Pressler v. Donald L. Bren Co.

• Decision Date: 06 December 1982
• Citation: 187 Cal.Rptr. 449,654 P.2d 219,32 Cal.3d 831
• Court: California Supreme Court
• Parties: , 654 P.2d 219, 25 Wage & Hour Cas. (BNA) 1202 J. George PRESSLER, Plaintiff and Respondent, v. DONALD L. BREN COMPANY, Defendant and Appellant, Department of Industrial Relations, Intervener and Respondent. L.A. 31553.

Page 449

187 Cal.Rptr. 449

32 Cal.3d 831, 654 P.2d 219, 25 Wage & Hour Cas. (BNA) 1202

J. George PRESSLER, Plaintiff and Respondent, v. DONALD L. BREN COMPANY, Defendant and Appellant, Department of Industrial Relations, Intervener and Respondent.

L.A. 31553.

Supreme Court of California,

In Bank.

Dec. 6, 1982.

Thomas E. Garcin, Marcia C. Todhunter and Sidley & Austin, Los Angeles, for defendant and appellant.

Marsh, Graves, Fischbeck & Welch and Edward E. Marsh, Jr., El Cajon, for plaintiff and respondent.

Laurence T. Emert, Los Angeles, H. Thomas Cadell, Jr., San Diego, Louis Giannini, San Francisco and Carl Joseph, Lynwood, for intervener and respondent.

BIRD, Chief Justice.

Does the failure to file a timely notice of appeal from a decision of the Labor Commissioner in an administrative proceeding to recover wages require dismissal of an appeal from his order?

I.

Appellant, Donald L. Bren Company (Bren), employed respondent, J. George Pressler, as a real estate salesman in 1978. Pressler's written contract of employment provided that he was to receive as compensation a commission equal to one percent of the sales price of each residence he sold. Sixty-five percent of this commission was designated as payment for making the sale. The remaining thirty-five percent was for processing the sale through the close of escrow. In the event of termination, Pressler would not receive the second portion of the commission on any sale that was pending as of the date of termination. Employment was made terminable "at any time, with or without cause, upon written notice ..., in which event [everyone would] be governed by the termination policy set forth ...." in the contract.

In 1980, Bren terminated Pressler and paid him 65 percent of the commissions due on his sales which were pending as of the date he was orally notified of his termination. Pressler believed that under the terms of the contract, he was entitled to receive the full commission on those sales. Accordingly, he filed an action with the Labor Commissioner to recover the unpaid portion of the commissions, which totalled approximately $18,787. ¹

Following an informal administrative hearing (see § 98, subd. (a)), the Labor Commissioner issued a decision awarding Pressler his full commissions. A copy of this decision was served on each of the parties by certified mail. (See § 98.1, subd. (a).) Bren received a copy on August 14, 1980. Thirteen days later, on August 27, 1980, a notice of appeal was filed in the San Diego County Superior Court by Bren.

Pressler moved to dismiss this appeal on the ground that the superior court did not have jurisdiction to hear the case because Bren's notice of appeal was not filed within the 10-day period provided by section 98.2, subdivision (a). ² The Labor Commissioner exercised his statutory right to intervene in the court proceedings (see § 98.5) and supported the motion to dismiss.

Bren opposed the motion and argued that under section 473 of the Code of Civil Procedure the court had the authority to allow the notice of appeal to be filed after the expiration of the statutory period. ³ In supporting declarations, Bren's attorney represented that the notice of appeal was prepared on August 18, 1980, and the secretary instructed to mail the original to the superior court for filing with copies to Pressler and the Labor Commissioner. The secretary promptly mailed copies of the notice to the Labor Commissioner and to Pressler, who received them before the expiration of the 10-day period. However, the original with the filing fee was not mailed to the superior court until on or about August 26, 1980. As a result, the notice of appeal was not timely filed.

The superior court granted Pressler's motion to dismiss. This appeal followed.

II.

Any party dissatisfied with the decision of the Labor Commissioner in an administrative proceeding to recover wages may seek review of that decision within 10 days after service of notice of the decision by filing an appeal to the court having jurisdiction over the amount in controversy. ⁴ (§ 98.2, subd. (a).) The sole question presented by this case is whether a court may consider an appeal which has been taken subsequent to the expiration of this 10-day period. ⁵

It is undisputed that were this a conventional appeal, the answer to this question would be an emphatic "no." Conventional appeals have long been governed by the "fundamental precept that the timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction." (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670, 125 Cal.Rptr. 757, 542 P.2d 1349.)

The reasons for this rule were succinctly stated by this court in Estate of Hanley (1943) 23 Cal.2d 120, 142 P.2d 423. "In strictly adhering to the statutory time for filing a notice of appeal, the courts are not arbitrarily penalizing procedural missteps. Relief may be given for excusable delay in complying with many provisions in the statutes and rules on appeal .... These procedural time provisions, however, become effective after the appeal is taken. The first step, taking of the appeal, is not merely a procedural one; it vests jurisdiction in the appellate court and terminates the jurisdiction of the lower court." (Id., at p. 123, 142 P.2d 423.) In addition, "of particular importance is the fact that the security of rights of contract, titles to property, and the status of persons rest upon certainty in the finality of judgments occasioned by the lapse of the statutory time for the taking of an appeal." (Id., at pp. 123-124, 142 P.2d 423.)

Accordingly, in conventional appeals it has long been the rule that "[i]n the absence of statutory authorization, neither the trial nor appellate courts may extend ... the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations]. Nor can jurisdiction be conferred upon the appellate court by the consent or stipulation of the parties, estoppel, or waiver. [Citations.] If it appears that [an] appeal was not taken within the [statutory time], the court has no discretion but [to] dismiss the appeal ...." (Estate of Hanley, supra, 23 Cal.2d at p. 123, 142 P.2d 423 [emphasis added]; accord Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3d at p. 674, 125 Cal.Rptr. 757, 542 P.2d 1349.) ⁶

An appeal from a decision of the Labor Commissioner differs significantly from a conventional appeal. Section 98.2, subdivision (a) provides that on appeal, the case "shall be heard de novo." As this court has previously explained, "[a] hearing de novo literally means a new hearing," that is, a new trial. (Collier & Wallis, Ltd. v. Astor (1937) 9 Cal.2d 202, 205, 70 P.2d 171; accord Buchwald v. Katz (1972) 8 Cal.3d 493 501-502, 105 Cal.Rptr. 368, 503 P.2d 1376.) By contrast, in a conventional appeal the appellate court is limited to a review of the proceedings below. It may not retry the case. (See generally, 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 209 et seq.)

This distinction, however, is not dispositive of the question before the court. The scope of the review required in a specific type of case bears no necessary relation to whether the time for taking an appeal is mandatory and jurisdictional. Historically, the courts have not hesitated to apply the rules governing conventional appeals to appeals in which a trial de novo is required. (E.g., Cook v. Superior Court (1969) 274 Cal.App.2d 675, 678, 79 Cal.Rptr. 285; Mills v. Superior Court, supra, 2 Cal.App.3d 214, 217, 82 Cal.Rptr. 469.) Indeed, the Mills court applied the rules governing conventional appeals and found that the time for taking an appeal from a small claims court judgment ⁷ was "likewise jurisdictional." (Ibid.) ⁸

In this case, the statutory framework established by the Legislature for the administrative resolution of wage disputes clearly demonstrates the mandatory and jurisdictional nature of the requirement that a party notice his or her appeal within 10 days. The timely filing of the notice of appeal (1) forestalls the finality of the Labor Commissioner's decision; (2) terminates the jurisdiction of the Labor Commissioner; and (3) vests jurisdiction to conduct a trial de novo in the appropriate court.

Sections 98 and 98.1, subdivision (a) confer initial jurisdiction upon the Labor Commissioner to investigate, hear, and determine wage disputes. ⁹ Within 15 days after the hearing, the commissioner must file his decision and serve a copy thereof on the parties. (§ 98.1, subd. (a).) In addition, the parties must be advised "of their right to appeal the decision" and "failure to do so within the [10-day] period prescribed ... shall result in the decision or award becoming final...." (§ 98.1, subd. (a) [emphasis added]; see also § 98.2, subd. (c).)

Only if a party files a notice of appeal within the time provided is jurisdiction vested in an appropriate court to proceed with a trial de novo. (§ 98.2, subd. (a); see also Buchwald v. Katz, supra, 8 Cal.3d at pp. 501-502, 105 Cal.Rptr. 368, 503 P.2d 1376.) If a notice of appeal is not timely filed, the Labor Commissioner's decision becomes final (§ 98.2, subd. (c)) ¹⁰ and immediately enforceable when a certified copy of the decision is filed with the appropriate court (§ 98.2, subd. (d)).

The import of these provisions is clear. 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. 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. (See Sales Dimensions v. Superior Court (1979) 90 Cal.App.3d 757 at pp....