Friday, November 21, 2025
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Court of Appeal:
No Tolling of Time to Appeal Labor Commissioner’s Decision
Code of Civil Procedure Section Relating to Documents Presented to Clerk’s Office and Bounced Found Inapplicable
By a MetNews Staff Writer
A Code of Civil Procedure section that provides for the tolling of the period within which to file a paper that has been rejected by a clerk’s office does not apply where an employer is appealing a labor commissioner’s decision and seeking a waiver of a bond requirement, Div. Five of the First District Court of Appeal held.
Its opinion, authored by Justice Gordon B. Burns, was filed Wednesday. It declares that Labor Code §98.2 requires that an appeal and a request for a bond waiver be filed in a superior court within 15 days of service by mail of a labor commissioner’s decision and that a filing one day late is fatal.
Appellant Edward Kim was found to be liable to former employee Nicole Dobarro in the amount of $74,419.82 based on wage-and-hour violations. The appeal and exemption application were provided to Nationwide Legal, a filing service, which electronically transmitted the documents to the court on the 15th day, Aug. 29, 2024.
As Kim recounts it in his brief on appeal, filed by the San Francisco office of Gordon Rees Scully Mansukhani, LLP:
“There is no dispute that the deadline to file Appellants’ Notice of Appeal and Motion for Waiver of Bond Requirement was August 29, 2024. It was ultimately filed on August 30, 2024 because the clerk initially refused to accept the over-the-counter filing, and improperly advised Nationwide to e-file the pleadings. The clerk then rejected the e-filing on August 30, 2024, and the pleadings were filed over the counter on August 30, 2024.”
Wording of Statute
The employer relied on Code of Civil Procedure §1010.6(e)(4)(E), which provides:
“If the clerk of the court does not file a complaint or cross complaint because the complaint or cross complaint does not comply with applicable filing requirements or the required filing fee has not been paid, any statute of limitations applicable to the causes of action...shall be tolled for the period beginning on the date on which the court received the document and as shown on the confirmation of receipt...through the later of either the date on which the clerk of the court sent the notice of rejection...or the date on which the electronic filing sendee provide or electronic filing manager sent the notice of rejection, plus one additional day if the complaint or cross complaint is subsequently submitted in a form that corrects the errors which caused the document to be rejected.”
The San Francisco Superior Court properly rejected the Aug. 30 filing as untimely, Burns said, explaining that the time limits “aim to encourage the prompt payment of wages due…and to discourage employers from filing frivolous appeals and hiding assets.”
Supreme Court Decision
He went on to say, citing the 1982 decision in Pressler v. Donald L. Bren Co.:
“The issue is well settled. Our Supreme Court has held that section 98.2’s deadline for seeking review of a Labor Commissioner decision is ‘mandatory and jurisdictional.’ ”
The justice said of §1010.6(e)(4)(E):
“The statute says nothing about tolling the statutory deadlines for filing an appeal from a Labor Commissioner decision or for a motion to waive an undertaking requirement….Moreover, Kim makes no attempt to argue that the statute impliedly repeals the relevant Labor Code provisions and abrogates Pressler…and its progeny. Because Kim’s notice of appeal and application for a waiver of the undertaking requirement were untimely, the trial court lacked jurisdiction.”
The case is Dobarro v. Kim, 2025 S.O.S. 3330.
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