PRESSLER v. Department of Industrial Relations, Division of Labor Standards Enforcement, Labor Commissioner of State of California, Intervenor and Respondent.

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Court of Appeal, Fourth District, Division 1, California.

J. George PRESSLER, Plaintiff and Respondent, v. DONALD L. BREN COMPANY, Defendant and Appellant, Department of Industrial Relations, Division of Labor Standards Enforcement, Labor Commissioner of State of California, Intervenor and Respondent.

Civ. 24403.

Decided: January 29, 1982

Sidley & Austin, and Thomas E. Garcin and Marcia C. Todhunter, Los Angeles, for defendant and appellant. Marsh, Graves, Fischbeck & Welch, and Edward E. Marsh, Jr., El Cajon, for plaintiff and respondent.

Louis Giannini, Laurence T. Emert, Carl Joseph, and H. Thomas Cadell, Jr., for Intervenor and Respondent.

Defendant Donald L. Bren Company (Bren) appeals the superior court order dismissing his attempt to obtain a de novo review in the superior court of the award made by the Labor Commissioner of the State of California (Commissioner) 1 in favor of plaintiff J. George Pressler.   We decide the 10-day period within which any party may seek review of the Commissioner's decision in the appropriate court pursuant to section 98.2 is not jurisdictional.   We hold a court may relieve a party from the effect of a late filing of a notice of appeal from the Commissioner's order, decision or award, where the late filing occurred through either his or his legal representative's mistake, inadvertence, surprise or excusable neglect.  (See Code Civ.Proc., § 473.)   Here, because the record establishes Bren's untimely filing was due to his lawyer's excusable neglect, we reverse the order of dismissal to permit a judicial resolution of this controversy.

Factual and Procedural Background

Bren employed Pressler as a real estate salesman under a written contract providing for compensation at the rate of one percent of the sales price of each residence he sold.   After Pressler's employment was terminated, the parties disagreed on the balance of commissions due him.   Pressler filed a claim with the Commissioner, who in an informal administrative hearing (§ 98, subd. (a)) determined Bren owed him $18,787.   In accordance with section 98.1, the Commissioner served a copy of the decision by certified mail on Bren's attorney of record on August 14, 1980.   On August 27, Bren's notice seeking review of that decision was filed with the superior court.

Pressler moved to dismiss the appeal on the ground the superior court was without jurisdiction to hear the case because the notice of appeal was not filed within the 10-day period required by section 98.2, subdivision (a).   Bren's opposition to the motion with supporting declarations included request for relief as provided by Code of Civil Procedure section 473.

Counsel for Bren, Thomas E. Garcin, declared, because he was aware of the 10-day appeal period, he dictated and signed a notice of appeal on August 18, 1980, the second working day after receiving a copy of the Commissioner's order.   He also dictated a letter to the clerk of the court to accompany the filing of the notice and instructed his secretary to serve a copy of the notice on Pressler and the Commissioner.   He signed the documents that day.   A conformed copy of the transmittal letter to the clerk was returned to his office on August 29 and was placed by his secretary directly into the file.   On that date, without notice, his secretary quit.

In early October, Garcin received a telephone call from H. Thomas Cadell, Jr., attorney for the Commissioner, requesting the superior court number for the appeal.   When Garcin found the conformed copy of the notice, he saw for the first time it was filed on August 27.   He gave Cadell that information.   On November 7, he discovered the apparent reason for the delay was his secretary's failure to have requested a check for the filing fee from the accounting office of his firm until August 26, eight days after he signed and directed her to file the appeal.   Cadell acknowledged a copy of the notice of appeal was received by him on August 19.

Pressler successfully moved to dismiss the appeal on the ground the late filing of the notice of appeal deprived the court of jurisdiction and prevented it from considering Bren's request for relief.   This appeal followed.


Pursuant to section 98.2, subdivision (a), a party seeking review of an order, decision or award of the Commissioner must within ten days file a notice of appeal to the court having jurisdiction over the amount in controversy.2  When the notice of appeal is not filed “within 10 days of receipt of the notice of decision or award, the decision or award shall, in the absence of fraud, be deemed the final order.”  (§ 98.2, subd. (c).)

Analogizing these provisions to the California Rules of Court governing appeals to the Court of Appeal (rule 45(e)) and to the superior court (rule 143(b);  see also rule 186), the Commissioner says the timely filing of the notice of appeal from the informal administrative hearing is essential to invoke the court's jurisdiction.3  Thus, according to the Commissioner regardless of the reason for a late filing, a court may not extend the time for filing of the notice of appeal nor grant relief on the ground of mistake, inadvertence, estoppel or waiver.  (See Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666–667, 125 Cal.Rptr. 757, 542 P.2d 1349;  Estate of Hanley (1943) 23 Cal.2d 120, 122–123, 142 P.2d 423.)   Bren responds the Legislature did not intend the 10-day period to be jurisdictional and argues that Code of Civil Procedure section 473 should be applied to provide relief in cases of mistake, inadvertence, surprise or excusable neglect, as it is when judgments are obtained by default.

The strength of the Commissioner's argument necessarily turns on the soundness of his analogy.   In order to make sure we are not comparing apples and oranges, both the administrative procedure contemplated by the Legislature for the resolution of wage disputes under section 98 and the appeal from that decision should be comparable to the judicial resolution of a controversy and the appeal from that decision.   It is apparent here that neither component is, or was intended by the Legislature to be, the same.

The statutory scheme authorizing the Commissioner to assist workers in collecting unpaid wages or compensation by its terms reflects it was only meant to serve as an ancillary dispute resolution mechanism in an effort to short cut what inevitably is a lengthy judicial process.   The Legislature gave the Commissioner substantial authority to achieve “an equitable and just resolution” of these disputes (§ 98, subd. (a), including the power to define the form of the answer which may be used (§ 98, subd. (c)), the admissibility of evidence not pleaded in the answer (§ 98, subd. (e)), and the rules of practice and procedure to be followed (§ 98, subd. (d)).

Notwithstanding all of these provisions, the Legislature expressly declared that the hearing itself was to be “conducted in an informal setting preserving the right of the parties” (§ 98, subd. (a)) assuring either party dissatisified with the Commissioner's order, a right to a trial de novo in the appropriate court.  (§ 98.2, subd. (a).)  Unlike the plaintiff in a small claims court proceeding who may not later complain about his choice of forum (Code Civ.Proc., § 117.8), the Legislature has made clear that either side dissatisfied with the order of the Commissioner may have a new trial.   If the Legislature had intended the administrative hearing to be used in lieu of a trial it could easily have said so or at least limited the court's power upon review of that decision.4  It is also important to remember that although the word “appeal” is used in section 98.2, subdivisions (b) and (c), we are dealing here with the party's attempt to have his case tried for the first time and not with appellate review of a judicial decision.   That trial, with all the emoluments associated with any civil trial (see Sales Dimensions v. Superior Court (1979) 90 Cal.App.3d 757, 762–764, 153 Cal.Rptr. 690), is not affected by the earlier proceeding before the Commissioner.   It is in every sense a new trial.  (See Buchwald v. Katz (1972) 8 Cal.3d 493, 501–502, 105 Cal.Rptr. 368, 503 P.2d 1376.)

More is involved here, however, than the soundness of the Commissioner's analogy.   Since the effect of the superior court's ruling here is to deny Bren a full hearing on the merits of his defense to Pressler's claim, the situation is analogous to that which occurs when the inadvertence or neglect of an attorney permits the entry of a default judgment against a defendant.  Code of Civil Procedure section 473 authorizes the court to vacate a default judgment where, for example, a mistake by an attorney or a member of his staff results in the filing of an answer to a complaint after the time for such filing has expired.  (Downing v. Klondike Min. etc. Co. (1913) 165 Cal. 786, 788–789, 134 P. 970;  Toon v. Pickwick Stages, Inc. (1924) 66 Cal.App. 450, 455, 226 P. 628;  see generally Barnes v. Witt (1962) 207 Cal.App.2d 441, 447–448, 24 Cal.Rptr. 545;  5 Witkin, Cal.Procedure (2d ed. 1971) p. 3714.)   We see no reason why that same power should not be exercisable in the present case.   In fact, the Commissioner is authorized under section 98, subdivision (f) to grant Code of Civil Procedure section 473 relief to a party failing to appear at the informal hearing.   It would indeed be anomalous to deny that same relief to the party who appears at the hearing but for good cause fails to seek timely review.   Such a result would only act as a disincentive for persons allegedly owing wages to cooperate with the Commissioner.

The ten days within which one must seek judicial review from the Commissioner's order may well have been enacted for the prompt determination of wage disputes.   But to use that purpose as the reason to prevent entry into the judicial system for those persons wishing to have their case tried on the merits, overlooks the true objectives which those time limits serve.

All time limitations periods, whether reflected in the period in which claims must be filed under the Tort Claims Act, statute of limitations, or the periods in which a case must be brought to trial or otherwise dismissed under Code of Civil Procedure section 583, have the common purpose of assuring reasonable diligence in the prosecution of lawsuits.  (See Hocharian v. Superior Court (1981) 28 Cal.3d 714, 720–721, 170 Cal.Rptr. 790, 621 P.2d 829.)   Time provisions “promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed.”  (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492).   But in each of these areas in one way or another, our Supreme Court has made clear that the overriding consideration requiring a subordination of technical rules is that cases wherever possible should be tried and determined upon their merits.   (See, e.g., Hocharian v. Superior Court, supra, 28 Cal.3d 714, 724, 170 Cal.Rptr. 790, 621 P.2d 829;  Addison v. State of California (1978) 21 Cal.3d 313, 316, 146 Cal.Rptr. 224, 578 P.2d 941.)

The case before us reflects a paradigm of attorney conscientiousness combined with the vagaries of law practice with no prejudice to the parties.   There is no dispute that both the Commissioner and Pressler were served with the notice within the statutory period.   To deny Bren his right to trial would in effect be giving the 10-day rule a sancity of its own, blindly construing mandatory language of the statute as being jurisdictional in the fundamental sense.   Our holding is based upon our belief that the administration of justice is best served when concepts rather than words are controlling.   Our function is to assure the concept underlying jurisdictional time limits does not become the master but remains the servant of the courts.  (See dis. opn. of Tobriner, J. in Hollister Convalescent Hospital v. Rico, supra, 15 Cal.3d at 679, 125 Cal.Rptr. 757, 542 P.2d 1349.)


Judgment reversed.


1.   The Commissioner is the executive officer, the Chief of the Division of Labor Standards Enforcement.  (Labor Code, §§ 21 and 79.)   The Commissioner appears in this action as intervenor.   All statutory references are to the Labor Code unless otherwise specified.

2.   Depending upon the amount involved, the justice, municipal or superior court may now review the Commissioner's decision.   Previously, regardless of the sum, only the superior court had jurisdiction.  (See Stats. 1976, ch. 1190, p. 5370, § 6.   Amended by Stats. 1979, ch. 107, p. 244, § 2 to include the municipal court.   Amended further by Stats. 1980, ch. 453, p. 960, § 1 to include the justice court.)

3.   These rules all provide the court may for good cause relieve a party from a default occasioned by any failure to comply with the rules “․ except the failure to give timely notice of appeal.”  (Italics supplied.)

4.   It would have been simple enough for the Legislature to have restricted review to that provided by Code of Civil Procedure section 1094.5.   Further, reference need only be made to Code of Civil Procedure sections 1286–1286.8, defining the procedure to be followed and the power of the court in vacating or correcting an arbitration award, for an illustration of how the Legislature, when it intends to do so, will limit the court's powers in reviewing a non-judicial decision.

WEINER, Associate Justice.

COLOGNE, Acting P. J., and MILKES *, J., concur.