BUCHWALD v KATZ (1972)

On this appeal from an order dismissing his application for a trial de novo made pursuant to Labor Code section 1700.44, for failure to file the undertaking required, Matthew Katz (independently and dba Matthew Katz Products and After You Publishing Company, hereafter Katz), contends that he fully complied with all of the statutory requirements and that the superior court exceeded its jurisdiction.   Respondents contend that Katz failed to invoke the original jurisdiction of the superior court and at best was entitled only to a limited trial de novo analogous to proceedings pursuant to Code of Civil Procedure section 1094.5.   For the reasons set forth below, we have concluded that the order should be reversed.

After the filing of our prior opinion, we granted a rehearing to accept amicus curiae briefs to consider certain issues, not previously raised.

The facts are not in dispute.   Respondents, a professional musical group known as the “Jefferson Airplane” (hereafter Airplane), are artists as defined by the Artists' Managers Act (Lab.Code, §§ 1700–1700.46), a remedial statute that requires licensing and regulation of the business of artists' managers (Buchwald v. Superior Court, 254 Cal.App.2d 347, 62 Cal.Rptr. 364).   In 1965, the individual members of the Airplane signed certain documents employing Katz as a manager.   In Buchwald v. Superior Court, supra, this court (Division One), in the first appellate opinion construing the statute, granted a writ of certiorari directing the submission of the contractual dispute between the parties to the Labor Commissioner.

Thereafter, a hearing was held before the Labor Commissioner who, on February 17, 1970, made the following determination and award:  1) since Katz acted in the capacity of an unlicensed artists' manager, his contracts with the Airplane were void because of his failure to comply with the Artists' Managers Act;  2) the individual members of the Airplane were not liable to Katz for any sums spent by him in the furthering of their musical careers and that Katz was not entitled to any commissions;  and 3) commissions in the sum of $49,004.88 previously received and retained by Katz were to be returned to the Airplane.

Pursuant to Labor Code section 1700.44, Katz on February 27, 1970, filed a document entitled “Notice of Appeal” in the superior court.   On April 8, 1970, the court, pursuant to Labor Code section 1700.44, granted the Airplane's motion for an undertaking in the amount of $49,500 “to be filed fifteen days from April 3, 1970, or the appeal to be dismissed.”   As is obvious from the amount and the contentions, this was a stay bond.   On April 24, 1970, the court granted Katz' request to extend the time for the filing of the undertaking to April 27, 1970.   This order was based on Katz' declaration that his liquid assets consisted of only $15,000 and that he needed the additional time to borrow the balance of the amount required for the undertaking on a $100,000 equity he owned in an apartment house.¹  Katz failed to file the undertaking by April 27, 1970.   Accordingly, on June 15, the trial court granted the Airplane's motion to dismiss Katz's appeal, and this appeal ensued.

 On this appeal, Katz contends that:  1) the failure to file the stay bond ordered pursuant to Labor Code section 1700.44 does not justify the dismissal of his appeal to the superior court;  and 2) he was deprived of his due process right to review,² and his right to a jury trial.

Labor Code section 1700.44 provides:  “In cases of controversy arising under the chapter the parties involved shall refer the matters in dispute to the Labor Commissioner, who shall hear and determine the same, subject to an appeal within 10 days after determination, to the superior court where the same shall be heard de novo.   To stay any award of money, the party aggrieved shall execute a bond approved by the superior court in a sum not exceeding twice the amount of the judgment.   In all other cases the bond shall be in a sum of not less than one thousand dollars ($1,000) and approved by the superior court.”

 The second sentence of the statute clearly refers to a stay bond.   The third sentence refers to the same bond:  “In all other cases the bond shall be in a sum․”  (Emphasis added.)   The simple, reasonable interpretation of the language “In all other cases” is that it refers to other than money judgments.   Thus, the statutory parallels that general appeal provisions of Code of Civil Procedure sections 917.1–917.8 that require an undertaking to stay enforcement of a judgment or order for money or direct payment of money.   The Legislature did not see fit to add a provision similar to Code of Civil Procedure section 917.9 that provides for a discretionary appeal bond or Code of Civil Procedure section 905 that expressly requires an undertaking in the amount of $100 to effect an appeal from a justice court.

 However, in the instant case, there was nothing to stay.   An award of the Labor Commissioner, like an arbitration award, is not self-executing, but may be made so only by judicial confirmation (Code Civ.Proc. §§ 1285–1287;  Robinson v. Superior Court, 35 Cal.2d 379, 218 P.2d 10), or the filing of an independent action at law to enforce the award (Collier & Wallis, Ltd. v. Astor, 9 Cal.2d 202, 70 P.2d 171).   Here, no such steps were taken by the Airplane prior to the filing of Katz' notice of appeal.   Accordingly, we conclude that the trial court erred in dismissing Katz' appeal for failure to file the $49,500 stay bond.

 We turn next to the Airplane's contention that Katz' document entitled “Notice of Appeal” and filed with the superior court on February 27, 1970, was a nullity as Katz could not invoke the original jurisdiction of the superior court by seeking a writ of mandamus.   Although the Administrative Procedure Act (Gov.Code, §§ 11500–11523) indicates that judicial review from a decision of the Labor Commissioner is by writ of mandamus, the Artists' Managers Act is clearly a special statute that supersedes the general provisions of the Administrative Procedure Act.   The Legislature clearly did not intend that controversies arising under the Artists' Managers Act be governed by the Administrative Procedure Act as section 1700.44 expressly states that the matter “shall be heard de novo.”  Government Code section 11501, subdivision (a) provides:  “The procedure of any agency shall be conducted pursuant to the provisions of this chapter only as to those functions to which this chapter is made applicable by the statutes relating to the particular agency,” while Government Code section 11523 states, so far as pertinent:  “Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure, subject, however, to the statutes relating to the particular agency.”

The pertinent authority is Collier & Wallis, Ltd. v. Astor, supra, 204–205, 70 P.2d 171, which construed the predecessor of Labor Code section 1700.44, former section 1647 of the Private Employment Agencies Law.   As this court (Division One) noted in Buchwald v. Superior Court, supra, 254 Cal.App.2d at page 357, 62 Cal.Rptr. at page 371:  “ ‘ “It is a cardinal principal of statutory construction that where legislation is framed in the language of an earlier enactment on the same or an analogous subject, which had been judicially construed, there is a very strong presumption of intent to adopt the construction as well as the language of the prior enactment․” ’  (Greve v. Leger, Ltd., 64 Cal.2d 853, 865 [52 Cal.Rptr. 9, 415 P.2d 824];  Union Oil Associates v. Johnson, 2 Cal.2d 727, 734–735 [43 P.2d 291, 98 A.L.R. 1499].)”

In Collier, supra, our Supreme Court said at pages 204 and 205 of 9 Cal.2d at page 173 of 70 P.2d:  “The labor commissioner is a purely administrative officer with state-wide authority and possesses no judicial powers, and it has now definitely settled in this state that a writ of certiorari may not issue out of the courts of this state to review the acts of an official or board exercising state-wide administrative powers.  [Citation.]  It has been frequently held that a statute providing for an appeal from an official or board possessing only administrative powers to the Superior Court is unconstitutional.  [Citations.]  If, therefore, the provision of section 19 of said act quoted provides for nothing more than a simple appeal from the determination of the labor commissioner to Superior Court it must be held to be violative of the constitutional provision defining the appellate jurisdiction of the courts of the state.   But it will be noted that the provision in question provides for a hearing de novo in the Superior Court after the matter has been ‘appealed” to that court.   A hearing de novo literally means a new hearing, or a hearing the second time.  [Citation.]  Such a hearing contemplates an entire trial of the controversial matter in the same manner in which the same was originally heard.   It is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held.   It differs, therefore, from an ordinary appeal from an inferior to an appellate body where the proceedings of the hearing in the inferior court are reviewed and their validity determined by the reviewing court.   A hearing de novo therefore is nothing more or less than a trial of the controverted matter by the court in which it is held.   The decision therein is binding upon the parties thereto and takes the place of and completely nullifies the former determination of the matter.   It is in a sense and is in fact a trial of the controversy in a court of law.   It is in this sense that the language of section 19, quoted above, was intended to be understood.   As thus construed, the section simply gives to the party dissatisfied with the determination of the labor commissioner a hearing of the matter submitted to the labor commissioner before the Superior Court.   The court hears the matter, not as an appellate court, but as a court of original jurisdiction, with full power to hear and determine it as it if had never been before the labor commissioner.   The act does not, therefore, in fact or in law confer appellate jurisdiction upon the Superior Court, but does provide a legal forum where either party to the controversy, in case he is dissatisfied with the determination of the labor commissioner, may have his rights adjudicated.   This provision of the act does not, in our opinion, contravene any provision of our State Constitution fixing and defining the appellate jurisdiction of the Superior Courts.”

 Here, as in Collier, Katz is entitled to a trial de novo that is a complete trial of the controversy as if no previous hearing had ever been held.   The procedure is somewhat analogous to an appeal from a justice court.

 The Airplane further contends that, at best, Katz is entitled only to a limited trial de novo consisting of a superior court review of the existing record of the administrative proceedings, analogous to the administrative mandamus procedures pursuant to Code of Civil Procedure section 1094.5.³  As noted above, Labor Code section 1700.44 specifically provides for review by a hearing “de novo,” and not by a writ of mandamus.   Furthermore, the procedures pursuant to Code of Civil Procedure section 1094.5 require a record of the administrative proceedings.   As the Labor Commissioner here argues, proceedings pursuant to section 1700.44 are analogous to arbitration proceedings.   No court reporter is present unless the parties, at their own expense, elect to have one.   In the instant case, neither party elected to have a reporter present.   We cannot agree that under these circumstances the existing record is sufficient for review purposes.   More importantly, the requirement of a reporter and a formal record would interfere with the informality of an arbitration proceeding and deprive the Labor Commissioner of a speedy and summary method of enforcing his awards where no de novo hearing is sought ⁴ (see Robinson v. Superior Court, supra).   Further, as the Labor Commissioner points out at oral argument, his order pursuant to Labor Code section 1700.44 differs from the usual administrative order that is reviewed by administrative mandamus.   As we noted above, an additional judicial step is required to enable the prevailing party to enforce the award.

 Contrary to Katz' assertion, however, it does not follow that he is entitled to a jury trial.   As we stated in Taliaferro v. Hoogs, 236 Cal.App.2d 521, at page 529, 46 Cal.Rptr. 147, at page 152:  “The constitutional guarantee of a jury trial (art. I, § 7) does not extend to cases in which the right was denied at common law [citations], and a jury cannot be demanded as a matter of right in a special proceeding unless it is expressly made available by statute [citations].”  The Artists' Managers Act does not specifically provide for a jury trial on appeal to the superior court.   As we noted above, the procedure here is analogous to that of Code of Civil Procedure sections 904.3, subdivision (a), and 910 pertaining to appeals from justice courts on questions of law;  Code of Civil Procedure section 906, likewise makes no provision for a jury trial.

The order appealed from is reversed.

FOOTNOTES

1.   Katz' sworn declaration attached to the petition for a rehearing states that this equity was in fact owned by a friend who made it available as collateral.

2.   We note that there is no due process issue as the trial de novo provided by Labor Code section 1700.44 is statutory and not constitutional, and a review is not a requirement of due process (Lindsey v. Normet, 404 U.S. ––––, 92 S.Ct. 862, 31 L.Ed.2d 36, 52).

3.   Nor can we agree with the Airplane's argument that the procedure discussed in Collier was superseded by the subsequent enactment of Code of Civil Procedure section 1094.5.   As we noted above, Labor Code section 1700.44 was re-enacted in 1967 (Stats.1967, ch. 1567, § 2) in substantially the same form as its predecessor, which was construed in Collier (decided in 1937).   Also in 1967, the Legislature was familiar with Code of Civil Procedure section 1094.5 (added by Stats.1945, ch. 868, § 1), and could have easily indicated that the review under Labor Code section 1700.44 was to be by administrative mandamus, and chose not to do so.

4.   At oral argument, the Labor Commissioner indicated that most proceedings under section 1700.44 involve small amounts and are not appealed.

TAYLOR, Presiding Justice.

KANE and ROUSE, JJ., concur.