American Corporate Security v. Su

 

 

 

 

 

 

 

 

 

 

Filed 9/10/13  American Corporate Security v. Su CA3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(San
Joaquin)

----

 

 

 
>

AMERICAN CORPORATE SECURITY, INC.,                           Plaintiff and Appellant,               v.   JULIE SU, AS LABOR COMMISSIONER, ETC.,                           Defendant and Respondent.

C070504   (Super. Ct. No. 39201100270100CUWMSTK)

 

 

 

            Paul Thomas
filed a complaint with the Labor Commissioner, claiming that he was fired from
his job at plaintiff American Corporate Security, Inc. (ACS) in retaliation for
asserting his rights under the Labor Code. 
Defendant Labor Commissioner investigated the complaint and found
reasonable cause to believe there was a violation.  The Labor Commissioner, however, did not
issue her determination until over three years after Thomas filed his
complaint.  Labor Code section 98.7
requires the Commissioner to give notice of the determination “not later than
60 days after the filing of the complaint.” 
(Lab. Code,href="#_ftn1" name="_ftnref1"
title="">[1]
§ 98.7, subd. (e).)  ACS petitioned for a
writ of mandate to order the Labor Commissioner to retract the determination
and order for remedial action.

            ACS appeals
from an order of dismissal after the demurrer of defendant Labor Commissioner
was sustained.href="#_ftn2" name="_ftnref2"
title="">[2]  ACS contends it was an abuse of discretion to
sustain the demurrer because it has no adequate remedy at law to challenge the
Labor Commissioner’s procedural unfairness, including the failure to complete
the investigation within 60 days as required by statute.  As we will explain, ACS has an adequate legal
remedy because it can raise these points in defense to the Labor Commissioner’s
action to enforce her order. 
Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

            Thomas
worked as a security guard at ACS from January 2007 until November 2007.  On May
15, 2008, Thomas filed a complaint with the Labor Commissioner,
alleging that he was terminated in retaliation for asserting his rights under
the Labor Code.  Thomas had complained
about not receiving his paychecks and said he would go to “the Labor Board.”

            Over three
years later, on July 9, 2011,
the Labor Commissioner issued a determination that “there is reasonable cause
to believe [ACS] violated the Labor Code.” 
The Labor Commissioner directed ACS to cease and desist retaliation,
offer Thomas reinstatement to his position or a substantially equivalent position,
and pay Thomas back wages plus interest.

            ACS
immediately appealed the decision, which the Acting Director of the Department
of Industrial Relations upheld.

            On September 19, 2011, the Labor
Commissioner sent ACS a demand letter. 
The demand was for $86,094.56 in back wages for Thomas for the period November 21, 2007 through September 21, 2011, with back wages
continuing to accrue until an unconditional offer of reinstatement was
made.  The demand included 10 percent
interest on lost wages--$12,929.52 as of September 21, 2011--and an unconditional offer to Thomas
of reinstatement with restoration of all lost benefits.  ACS was given 10 days to comply with the
demand.

            On September 27, 2011, ACS petitioned
for a writ of mandate to command the Labor Commissioner to retract its
determination and orders to take remedial action, and to dismiss the complaint
filed by Thomas.  ACS alleged the Labor
Commissioner failed to give ACS notice of her determination within 60 days of
Thomas’s complaint, as required by statute. 
ACS suffered actual prejudice from the delay because its primary
exculpatory witness had died in January 2009 and other witnesses moved
away.  The Labor Commissioner had relied
upon the failure of ACS to produce this primary witness in her determination
that there was a Labor Code violation

            The writ
petition alleged that the determination was not supported by the evidence.  It alleged that Thomas was not terminated
from employment; he resigned.  He was not
qualified for his position because he engaged in threatening and belligerent
behavior, used profane language, and refused to leave the premises.  ACS believed that reinstating Thomas would
conflict with its duty under sections 6400 and 6403 to provide a safe
workplace.

            The writ
petition also alleged that ACS had no “plain, speedy, and adequate legal
remedy” to challenge the Labor Commissioner’s determination.  ACS had filed an appeal with the Director of
the Department of Industrial Relations, which was denied, and no additional
right to appeal “is provided.”

            On November
7, 2011, while the writ petition was
pending, the Labor Commissioner filed a complaint in Sacramento County Superior
Court against ACS for back pay and injunctive relief.  The complaint alleged ACS violated section
98.6 by retaliating against Thomas--terminating his employment--after he
complained about receiving late paychecks and claimed he would go to “the Labor
Board.

            ACS
answered this complaint.  It asserted 35
affirmative defenses.  These affirmative
defenses included that the complaint was barred by various statutes of
limitations and laches, the complaint violated due process, and the Labor
Commissioner violated her statutory obligations under section 98.7.

            The Labor
Commissioner demurred to the writ petition, alleging that ACS had an adequate
legal remedy in the pending Sacramento action. 
She argued the 60-day deadline in section 98.7 for giving notice of the
determination was directory, not mandatory.

            At the
hearing on the demurrer, the Labor Commissioner argued her order for back pay
and reinstatement was not self-executing; she had to bring an action to enforce
it.  She argued ACS could raise the issue
of delay and the loss of its witness in the Sacramento suit to enforce the
order.  Counsel represented that every
such case she had litigated had been a trial de novo.

            The trial
court found the Labor Commissioner was bound by these representations as to the
nature of the trial in the Sacramento action. 
Based on these representations, the court ordered the writ petition
dismissed.

DISCUSSION

I

Writ of Mandate

            “A writ of
mandate may be issued by any court to any inferior tribunal, corporation,
board, or person, to compel the performance of an act which the law specially
enjoins, as a duty resulting from an office, trust, or station, or to compel
the admission of a party to the use and enjoyment of a right or office to which
the party is entitled, and from which the party is unlawfully precluded by that
inferior tribunal, corporation, board, or person.”  (Code Civ. Proc., § 1085, subd. (a).)  To obtain writ relief, “the petitioner must
show there is no other plain, speedy, and adequate remedy; the respondent has a
clear, present, and ministerial duty to act in a particular way; and the
petitioner has a clear, present and beneficial right to performance of that
duty.”  (County of San Diego v. State (2008) 164 Cal.App.4th 580, 593.) 

            “The writ
must be issued in all cases where there is not a plain, speedy, and adequate
remedy, in the ordinary course of law.” 
(Code Civ. Proc., § 1086.) 
Usually, a writ of mandate is available only if there is no plain, speedy, and adequate remedy in the
ordinary course of law.  (Code Civ.
Proc., § 1086; San Joaquin County Dept.
of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 301.)  “‘It is a general rule that the extraordinary
remedy of mandate is not available when other remedies at law are
adequate.’  [Citation.]”  (Agosto
v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010)
189 Cal.App.4th 330, 336.)

            “An action
at law or in equity, in a competent trial court, is the ordinary remedy to
protect any right.  When that action is
available, it is presumed to be adequate and normally precludes a resort to
mandamus.  [Citations.]”  (8 Witkin, Cal. Procedure (5th ed. 2008)
Extraordinary Writs, § 122, p. 1013.)

II

Labor Code Provisions

            Section
98.6 prohibits retaliation, by discharge or other discrimination, against any
employee for exercising rights protected by the Labor Code.  (§ 98.6.) 
Section 98.7 provides for filing a complaint with the Labor Commissioner
if one believes such discharge or discrimination has occurred.

            The process
begins with the complainant (employee) filing a complaint within six months of
the alleged violation.  (§ 98.7, subd. (a).)  A discrimination complaint investigator then
investigates.  (Ibid.)  The complaint is
assigned for investigation as a priority matter.  “Discrimination complaints assigned for
investigation shall have a higher priority than any other work assigned to those
investigators.”  (Stats. 1985, ch. 1480,
§ 8, p. 5429.)  The investigation may
include interviews with witnesses and a review of documents.  The investigator prepares a report, which is
reviewed by the Labor Commissioner to determine whether a violation
occurred.  (§ 98.7, subd. (b).)  The Labor Commissioner may hold a hearing if
deemed necessary to fully establish the facts.  (>Ibid.)

            If the
Labor Commissioner determines there is a violation, she shall notify both the
complainant and respondent (employer) of her determination “not later than 60
days after filing of the complaint.”  (§
98.7, subd. (e).)  Either party may
appeal the determination to the Director of Industrial Relations within 10
days.  “The director may consider any
issue relating to the initial determination and may modify, affirm, or reverse
the Labor Commissioner’s determination.” 
(Ibid.)  The determination on appeal shall then be the
determination of the Labor Commissioner. 
(Ibid.) 

            Where a
violation is found, the Labor Commissioner must order the respondent to cease
and desist from the violation and take remedial action, including, where
appropriate, reinstatement and reimbursement of lost wages with interest.  (§ 98.7, subd. (c).)  If, within 10 working days of the notice of
Labor Commissioner’s determination, the respondent does not comply with this
order, “the Labor Commissioner shall bring an action promptly in an appropriate
court against the respondent.”  (>Ibid.) 
“In any action, the court may permit the claimant to intervene as a
party plaintiff and shall have jurisdiction, for cause shown, to restrain the
violation and to order all appropriate relief.” 
(Ibid.)

III

ACS’s Contentions and Analysis

            ACS
contends the trial court abused its discretion in dismissing the petition for a
writ of mandate because it has no other remedy to challenge the Labor
Commissioner’s determination and order. 
ACS contends the pending Sacramento action to enforce the order does not
provide an adequate remedy because it does not provide for a “trial de
novo.”  ACS bases this contention on the
language of subdivision (c) of section 98.7 which provides that the court has
“jurisdiction, for cause shown, to
restrain the violation and to order all appropriate relief.”  (Italics added.)  ACS argues the language “for cause shown” is
clear and unambiguous and does not encompass a trial de novo.href="#_ftn3" name="_ftnref3" title="">[3]  ACS contends that when the Legislature
intended to provide for a trial de novo, it expressly said so.  For example, section 98.2 provides for an
appeal of an order, decision, or award by filing an appeal to the superior
court, “where the appeal shall be heard de novo.” 

(§ 98.2, subd. (a).)

            We
recognize the general rule of statutory interpretation about the use of same or
different words in a statute.  ‘“Where
the same word or phrase might have been used in the same connection in
different portions of a statute but a different word or phrase having different
meaning is used instead, the construction employing that different meaning is
to be favored.”’  [Citation.]”  (Alameda
County Flood Control & Water Conservation Dist. v. Department of Water
Resources (2013) 213 Cal.App.4th 1163, 1186.)  That rule is inapplicable here because
section 98.2 and section 98.7 provide for very different procedures.  The words “de novo” and “for cause shown” are
not used in the same context or “in
the same connection.”

            Section 98
gives the Labor Commissioner the authority to investigate wage complaints and
provides for administrative relief, known
as a “Berman” hearing procedure after its legislative sponsor.  (Cuadra
v. Millan (1998) 17 Cal.4th 855, 858 (Cuadra),
disapproved on other grounds in Samuels
v. Mix (1999) 22 Cal.4th 1, 16, fn. 4.). 
“In brief, in a Berman proceeding the commissioner may hold a hearing on
the wage claim; the pleadings are limited to a complaint and an answer; the
answer may set forth the evidence that the defendant intends to rely on, and
there is no discovery process; if the defendant fails to appear or answer no default
is taken and the commissioner proceeds to decide the claim, but may grant a new
hearing on request.  (§ 98.)  The commissioner must decide the claim within
15 days after the hearing.  (§
98.1.)  Within 10 days after notice of
the decision any party may appeal to the appropriate court, where the claim
will be heard de novo; if no appeal is taken, the commissioner's decision will
be deemed a judgment, final immediately and enforceable as a judgment in a
civil action.  (§ 98.2.)”  (Cuadra,
supra, 17 Cal.4th at pp. 858-859.) 
Under this procedure, there is a hearing, albeit an informal one, and
the Labor Commissioner’s order, decision, or award shall “be deemed the final
order” unless there is an appeal.  (§
98.2, subd. (d).)  A party may seek
review of the order, decision or award “by filing an appeal to the superior
court, where the appeal shall be heard de novo.”  (§ 98.2, subd. (a).)  Since an appeal may provide only limited review,
it was necessary for the Legislature to indicate the review was de novo. 

            Under
section 98.7, by contrast, there is usually no hearing and the Labor
Commissioner’s order does not become “final” without further action by the
Labor Commissioner.href="#_ftn4" name="_ftnref4"
title="">[4]  Unless the employer voluntarily complies with
the order, the Labor Commissioner must “bring an action promptly in an
appropriate court against the respondent.” 
(§ 98.7, subd. (c).)  The employer
does not “appeal” the order to a court, as under section 98.2.  Instead, the burden is on the Labor
Commissioner to enforce its order by bringing an action. 

            The
question, then, is whether ACS has the opportunity to raise defenses, including
procedural defenses, in this action. 
Nothing in section 98.7 prevents an employer from raising procedural
defenses in the Labor Commissioner’s action.  Since the statutory scheme requires that the
Labor Commissioner file an action to enforce her determination, rather than
putting the burden on the aggrieved party to appeal or seek review, there is no
need to specify that there is de novo review. 
As we explain, an action by its very nature is a de novo procedure.  We conclude ACS has the right to raise any
defense that a defendant may raise in an action.

            “An action
is an ordinary proceeding in a court of justice by which one party prosecutes
another for the declaration, enforcement, or protection of a right, the redress
or prevention of a wrong, or the punishment of a public offense.”  (Code Civ. Proc., § 22.)  “[A]n action not only encompasses the
complaint ‘but refers to the entire judicial proceeding at least through
judgment and is generally considered synonymous with “suit”.’  [Citations.]” 
(Salawy v. Ocean Towers Housing
Corp. (2004) 121 Cal.App.4th 664, 672.) 
“An ‘action’ thus includes all proceedings, at least to the time of
judgment, which are required to perfect the rights.  The defenses raised in the answer to the
complaint are a real part of any action.” 
(Palmer v. Agee (1978) 87
Cal.App.3d 377, 387.) 

            “Where the
Legislature creates a right of action and makes no special provisions for its enforcement,
other than by directing that a civil action may be brought for that purpose,
such action may be commenced and prosecuted pursuant to the provisions of the
general law regulating proceedings in civil cases, and parties to such actions
may take any and all steps authorized thereby.” 
(Burson v. Cowles (1864) 25
Cal. 535, 538.) 

            Here, in
accordance with general law, the Labor Commissioner filed a complaint and ACS
filed an answer, asserting numerous defenses. 
(See Code Civ. Proc., §§ 420, 422.10.) 
ACS offers no coherent reason why its defenses cannot be litigated in
the Labor Commissioner’s action.

            ACS
contends it has been deprived of due
process because the Labor Commissioner has ordered it to pay Thomas money
without a hearing.  “Due process
principles require reasonable notice and opportunity to be heard before
governmental deprivation of a significant property interest.  [Citations.]” 
(Horn v. County of Ventura
(1979) 24 Cal.3d 605, 612.)  Because
money is a property interest, the Labor Commissioner’s determination implicates
a property interest.  (>Corrales v. Bradstreet (2007) 153
Cal.App.4th 33, 60.)  The Labor
Commissioner agrees that depriving ACS of its money without a hearing and other
protections would violate due process, but contends there is no due process
violation because the pending superior court action provides ACS with full due
process protection.  We agree; indeed,
due process requires that we interpret section 98.7 to permit the employer to
raise all applicable defenses in the superior court action to enforce the Labor
Commissioner’s order.  “An established
rule of statutory construction requires us to construe statutes to avoid
‘constitutional infirmit[ies].’ 
[Citations.]”  (>Myers v. Philip Morris Companies, Inc.
(2002) 28 Cal.4th 828, 846–847.)  
“[C]ourts should, if reasonably possible, construe a statute ‘in a
manner that avoids any doubt about
its [constitutional] validity.’”  (>Kleffman v. Vonage Holdings Corp. (2010)
49 Cal.4th 334, 346, original italics.)

            ACS
contends the trial court erred in giving deference to the Labor Commissioner’s
interpretation of the language of section 98.7 because such interpretation is
clearly erroneous.  (See >Southern Cal. Edison Co. v. Public Utilities
Com. (2000) 85 Cal.App.4th 1086, 1105, [“an agency’s interpretation of a
regulation or statute does not control if an alternative reading is compelled
by the plain language of the provision”]. 
Because we find the Labor Commissioner’s interpretation of section 98.7
correct, we reject this contention.

            ACS
contends the trial court abused its discretion in dismissing the writ petition
because the petition set forth the essential elements for writ relief.  ACS will be able to raise these defenses in defense
to the Labor Commissioner’s action.

            Finally,
ACS requested leave to amend its petition if this court finds the demurrer was
properly sustained.  “‘When a demurrer .
. . is sustained without leave to amend, we decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be,
the trial court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm. 
[Citations.]  The burden of
proving such reasonable possibility is squarely on the plaintiff.  [Citations.]’”  (Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)  ACS does not indicate how it could amend the
petition to show there is no adequate remedy at law and there is no reasonable
possibility that this defect can be cured by amendment.

DISPOSITION

            The
judgment is affirmed.  The Labor
Commissioner shall recover costs on appeal. 
(Cal. Rules of Court, rule 8.278(a)(1) & (2).)

 

 

 

                                                                                             DUARTE                           , J.

 

 

 

We concur:

 

 

 

                 NICHOLSON                            , Acting P. J.

 

 

 

                 MURRAY                                  , J.