Loo v. Klingbeil Management
Filed 4/19/13 Loo v. Klingbeil Management CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
NANCY
LOO,
Plaintiff and Appellant,
v.
KLINGBEIL CAPITAL MANAGEMENT,
LTD.,
Defendant and Respondent.
G047050
(Super. Ct. No. 30-2012-00540483)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Jane D. Myers, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.)
Reversed. Request for judicial
notice. Granted.
Henry J. Josefsberg for
Plaintiff and Appellant.
Wilson, Elser,
Moskowitz, Edelman & Dicker and Martin K. Deniston for Defendant and
Respondent.
* * *
INTRODUCTION
Plaintiff Nancy Loo was
employed by defendant Klingbeil Capital Management, Ltd. (Klingbeil), as the
property manager of an apartment complex that was managed by Klingbeil and
owned by KMF Merrimac Woods, LLC (KMF).
After Loo’s employment with Klingbeil was terminated, Loo filed a
complaint with the California Labor Commissioner, alleging various wage and
hour claims against Klingbeil. In
September 2009, KMF filed an unlawful
detainer action against Loo for failure to pay rent. (KMF
Merrimac Woods, LLC v. Loo (Super. Ct. Orange County, No. 30‑2009‑00299377
(the KMF action).) Loo filed a cross‑complaint
in the KMF action, asserting claims against Klingbeil and KMF for wrongful
employment termination and wrongful eviction.
After the Labor
Commissioner issued an order, decision, or award, denying Loo any recovery (the
Labor Commissioner’s decision), Loo sought to appeal that decision by filing a
motion for leave to amend her cross‑complaint in the KMF action, to add a
claim appealing the Labor Commissioner’s decision and requesting a trial de
novo; the trial court denied her motion to amend.
Loo thereafter filed a
State of California Department of Industrial Relations, Division of Labor
Standards Enforcement form 537 notice of appeal (DLSE form 537) in
the superior court, and thus commenced the instant action. The trial court dismissed the instant action
on the ground Loo’s appeal from the Labor Commissioner’s decision was untimely
under Labor Code section 98.2, subdivision (a)
(section 98.2(a)), and awarded Klingbeil prevailing party attorney fees
and costs. (All further statutory
references are to the Labor Code unless otherwise specified.)
We reverse. The sole issue before us is whether the trial
court erred by dismissing the instant action as untimely under
section 98.2(a). We conclude Loo’s
appeal was timely because, two months before filing that appeal, she had
sufficiently requested appellate review of the Labor Commissioner’s decision
and requested a trial de novo in a pending case within the timeframe required
under section 98.2(a).
PROCEDURAL BACKGROUND
I.
Loo Files Claim with Labor Commissioner’s
Office Against Klingbeil,
and KMF Files the KMF Action.
In August 2009, Loo
filed a complaint with the Labor Commissioner’s office, alleging Klingbeil
failed to pay her overtime pay, commissions, expenses, and certain wages, and
also failed to provide her required meal periods. In September, KMF filed its action.
II.
Loo Files Cross‑complaint Against Klingbeil and KMF in the KMF
Action.
In July 2011, Loo filed
a cross‑complaint in the KMF action, in which she alleged claims for
wrongful employment termination, wrongful eviction, discriminatory eviction,
and breach of her residential lease agreement; all the claims were alleged
against both KMF and Klingbeil.
In her cross‑complaint,
Loo alleged she had worked for Klingbeil as an apartment manager from September
2007 until July 2009. She alleged that
she worked long hours, was required to be on call “24/7,†and had complained to
Klingbeil about expense reimbursements, hours of work, overtime pay, and not
receiving proper meal and rest breaks.
In June 2009, Loo alleged, she had emergency surgery for
appendicitis. She claimed Klingbeil
denied her request for medical leave.
Loo asserted that within days, “however, KLINGBEIL’s Regional Manager
asked that [Loo] come in for some ‘paperwork,’ which she did. The Regional Manager then terminated [Loo’s]
employment, asserting flimsy reasons.â€
Loo further alleged that she remained in residence at the apartment
complex for an unspecified amount of time before she was served with a three‑day
notice “for non‑payment of rent.â€
Either KMF or Klingbeil commenced formal eviction proceedings against
Loo; during those proceedings, she vacated her residence. In the cross‑complaint, Loo sought,
inter alia, wage and related losses, emotional distress damages, and punitive
damages.
III.
The Labor Commissioner’s Decision
The proceeding before
the Labor Commissioner (that Loo had commenced in August 2009) concluded on October 31, 2011.
2011, the Labor Commissioner’s decision was issued, denying Loo any
recovery on her claims. The Labor
Commissioner’s decision was served by mail.
IV.
Loo Files Motion for Leave to Amend her Cross‑complaint
in the KMF Action, to Add Claim Appealing from the Labor Commissioner’s
Decision.
On December 13, 2011, Loo filed a motion for
leave to file an “amended and supplemental Cross‑Complaint†in the KMF
action, which would include, inter alia, an appeal from the Labor
Commissioner’s decision under section 98.2. On the first page of the notice of motion for
leave to amend, Loo stated: “To all interested parties and attorneys of
record: [¶] PLEASE TAKE NOTICE
that Defendant NANCY LOO will and hereby does move, pursuant to California Code
of Civil Procedure Code Sections 473 and 464 and Labor Code Section 98.2 to file a First amended‑Supplemental
Cross‑Complaint†(the proposed amended cross‑complaint). (Italics added.) On the second page of the notice, Loo stated
in part: “This Motion is based on the
grounds that this is the first opportunity to file an amended or supplemental
cross‑complaint adding an appeal re wage claims from and related to an
administrative hearing conducted by the California Division of Labor Standards
Enforcement, entitled Loo v. Klingbeil Capital management, Ltd., State
Case No. 19‑77912 BB, in which an Order, Decision or Award of the
Labor Commissioner issued on November 29, 2011. [¶] Plaintiff seeks to have a trial
California Labor Code Section 98.2, which is done by filing an appeal for
such relief in this Court. [¶] In
addition, related wage claims and unfair competition causes of action are
properly raised by this Amended Cross‑Complaint because they are alleged
against an existing party Defendant, KLINGBEIL, and relate to the same facts as
were originally alleged.â€
In the memorandum of
points and authorities, filed in support of her motion, Loo stated that she had
informally requested that KMF and Klingbeil stipulate to Loo filing the
proposed amended cross‑complaint, but she did not receive a response from
them. In addition to a claim appealing
the Labor Commissioner’s decision and requesting a trial de novo, the proposed
amended cross‑complaint also included a claim for unpaid overtime
compensation.
V.
The Trial Court Denies Loo’s Motion for Leave
to File the Proposed Amended Cross‑complaint in the KMF Action; Loo
Unsuccessfully Petitions This Court for a Writ of Mandate.
On January 19,
2012, the trial court denied Loo’s motion to file the proposed amended cross‑complaint
in the KMF action. Following a hearing
on the motion, the court’s tentative ruling became the final ruling, which
stated in part: “This ruling does not
affect [Loo]’s ability to file a separate petition with the court to appeal the
Labor Commission award, and both sides can address the notice issues in that
proceeding.†The court gave the
following reasons for its decision:
“This is a procedurally peculiar case as it poses the issue of whether
cross‑complainant Loo is permitted to mix a wage claim with unlawful
detainer?[
. . . For purposes of computing the 10‑day period after
service, Section 1013 of the Code of Civil Procedure is applicable. [¶] There is a form notice of appeal
(DLSE 537) for [Loo] to use. The
form requests that the court clerk specially set a hearing date for a trial de
novo on the Labor Commission award.
While the above section does not specify a particular format for notice
of appeal. [Sic.] It is not by noticing
and filing this motion. Putting aside
whether this notice was timely. [
separate matter and the reason to hear an appeal de novo is to insure that the
hearing is specific to appealing the ‘order, decision, or Award’ relating to
wages. Otherwise, allowing [Loo] to file
‘one’ motion would in effect defeat the formal process mandated by the Labor
Code by improperly allowing the adjudicating of unlawful detainer issues of
which Labor Commission has no jurisdiction with wage claims which are exclusive
to the Labor Commission.â€
Loo filed a petition for
writ of mandate in this court, in which she sought relief from the trial
court’s order denying her motion for leave to amend her cross‑complaint. This court summarily denied Loo’s petition on
the ground she had an adequate remedy at law.
VI.
Loo Files DLSE Form 537 and Initiates the
Instant Action.
On January 25,
2012, Loo initiated the instant action in the trial court by filing DLSE
form 537, which is entitled “Notice of Appeal,†and, as completed by Loo,
stated she (1) appealed the Labor Commissioner’s decision, a copy of which
was attached to the DLSE form 537; (2) requested the court clerk to
set and serve notice of a de novo hearing before the superior court under section 98.2;
and (3) certified that a copy of the DLSE form 537 that she filed had
been served on the Labor Commissioner and Klingbeil.
On January 26,
2012, Loo filed a notice of related case in the KMF action.
VII.
The Trial Court Grants Klingbeil’s Motion to
Dismiss the Instant Action as Untimely and Awards Klingbeil Prevailing Party
Attorney Fees.
Klingbeil moved to
dismiss the instant action on the ground it was not timely filed. The trial court granted the motion and
ordered the instant action dismissed.
The court’s minute order stated:
“ . . . The
appeal filed 1‑26‑12 is dismissed.
The court declines to rule on [Loo]’s request, made in the opposition to
the motion to dismiss, that this case be consolidated with [the KMF
action]. Such a request should be made
by noticed motion.
“Labor Code
§ 98.2(a) sets forth the time for appealing the decision of the Labor
Commissioner and it requires that an appeal be filed within 10 days after
service of the decision, with an additional 5 days added if service is by mail. If an appeal is not timely filed, the
decision of the Commissioner becomes final.
[Citation.] The deadline for
filing the appeal is jurisdictional and the court has no discretion to excuse a
late filing on grounds of mistake, inadvertence, surprise, or excusable
neglect.
“‘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.’ [Citation.]
“It is clear [Loo] did
not file a separate ‘appeal’ within the 15 day time frame (which expired on 12‑14‑11). The Notice of Appeal which opened this case
was not filed until 1‑26‑12, well past the deadline. [Loo] did, however, file a Motion for Leave
to File Amended‑Supplemental Cross‑Complaint in [the KMF
action]—which sought to add a 5th cause of action for ‘trial de novo.’ The Notice of Motion stated that [Loo] wanted
to add ‘an appeal re wage claims from and related to an administrative hearing
conducted by the California Division of Labor Standards Enforcement.’
“The 5th cause of action
stated that [Loo] was ‘dissatisfied’ with the decision of the Labor
Commissioner and sought a trial de novo under Labor Code §98.2.
“There is no little
doubt [Loo] intended the cross-complaint she sought to file in the other case
to serve as her appeal of the decision of the Labor Commissioner. However, the motion for leave to file the
amended cross‑complaint was denied and the cross-complaint itself was
never filed. [Loo] thus asks this court
to deem the appeal in this matter timely filed as of the date the motion for
leave to file the amended cross‑complaint was filed in the other
case. [Loo] points out that the prior
motion was filed within the time to appeal and that courts liberally construe a
notice of appeal so as to protect the right to appeal where it is reasonably
clear what the appellant was trying to appeal from and the other side was not
prejudiced. [Citation.]
“[Klingbeil] points out
that [Loo] did not pay the filing fee for an appeal when she filed the motion
in the other case and that the proof of service attached to the motion did not
show service on the Labor Commissioner.
[Klingbeil]’s points about the filing fee and service on the DLSE are
not persuasive. Case law is clear that
the failure to submit the correct fee at the time of filing an appeal is not
grounds to refuse to file the appeal.
[Citation.] As to the lack of
service on the DLSE, that would also not serve to defeat an otherwise timely appeal
as the purpose appears to be to alert the DLSE not to seek judgment on the
award.
“However, while the
relatively minor service and payment issues with the filing of the motion to
amend the cross‑complaint in the other case do not, by themselves, establish
no appeal was timely filed, the simple fact is that [Loo] did not timely file
an ‘appeal.’ While [Loo] is correct the
courts construe notices of appeal liberally, there still needs to be an actual
appeal to liberally construe. Here,
[Loo] filed a motion for leave to amend a cross-complaint. That is not an appeal, whatever the cause of
action [Loo] asked to have added to the cross-complaint. The request that this court construe a motion
for leave to amend, filed in a completely different case, which was denied, as
the notice of appeal in this case, would not be a liberal construction of a
notice of appeal but the creation of an appeal where none was actually filed.
“The Labor Commissioner
Appeal set for April 16, 2012 at 9:00 am in Department C 3
is vacated.â€
The trial court
thereafter granted Klingbeil’s motion for prevailing party attorney fees under
section 98.2, subdivision (c), and awarded Klingbeil $11,422.32 in
attorney fees.
VIII.
Loo Appeals.
On June 11, 2012,
Loo filed a notice of appeal “from the Judgment in this matter and all related
appealable orders.†Judgment in favor of
Klingbeil, in the total amount of $11,852.32 for attorney fees and costs, was
not entered until July. Although Loo’s
notice of appeal was premature, we use our discretion to treat the notice as
filed immediately after entry of the judgment.
(Cal. Rules of Court, rule 8.104(d)(2); Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 36.) Pursuant to KMF, Klingbeil, and Loo’s
stipulation, the trial court ordered a stay of the KMF action until the
conclusion of Loo’s appeal in the instant action.
REQUEST FOR JUDICIAL NOTICE
Loo filed a motion to
augment the appellate record with two documents filed in this court, in support
of her writ petition challenging the
trial court’s order that denied the motion for leave to file the proposed
amended cross‑complaint in the KMF action. As explained in our order, we deem Loo’s
motion as a request for judicial notice of those documents filed in a separate
case. Pursuant to Evidence Code
sections 459 and 452, subdivision (d), which authorize this court to
judicially notice records of any court of the State of California, Loo’s
request is granted.
DISCUSSION
I.
General
Legal Principles Governing Section 98.2 Appeals
Section 98.2(a)
provides: “Within 10 days after service
of notice of an order, decision, or award the parties may seek review
where the appeal shall be heard de novo.
The court shall charge the first paper filing fee under
Section 70611 of the Government Code to the party seeking review. The fee shall be distributed as provided in
Section 68085.3 of the Government Code.
A copy of the appeal request shall be served upon the Labor Commissioner
by the appellant. For purposes of
computing the 10‑day period after service, Section 1013 of the Code
of Civil Procedure is applicable.â€
(Italics added.)
The California Supreme
Court has applied “the rules governing conventional appeals to appeals in which
a trial de novo it required.†(
(1982) 32 Cal.3d 831, 836.) The Supreme
Court has held, “‘[t]he 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. This conclusion is in harmony with the
Legislature’s purpose in providing an administrative forum for the resolution
of wage disputes. [¶] The policy
underlying this process is sound for it ensures the expedition of the
collection of wages which are due but unpaid.
[Citation.] Public policy has
long favored the “full and prompt payment of wages due an employee.†[Citation.] . . . Requiring strict
adherence to the time requirement governing appeals from decisions of the Labor
Commissioner can only help to assure the achievement of this overriding
goal.’†(Maynard v. Brandon (2005) 36 Cal.4th 364, 376.)
“‘The timely filing of a notice of appeal
forestalls the commissioner’s decision, terminates his or her jurisdiction, and
vests jurisdiction to conduct a hearing de novo in the appropriate court. [Citation.]’
[Citation.] ‘Although denoted an
“appeal,†unlike a conventional appeal in a civil action, hearing under the
Labor Code is de novo. [Citation.] “‘A hearing de novo [under Labor Code
section 98.2] literally means a new hearing,’ that is, a new trial.†[Citation.]
The decision of the commissioner is “entitled to no weight whatsoever, and
the proceedings are truly ‘a trial anew in the fullest sense.’â€â€™â€
(Murphy
v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1116, fn.
omitted.) “An employee need not
administratively exhaust his claim before filing a civil action.†(Id.
at p. 1117.)
II.
No Specific Form Is
Required to Initiate an Appeal Under Section 98.2.
Neither
section 98.2 nor any other statute or rule prescribes the proper form an
appeal filed under section 98.2 should assume. A leading treatise in employment law
explains: “The Labor Code, Code of Civil
Procedure, and California Rules of Court provide no guidance regarding the
nature of the pleading, notice, or other document necessary to initiate an
‘appeal’ under [section 98.2(a)].
In practice, the procedures vary from court to court. Some courts may require filing of a formal
civil complaint, others may accept a copy of the complaint before the Labor
Commissioner, while others may require a ‘notice of appeal’ accompanied by a copy
of the Labor Commissioner’s decision (and possibly a brief).†(1 Wilcox, Cal. Employment Law (2012)
Remedies, § 5.18[2][a], p. 5‑48 (rel. 43‑5/2011).) The treatise further explains: “The Labor Commissioner has promulgated a
form of Notice of Appeal (DLSE 537), which it suggests using in appealing a
decision of the Commissioner under Labor Code Section 98.2(a).
. . . The form is modeled after the notice of appeal used in
conventional civil appeals. . . . However, counsel should check with
the particular court in which the appeal is to be filed before using this form
because the rules of that court will govern the format of the papers to be
filed, and some courts may not accept the DLSE form or may require additional
supporting papers.†(
fns. omitted.)
The parties have not
cited any Orange County Superior Court policy regarding the format of
section 98.2 appeals, and we have found none.
California courts have
held that an appeal from a determination of the Labor Commissioner may be filed
in a pending civil case in superior court.
For example, in Yoo v. Robi
(2005) 126 Cal.App.4th 1089, 1098, the appellate court rejected the argument
that an appeal from the Labor Commissioner’s determination under
section 1700.44, subdivision (a) must be instituted as a separate proceeding
in the superior court. The appellate
court explained: “We see nothing wrong
with filing the notice of appeal and request for trial de novo in a pending
action between the parties when the pending action includes the same issues
adjudicated by the Commissioner.†(
court noted that “when the issues in the proceedings before the Labor
Commissioner and in the pending superior court action are the same, requiring a
separate, independent action be filed in order to effectuate an appeal from the
Labor Commissioner’s determination generally would not benefit either party but
only result in additional costs, delay and more paperwork for the court
staff.†(Ibid.; see M
v. Kenneth Code Productions, Inc., supra, 40 Cal.4th at
p. 1118 [holding an employee may raise “additional wage‑related claims at the de novo trial†following
appeal from Labor Commissioner’s decision under section 98.2].)
In
light of the California Supreme Court’s application of rules governing conventional
appeals under section 98.2, we note that in conventional appeals, “[t]he
notice of appeal must be liberally construed.
The notice is sufficient if it identifies the particular judgment or
order being appealed.†(Cal. Rules of
Court, rule 8.100(a)(2).)
Furthermore,
an appellant’s failure to initially comply with certain appellate procedures
does not invalidate the appeal itself (although failure to cure any such
failure might result in the appeal being dismissed). For example, “[t]he clerk must file the
notice of appeal even if the appellant does not present the filing fee, the
deposit, or an application for, or order granting, a waiver of fees and
costs.†(Cal. Rules of Court,
rule 8.100(b)(3).) An appellant’s
failure to serve the notice of appeal “neither prevents its filing nor affects
its validity, but the appellant may be required to remedy the failure.†(Id.,
rule 8.100(a)(3).) In addition, “it
is and has been the law of this state that notices of appeal are to be
liberally construed so as to protect the right of appeal if it is reasonably
clear what appellant was trying to appeal from, and where the respondent could
not possibly have been misled or prejudiced.â€
(Luz v. Lopes (1960) 55 Cal.2d
54, 59; Walker v. Los Angeles County
Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22 [“‘[t]he law
aspires to respect substance over formalism and nomenclature’â€].) A document that does not express a party’s
intent to appeal, however, will not be construed as a notice of appeal. (See In
re Issac J. (1992) 4 Cal.App.4th 525, 535; In re Christopher A.
(1991) 226 Cal.App.3d 1154, 1161 [appellate court concluded a party’s letter,
which was “clear and intelligible†and timely filed, constituted a valid
appeal].)
III.
Loo’s Motion for Leave
to File the Proposed Amended Cross‑complaint Constituted an Appeal Under
Section 98.2.
It
is undisputed Loo had until December 13, 2011 to timely file her appeal
from the Labor Commissioner’s decision in superior court. It is evident that were we to consider Loo’s
January 25, 2012 filing of the DLSE form 537, and concomitant
commencement of the instant action, standing alone, we would conclude Loo
failed to timely appeal the Labor Commissioner’s decision. The key question, therefore, is whether Loo’s
filing of her motion for leave to file the proposed amended cross‑complaint
in the KMF action, which was filed December 13, 2011 (and served by mail
on Klingbeil on December 10), satisfied the “filing an appeal†requirement
of section 98.2, and the subsequent filing of the instant action,
constituted Loo’s ongoing pursuit of that appeal.
In light of the absence
of a required form to initiate a
section 98.2 appeal combined with the well‑established policy that
construed, the filing of Loo’s motion for leave to file the proposed amended
cross‑complaint did timely satisfy that requirement for the following
reasons. Loo’s motion was filed in the
right place (superior court) within the statutory timeframe. It also unambiguously expressed Loo’s intent
to appeal the Labor Commissioner’s decision, stating in part: “Plaintiff seeks to have a trial
California Labor Code Section 98.2, which is done by filing an appeal for
such relief in this Court.†In the first
paragraph of her memorandum of points and authorities, filed in support of the
motion, Loo unambiguously stated that “[t]he DLSE issued an award on November 29,
2011, about which LOO is dissatisfied and, therefore, appeals, seeking a trial
Accordingly she wishes to amend and supplement her Cross‑Complaint
to add the trial de novo and related
claims against KLINGBEIL.â€
It is of no moment that
the motion for leave to file the proposed amended cross‑complaint was
ultimately denied and the proposed amended cross‑complaint was never
filed; Loo’s act of filing the motion in and of itself, containing the above
quoted language, satisfied the requirement that she file an appeal from the Labor
Commissioner’s decision under section 98.2. (Whether the trial court abused its
discretion in ruling on the motion for leave to file the proposed amended cross‑complaint
is not before us because the KMF action is not before us.)
At the trial court’s direction,
Loo filed a DLSE form 537 and initiated the instant action. We hold that the date Loo “fil[ed] an
appeal,†within the meaning of section 98.2(a), relates back to the date
she filed her motion for leave to file the proposed amended cross‑complaint
in the KMF action. Thus, the trial court
erred by granting Klingbeil’s motion to dismiss the instant action as untimely,
and by subsequently awarding Klingbeil prevailing party attorney fees. By filing the instant action, Loo continued
to pursue her section 98.2 appeal and satisfied other procedural
requirements (serving the Labor Commissioner, submitting required fees, etc.)
in doing so.
DISPOSITION
The judgment (including
the grant of Klingbeil’s motion for attorney fees) is reversed. Appellant shall recover costs on appeal.
FYBEL,
J.
WE CONCUR:
MOORE, ACTING P. J.
THOMPSON, J.
title="">[1] Our record does not explain why it took two
years to litigate Loo’s claims before the Labor Commissioner.
title="">[2] According to the cross‑complaint, Loo
had vacated her residence at the apartment complex by July 28, 2010—about
six months before the trial court’s minute order denying the motion for leave
to amend the cross‑complaint; neither KMF nor Klingbeil contend
otherwise. Thus, the trial court’s
reference to the case as an “unlawful detainer†action appears to be in
error.
