandated local program. Subject to required prior notice to the employer, the bill
would authorize the Labor Commissioner to create a lien on any real or personal property in California of an
employer or a successor employer with respect to real property, as described, that is conducting business
without satisfying the bond requirement for the full amount of any wages, interest, and penalties claimed to be
owed to an employee, as specified.
Existing law generally provides for the licensure and regulation of various types of long-term care facilities by the
State Department of Public Health and the State Department of Social Services.
If a final judgment against an employer arising from the employer’s nonpayment of wages remains unsatisfied
after the time to appeal has expired and there isno pending appeal and an employer in the long-term care
industry, as specified, is found to be conducting business without obtaining a bond or reaching an accord with an
individual holding an unsatisfied judgment, this bill would authorize those departments to deny a new license or
the renewal of an existing license. The billwould also authorize the Labor Commissioner to notify those
departments of such a violation. The billwould require any individual or business entity that contracts for
services in the property services or long-term care industries to be jointly and severally liable for any unpaid
wages where the individual or business entity has been provided notice, by any party, of any proceeding or
investigation by the Labor Commissioner in which the employer is found liable for those unpaid wages, to the
extent the amounts are for services performed under that contract, as provided.
The California Constitution requires the state to reimburse local agencies and school districtsfor certain costs
mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 10 (commencing with Section 690.020) is added to Division 1 of Title 9 of Part 2 of the
Code of Civil Procedure, to read:
CHAPTER 10. Enforcement of Judgments by Labor Commissioner
690.020. For the purpose of the remedies provided under this chapter, jurisdiction is conferred upon the superior
court.
690.030. (a) Except as otherwise provided by statute, whenever a warrant or notice of levy may properly be
issued by the Labor Commissioner pursuant to Section 96.8 of the Labor Code, and the warrant may be levied
with the same effect as a levy pursuant to a writ of execution, the Labor Commissioner may use any of the
remedies available to a judgment creditor, including, but not limited to, those provided in Chapter 6
(commencing with Section 708.010) of Division 2.
(b) The proper court for the enforcement of the remedies provided under this chapter is the superior court of any
of the following counties:
(1) The county where the employee resides.
(2) The county where the judgment debtor resides.
(3) The county where the person against whom the levy or warrant was issued resides.
690.040. (a) Whenever the Labor Commissioner, pursuant to Section 96.8 of the Labor Code, levies upon property
pursuant to a warrant or notice of levy for the collection of an unsatisfied judgment or award:
(1) If the debtor is a natural person, the debtor is entitled to the same exemptions to which a judgment debtor is
entitled. Except as provided in subdivisions (b) and (c), the claim of exemption shall be made, heard, and
determined as provided in Chapter 4 (commencing with Section 703.010) of Division 2 in the same manner as if
the property were levied upon under a writ of execution.
(2) A third person may claim ownership or the right to possession of the property or a security interest in or lien
on the property. Except as provided in subdivisions (b) and (c) or as otherwise provided by statute, the third-
party claim shall be made, heard, and determined as provided in Division 4 (commencing with Section 720.010)
in the same manner as if the property were levied upon under a writ of execution.
(b) In the case of a warrant or notice of levy issued pursuant to Section 96.8 of the Labor Code, the claim of
exemption or the third-party claim shall be filed with the Labor Commissioner.
(c) A claim of exemption or a third-party claim pursuant to this section shall be heard and determined in a
superior court specified in subdivision (b) of Section 690.030.
690.050. (a) Notwithstanding any other law, in the case of a writ of execution issued by a court of competent
jurisdiction pursuant to Chapter 3 (commencing with Section 699.010) and Chapter 5 (commencing with Section
706.010) of Division 2, the Labor Commissioner, when collecting an unsatisfied judgment or award pursuant to
Section 96.8 of the Labor Code, may perform the duties of the levying officer, except that the Labor
Commissioner need not give himself or herself the notices that the levying officeris required to serve on a
judgment creditor or the notices that a judgment creditor is required to give to the levying officer.
(b) Notwithstanding subdivision (a) of Section 700.140 and Sections 700.150, 700.160, and 700.170, if the levy
is for a deposit, credits, money, or property in the possession or under the control of a bank or savings and loan
association or for an account receivable or other general intangible owed to the judgment debtor by an account
debtor, the Labor Commissioner may deliver or mail a notice of levy to a centralized location designated by the
bank or savings and loan association or, in the case of an account receivable or other general intangible, to the
agent for service of process of the account debtor. Ifthe notice of levy is received at the designated central
location for the bank or savings and loan association, the notice of levy will apply to all deposits, credits, money,
and personal property held by the bank or savings and loan association regardless of the location of that
property. The notice of levy may be issued directly by the Labor Commissioner, whether or not a court has issued
a writ of execution, and shall contain all of the information required to be included in a writ of execution under
Section 699.520 and in a notice of levy under Section 699.540.
SEC. 2. Section 96.8 is added to the Labor Code, to read:
96.8. (a) Notwithstanding any other law, beginning 20 days after a judgment is entered by a court of competent
jurisdiction in favor of the Labor Commissioner, or in favor of any employee pursuant to subdivision (e) of
Section 98.2, the Labor Commissioner may, with the consent of any employee in whose favor the judgment is
entered, collect any outstanding amount of the judgment by mailing a notice of levy upon all persons having in
their possession, or who will have in theirpossession or under their control,any credits, money, or property
belonging to the judgment debtor, or who owe any debt to the judgment debtor at the time they receive the
notice of levy.
(b) Notwithstanding any other law, the Labor Commissioner may execute a levy on any property that may be
levied under Section 700.140, 700.150, 700.160, or 700.170 of the Code of Civil Procedure by mailing a notice
of levy to the person against whom the levy is directed and serving a copy on the judgment debtor. The notice of
levy shall contain all of the information required to be included in a writ of execution under Section 699.520 of
the Code of Civil Procedure and in a notice of levy under Section 699.540 of the Code of Civil Procedure.
(c) Any person, upon whom a levy has been noticed having in his or her possession or under his or her control
any credits, money, or property belonging to the judgment debtor or owing any debts to the judgment debtor at
the time of receipt of the levy or coming into his or her possession or under his or her control within one year of
receipt of the notice of levy, shall surrender the credits, money, or property to the Labor Commissioner or pay to
the Labor Commissioner the amount of any debt owed to the judgment debtor within 10 days of service of the
levy, and shall surrender the credits or property, or the amount of any debt owing to the judgment debtor
coming into his or her own possession or control within one year of receipt of the notice of levy within 10 days of
the date of coming into possession or control of the credits or property or the amount of any debt owed to the
judgment debtor.
(d) Any person who surrenders to the Labor Commissioner pursuant to this section any credits, money, or
property, or pays the debts owed to the judgment debtor, shall be discharged from any obligation or liability to
the judgment debtor to the extent of the amount paid to the Labor Commissioner as a result of the levy.
(e) If the levy is made on a deposit or credits, money, or property in the possession or under the control of a
bank, savings and loan association, or other financial institution as defined by Section 669a(d)(1) of Title 42 of
the United States Code, the notice of levy may be delivered or mailed to a centralized location designated by the
bank, savings and loan association, or other financial institution pursuant to Section 690.050 of the Code of Civil
Procedure.
(f) Any person who is noticed with a levy pursuant to this section and who failsor refuses to surrender any
credits, money, or property or pay any debts owed to the judgment debtor shall be liable in his or her own
person or estate to the Labor Commissioner in an amount equal to the value of the credits,money, or other
property or in the amount of the levy, up to the amount specified in the levy.
(g) The fees, commissions, expenses, and the reasonable costs associated with the sale of property levied upon
by warrant or levy pursuant to this section, including, but not limited to, appraisers’ fees, auctioneers’ fees, and
advertising fees are an obligation of the judgment debtor and may be collected from the judgment debtor by
virtue of the warrant or levy or in any other manner as though these items were part of the judgment or award
outstanding.
(h) This section shall not apply to the judgment debtor’s interest in real property.
(i) This section shall not apply if enforcement of the judgment has been stayed on appeal pursuant to Chapter 2
(commencing with Section 916) of Title 13 of Part 2 of the Code of Civil Procedure.
SEC. 3. Section 98 of the Labor Code is amended to read:
98. (a) The Labor Commissioner is authorized to investigate employee complaints. The Labor Commissioner may
provide for a hearing in any action to recover wages, penalties, and other demands for compensation, including
liquidated damages if the complaint alleges payment of a wage less than the minimum wage fixed by an order of
the Industrial Welfare Commission or by statute, properly before the division or the Labor Commissioner,
including orders of the Industrial Welfare Commission, and shall determine all matters arising under his or her
jurisdiction. The Labor Commissioner may also provide for a hearing to recover civil penalties due pursuant to
Section 558 against any employer or other person acting on behalf of an employer, including, but not limited to,
an individual liable pursuant to Section 558.1. It is within the jurisdiction of the Labor Commissioner to accept
and determine claims from holders of payroll checks or payroll drafts returned unpaid because of insufficient
funds, if, after a diligent search, the holder is unable to return the dishonored check or draft to the payee and
recover the sums paid out. Within 30 days of the filing of the complaint, the Labor Commissioner shall notify the
parties as to whether a hearing will be held, whether action will be taken in accordance with Section 98.3, or
whether no further action willbe taken on the complaint. If the determination is made by the Labor
Commissioner to hold a hearing, the hearing shall be held within 90 days of the date of that determination.
However, the Labor Commissioner may postpone or grant additional time before setting a hearing if the Labor
Commissioner finds that it would lead to an equitable and just resolution of the dispute. A party who has
received actual notice of a claim before the Labor Commissioner shall, while the matter is before the Labor
Commissioner, notify the Labor Commissioner in writing of any change in that party’s business or personal
address within 10 days after the change in address occurs.
It is the intent of the Legislature that hearings held pursuant to this section be conducted in an informal setting
preserving the rights of the parties.
(b) When a hearing is set, a copy of the complaint, which shall include the amount of compensation requested,
together with a notice of time and place of the hearing, shall be served on all parties, personally or by certified
mail, or in the manner specified in Section 415.20 of the Code of Civil Procedure.
(c) Within 10 days after service of the notice and the complaint, a defendant may file an answer with the Labor
Commissioner in any form as the Labor Commissioner may prescribe, setting forth the particulars in which the
complaint is inaccurate or incomplete and the facts upon which the defendant intends to rely.
(d) No pleading other than the complaint and answer of the defendant or defendants shall be required. Both shall
be in writing and shall conform to the form and the rules of practice and procedure adopted by the Labor
Commissioner.
(e) Evidence on matters not pleaded in the answer shallbe allowed only on terms and conditions the Labor
Commissioner shall impose. In all these cases, the claimant shall be entitled to a continuance for purposes of
review of the new evidence.
(f) Ifthe defendant failsto appear or answer within the time allowed under this chapter, no default shall be
taken against him or her, but the Labor Commissioner shall hear the evidence offered and shall issue an order,
decision, or award in accordance with the evidence. A defendant failing to appear or answer, or subsequently
contending to be aggrieved in any manner by want of notice of the pendency of the proceedings, may apply to
the Labor Commissioner for reliefin accordance with Section 473 of the Code of Civil Procedure. The Labor
Commissioner may afford this relief. No right to relief, including the claim that the findings or award of the Labor
Commissioner or judgment entered thereon are void upon their face, shall accrue to the defendant in any court
unless prior application is made to the Labor Commissioner in accordance with this chapter.
(g) All hearings conducted pursuant to this chapter are governed by the division and by the rules of practice and
procedure adopted by the Labor Commissioner.
(h) (1) Whenever a claim is filed under this chapter against a person operating or doing business under a
fictitious business name, as defined in Section 17900 of the Business and Professions Code, which relates to the
person’s business, the division shall inquire at the time of the hearing whether the name of the person is the
legal name under which the business or person has been licensed, registered, incorporated, or otherwise
authorized to do business.
(2) The division may amend an order, decision, or award to conform to the legal name of the business or the
person who is the defendant to a wage claim, if it can be shown that proper service was made on the defendant
or his or her agent, unless a judgment had been entered on the order, decision, or award pursuant to subdivision
(d) of Section 98.2. The Labor Commissioner may apply to the clerk of the superior court to amend a judgment
that has been issued pursuant to a final order, decision, or award to conform to the legal name of the defendant,
if it can be shown that proper service was made on the defendant or his or her agent.
SEC. 4. Section 238 is added to the Labor Code, to read:
238. (a) If a final judgment against an employer arising from the employer’s nonpayment of wages for work
performed in this state remains unsatisfied after a period of 30 days after the time to appeal therefrom has
expired and no appeal therefrom is pending, the employer shall not continue to conduct business in this state,
including conducting business using the labor of another business, contractor, or subcontractor instead of the
labor of an employee, unless the employer has obtained a bond from a surety company admitted to do business
in this state and has filed a copy of that bond with the Labor Commissioner. The bond shallbe effective and
maintained until satisfaction of all judgments for nonpayment of wages. The principal sum of the bond shall not
be less than the following:
(1) Fifty thousand dollars ($50,000) ifthe unsatisfied portion of the judgment is no more than five thousand
dollars ($5,000).
(2) One hundred thousand dollars ($100,000) if the unsatisfied portion of the judgment is more than five
thousand dollars ($5,000) and no more than ten thousand dollars ($10,000).
(3) One hundred fifty thousand dollars ($150,000) if the unsatisfied portion of the judgment is more than ten
thousand dollars ($10,000).
(b) In lieuof filing and maintaining the bond required by this section, the employer may provide the Labor
Commissioner with a notarized copy of an accord reached with an individual holding an unsatisfied final
judgment. If the accord provides for the judgment to be paid in installments, and an installment payment is not
made, the employer is no longer excused from satisfying the bond requirement of this section.
(c) (1) The bond required by thissection shall be in favor of, and payable to, the people of the State of
California, and shall be for the benefit of any employee damaged by his or her employer’s failure to pay wages,
including any interest, penalties, and attorney’s fees.
(2) This section shall not require a bond in favor of employees covered by a bona fide collective bargaining
agreement, if the agreement expressly provides for wages, hours of work, working conditions, a process to
resolve disputes concerning nonpayment of wages, and a waiver of the bond required by this section.
(3) Thirty days prior to the cancellation or termination of any bond required by this section, the surety shall send
written notice to both the employer and the Labor Commissioner, identifying the bond and the date of the
cancellation or termination. If the bond is terminated or canceled, the employer shall obtain a new surety bond
and file a copy of that bond with the Labor Commissioner to remain in compliance with this section.
(d) For purposes of this section, a judgment also includes any final arbitration award where the time to file a
petition for a trial de novo or a petition to vacate or correct the arbitration award has expired and no petition is
pending.
(e) Subject to subdivision (f), an employer similar in operation and ownership to an employer with an unsatisfied
final judgment for unpaid wages, upon receiving written notice of the unsatisfied judgment, shall be deemed the
same employer for purposes of this section if (1) the employees of the successor employer are engaged in
substantially the same work in substantially the same working conditions under substantially the same
supervisors or (2) ifthe new entity has substantially the same production process or operations, produces
substantially the same products or offers substantially the same services, and has substantially the same body of
customers.
(f) Any employer, or other person acting on behalf of an employer, that conducts business in violation of this
section shall be subject to a civil penalty of two thousand five hundred dollars ($2,500). Any employer that has
previously been assessed and failed to pay a penalty pursuant to this section shall be subject to an additional
penalty of one hundred dollars ($100) for each calendar day that the employer conducts business in violation of
this section; however, this additional amount shall not exceed one hundred thousand dollars ($100,000). These
civilpenalties may be assessed under a citation issued by the Labor Commissioner and the procedures for
issuing, contesting, and enforcing judgments shall be the same as those set forth in Section 1197.1. The Labor
Commissioner shallnot assess these civilpenalties against an entity determined to be a successor employer
pursuant to subdivision (e) within the first 30 days after notice of the judgment.
SEC. 5. Section 238.1 is added to the Labor Code, to read:
238.1. (a) Where an employer is conducting business in violation of Section 238, the Labor Commissioner may
issue and serve on that employer a stop order prohibiting the use of employee labor by that employer until the
employer’s compliance with Section 238, provided that the stop order would not compromise or imperil public
safety or the life, health, and care of vulnerable individuals. The stop order shall also prohibit the employer from
continuing to provide services by conducting business using the labor of another business, contractor, or
subcontractor. The stop order shall become effective immediately upon the service of the order. Any employee
affected by the work stoppage shall be paid by the employer for such time lost, not exceeding 10 days, pending
compliance by the employer. The employer may protest the stop order by making and filingwith the Labor
Commissioner a written request for a hearing within 20 days after service of the stop order. The hearing shall be
held within five days from the date of filing the request. The Labor Commissioner shall notify the employer of the
time and place of the hearing by mail. At the conclusion of the hearing, the stop order shallbe immediately
affirmed or dismissed, and within 24 hours thereafter, the Labor Commissioner shall issue and serve on all
parties to the hearing by registered or certified mail a written notice of findings, accompanied by written
findings. A writ of mandate may be taken from the findings to the appropriate superior court. The writ shall be
taken within 45 days after the mailing of the notice of findings accompanied by written findings. The Labor
Commissioner may file an action in superior court for injunctive and other appropriate relief to enforce the stop
order and shall be entitled to recovery of costs and attorney’s fees if any reliefis obtained by the Labor
Commissioner.
(b) Failure of an employer, owner, director, officer, or managing agent of the employer to observe a stop order
issued and served upon him or her pursuant to this section is guilty of a misdemeanor punishable by
imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or
both. For the purposes of this section, the term “managing agent” has the same meaning as in subdivision (b) of
Section 3294 of the Civil Code.
SEC. 6. Section 238.2 is added to the Labor Code, to read:
238.2. (a) The Labor Commissioner may create a lienon any real property inCalifornia of an employer, or a
successor employer pursuant to subdivision (e) of Section 238, that is conducting business in violation of Section
238 for the full amo
Preview
1 MOLLIE M. BURKS (SBN 222112) NEDA HEFZI (SBN 323787) 2 GORDON REES SCULLY MANSUKHANI, LLP ELECTRONICALLY 275 Battery Street, Suite 2000 3 San Francisco, CA 94111 F I L E D Superior Court of California, Telephone: (415) 986-5900 County of San Francisco 4 Facsimile: (415) 986-8054 mburks@grsm.com 11/22/2021 5 nhefzi@grsm.com Clerk of the Court BY: EDWARD SANTOS Deputy Clerk 6 Attorneys for Defendants INDEPENDENT TELEVISION SERVICE, INC., 7 SARAH MCNAMARA, JAMEDRA BROWN FLEISCHMAN 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN FRANCISCO 10 ) 11 DANIELLE L. JONES ) Case No. CGC-21-591050 ) 12 Plaintiff, ) REQUEST FOR JUDICIAL NOTICE ) IN SUPPORT OF DEFENDANTS’ 13 vs. DEMURRER TO PLAINTIFF’S ) FIRST AMENDED COMPLAINT 14 ) INDEPENDENT TELEVISION SERVICE, INC., SARAH MCNAMARA, JAMEDRA ) Accompanying documents: Notice of 15 BROWN FLEISCHMAN, and DOES 1 ) Demurrer and Demurrer; Memorandum through 25, inclusive, ) of Points and Authorities; [Proposed] 16 ) Order Defendants. ) 17 ) Date: January 20, 2022 ) Time: 9:30 a.m. 18 ) Dept.: 302 ) 19 ) Complaint Filed: June 15, 2021 ) 20 ) 21 22 I. REQUEST FOR JUDICIAL NOTICE 23 Pursuant to Code of Civil Procedure section 430.70, Evidence Code sections 452 and 24 453, and Rule of Court, rule 3.1306, subdivision (c), Defendants Sarah McNamara, and Jamedra 25 Brown (“Defendants”) by and through their attorneys hereby request the Court to take judicial 26 notice of the following: 27 1. Senate Bill No. 588 (2015-2016 Reg. Sess.) Legislative Counsel’s Digest, 28 attached as Exhibit 1 to the Declaration of Neda Hefzi in Support of Request for Judicial -1- REQUEST FOR JUDICIAL NOTICE IN SUPPORT MAST OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRT AMENDED COMPLAINT 1 Notice. 2 II. MEMORANDUM OF POINTS AND AUTHORITIES 3 A. Legislative History of a Senate Bill is Properly Subject to Judicial Notice and 4 Therefore this Court May Consider it on Demurrer 5 Sections 430.30(a) and 430.70 of the Code of Civil Procedure expressly provide that a 6 demurrer may be based on matters of which a court may take judicial notice. Only relevant 7 material may be judicially noticed. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 8 1057, 1063.) Additionally, “[j]udicial notice may not be taken of any matter unless authorized 9 or required by law.” (Evid. Code section 450.). Evidence Code section 452 authorizes courts 10 to take judicial notice of certain matters, including: (1) official acts of the legislative, executive, 11 and judicial departments of the United States and of any state of the United States; and (2) 275 Battery Street, Suite 2000 12 records of any California court. (Evidence Code § 452(a-d). San Francisco, CA 94111 Gordon & Rees LLP 13 Here, the Court may take judicial notice of Senate Bill No. 588 (2015-2016 Reg. Sess.) 14 attached as Exhibit 1 to the Declaration of Neda Hefzi pursuant to Evidence Code section 15 452(a) and (c), as official acts and decisional of the Legislature of this state. (Los Angeles 16 Unified School District v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 494 [Court 17 of Appeal would take judicial notice of legislative history of bill]; People v. Weaver (App. 6 18 Dist. 2019) 249 Cal.Rptr.3d 223 [the Court of Appeal would take judicial notice of assembly 19 floor analysis of certain assembly bill].) The legislative history is relevant in understanding 20 that no private right of action exists under Labor Code section 558.1. 21 22 23 24 25 26 27 28 /// -2- MAST REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT 1 I. CONCLUSION 2 For the reasons set forth above, Defendants’ Request for Judicial Notice, in connection 3 with Defendants’ Demurrer to Plaintiff’s First Amended Complaint, should be granted. 4 Dated: November 22, 2021 GORDON REES SCULLY MANSUKHANI LLP 5 By: __________________________________ 6 MOLLIE M. BURKS NEDA HEFZI 7 Attorneys for Defendants INDEPENDENT TELEVISION SERVICE, 8 INC., SARAH MCNAMARA, JAMEDRA BROWN FLEISCHMAN 9 10 11 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 Gordon & Rees LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 /// 28 -3- MAST REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT 1 DECLARATION OF NEDA HEFZI IN SUPPORT OF REQUEST FOR JUDICIAL 2 NOTICE 3 I, Neda Hefzi, declare as follows: 4 1. I am an attorney at GORDON REES SCULLY MANSUKHANI LLP, counsel 5 of record for Defendants INDEPENDENT TELEVISION SERVICE, INC., SARAH 6 MCNAMARA, JAMEDRA BROWN FLEISCHMAN in this action. I have personal 7 knowledge of the matters set forth in this Declaration except those matter except those matters 8 stated on information and belief, and as to those matters, I am informed and believe that they 9 are true. If called as a witness, I could and would testify competently to the matters set forth 10 in this Declaration. 11 2. Attached hereto as Exhibit 1 is a true and correct copy of the Senate Bill No. 275 Battery Street, Suite 2000 12 588 (2015-2016 Reg. Sess.) Legislative Counsel’s Digest as obtained from the California San Francisco, CA 94111 Gordon & Rees LLP 13 Legislative Information website.1 14 I declare under penalty of perjury under the laws of the State of California that the 15 foregoing is true and correct. 16 Executed this 22nd day of November 2021 in San Francisco, California. 17 18 19 ___________________________________ Neda Hefzi 20 21 22 23 24 25 26 27 28 1 See, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB588. -4- MAST REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT EXHIBIT 1 Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites SB-588 Employment: nonpayment of wages: Labor Commissioner: judgment enforcement. (2015-2016) SHARE THIS: Senate Bill No. 588 CHAPTER 803 An act to add Chapter 10 (commencing with Section 690.020) to Division 1 of Title 9 of Part 2 of the Code of Civil Procedure, and to amend Section 98 of, and to add Sections 96.8, 238, 238.1, 238.2, 238.3, 238.4, 238.5, and 558.1 to, the Labor Code, relating to employment. [ Approved by Governor October 11, 2015. Filed with Secretary of State October 11, 2015. ] LEGISLATIVE COUNSEL'S DIGEST SB 588, De León. Employment: nonpayment of wages: Labor Commissioner: judgment enforcement. (1) The Enforcement of Judgments Law provides for the enforcement of money judgments and other civil judgments. Under that law, a judgment creditor may levy upon the property of a judgment debtor to satisfy a judgment, and a levying officer holds the property until the final determination of any exemptions claimed by the judgment debtor. This bill would enact special provisions for the enforcement of judgments against an employer arising from the employer’s nonpayment of wages for work performed in this state. The bill would authorize the Labor Commissioner to use any of the existing remedies available to a judgment creditor and to act as a levying officer when enforcing a judgment pursuant to a writ of execution, as provided. The bill would also authorize the Labor Commissioner to issue a notice of levy, as specified, if the levy is for a deposit, credits, money, or property in the possession or under the control of a bank or savings and loan association or for an account receivable or other general intangible owed to the judgment debtor by an account debtor. (2) Existing law authorizes the Labor Commissioner to investigate employee complaints and to provide for a hearing in any action to recover wages, penalties, and other demands for compensation. Existing law requires the Labor Commissioner to determine all matters arising under his or her jurisdiction. Existing law makes any employer or other person acting on behalf of an employer who violates or causes to be violated specified provisions regulating hours and days of work in any order of the Industrial Welfare Commission to be subject to a civil penalty, as specified. A violation of the general provisions governing working hours is a crime. This bill would authorize the Labor Commissioner to provide for a hearing to recover civil penalties against any employer or other person acting on behalf of an employer, as defined, for a violation of those provisions regulating hours and days of work in any order of the Industrial Welfare Commission, as specified. This bill would provide that any employer or other person acting on behalf of an employer, as defined, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, other related provisions of law is authorized to be held liableas the employer for such violation. Because the billexpands liabilityand a violationof those provisions would be a crime, the bill would impose a state-mandated local program. Under existing law, within a specified period of time after service of notice of an order, decision, or award, the parties are authorized to seek review by filing an appeal to the superior court, where the appeal is required to be heard de novo. This bill, beginning 20 days after a judgment is entered by a court of competent jurisdiction in favor of the Labor Commissioner, or in favor of any employee pursuant to an appeal, would authorize the Labor Commissioner to, with the consent of any employee in whose favor the judgment is entered, collect any outstanding amount of the judgment by mailing a notice of levy upon allpersons having in theirpossession, or who will have in their possession or under their control, any credits, money, or property, belonging to the judgment debtor, or who owe any debt to the judgment debtor at the time they receive the notice of levy. The billwould also require the judgment debtor to be served with a copy of the notice of levy. The bill would require any person who surrenders to the Labor Commissioner any credits, money, or property, or pays the debts owed to the judgment debtor to be discharged from any obligation or liability to the judgment debtor to the extent of the amount paid to the Labor Commissioner as a result of the levy. The billwould make any person noticed with a levy who failsor refuses to surrender any credits, money, or property or pay any debts owed to the judgment debtor liable in his or her own person or estate to the Labor Commissioner in an amount equal to the value of the credits, money, or property or in the amount of the levy, as provided. If a final judgment against an employer arising from the employer’s nonpayment of wages for work performed in this state remains unsatisfied after a specified period of time after the time to appeal has expired and no appeal is pending, the bill would prohibit an employer from continuing to conduct business in this state, as specified, unless the employer has obtained a bond from a surety company and has fileda copy of that bond with the Labor Commissioner, as provided. As an alternative to the bond requirement, the billwould authorize the employer to provide the Labor Commissioner with a notarized copy of an accord reached with an individual holding an unsatisfied final judgment. The bill would make any employer conducting business without satisfying the bond requirement subject to a specified civil penalty, as provided. The bill, where an employer is conducting business in violation of the bond requirement, would authorize the Labor Commissioner to issue and serve on such employer a stop order prohibiting the use of employee labor by the employer until the employer complies with the bond requirement provided that the stop order would not compromise or imperil public safety or the life, health, and care of vulnerable individuals. The bill would make the failure of an employer, owner, director, officer, or managing agent of the employer to observe a stop order guilty of a misdemeanor. By creating a new crime, the bill would impose a state-mandated local program. Subject to required prior notice to the employer, the bill would authorize the Labor Commissioner to create a lien on any real or personal property in California of an employer or a successor employer with respect to real property, as described, that is conducting business without satisfying the bond requirement for the full amount of any wages, interest, and penalties claimed to be owed to an employee, as specified. Existing law generally provides for the licensure and regulation of various types of long-term care facilities by the State Department of Public Health and the State Department of Social Services. If a final judgment against an employer arising from the employer’s nonpayment of wages remains unsatisfied after the time to appeal has expired and there isno pending appeal and an employer in the long-term care industry, as specified, is found to be conducting business without obtaining a bond or reaching an accord with an individual holding an unsatisfied judgment, this bill would authorize those departments to deny a new license or the renewal of an existing license. The billwould also authorize the Labor Commissioner to notify those departments of such a violation. The billwould require any individual or business entity that contracts for services in the property services or long-term care industries to be jointly and severally liable for any unpaid wages where the individual or business entity has been provided notice, by any party, of any proceeding or investigation by the Labor Commissioner in which the employer is found liable for those unpaid wages, to the extent the amounts are for services performed under that contract, as provided. The California Constitution requires the state to reimburse local agencies and school districtsfor certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Chapter 10 (commencing with Section 690.020) is added to Division 1 of Title 9 of Part 2 of the Code of Civil Procedure, to read: CHAPTER 10. Enforcement of Judgments by Labor Commissioner 690.020. For the purpose of the remedies provided under this chapter, jurisdiction is conferred upon the superior court. 690.030. (a) Except as otherwise provided by statute, whenever a warrant or notice of levy may properly be issued by the Labor Commissioner pursuant to Section 96.8 of the Labor Code, and the warrant may be levied with the same effect as a levy pursuant to a writ of execution, the Labor Commissioner may use any of the remedies available to a judgment creditor, including, but not limited to, those provided in Chapter 6 (commencing with Section 708.010) of Division 2. (b) The proper court for the enforcement of the remedies provided under this chapter is the superior court of any of the following counties: (1) The county where the employee resides. (2) The county where the judgment debtor resides. (3) The county where the person against whom the levy or warrant was issued resides. 690.040. (a) Whenever the Labor Commissioner, pursuant to Section 96.8 of the Labor Code, levies upon property pursuant to a warrant or notice of levy for the collection of an unsatisfied judgment or award: (1) If the debtor is a natural person, the debtor is entitled to the same exemptions to which a judgment debtor is entitled. Except as provided in subdivisions (b) and (c), the claim of exemption shall be made, heard, and determined as provided in Chapter 4 (commencing with Section 703.010) of Division 2 in the same manner as if the property were levied upon under a writ of execution. (2) A third person may claim ownership or the right to possession of the property or a security interest in or lien on the property. Except as provided in subdivisions (b) and (c) or as otherwise provided by statute, the third- party claim shall be made, heard, and determined as provided in Division 4 (commencing with Section 720.010) in the same manner as if the property were levied upon under a writ of execution. (b) In the case of a warrant or notice of levy issued pursuant to Section 96.8 of the Labor Code, the claim of exemption or the third-party claim shall be filed with the Labor Commissioner. (c) A claim of exemption or a third-party claim pursuant to this section shall be heard and determined in a superior court specified in subdivision (b) of Section 690.030. 690.050. (a) Notwithstanding any other law, in the case of a writ of execution issued by a court of competent jurisdiction pursuant to Chapter 3 (commencing with Section 699.010) and Chapter 5 (commencing with Section 706.010) of Division 2, the Labor Commissioner, when collecting an unsatisfied judgment or award pursuant to Section 96.8 of the Labor Code, may perform the duties of the levying officer, except that the Labor Commissioner need not give himself or herself the notices that the levying officeris required to serve on a judgment creditor or the notices that a judgment creditor is required to give to the levying officer. (b) Notwithstanding subdivision (a) of Section 700.140 and Sections 700.150, 700.160, and 700.170, if the levy is for a deposit, credits, money, or property in the possession or under the control of a bank or savings and loan association or for an account receivable or other general intangible owed to the judgment debtor by an account debtor, the Labor Commissioner may deliver or mail a notice of levy to a centralized location designated by the bank or savings and loan association or, in the case of an account receivable or other general intangible, to the agent for service of process of the account debtor. Ifthe notice of levy is received at the designated central location for the bank or savings and loan association, the notice of levy will apply to all deposits, credits, money, and personal property held by the bank or savings and loan association regardless of the location of that property. The notice of levy may be issued directly by the Labor Commissioner, whether or not a court has issued a writ of execution, and shall contain all of the information required to be included in a writ of execution under Section 699.520 and in a notice of levy under Section 699.540. SEC. 2. Section 96.8 is added to the Labor Code, to read: 96.8. (a) Notwithstanding any other law, beginning 20 days after a judgment is entered by a court of competent jurisdiction in favor of the Labor Commissioner, or in favor of any employee pursuant to subdivision (e) of Section 98.2, the Labor Commissioner may, with the consent of any employee in whose favor the judgment is entered, collect any outstanding amount of the judgment by mailing a notice of levy upon all persons having in their possession, or who will have in theirpossession or under their control,any credits, money, or property belonging to the judgment debtor, or who owe any debt to the judgment debtor at the time they receive the notice of levy. (b) Notwithstanding any other law, the Labor Commissioner may execute a levy on any property that may be levied under Section 700.140, 700.150, 700.160, or 700.170 of the Code of Civil Procedure by mailing a notice of levy to the person against whom the levy is directed and serving a copy on the judgment debtor. The notice of levy shall contain all of the information required to be included in a writ of execution under Section 699.520 of the Code of Civil Procedure and in a notice of levy under Section 699.540 of the Code of Civil Procedure. (c) Any person, upon whom a levy has been noticed having in his or her possession or under his or her control any credits, money, or property belonging to the judgment debtor or owing any debts to the judgment debtor at the time of receipt of the levy or coming into his or her possession or under his or her control within one year of receipt of the notice of levy, shall surrender the credits, money, or property to the Labor Commissioner or pay to the Labor Commissioner the amount of any debt owed to the judgment debtor within 10 days of service of the levy, and shall surrender the credits or property, or the amount of any debt owing to the judgment debtor coming into his or her own possession or control within one year of receipt of the notice of levy within 10 days of the date of coming into possession or control of the credits or property or the amount of any debt owed to the judgment debtor. (d) Any person who surrenders to the Labor Commissioner pursuant to this section any credits, money, or property, or pays the debts owed to the judgment debtor, shall be discharged from any obligation or liability to the judgment debtor to the extent of the amount paid to the Labor Commissioner as a result of the levy. (e) If the levy is made on a deposit or credits, money, or property in the possession or under the control of a bank, savings and loan association, or other financial institution as defined by Section 669a(d)(1) of Title 42 of the United States Code, the notice of levy may be delivered or mailed to a centralized location designated by the bank, savings and loan association, or other financial institution pursuant to Section 690.050 of the Code of Civil Procedure. (f) Any person who is noticed with a levy pursuant to this section and who failsor refuses to surrender any credits, money, or property or pay any debts owed to the judgment debtor shall be liable in his or her own person or estate to the Labor Commissioner in an amount equal to the value of the credits,money, or other property or in the amount of the levy, up to the amount specified in the levy. (g) The fees, commissions, expenses, and the reasonable costs associated with the sale of property levied upon by warrant or levy pursuant to this section, including, but not limited to, appraisers’ fees, auctioneers’ fees, and advertising fees are an obligation of the judgment debtor and may be collected from the judgment debtor by virtue of the warrant or levy or in any other manner as though these items were part of the judgment or award outstanding. (h) This section shall not apply to the judgment debtor’s interest in real property. (i) This section shall not apply if enforcement of the judgment has been stayed on appeal pursuant to Chapter 2 (commencing with Section 916) of Title 13 of Part 2 of the Code of Civil Procedure. SEC. 3. Section 98 of the Labor Code is amended to read: 98. (a) The Labor Commissioner is authorized to investigate employee complaints. The Labor Commissioner may provide for a hearing in any action to recover wages, penalties, and other demands for compensation, including liquidated damages if the complaint alleges payment of a wage less than the minimum wage fixed by an order of the Industrial Welfare Commission or by statute, properly before the division or the Labor Commissioner, including orders of the Industrial Welfare Commission, and shall determine all matters arising under his or her jurisdiction. The Labor Commissioner may also provide for a hearing to recover civil penalties due pursuant to Section 558 against any employer or other person acting on behalf of an employer, including, but not limited to, an individual liable pursuant to Section 558.1. It is within the jurisdiction of the Labor Commissioner to accept and determine claims from holders of payroll checks or payroll drafts returned unpaid because of insufficient funds, if, after a diligent search, the holder is unable to return the dishonored check or draft to the payee and recover the sums paid out. Within 30 days of the filing of the complaint, the Labor Commissioner shall notify the parties as to whether a hearing will be held, whether action will be taken in accordance with Section 98.3, or whether no further action willbe taken on the complaint. If the determination is made by the Labor Commissioner to hold a hearing, the hearing shall be held within 90 days of the date of that determination. However, the Labor Commissioner may postpone or grant additional time before setting a hearing if the Labor Commissioner finds that it would lead to an equitable and just resolution of the dispute. A party who has received actual notice of a claim before the Labor Commissioner shall, while the matter is before the Labor Commissioner, notify the Labor Commissioner in writing of any change in that party’s business or personal address within 10 days after the change in address occurs. It is the intent of the Legislature that hearings held pursuant to this section be conducted in an informal setting preserving the rights of the parties. (b) When a hearing is set, a copy of the complaint, which shall include the amount of compensation requested, together with a notice of time and place of the hearing, shall be served on all parties, personally or by certified mail, or in the manner specified in Section 415.20 of the Code of Civil Procedure. (c) Within 10 days after service of the notice and the complaint, a defendant may file an answer with the Labor Commissioner in any form as the Labor Commissioner may prescribe, setting forth the particulars in which the complaint is inaccurate or incomplete and the facts upon which the defendant intends to rely. (d) No pleading other than the complaint and answer of the defendant or defendants shall be required. Both shall be in writing and shall conform to the form and the rules of practice and procedure adopted by the Labor Commissioner. (e) Evidence on matters not pleaded in the answer shallbe allowed only on terms and conditions the Labor Commissioner shall impose. In all these cases, the claimant shall be entitled to a continuance for purposes of review of the new evidence. (f) Ifthe defendant failsto appear or answer within the time allowed under this chapter, no default shall be taken against him or her, but the Labor Commissioner shall hear the evidence offered and shall issue an order, decision, or award in accordance with the evidence. A defendant failing to appear or answer, or subsequently contending to be aggrieved in any manner by want of notice of the pendency of the proceedings, may apply to the Labor Commissioner for reliefin accordance with Section 473 of the Code of Civil Procedure. The Labor Commissioner may afford this relief. No right to relief, including the claim that the findings or award of the Labor Commissioner or judgment entered thereon are void upon their face, shall accrue to the defendant in any court unless prior application is made to the Labor Commissioner in accordance with this chapter. (g) All hearings conducted pursuant to this chapter are governed by the division and by the rules of practice and procedure adopted by the Labor Commissioner. (h) (1) Whenever a claim is filed under this chapter against a person operating or doing business under a fictitious business name, as defined in Section 17900 of the Business and Professions Code, which relates to the person’s business, the division shall inquire at the time of the hearing whether the name of the person is the legal name under which the business or person has been licensed, registered, incorporated, or otherwise authorized to do business. (2) The division may amend an order, decision, or award to conform to the legal name of the business or the person who is the defendant to a wage claim, if it can be shown that proper service was made on the defendant or his or her agent, unless a judgment had been entered on the order, decision, or award pursuant to subdivision (d) of Section 98.2. The Labor Commissioner may apply to the clerk of the superior court to amend a judgment that has been issued pursuant to a final order, decision, or award to conform to the legal name of the defendant, if it can be shown that proper service was made on the defendant or his or her agent. SEC. 4. Section 238 is added to the Labor Code, to read: 238. (a) If a final judgment against an employer arising from the employer’s nonpayment of wages for work performed in this state remains unsatisfied after a period of 30 days after the time to appeal therefrom has expired and no appeal therefrom is pending, the employer shall not continue to conduct business in this state, including conducting business using the labor of another business, contractor, or subcontractor instead of the labor of an employee, unless the employer has obtained a bond from a surety company admitted to do business in this state and has filed a copy of that bond with the Labor Commissioner. The bond shallbe effective and maintained until satisfaction of all judgments for nonpayment of wages. The principal sum of the bond shall not be less than the following: (1) Fifty thousand dollars ($50,000) ifthe unsatisfied portion of the judgment is no more than five thousand dollars ($5,000). (2) One hundred thousand dollars ($100,000) if the unsatisfied portion of the judgment is more than five thousand dollars ($5,000) and no more than ten thousand dollars ($10,000). (3) One hundred fifty thousand dollars ($150,000) if the unsatisfied portion of the judgment is more than ten thousand dollars ($10,000). (b) In lieuof filing and maintaining the bond required by this section, the employer may provide the Labor Commissioner with a notarized copy of an accord reached with an individual holding an unsatisfied final judgment. If the accord provides for the judgment to be paid in installments, and an installment payment is not made, the employer is no longer excused from satisfying the bond requirement of this section. (c) (1) The bond required by thissection shall be in favor of, and payable to, the people of the State of California, and shall be for the benefit of any employee damaged by his or her employer’s failure to pay wages, including any interest, penalties, and attorney’s fees. (2) This section shall not require a bond in favor of employees covered by a bona fide collective bargaining agreement, if the agreement expressly provides for wages, hours of work, working conditions, a process to resolve disputes concerning nonpayment of wages, and a waiver of the bond required by this section. (3) Thirty days prior to the cancellation or termination of any bond required by this section, the surety shall send written notice to both the employer and the Labor Commissioner, identifying the bond and the date of the cancellation or termination. If the bond is terminated or canceled, the employer shall obtain a new surety bond and file a copy of that bond with the Labor Commissioner to remain in compliance with this section. (d) For purposes of this section, a judgment also includes any final arbitration award where the time to file a petition for a trial de novo or a petition to vacate or correct the arbitration award has expired and no petition is pending. (e) Subject to subdivision (f), an employer similar in operation and ownership to an employer with an unsatisfied final judgment for unpaid wages, upon receiving written notice of the unsatisfied judgment, shall be deemed the same employer for purposes of this section if (1) the employees of the successor employer are engaged in substantially the same work in substantially the same working conditions under substantially the same supervisors or (2) ifthe new entity has substantially the same production process or operations, produces substantially the same products or offers substantially the same services, and has substantially the same body of customers. (f) Any employer, or other person acting on behalf of an employer, that conducts business in violation of this section shall be subject to a civil penalty of two thousand five hundred dollars ($2,500). Any employer that has previously been assessed and failed to pay a penalty pursuant to this section shall be subject to an additional penalty of one hundred dollars ($100) for each calendar day that the employer conducts business in violation of this section; however, this additional amount shall not exceed one hundred thousand dollars ($100,000). These civilpenalties may be assessed under a citation issued by the Labor Commissioner and the procedures for issuing, contesting, and enforcing judgments shall be the same as those set forth in Section 1197.1. The Labor Commissioner shallnot assess these civilpenalties against an entity determined to be a successor employer pursuant to subdivision (e) within the first 30 days after notice of the judgment. SEC. 5. Section 238.1 is added to the Labor Code, to read: 238.1. (a) Where an employer is conducting business in violation of Section 238, the Labor Commissioner may issue and serve on that employer a stop order prohibiting the use of employee labor by that employer until the employer’s compliance with Section 238, provided that the stop order would not compromise or imperil public safety or the life, health, and care of vulnerable individuals. The stop order shall also prohibit the employer from continuing to provide services by conducting business using the labor of another business, contractor, or subcontractor. The stop order shall become effective immediately upon the service of the order. Any employee affected by the work stoppage shall be paid by the employer for such time lost, not exceeding 10 days, pending compliance by the employer. The employer may protest the stop order by making and filingwith the Labor Commissioner a written request for a hearing within 20 days after service of the stop order. The hearing shall be held within five days from the date of filing the request. The Labor Commissioner shall notify the employer of the time and place of the hearing by mail. At the conclusion of the hearing, the stop order shallbe immediately affirmed or dismissed, and within 24 hours thereafter, the Labor Commissioner shall issue and serve on all parties to the hearing by registered or certified mail a written notice of findings, accompanied by written findings. A writ of mandate may be taken from the findings to the appropriate superior court. The writ shall be taken within 45 days after the mailing of the notice of findings accompanied by written findings. The Labor Commissioner may file an action in superior court for injunctive and other appropriate relief to enforce the stop order and shall be entitled to recovery of costs and attorney’s fees if any reliefis obtained by the Labor Commissioner. (b) Failure of an employer, owner, director, officer, or managing agent of the employer to observe a stop order issued and served upon him or her pursuant to this section is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or both. For the purposes of this section, the term “managing agent” has the same meaning as in subdivision (b) of Section 3294 of the Civil Code. SEC. 6. Section 238.2 is added to the Labor Code, to read: 238.2. (a) The Labor Commissioner may create a lienon any real property inCalifornia of an employer, or a successor employer pursuant to subdivision (e) of Section 238, that is conducting business in violation of Section 238 for the full amo