Metropolitan News-Enterprise


Wednesday, August 22, 2018


Page 1


Court of Appeal:

Bond Waiver Request Was Prerequisite for Indigent’s Appeal


By a MetNews Staff Writer


The First District Court of Appeal has held that indigent employers who wish to seek a waiver of the appeal bond requirement when appealing a labor commissioner decision must apply for the waiver within the time period for filing the appeal as a jurisdictional requirement.

The opinion by Justice Terence L. Bruiniers of Div. Five, filed Monday, rejects Damon Robertson’s contention that he should have been allowed by Solano Superior Court Judge Scott L. Kays to request the waiver after filing his appeal from the labor commissioner’s award to his former employee, Larry Burkes.

Burkes had won a judgment at the hearing before the commissioner for more than $81,000 in unpaid wages, waiting time penalties, damages and interest. Robertson noticed his appeal from that judgment within the 15 days allowed by statute when such a judgment is noticed by mail, but he did not post the required undertaking.

Kays issued an order to show cause why the appeal should not be dismissed, and Robertson requested a waiver of the undertaking requirement before the hearing on that issue. Kays found that the Superior Court had no jurisdiction to consider the waiver request and dismissed the appeal.

Undertaking Rule

The legislative purpose behind the undertaking rule for appealing employers, codified in Labor Code §98.2(b), is to ensure that unpaid wages are paid promptly in the event the appealing employer loses the appeal, Bruiners said.

The section was amended in 2010 in response to a Fourth District Court of Appeal opinion in 2006, Progressive Concrete v. Parker. The court had interpreted a previous version of the requirement to be non-jurisdictional, but the legislature changed the section to read:

“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 the order, decision, or award.…”

Div. Five of the First District Court of Appeal, in its 2013 opinion in Palagin v. Paniagua Construction, Inc., noted that the addition of the words “condition” and “first” make it clear that the requirement is a jurisdictional prerequisite to an employer’s appeal in a wage and hour case.

Waiver for Indigents

Bruiniers acknowledged that, notwithstanding §98.2(b)’s jurisdictional nature and underlying policy concern of paying workers their wages, indigent employers, like any civil litigant, have a right to proceed in forma pauperis.

As applicable to the waiver of the undertaking, that right is codified in Code of Civil Procedure §995.240, which gives courts the discretion to waive a bond requirement for an indigent litigant after considering relevant factors, including the nature of the case and potential harm to the beneficiary.

Bruiniers said that a showing by an employer of indigence and minimal merit of his or her case would be enough to make a request under §995.240, even if further evidence is needed before the court can make a ruling. The request of the waiver is all that is required for such an employer to satisfy the jurisdictional requirement of §98.2(b), not the final order approving or denying it.

“Of course,” the jurist explained, “a necessary consequence of subsequent denial of an application found by the court to be unmeritorious would be dismissal of the appeal.”

Not Unduly Burdensome

The opinion says:

“Robertson contends the abbreviated appellate window available under section 98.2(b) makes it unduly burdensome and ‘harsh’ to require filing a request for waiver within that time, particularly for a small self-represented employer. He suggests it is ‘difficult, if not impossible, to do within the 10-15 day period to file a notice of appeal’ and requiring it would ‘nullify the purpose of Code of Civil Procedure section [995.240].’ We are not persuaded. The same burdens are imposed uniformly and equally on all appellants, and self-represented parties are ‘held to the same restrictive procedural rules as an attorney.’ ”

Bruiniers went on to say:

“To hold otherwise would create two different requirements for employer appeals under section 98.2—an undefined and potentially unlimited time to request an undertaking waiver for employers who assert indigence, regardless of merit, and the statutory deadline to post an undertaking for an employer who is not indigent. Providing a general exception for employers alleging indigency would completely defeat the purpose of the section 98.2(b) undertaking requirement and subvert the protections that the statutory requirements are intended to afford wage claimants.”

The case is Burkes v. Robertson, 2018 S.O.S. 4095.


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