Dobarro v. Kim

Filed 11/19/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

NICOLE DOBARRO, Plaintiff and Respondent, v. A173001

EDWARD KIM, (San Francisco City & County Defendant and Appellant. Super. Ct. No. CPF-25-518894)

NICOLE DOBARRO, Plaintiff and Respondent, A174032 v. (San Francisco City & County QUEENS SF, LLC, Super. Ct. Nos. CPF-25-518895, Defendant and Appellant. CGC-24-617683)

The Labor Commissioner ruled against Edward Kim and his business, Queens SF, LLC (collectively “Kim”), in a labor claim filed by his former employee, Nicole Dobarro.1 Kim sought to appeal to the superior court, but he filed his appeal one day late. (See Lab. Code, § 98.2, subds. (a)-(b), (d).)2 He now challenges the superior court’s determination that his appeal was untimely, contending that the deadline should be tolled. Because his arguments lack merit, we affirm.

1 The separate appeals of Kim (A173001) and Queens SF,

LLC (A174032) were consolidated for all purposes by this court’s order of September 18, 2025. 2 Undesignated statutory references are to the Labor Code.

1

BACKGROUND

A.

To obtain review of a Labor Commissioner decision, a party must file a timely appeal to the superior court. (See Lab. Code, § 98.2, subd. (a); Burkes v. Robertson (2018) 26 Cal.App.5th 334, 341 (Burkes).) A party must file the appeal within 10 days of service of that decision, or within 15 days where, as here, the decision was served by mail. (See Lab. Code, § 98.2, subd. (a); Code Civ. Proc., § 1013, subd. (a).)

In addition, when an employer pursues an appeal, it must first post an undertaking in the amount of the challenged award. (See § 98.2, subd. (b); Burkes, supra, 26 Cal.App.5th at p. 344; Palagin v. Paniagua Construction., Inc. (2013) 222 Cal.App.4th 124, 130 (Palagin).) Because the undertaking is “a condition to filing an appeal” from a Labor Commissioner’s decision (§ 98.2, subd. (b)), the employer must either post the undertaking or, in the event of indigency, apply for a waiver within the same deadline applicable to the filing of an appeal. (See Burkes, at p. 344; Palagin, at p. 131.)