Filed 10/7/20 Miranda v. International Skyways etc. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

EVA MIRANDA,

Plaintiff and Respondent,

v.

INTERNATIONAL SKYWAYS MANAGEMENT, INC., et al.,

Defendants and Appellants.

B301618

(Los Angeles County

Super. Ct. No. 19LBCP00066)

APPEAL from an order of the Superior Court of Los Angeles County. Michael P. Vicencia, Judge. Affirmed.

Gulino Law Office and John J. Gulino for Defendants and Appellants.

Law Office of Eugene Lee and Eugene D. Lee for Plaintiff and Respondent.

International Skyways Management, Inc. and 1957 Delamo, LLC (Delamo) (collectively “appellant”) appeal from an order of the superior court granting a motion to dismiss appellant’s appeal of a Labor Commission decision on the ground that the appeal was untimely. We find that the record supports the trial court’s decision, and appellant has failed to meet its burden of showing error. Therefore, we affirm the trial court’s order dismissing the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent’s claims against appellant

Eva Miranda (respondent) was employed by appellant from July 1, 2015 through January 11, 2016, as a bartender. She was paid minimum wage.

On May 20, 2016, respondent filed a wage claim with the Labor Commissioner’s office, alleging she was denied meal breaks and inspection of her payroll and personnel records. She also sought waiting time penalties.

Hearing and decision of the Labor Commissioner

A hearing was conducted on respondent’s claims on January 25, 2018, before a hearing officer designated by the Labor Commissioner. On December 24, 2018, the hearing officer issued a written decision in respondent’s favor in the amount of $5,371.77. The written decision specified: “This award is not yet a final judgment. This award shall become final and enforceable as a judgment in court against each Defendant who does not file an appeal pursuant to Labor Code section 98.2.” The written decision further explained:

“The parties herein are notified and advised that this . . . Decision . . . of the Labor Commissioner shall become final and enforceable as a judgment in a court of law unless either or both parties exercise their right to appeal to the appropriate court* within ten (10) days of service of this document.”

The asterisk in the language quoted above was referenced at the bottom of the page, which further specified “Superior Court of Los Angeles – Stanley Mosk Courthouse, 111 North Hill Street Rm. 102, Los Angeles CA 90012.”

The written decision was served by mail on the parties on January 8, 2019. Thus, respondent’s deadline to appeal the decision was January 23, 2019.

Contested facts regarding appellant’s appeal to the superior court

The parties present two different versions of the facts surrounding appellant’s appeal of the Labor Commissioner’s decision to the superior court.

Appellant’s version suggests that appellant made a timely appeal to the Superior Court’s Stanley Mosk Courthouse. According to appellant, on January 23, 2019, appellant filed an appeal in the Stanley Mosk Courthouse, as directed. However, on January 28, 2019, the filing was rejected as the proper courthouse was the Governor George Deukmejian Courthouse in Long Beach. Thus, on January 31, 2019, appellant filed its appeal of the Labor Commissioner decision in the Governor George Deukmejian Courthouse in Long Beach. Appellant concedes that January 31, 2019, was beyond the statutory time within which it was permitted to file such an appeal.

Respondent contested appellant’s version of the facts, taking the position that appellant misrepresented the events surrounding the rejection of his purported appeal submitted to the Stanley Mosk Courthouse. Respondent pointed to discrepancies on appellant’s documentary evidence showing that the documents did not match court records and appeared to have been altered.

Respondent’s motion to dismiss appeal

On July 30, 2019, respondent filed an ex parte application to dismiss appellant’s appeal for lack of jurisdiction as it had been filed after the statutory deadline.

On July 31, 2019, appellant filed an opposition, asserting that on January 21, 2019, appellant electronically filed its appeal and the required undertaking at the Stanley Mosk Courthouse, as directed by the Labor Commissioner. Appellant claimed that the clerk subsequently rejected these documents, explaining that they must be filed in the Governor George Deukmejian Courthouse. Appellant asserted that the documents “were received by the clerk of the Los Angeles County Superior Court on January 21, 2019, and were timely filed.” Appellant argued that the doctrine of equitable estoppel applied, and that respondent was estopped from asserting that the appeal was untimely. Alternatively, appellant asked that the matter be set for noticed motion rather than being heard on an ex parte basis.

On August 9, 2019, appellant filed a supplemental opposition indicating that its notice of appeal and notice of posting bond were filed electronically on January 22, 2019, with the Stanley Mosk Courthouse. Appellant argued that the clerk’s rejection of the filing violated the Code of Civil Procedure and the California Rules of Court.

Respondent submitted a reply brief on August 14, 2019, pointing out that the documents provided by appellant contained some inconsistencies. First, while appellant’s counsel asserted, under penalty of perjury that the clerk rejected its filing on January 28, 2019, the document itself showed the rejection occurred on January 22, 2019 — prior to the filing deadline. Further, respondent pointed out that the document showed signs of having been altered. While it purported to have been generated on “1/28/2019 at 7:26 a.m.,” the date “02/09/2017” appeared at the bottom left of the page. In addition, appellant’s counsel’s assertion that he had called the clerk and was told he had “e-filed” with the wrong branch was hearsay and lacked foundation.

The inconsistency that respondent referred to as “most damning of all” was a discrepancy concerning the dates on the corrected notice of appeal and undertaking filed with the Governor George Deukmejian Courthouse. While these documents were ultimately successfully e-filed on January 31, 2019, they were signed and dated on January 22, 2019 — one day prior to the deadline for appeal. This contradicted appellant’s counsel’s representation that he was not informed that he filed with the wrong court until January 28, 2019. Respondent pointed out the inescapable conclusion that on January 22, 2019, appellant’s counsel had drafted and mail-served the filing captioned to the Governor George Deukmejian Courthouse. This was six days before appellant’s counsel claimed that he was made aware that the Stanley Mosk Courthouse was the wrong court for the filing.

Appellant argued that the Superior Court was not permitted to consider an appeal taken subsequent to the expiration of the statutory period because of mistake, inadvertence or other similar excuse. (Citing Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 837-838.)

The trial court set the matter for a hearing on August 22, 2019. The court considered “all briefing, arguments of counsel, evidence and all other matters presented to the Court.” On August 30, 2019, the court filed a judgment dismissing the matter and awarding respondent damages of $5,371.77.

DISCUSSION

I. Standard of review

In determining whether appellant timely filed its appeal, the trial court considered the differing factual accounts provided by the two parties, including respondent’s contentions that the documents provided by appellant’s counsel were fraudulent. Where there is conflicting evidence on a factual issue such as the one before the trial court, we review the trial court decision to determine whether or not it is supported by substantial evidence. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.) Under this standard, our role is to determine whether, “on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination” of the trial court. (In re Marriage of Goodwin-Mitchell & Mitchell (2019) 40 Cal.App.5th 232, 239.) When two or more inferences can be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. (Ibid.) It is of no consequence that “the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citation.]” (Ibid.) We may not reweigh the trial court’s implicit credibility determinations. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1319.)

Appellant asks that we review this appeal de novo, asserting that this court’s inquiry is not essentially factual, but instead is an application of the law to undisputed facts. We reject appellant’s position that the appeal turns on undisputed facts. The parties strongly disagreed below as to the chain of events leading up to appellant’s filing of the appeal in the Governor George Deukmejian Courthouse on January 31, 2019. Those facts were weighed and considered by the trial court in reaching its decision that the appeal was untimely.

Further, appellant argues at length that its appeal should be considered timely filed based on principles of equitable estoppel. This theory was also presented in the trial court. The theory of equitable estoppel raises factual issues to be determined by the trial court. (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 155.) Such factual issues are reviewed for substantial evidence. (Ibid.; see also Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 745 [“equitable estoppel and equitable tolling present questions of fact. . . . [W]ith respect to equitable issues, the trial court is the trier of fact”].)

II. The trial court’s decision that the appeal was untimely is supported by the record

“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters on which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) For this reason, an appellant has the burden of providing an adequate record. (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall).) “Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. [Citations.]” (Ibid.)

Appellant has failed to provide a reporter’s transcript of the hearing on respondent’s motion to dismiss its appeal or any settled statement of facts and law. Thus, we must make all presumptions in favor of the judgment. (Randall, supra, 2 Cal.App.5th at p. 935.) Under these circumstances, appellant is precluded from challenging the sufficiency of the evidence. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

The record shows that the trial court weighed discrepancies in the evidence as to the chain of events leading up to appellant’s January 31, 2019 filing in the Governor George Deukmejian Courthouse. While appellant presented evidence that its appeal was timely filed in the Stanley Mosk Courthouse, respondent pointed out inconsistencies in that evidence suggesting that it was fabricated. Appellant has failed to show that these factual and credibility disputes should have been resolved in its favor. Thus, we presume that the trial court’s decision was correct. (Randall, supra, 2 Cal.App.5th at p. 935.)

III. Appellant’s equitable estoppel argument fails

Appellant contends that respondent should have been equitably estopped from seeking dismissal of the appeal because the Labor Commissioner directed appellant to the wrong court, insisting that the Labor Commissioner’s acts can be imputed to respondent. Appellant argues that an estoppel may arise from silence when a party has a duty to speak. (Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1263, 1268-1269.)

First, equitable estoppel has no place in a determination of whether a party has filed a timely notice of appeal within the jurisdictional period. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.) “‘The requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period.’ [Citation.]” (Ibid., italics omitted; see also Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at p. 837 [“The time for filing a notice of appeal from a decision of the Labor Commissioner is mandatory and jurisdictional. A late filing may not be excused on the grounds of mistake, inadvertence or excusable neglect”].)

Further, as set forth above, appellant’s equitable estoppel argument is essentially factual, turning on questions of fact surrounding appellant’s counsel’s purported attempt to file an appeal in the wrong courthouse within the jurisdictional period. This evidence was heard and considered by the court at the August 22, 2019 hearing. Appellant has not provided a transcript of the hearing, resulting in an inadequate record being available to this court. We presume the evidence presented to the court below supported its factual determination that appellant’s appeal was not timely. Appellant’s estoppel argument thus fails. (Randall, supra, 2 Cal.App.5th at p. 935.)

DISPOSITION

The order is affirmed. Respondent is awarded her costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

ASHMANN-GERST

__________________________, J.

HOFFSTADT