Summary
In Arias v. Kardoulias (Dec. 14, 2011, B232363, 2011 WL 6189447 [nonpub. opn.]) (Arias I), we concluded that Arias's appeal from the commissioner's decision to the superior court was untimely under section 98.2, subdivision (a).
Summary of this case from Arias v. KardouliasOpinion
B232363
12-14-2011
REBECCA C. ARIAS, Plaintiff and Appellant, v. LUPE KARDOULIAS, Defendant and Respondent.
Rebecca C. Arias, in pro. per., for Plaintiff and Appellant. Law Office of Paul H. Nankivell II and Paul H. Nankivell II for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS127846)
APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel J. Buckley, Judge. Affirmed.
Rebecca C. Arias, in pro. per., for Plaintiff and Appellant.
Law Office of Paul H. Nankivell II and Paul H. Nankivell II for Defendant and Respondent.
Appellant Rebecca C. Arias, acting in propria persona, filed an appeal one day late in the Los Angeles Superior Court seeking judicial review of the California Labor Commissioner's decision. Pursuant to Labor Code section 98.2, subdivision (a), the superior court dismissed her untimely appeal. Arias contends she is excused from the late filing because she relied on a letter the Labor Commissioner sent responding to her request for reconsideration, which referred to the decision stating she had 15 days from service of the decision to appeal but also incorrectly stated in the body of the letter that she had "15 days upon receiving the decision." to appeal. Filing a timely notice of appeal from the Labor Commissioner's decision is jurisdictional, and it cannot be disregarded even if excusable neglect resulted in the late filing. (Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 836-838.) We affirm.
Unless stated, all further statutory references are to the Labor Code.
FACTUAL AND PROCEDURAL BACKGROUND
Arias provided housekeeping and personal care services to her father from October 17, 2007 through June 8, 2008, and filed a claim against him with the Labor Commissioner seeking $39,153.82 in unpaid wages and overtime wages, along with interest and penalties. She later amended her claim to name her sister, respondent Lupe Kardoulias. After a hearing, the Labor Commissioner issued a decision in Arias's favor for a total of $6,319.69.
The Labor Commissioner's decision was dated July 14, 2010, and was served by first class mail on July 27, 2010 to Arias within the State of California. Paragraph 4 of the decision contains the following notice: "The parties herein are notified and advised that this Order, Decision or Award of the Labor Commissioner shall become final and enforceable . . . unless either or both parties exercise their right to appeal to the appropriate court* within ten (10) days of service of this document. . . . If service on the parties is made by mail, the (10) day appeal period shall be extended by five (5) days." Arias had to file her notice of appeal in the superior court by August 11, 2010.
Arias received the Labor Commissioner's decision on August 4, 2010, and she wrote a letter to the Labor Commissioner's office requesting reconsideration. In a letter dated August 5, 2010, the Labor Commissioner's office responded that the decision was final. The Labor Commissioner's letter states: "Unfortunately I can not [sic] arbitrarily change the 'Order, Decision or Award of the Labor Commissioner' rendered. Your only recourse is to Appeal the decision as noted in paragraph #4 of the cover page of 'Order, Decision or Award of the Labor Commissioner' within fifteen (15) days upon receiving the decision."
Arias filed a notice of appeal in the superior court on August 12, 2010. She did not file the notice within the statutory period.
In opposing the motion to dismiss the appeal in the superior court, Arias stated she "relied on what the Labor Commissioner said in his letter [dated Aug. 5, 2010]." Based upon the incorrect statement in the letter referring to the time to appeal, Arias's appeal would have been timely.
In opposition, Arias stated she received the decision on August 4, 2010, and she was told to write to the commissioner "[s]o he could give me the okay to Appeal. The Labor Commissioner gave me 15 days to Appeal, upon receiving my decision. I took 9 days. According to what [the] Labor Commissioner wrote to me." In addition, Arias submitted a declaration stating she "relied on what the Labor Commissioner said in his letter. Your only recourse is to appeal the decision of the Award of the Labor Commissioner within 15 days upon receiving the decision."
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On March 17, 2011, following oral argument, the superior court granted the motion to dismiss Arias's appeal as untimely and dismissed the action. Arias timely filed this appeal from the superior court's judgment of dismissal.
DISCUSSION
Section 98.2 Required Arias to File a Notice of Appeal Within 15 Days After Service by Mail of the Labor Commissioner's Decision
Any party dissatisfied with the decision of the Labor Commissioner in an administrative proceeding to recover wages may seek review in the superior court. (§ 98.2; Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at p. 834.) "Within 10 days after service of notice of an order, decision, or award" any party may seek review by filing an appeal in the superior court, where the appeal is heard de novo. (§ 98.2, subd. (a), italics added.) For purposes of computing the 10-day period, "Section 1013 of the Code of Civil Procedure is applicable." (§ 98.2, subd. (a).) Code of Civil Procedure section 1013, subdivision (a) gives a party an additional five days "to do any act . . . within any period or on a date certain after the service of the document . . . by mail, if the place of address . . . is within the State of California[.]" Therefore, Arias had 15 days from service within which to file her appeal. (Clavell v. North Coast Business Park (1991) 232 Cal.App.3d 328, 331-333 [holding reference to Code of Civ. Proc., § 1013 in § 98.2, subd. (a) extended the time to file notice seeking judicial review of the Labor Commissioner's decisions to 15 days when notice of the decision is served by mail in California]; see also REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 495, fn. 5 [computing 15-day time period under § 98.2.].)
Here, the uncontroverted evidence showed that the final determination of the Labor Commissioner was served by first class mail, mailed within the State of California to Arias on July 27, 2010. Arias had until August 11, 2010 within which to file her notice of appeal, but did not do so until the following day, August 12, 2010.
The time limit for taking an appeal from the Labor Commissioner's decision is "mandatory and jurisdictional." (Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at p. 837.) The superior court cannot consider an appeal taken after the expiration of the statutory period even if the appeal is late because of mistake, inadvertence, or other excusable neglect. (Id., at p. 837; REO Broadcasting Consultants v. Martin, supra, 69 Cal.App.4th at pp. 495-496.)
Arias raises various arguments to excuse the late filing, but principally contends she relied to her detriment on the information contained in the August 5, 2010 letter from the Labor Commissioner, which referred to the decision but also incorrectly stated she had 15 days after receipt (August 4, 2010) to appeal the decision. The Labor Commissioner's letter also refers Arias back to the decision, which correctly states the time period to file an appeal. The error in the Labor Commissioner's letter does not trump the clear directions in the decision (referenced in the letter), informing Arias of the deadline, or the Labor Code that sets forth the deadline to seek judicial review. As noted, even if this were excusable neglect, the superior court cannot consider an appeal after the expiration of the statutory period. Thus, we find inapposite the numerous cases Arias cites addressing attorney miscalculations and calendaring errors, in which the courts excused the late filing. None of the cases Arias cites excuse the untimely filing of an appeal in the superior court seeking review of the Labor Commissioner's decision.
Arias also contends that she should be excused from the untimely filing of her appeal from the Labor Commissioner's decision because she is inexperienced in legal matters. In propria persona litigants are held to the same standards as those represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) The rules of appeal must apply equally to those parties represented by counsel and those who forgo representation. Arias's appeal to the superior court seeking judicial review of the Labor Commissioner's decision was properly dismissed as untimely under section 98.2, subdivision (a).
DISPOSITION
The judgment of dismissal is affirmed. Each party to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
KLEIN, P. J.
KITCHING, J.