2018-00242097-CU-OE

Dianna L. Leach vs. J & K Home, LLC

Nature of Proceeding: Motion to Dismiss Labor Commissioner Appeal

Filed By: Miller, Amanda K.

Respondent K & K Home LLC’s (“Respondent”) motion to dismiss appellant Diana Leach’s (“Appellant”) Labor Commissioner appeal pursuant to Labor Code sections 98, 98.2, and Code of Civil Procedure section 1013(a) is UNOPPOSED and is GRANTED.

On September 6, 2018, the Labor Commissioner issued a Notice-Investigation Completed and dismissed Appellant’s claim. (Weiland Decl. ¶ 7, Exh. B ¶¶ 1-6.) A Berman hearing never took place. (Weiland Decl. ¶ 7, Exh. B ¶ 9.) On September 27, 2018, Appellant filed a Notice of Appeal of the Labor Commissioner’s dismissal with this Court, which was filed 21 days after the Notice-Investigation Completed indicating the dismissal was served. (Weiland Decl. ¶ 7, Exh. B ¶¶ 1-6, Exh. C ¶ 8, Exh. D ¶ 10.)

Parenthetically, the California Labor Commissioner is the Chief of the Division of Labor Standards Enforcement (DLSE). The Labor Commissioner is authorized to investigate an employee complaint for unpaid wages, penalties, and other compensation, including liquidated damages if the complaint alleges payment of a wage less than the minimum wage fixed by statute or by a wage order of the Industrial Welfare Commission. After receipt of the initial claim, the DLSE may attempt to encourage the parties to settle the claim without the need for further investigation, and may hold an informal settlement conference. If settlement is not possible, within 30 days after the complaint is filed, the DLSE must decide whether to conduct a Berman hearing within 90 days, pursue a civil action pursuant to Lab. Code § 98.3, or take no further action on the complaint (Lab. Code § 98(a); see D.L.S.E. Div. Management Memo. No. 86-4 (Oct. 6, 1986) (settlement conferences)).

Respondent contends, and the Court agrees, that because the Labor Commissioner decided not to conduct a Berman hearing, Appellant cannot appeal the Labor Commissioner’s decisions, but may file an ordinary civil action if she so chooses. ( Corrales v. Bradstreet (2007) 153 Cal.App.4th 33, 50 [“The Commissioner is under no duty to accept an employee’s claim in the first instance, and a decision by the

Commissioner not to conduct a Berman hearing would not be subject to de novo review, … .”].) As a corollary to this, it ought be noted that the result of a Berman hearing, if conducted, is nonbinding. An appeal by either party effectively nullifies the result, in favor of a de novo proceeding in superior court-in other words, in favor of ordinary civil litigation. (OTO, L.L.C. v. Kho (2017) 14 Cal. App. 5th 691, 712.)

Moreover, even assuming the Court had jurisdiction to hear the appeal, the appeal is untimely. Labor Code § 98.2(a) provides “Within 10 days after service of notice of an order, decision, or award the parties may seek review by filing an appeal to the superior court, where the appeal shall be heard de novo. … For purposes of computing the 10-day period after service, Section 1013 of the Code of Civil Procedure is applicable.” If service on the parties is made by mail, the 10 day period is extended by five days as provided by CCP § 1013(a).

Here, Appellant was served with the “Notice–Investigation Completed” by mail on September 6, 2018. (Weiland Decl. ¶ 7, Exh. B. ¶¶ 1-6, Exh. C ¶ 8.) Accordingly, if the dismissal is treated as a decision to which an appeal may be taken, either party had 15 days from September 6, 2018, to file an appeal – or until September 21, 2018. Appellant did not file her appeal until September 27, 2018, past the deadline.

Respondent’s motion to dismiss the appeal is GRANTED.

Respondent’s request that Appellant pay Respondent’s reasonable costs and attorneys’ fees incurred for these proceedings pursuant to CCP § 128.5 for bad faith frivolous tactics is DENIED. Pursuant to that section, a “trial court may order a party or a party’s attorney, or both to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (CCP § 128.5(a).) “Frivolous” means “totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP § 128.5(b).) The objective standard used to evaluate section 128.7 motions applies to section 128.5. (San Diegans for Open Government v. City of San Diego (2016) 247

Cal.App.4th 1306, 1318.) The request for fees is denied. The Court does not find the appeal to have been the result of bad faith or the result of frivolous tactics.

Additionally, Respondent has indicated the incorrect department and address in its notice of motion. The correct department is Department 53 and the correct address for Department 53 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Respondent shall notify Appellant immediately.

Respondent shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312