Filed 10/13/22 Del Real v. Ernst CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
EFRAIN DEL REAL, B312088
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCP03671)
v.
MARITZA LUCERO ERNST,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Law Offices of Timothy L. O’Reilly and Timothy L. O’Reilly
for Defendant and Appellant.
Max Norris for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Efrain Del Real initiated proceedings before the Labor
Commissioner to recover unpaid wages and penalties based on
painting work performed for Maritza Lucero Ernst. Following a
hearing, the Labor Commissioner issued an award in favor of Del
Real in the amount of $31,786.18. Ernst timely appealed that
award to the superior court but did not post a bond as required by
Labor Code1 section 98.2, subdivision (b), or obtain a waiver of
that bond requirement, a jurisdictional requirement of her
appeal. The superior court therefore dismissed Ernst’s appeal.
Del Real then obtained a judgment from the superior court
based on the final award of the Labor Commissioner. Ernst
moved to vacate that judgment, but the superior court denied the
motion, concluding, among other things, that Ernst’s failure to
properly appeal the Labor Commissioner’s award under section
98.2 prevented it from addressing the merits of Ernst’s motion.
Ernst appeals from the judgment and the denial of her
motion to vacate it. We agree that Ernst’s failure to properly
appeal the Labor Commissioner’s award to the superior court
barred the court from granting her relief from the judgment, and
we affirm.
1 All statutory references are to the Labor Code unless noted
otherwise.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Background2
Maritza Lucero Ernst is a homeowner in Los Angeles
County. Ernst hired Efrain Del Real in November 2017 to paint
her house. Del Real did not have a contractor’s license. Ernst
knew this, but hired Del Real anyway in order to save money.
According to Del Real, Ernst first hired him to paint the
outside of her house for $2,600. Ernst then hired Del Real to
paint the interior of her house. Ernst wanted the interior
painting completed in six days and agreed to pay Del Real $4,300
for painting and $700 for replacing light fixtures. Del Real
worked twelve hours a day for six days to complete the job.
Although Ernst provided Del Real a check for $1,000, Ernst later
stopped payment on the check. Ernst did not pay Del Real what
she owed him for the interior work because she was dissatisfied
with his performance.
According to Ernst and her husband, Ernst hired Del Real
to perform painting work on her house as an independent
contractor and agreed to pay him by the job instead of by the
hour. Her agreement with Del Real was not in writing. Del Real
brought others with him to perform the work and supplied the
necessary paint and materials. Ernst and her husband did not
supervise Del Real’s work, Del Real set his own work hours, and
Del Real hired and paid his crew. After Ernst’s husband found
2 Our description of the facts underlying Del Real’s wage
claim is based on the testimony and findings described in the
order, decision, and award of the Labor Commissioner.
Appellant’s Appendix does not include a transcript or any other
record of the proceedings before the Labor Commissioner.
3
Del Real painting the interior of the house in the dark, he
terminated Del Real’s services.3
II. Labor Commissioner Proceedings
On November 22, 2017, Del Real filed a claim against Ernst
with the Labor Commissioner seeking $5,000 in regular wages4;
$300 in business expenses; liquidated damages (§ 1194.2);
waiting time penalties (§ 203); and penalties for the stopped
check (§ 203.1).
After an administrative hearing in October 2019, the Labor
Commissioner issued an order, decision, and award (Award).
Finding that Del Real’s painting work required a contractor’s
license but that Del Real lacked one, the Labor Commissioner
applied section 2750.5, which establishes “a rebuttable
presumption affecting the burden of proof that a worker
performing services for which a license is required pursuant to
Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code, or who is performing such
services for a person who is required to obtain such a license is an
employee rather than an independent contractor.” After
weighing the factors for determining independent contractor
3 The Labor Commissioner’s award suggests that Ernst
and/or her husband terminated Del Real because, in addition to
painting in the dark, Del Real was found drinking beer on the
job.
4 The Labor Commissioner’s award initially states that Del
Real sought $5,400 in regular wages, but later states he sought
$5,000 in regular wages. The discrepancy is not material to the
outcome of the appeal.
4
status listed in section 2750.5, subdivisions (a) through (c),5 the
Labor Commissioner concluded that Del Real was Ernst’s
employee, not an independent contractor as Ernst alleged, and
awarded Del Real wages, liquidated damages, interest, and
waiting time penalties totaling $31,786.18. The Labor
Commissioner’s office served the Award by mail on Ernst on
April 22, 2020.
5 Those factors are as follows: “(a) That the individual has
the right to control and discretion as to the manner of
performance of the contract for services in that the result of the
work and not the means by which it is accomplished is the
primary factor bargained for. [¶] (b) That the individual is
customarily engaged in an independently established business.
[¶] (c) That the individual’s independent contractor status is bona
fide and not a subterfuge to avoid employee status. A bona fide
independent contractor status is further evidenced by the
presence of cumulative factors such as substantial investment
other than personal services in the business, holding out to be in
business for oneself, bargaining for a contract to complete a
specific project for compensation by project rather than by time,
control over the time and place the work is performed, supplying
the tools or instrumentalities used in the work other than tools
and instrumentalities normally and customarily provided by
employees, hiring employees, performing work that is not
ordinarily in the course of the principal’s work, performing work
that requires a particular skill, holding a license pursuant to the
Business and Professions Code, the intent by the parties that the
work relationship is of an independent contractor status, or that
the relationship is not severable or terminable at will by the
principal but gives rise to an action for breach of contract.”
(§ 2750.5, subds. (a)–(c).)
5
III. Superior Court Proceedings
A. Ernst’s Appeal from the Labor Commissioner
Proceedings
Ernst timely appealed the Award to the superior court on
May 6, 2020, but did not post the required bond with the court in
the amount of the Award. (§ 98.2, subds. (a), (b).) Instead, Ernst
concurrently filed a request to waive the bond requirement based
on her alleged indigency. (Code Civ. Proc., § 995.240.)
On May 13, 2020, the court, Judge Mark C. Kim presiding,
denied Ernst’s request to waive the bond requirement. On May
28, 2020, Ernst moved for reconsideration of that ruling. After
initially hearing the motion, the court granted a continuance to
permit Ernst additional time to provide evidence of her
indigency.
Ernst apparently did not supply sufficient evidence, and on
October 22, 2020, the court denied her motion for reconsideration
and issued an order to show cause based on her failure to post the
required bond. By November 5, 2020, the date of the hearing on
the order to show cause, Ernst had not posted the required bond.
The court therefore dismissed her appeal without prejudice.
B. Entry of Judgment on Final Labor Commissioner
Award
On November 6, 2020, the superior court clerk entered
judgment on the Award.6 (§ 98.2, subds. (d), (e).)
6 Judgment was entered in the amount of $34,058.33, which
included post-hearing interest and costs. The matter was
assigned a different case number from that assigned to Ernst’s
previously dismissed appeal.
6
Ernst then moved to vacate the judgment pursuant to Code
of Civil Procedure section 663.7 Ernst contended that, as found
by the Labor Commissioner, Del Real lacked a required
contractor’s license to perform painting work for Ernst. Ernst
argued that judgment on the Award was therefore inconsistent
with Business and Professions Code section 7031, subdivision (a),
which prohibits any “person engaged in the business or acting in
the capacity of a contractor” from bringing any action or
recovering “in law or equity in any action, in any court of this
state for the collection of compensation for the performance of
any act or contract where a license is required by this chapter
. . . .”
Del Real opposed Ernst’s motion. He argued that because
Ernst abandoned her de novo appeal of the Award by failing to
post the required bond, she was barred from challenging the
7 Code of Civil Procedure section 663 provides: “A judgment
or decree, when based upon a decision by the court, or the special
verdict of a jury, may, upon motion of the party aggrieved, be set
aside and vacated by the same court, and another and different
judgment entered, for either of the following causes, materially
affecting the substantial rights of the party and entitling the
party to a different judgment: [¶] 1. Incorrect or erroneous legal
basis for the decision, not consistent with or not supported by the
facts; and in such case when the judgment is set aside, the
statement of decision shall be amended and corrected. [¶] 2. A
judgment or decree not consistent with or not supported by the
special verdict.” Del Real contends a motion to vacate under this
statute does not apply to the entry of judgment based on the final
award of the Labor Commissioner, as opposed to “a decision by
the court, or the special verdict of a jury.” (Ibid.) Because we
affirm the superior court’s denial of Ernst’s motion to vacate on
other grounds, we need not resolve that issue in this appeal.
7
clerk’s subsequent entry of judgment. Del Real further argued
that Ernst’s motion to vacate the judgment pursuant to Code of
Civil Procedure section 663 was improper because the judgment
was not “based upon a decision by the court, or the special verdict
of a jury” (Code Civ. Proc., § 663), but instead was based on the
Award.
On February 5, 2021, the superior court, Judge Stephen I.
Goorvitch presiding, denied Ernst’s motion to vacate the
judgment. Relevant here, the court concluded that it lacked
jurisdiction to grant the relief sought by Ernst because she failed
to properly appeal from the Award, and that granting her relief
following entry of judgment would permit a second appeal of that
Award contrary to section 98.2.8
Ernst timely appealed the judgment and the order denying
her motion to vacate.
DISCUSSION
A. Standard of review
“[A]n appealed judgment is presumed correct, and
appellant bears the burden of overcoming the presumption of
correctness.” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th
645, 649–650.)
“The governing standard of review of a trial court order
refusing to vacate a judgment is that ‘if any applicable ground
will sustain the trial court’s order, the ruling will not be
8 The superior court cited several additional grounds for its
ruling. We do not address these rulings because, as discussed
herein, we agree with the superior court that Ernst’s failure to
properly appeal from the Labor Commissioner’s award bars the
relief she seeks.
8
disturbed on appeal . . . .’ ” (Philippine Export & Foreign Loan
Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1076.)
“[A] motion in the trial court to set aside a judgment is addressed
to its sound discretion and will not be reversed without a clear
showing of abuse of discretion.” (Id. at p. 1077.)
B. Statutory Scheme
“If an employer fails to pay wages as required by statute
or contract, an employee may . . . seek administrative relief by
filing a wage claim” with the Labor Commissioner under the
statutory scheme set forth in section 98 et seq. (Palagin v.
Paniagua Construction, Inc. (2013) 222 Cal.App.4th 124, 129
(Palagin).) The Labor Commissioner may then hold a hearing
conducted by a deputy commissioner. (Ibid.) That hearing “is
designed to provide a speedy, informal, and affordable method of
resolving wage claims, avoiding recourse to costly and time-
consuming judicial proceedings.” (Ibid.) After the hearing, the
Labor Commissioner files and serves its order, decision, or award
on the parties. (Ibid.)
Within 10 days of service of the notice of the award,
extended by five days if service is by mail, “the parties may file a
notice of appeal in the superior court, ‘where the appeal shall be
heard de novo.’ ” (Palagin, supra, 222 Cal.App.4th at pp. 129–
130; § 98.2, subd. (a); Code Civ. Proc., § 1013, subd. (a).) “[T]he
filing of the notice of appeal vests jurisdiction in the superior
court to conduct the trial de novo.” (Palagin, at p. 132.)
If an employer files a notice of appeal, however, it “shall
first post an undertaking with the reviewing court in the amount
of the . . . award.” (§ 98.2, subd. (b).) The “immediate purpose”
of this undertaking requirement “is to provide assurance that
a judgment in favor of the employee will be satisfied.” (Palagin,
9
supra, 222 Cal.App.4th at p. 130.) The “broader purpose of this
provision . . . is to ‘discourage employers from filing frivolous
appeals and from hiding assets in order to avoid enforcement
of the judgment.’ [Citation.]” (Ibid.) Because this undertaking
requirement is “a condition to filing an appeal,” the requirement
is mandatory and jurisdictional. (§ 98.2, subd. (b); Palagin, at
pp. 126, 132, 140.) Thus, “[i]f the appeal and the undertaking are
not filed within the time set forth in section 98.2, the trial court is
without jurisdiction to hear the case.” (Tabarrejo v. Superior
Court (2014) 232 Cal.App.4th 849, 864.)
However, a party appealing a decision of the Labor
Commissioner “is entitled as a matter of due process to seek relief
from the section 98.2 undertaking requirement.” (Burkes v.
Robertson (2018) 26 Cal.App.5th 334, 343 (Burkes).) An
“employer may obtain a court order waiving the requirement of a
bond or undertaking on the grounds of both indigency and
inability to obtain the necessary bond.” (Williams v.
Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 614 (Williams).)
But “that application for relief must be made prior to expiration
of the time provided for appeal under section 98.2.” (Burkes, at
p. 347.) Moreover, “a necessary consequence of subsequent denial
of an application found by the court to be unmeritorious would be
dismissal of the appeal.” (Id., fn. 10.)
“If no notice of appeal of the order, decision, or award is
filed within the period set forth in subdivision (a), the order,
decision, or award shall, in the absence of fraud, be deemed the
final order.” (§ 98.2, subd. (d).) “The Labor Commissioner shall
file, within 10 days of the order becoming final pursuant to
subdivision (d), a certified copy of the final order with the clerk of
the superior court of the appropriate county unless a settlement
10
has been reached by the parties and approved by the Labor
Commissioner. Judgment shall be entered immediately by the
court clerk in conformity therewith.” (§ 98.2, subd. (e).)
C. The Superior Court Correctly Entered
Judgment in Favor of Del Real
As an initial matter, we note that Ernst does not challenge
the superior court’s dismissal of her de novo appeal from the
Award. It is undisputed that Ernst failed to post the required
bond with her appeal to the superior court in accordance with
section 98.2, subdivision (b), and Ernst did not appeal the
superior court’s ruling that she failed to support her bond waiver
application with adequate evidence. (See Williams, supra, 123
Cal.App.4th at p. 615 [affirming dismissal of de novo appeal to
superior court under section 98.2 where employer failed to post
bond or obtain waiver of bond requirement].)
Notwithstanding the dismissal of her appeal from the
Award, Ernst argues that she retained the ability to challenge
the superior court’s subsequent entry of judgment. According to
Ernst, the Labor Commissioner erred in determining that Del
Real was an employee, not an independent contractor, when he
performed the disputed work. Ernst further argues that because
Del Real was an independent contractor but lacked a required
contractor’s license, Business and Professions Code section 7031,
subdivision (a), barred the Labor Commissioner from awarding
Del Real unpaid wages, and similarly barred the superior court
from entering judgment based on the Labor Commissioner’s
allegedly erroneous award.
We are not persuaded by Ernst’s arguments, which would
permit an end-run around the strict requirements for de novo
appeal of a Labor Commissioner award under section 98.2. An
11
appeal to the superior court in accordance with the procedure set
forth in section 98.2—including a timely appeal, and either
posting a bond or obtaining a waiver of that bond requirement
(§ 98.2, subds. (a), (b); Williams, supra, 123 Cal.App.4th at
p. 614)—is the sole means to challenge the merits of a Labor
Commissioner award. Courts have therefore declined to reach
the merits of such an award where those requirements were not
met, and so do we.
For example, in Williams, an employer and its director
appealed to the superior court under section 98.2 from the Labor
Commissioner’s award finding that the employer and director
were jointly and severally liable to an employee for unpaid wages.
(Williams, supra, 123 Cal.App.4th at pp. 612–613.) As here,
because the employer and director failed to post the required
bond or provide adequate evidence to obtain a waiver of the bond
requirement, the superior court dismissed the action. (Id. at
p. 613.)
The Court of Appeal affirmed the superior court’s
determination that the employer and director were not entitled to
a waiver of the bond requirement. (Williams, supra, 123
Cal.App.4th at p. 615.) Relevant here, the court declined to
address the argument of the employer and director that the
Labor Commissioner erred by holding them jointly and severally
liable for the employee’s unpaid wages: “Indeed, if we addressed
the merits of the above claim, it would be tantamount to relieving
[the employer and director] of the requirement of posting a bond.
Because the requirements for filing an appeal of the Labor
Commissioner’s order, decision or award were not met, the trial
court properly did not consider the merits of the case, and neither
may we.” (Ibid.)
12
The court reached a similar conclusion in Cardinal Care
Management, LLC v. Afable (2020) 47 Cal.App.5th 1011
(Cardinal Care). There, the Labor Commissioner awarded
unpaid wages to former employees of several residential care
facilities. (Id. at p. 1016.) The employers appealed the Labor
Commissioner’s award to the superior court pursuant to section
98.2 and applied for a waiver of the bond requirement. (Ibid.) As
here, the superior court denied the employers’ request for a
waiver and dismissed their appeal. (Id. at p. 1018.)
On appeal, the court declined to consider the argument that
the Labor Commissioner erred by imposing individual liability on
the employers’ principal. (Cardinal Care, supra, 47 Cal.App.5th
at p. 1023.) Citing Williams, the court ruled that it “would be
inappropriate here to decide whether the [Labor] Commissioner
erred in holding [the principal] individually liable, for to address
the merits of appellants’ challenge to the [Labor] Commissioner’s
ruling would be tantamount to relieving appellants of the
requirement that they post a bond to appeal that ruling.” (Ibid.)
As in Williams and Cardinal Care, we decline to reach the
merits of Ernst’s challenge to the Award. Indeed, Ernst’s
principal argument on appeal is that the Labor Commissioner
erred in determining Del Real was an employee, not an
independent contractor, when he performed the disputed work.
This is a direct challenge to the merits of the Award. Because
Ernst failed to post the bond required by section 98.2, subdivision
(b), or obtain a waiver from that requirement, reaching the
merits of her challenge to the Award would be tantamount to
relieving her of the requirements of section 98.2. (Cardinal Care,
supra, 47 Cal.App.5th at p. 1023; Williams, supra, 123
Cal.App.4th at p. 615.)
13
Nor are we persuaded a different result is warranted
because Ernst appeals the superior court’s entry of judgment, not
the dismissal of her de novo appeal of the Labor Commissioner’s
award under section 98.2. This argument elevates form over
substance. The reason Ernst contends the superior court was
barred from entering judgment under Business and Professions
Code section 7031, subdivision (a), is the Labor Commissioner’s
allegedly erroneous determination that Del Real was entitled to
unpaid wages despite being an unlicensed contractor. In other
words, the foundation of Ernst’s argument that the superior court
erred in entering judgment is her challenge to the merits of the
Award. For the reasons described earlier, we decline to address
the merits of Ernst’s challenge to the Award.9
D. Ernst’s Remaining Arguments Lack Merit
Ernst raises several additional arguments in support of her
appeal. She contends that the Labor Commissioner’s imposition
of liquidated damages and waiting time penalties of more than
$25,000 was unconstitutionally excessive; that requiring her to
9 Ernst relies on Fillmore v. Irvine (1983) 146 Cal.App.3d 649
in support of her argument that Business and Professions Code
section 7031, subdivision (a), barred the superior court from
entering judgment based on the Labor Commissioner’s award.
That case is distinguishable. It does not concern the superior
court’s authority to enter judgment based on a final award of the
Labor Commissioner where an appeal from the Labor
Commissioner’s award was forfeited. We express no view about
whether, had Ernst raised her argument regarding Business and
Professions Code section 7031, subdivision (a), in connection with
a proper de novo appeal, the argument would have been
meritorious.
14
post a bond as a condition of a de novo appeal under section 98.2
deprived her of due process and that subjecting her to the bond
requirement while permitting others with similar claims to
access the courts without imposing a bond requirement violated
equal protection.
Ernst forfeited these arguments by failing to raise them
before the trial court. (See Jackpot Harvesting Co., Inc. v.
Superior Court (2018) 26 Cal.App.5th 125, 154 [“As a general
rule, ‘constitutional issues not raised in earlier civil proceedings
are waived on appeal.’ ”]; Fourth La Costa Condominium Owners
Assn. v. Seith (2008) 159 Cal.App.4th 563, 585 [declining to reach
due process and equal protection arguments not raised in trial
court].) But even if we were to consider them for the first time on
appeal (Hale v. Morgan (1978) 22 Cal.3d 388, 394 (Hale)), we
would conclude they lack merit.
1. The Labor Commissioner Did Not Impose
Excessive Penalties Against Ernst
Ernst cites only Hale in support of her argument that
imposition of liquidated damages and waiting time penalties was
unconstitutionally excessive, but Hale emphasized that the
statutory scheme at issue in that case imposed “potentially
infinite penalties.” (Hale, supra, 22 Cal.3d at p. 402; see also id.
at p. 399 [“importantly, the duration of the penalties is
potentially unlimited”]; id. at p. 404 [“operation of the penalty . . .
is mandatory, mechanical, potentially limitless in its effect”].)
In concluding the penalty provision at issue could produce
unconstitutionally excessive penalties, Hale contrasted the
provision with other statutes appropriately limiting penalties “to
a fixed multiple of actual damages, to a specified total amount
per ‘violation’ or to a fixed duration,” and cited Labor Code
15
section 203—the very provision at issue in Ernst’s appeal10—as
one such example. (Hale, supra, 22 Cal.3d at p. 401 [“One
statute, Labor Code section 203, while imposing a daily penalty
for a continuing failure to pay wages due at an employee’s
termination, nonetheless limits the penalty to 30 days.”]; § 203,
subd. (a) [imposing penalty of unpaid wages but providing that
“the wages shall not continue for more than 30 days.”].) Hale
further observed that imposition of the challenged penalty
provision “over a limited period may indeed, in a given case, be a
perfectly legitimate means of encouraging compliance with [the]
law.” (Hale, at p. 404.)
Hale therefore undermines, not supports, Ernst’s argument
that the penalties imposed by section 203 are unconstitutionally
excessive. Because Ernst fails to direct our attention to any other
case law, let alone a case holding that imposition of the maximum
statutory penalty under section 203 was unconstitutionally
excessive, we decline to reach that conclusion here.
10 Ernst challenges both the Labor Commissioner’s imposition
of $24,999.99 in penalties pursuant to section 203, and $480 in
liquidated damages pursuant to section 1194.2. Given the
significantly greater penalty imposed under section 203, we
assume Ernst’s challenge focuses on that section. Even so, we
note that the liquidated damages imposed by section 1194.2, like
the penalties imposed by section 203, are not potentially
unlimited like the penalties at issue in Hale. (§ 1194.2, subd. (a)
[“an employee shall be entitled to recover liquidated damages in
an amount equal to the wages unlawfully unpaid and interest
thereon.”].)
16
2. The Bond Requirement Under Section 98.2
Does Not Violate Due Process or Equal
Protection
Ernst argues that the bond requirement in section 98.2
amounts to a “filing fee [that] effectively prevents access to the
courts, depriving the homeowner of property” in violation of due
process. We disagree.
Ernst was not required to post a bond to obtain a de novo
appeal under section 98.2. As noted, she had the right to seek a
waiver of the bond requirement (Burkes, supra, 26 Cal.App.5th at
p. 343), and exercised that right by seeking a waiver of the bond
requirement with the superior court.
In any event, we agree with the court’s conclusion in
Palagin that “even if the jurisdictional undertaking requirement
did affect the availability of the trial de novo process for
employers, by no means does it deprive the employer of a full and
fair opportunity to be heard on the employee’s wage claim.”
(Palagin, supra, 222 Cal.App.4th at p. 138.) As the court
observed, the “primary process for deciding wage claims is not the
trial de novo reflected in section 98.2, but the administrative
procedure reflected in section 98; requiring a timely bond for a
trial de novo does nothing to minimize the employer’s ability to
make its case during the administrative process. A jurisdictional
undertaking requirement therefore poses no barrier to a fair
adjudication of the wage claim, but merely conditions the
availability of a further trial de novo process that the Legislature
does not have to provide at all.” (Ibid.)
We find the reasoning of Palagin persuasive and conclude
that the bond requirement under section 98.2 did not deprive
17
Ernst of due process.11 (Cf. Cardinal Care, supra, 47 Cal.App.5th
at p. 1023 [rejecting “appellants’ suggestion that the limited 10-
day time period for obtaining an undertaking deprived them of
substantive due process.”]; Burkes, supra, 26 Cal.App.5th at
pp. 344–345 [rejecting argument that “abbreviated appellate
window under section 98.2(b) makes it unduly burdensome and
‘harsh’ to require filing a request for [bond] waiver within that
time, particularly for small, self-represented employer.”].)
11 Ernst cites Payne v. Superior Court (1976) 17 Cal.3d 908
(Payne), Brooks v. Small Claims Court (1973) 8 Cal.3d 661, and
Wiren v. Eide (9th Cir. 1976) 542 F.2d 757 (Wiren), in support of
her due process argument. Those cases are distinguishable.
Payne addressed whether an indigent prisoner was denied due
process in a civil suit where he was unable to appear and defend
the suit or afford counsel. (Payne, at pp. 911–912.) By contrast,
the record suggests Ernst appeared at both the Labor
Commissioner and superior court proceedings. In Brooks, the
petitioner challenged the undertaking requirement for an appeal
from small claims court, contending the “undertaking
requirement unconstitutionally deprive[d] her of her property
before there has been a due process hearing with the right to
counsel.” (Brooks, at p. 665.) Here, however, Ernst was entitled
to be represented by counsel at all stages of her de novo appeal,
including during her efforts to obtain a waiver of the bond
requirement. We also note that Skelly v. State Personnel Bd.
(1975) 15 Cal.3d 194, criticized Brooks for using a “rather rigid
and mechanical interpretation of the due process clause,” which
was inconsistent with the “somewhat less inflexible” approach of
more recent high court decisions. (Skelly, at pp. 208–209.) Last,
unlike section 98.2, the statutory scheme at issue in Wiren did
not provide an indigent claimant a means of obtaining relief from
the applicable bond requirement. (Wiren, at p. 764.)
18
Last, Ernst contends it violates equal protection to require
her to post a bond to obtain a de novo appeal under section 98.2,
“while permitting others to have access to the courts over similar
claims” without requiring such a bond. We reject this argument
too.
Ernst’s equal protection argument, which does not identify
a suspect classification or fundamental right, is entitled to
rational basis review. (See Ortwein v. Schwab (1973) 410 U.S.
656, 660 [equal protection challenge to filing fee for review of
public benefits determination subject to rational basis review];
United States v. Kras (1973) 409 U.S. 434, 446 [equal protection
challenge to bankruptcy court filing fee by indigent petitioner
subject to rational basis review]; Gates v. Superior Court (1995)
32 Cal.App.4th 481, 514 [noting high court “has repeatedly
applied the rational basis test to statutes affecting the right to
participate in civil litigation.”].) “To mount a successful rational
basis challenge, a party must ‘ “negative every conceivable
basis” ’ that might support the disputed statutory disparity.”
(Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) “If
a plausible basis exists for the disparity, courts may not second-
guess its ‘ “wisdom, fairness, or logic.” ’ ” (Ibid.)
We have little trouble finding a plausible basis for the bond
requirement of section 98.2, subdivision (b). The purpose of the
bond requirement is to “ ‘discourage employers from filing
frivolous appeals and from hiding assets in order to avoid
enforcement of the judgment.’ ” (Palagin, supra, 222 Cal.App.4th
at p. 137; see also Cardinal Care, supra, 47 Cal.App.5th at
pp. 1018–1019 [bond requirement “discourages unmeritorious
appeals and minimizes the time for an employer to divest itself of
assets in order to deprive the employee of the possibility of
19
enforcing the award”].) Ernst offers no reason that the bond
requirement in section 98.2, subdivision (b), is not an effective
means to accomplish this statutory purpose.12 Thus, rational
basis review is met.
12 Ernst’s reliance on Payne and Wiren in support of her equal
protection argument is again misplaced. Payne required a
“compelling state interest” to resolve the equal protection claim
at issue (Payne, supra, 17 Cal.3d at p. 919); here only rational
basis review is required, and we find that standard easily
satisfied. Moreover, the bond requirement at issue in Wiren
barred indigent parties “of the opportunity for any hearing at
all.” (Wiren, supra, 542 F.2d at p. 763.) Here, Ernst had a
hearing before the Labor Commissioner on Del Real’s wage claim,
and the bond requirement did not bar her from seeking a de novo
appeal under section 98.2. Rather, she had the right to obtain a
waiver of the bond requirement. (Burkes, supra, 26 Cal.App.5th
at p. 343.)
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DISPOSITION
The judgment is affirmed. Del Real shall recover his costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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