Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG10505274
Siggins, J.
Law Offices of Allan Frumkin, Inc. (Frumkin) appeals the trial court’s decision to dismiss its appeal seeking de novo review of a decision of the state Labor Commissioner. The Labor Commissioner ordered Frumkin to pay more than $20,000 to Joel Tranter (Tranter) for several Labor Code violations. Frumkin challenged the award by appeal to the superior court under Labor Code section 98.2. When Frumkin was unable to post the required undertaking, the trial court dismissed the appeal. Frumkin now argues the trial court’s dismissal was an abuse of discretion and the appeal should proceed in the superior court. We affirm.
All further statutory references are to the Labor Code unless indicated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
From October 23, 2007 to August 4, 2008, Frumkin employed Tranter as an attorney. Following his employment, Tranter filed a claim with the State Labor Commissioner alleging Frumkin failed to pay him overtime wages and expenses, and he sought interest and penalties. (§§ 510, 2802, 98.1, 203.1 & 203.) The Labor Commissioner awarded Tranter $20,120.98.
Frumkin appealed the Labor Commissioner’s decision to the superior court under section 98.2. Because Frumkin had not posted an undertaking, as required by section 98.2, subsection (b), Tranter filed a motion to dismiss.
Frumkin opposed the motion on the basis that he was indigent and unable to obtain a surety, and he asked the court to waive the bond requirement under Code of Civil Procedure section 995.240. Frumkin supported his opposition with his declaration claiming loss of investments and property, ruined credit, cash resources of $5,000, and detailing his unsuccessful efforts to obtain a bond. At the initial hearing on the motion to dismiss, the trial court provided Frumkin an opportunity to provide further facts supporting his claim of indigency, and told him specifically to demonstrate that he owned no other property. The court continued the motion for one week.
At the next hearing on the motion, the trial court found the declaration too conclusory to support Frumkin’s claim of indigency. The court said Frumkin’s showing was inadequate because, although he described some financial losses, he did not describe all his assets or provide the financial information for his law firm. The trial court also noted a lack of evidence proving Frumkin’s inability to obtain a bond, such as a completed application for a bond or paperwork showing a denial by a surety. The trial court again continued the case to afford Frumkin additional time to obtain a bond.
No bond was filed. Instead, Frumkin submitted additional declarations listing property he owned and statements from the bondsmen he had contacted. On July 27, 2010, the trial court granted the motion to dismiss. Frumkin timely appealed.
DISCUSSION
Section 98.2, subdivision (b), requires an employer who appeals an order of the State Labor Commissioner to “post an undertaking with the reviewing court in the amount of the order, decision, or award.” The undertaking may consist of either an appeal bond issued by a licensed surety or a cash deposit. (§ 98.2, subd. (b).) Thus, Frumkin’s statutory right to judicial review in the superior court was conditioned on him either obtaining a bond or making a cash deposit.
In certain circumstances, section 995.240 of the Code of Civil Procedure provides an exception to the requirement of an undertaking. “[I]f the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, ” the court may exercise its discretion to waive the bond provision. (Code Civ. Proc., § 995.240.) Although the bond prerequisite is designed to ensure payment to the employee if judgment is entered for the employee or the appeal is withdrawn or dismissed (§ 98.2, subd. (b)), section 995.240 of the Code of Civil Procedure allows the case to proceed on the merits without an undertaking if the appellant can prove indigency and inability to obtain a bond. In exercising its discretion, the court “shall take into consideration all factors it deems relevant....” (Code Civ. Proc., § 995.240.)
We review dismissal of an appeal due to an employer’s failure to post an undertaking under the abuse of discretion standard. (Fuller v. State of California (1969) 1 Cal.App.3d 664, 666; Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 431.) The court’s discretion is broad. (Williams v. Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 615.) And we will disturb it only when it is exercised “in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1434 (Baltayan).)
“A ‘weak and incomplete showing of indigency, ’ [by an employer]... is sufficient to support a conclusion that ‘the trial court did not act arbitrarily, capriciously, or absurdly’ ” in refusing to waive an undertaking. (Williams v. Freedomcard, Inc., supra, 123 Cal.App.4th at p. 614; Baltayan, supra, 90 Cal.App.4th at p. 1435.) Here, Frumkin listed only his losses on property and investments. Despite the court’s request and an opportunity to do so, he never listed all his property or his income and expenses. Only after the trial court declined to waive the requirement and informed Frumkin that the appeal would be dismissed unless he posted a bond did Frumkin offer information about his other properties. He never listed his income and expenses or provided full financial information for his law firm. Frumkin instead said only that, “[i]ncome from the business to date is such that I am challenged to make payroll each week.” The information provided left the trial court with reasonable doubts about whether Frumkin was actually indigent, and Frumkin gave no indication of his ability to provide further information that would prove indigency.
In Baltayan, supra, an appellant supported his claim of indigency with incomplete income tax returns and a declaration stating he had no money and that neither he nor his wife owned property. (90 Cal.App.4th at p. 1434.) The appellate court affirmed the trial court’s refusal to waive the required undertaking because the declarations did not deny ownership of other assets that could be used as collateral and the income tax returns omitted business income. (Ibid.) Because there was not enough information to prove indigency, the trial court did not abuse its discretion. (Id. at p. 1435.)
Here, as in Baltayan, Frumkin’s showing of indigency was incomplete and weak. Frumkin never disclosed to the court all his potential sources of collateral, income, and expenses. Frumkin did not provide the financial information for his law firm as the trial court specifically requested; withholding it without reason only supports doubt about his actual indigency. In addition to the lack of information provided, Tranter brought forth evidence that Frumkin was actually looking to hire a new attorney for his office at a salary of $70,000 per year. Frumkin does not deny this.
It was in the discretion of the trial court to determine whether or not Frumkin made a satisfactory showing of indigency and inability to post a bond. Without a complete showing of indigency, Frumkin failed to meet the requirements for waiver under section 995.240 of the Code of Civil Procedure. Because Frumkin did not meet the waiver requirements, the trial court’s refusal to waive the undertaking provision is not arbitrary, capricious, or absurd.
DISPOSITION
The trial court was correct to dismiss Frumkin’s appeal when an undertaking was not posted. We affirm. Respondent shall recover costs on appeal.
We concur: Pollak, Acting P.J., Jenkins, J.