26 Cal. App. 5th 334
Cal. Ct. App. 5th2018Background
- Labor Commissioner awarded employee Burkes $81,565.34 for unpaid wages, penalties, and interest; award served June 22, 2016.
- Employer Robertson timely filed a pro se notice of appeal in superior court but did not post the statutorily required appeal undertaking (bond or cash) within the appeal deadline under Lab. Code § 98.2(b).
- Robertson later sought a waiver of the undertaking requirement on indigency grounds (invoking Code Civ. Proc. § 995.240) after an order to show cause; the trial court questioned its jurisdiction to consider a tardy waiver request.
- Trial court dismissed the appeal, holding the § 98.2(b) undertaking is mandatory and jurisdictional and a waiver request must be made before the statutory appeal deadline; Robertson appealed that dismissal.
- Court of Appeal affirmed, holding Palagin controls: the 2010 amendment to § 98.2(b) made the undertaking a mandatory, jurisdictional prerequisite to filing an appeal, and any request for waiver under Code Civ. Proc. § 995.240 must be filed before the expiration of the appeal period.
Issues
| Issue | Plaintiff's Argument (Robertson) | Defendant's Argument (Burkes/Commissioner) | Held |
|---|---|---|---|
| Whether § 98.2(b)’s undertaking requirement is jurisdictional and requires posting before filing an appeal | Palagin does not require waiver request before the appeal deadline; employer should be allowed to request waiver after filing notice | § 98.2(b) is a condition precedent; undertaking (or timely waiver request) must be filed first | Requirement is jurisdictional; undertaking must be posted by deadline or a waiver sought before that deadline |
| Whether indigent employers may seek waiver of the undertaking | Requiring waiver request within 10–15 days is unduly burdensome and violates due process | Indigency relief exists but must be sought within the statutory appeal period to preserve § 98.2(b)’s goals | Indigency waiver available under CCP § 995.240 but must be requested before the appeal deadline; not a due process violation |
| What standards govern waiver of the undertaking | Waiver should follow general in forma pauperis principles; mere declaration of indigency suffices | Waiver governed by CCP § 995.240; court considers indigence plus risks to employee and merit of appeal | Waiver governed by CCP § 995.240; court must consider indigence, merit, potential harm to employee, and other factors before granting relief |
| Effect of failing to timely request waiver | Failure should not automatically bar the appeal if good faith inability exists | Untimely request deprives court of jurisdiction to hear the appeal | Untimely request deprives court of jurisdiction; dismissal affirmed |
Key Cases Cited
- Palagin v. Paniagua Constr., Inc., 222 Cal.App.4th 124 (Cal. Ct. App.) (2013) (2010 amendment to § 98.2(b) makes undertaking a mandatory, jurisdictional condition to appeal)
- Progressive Concrete v. Parker, 136 Cal.App.4th 540 (Cal. Ct. App.) (2006) (held pre-2010 § 98.2(b) undertaking was directory, not jurisdictional)
- Pressler v. Donald L. Bren Co., 32 Cal.3d 831 (Cal. 1982) (statutory appeal deadlines under wage statutes are mandatory and jurisdictional)
- Murphy v. Kenneth Cole Prods., Inc., 40 Cal.4th 1094 (Cal. 2007) (§ 98.2 proceeding is a de novo trial; timely notice vests jurisdiction in superior court)
- Sonic-Calabasas A, Inc. v. Moreno, 57 Cal.4th 1109 (Cal. 2013) (underscores purpose of bond/undertaking to deter asset concealment and frivolous appeals)
- Williams v. FreedomCard, Inc., 123 Cal.App.4th 609 (Cal. Ct. App.) (2004) (recognizes availability of waiver of undertaking for indigent parties)
- Ferguson v. Keays, 4 Cal.3d 649 (Cal. 1971) (applicant for in forma pauperis must show indigence and that claim is not wholly frivolous)
- Kerr's Catering Serv. v. Dept. of Indus. Relations, 57 Cal.2d 319 (Cal. 1962) (delay in wage payment causes substantial harm to employees)