Rogers v. Municipal Court

Opinion

LOW, P. J.

In this case, we are asked to decide whether a corporation, through its president who is not an attorney, may file a notice of appeal from an order, decision or award of the labor commissioner pursuant to Labor Code section 98.2. We conclude that the notice of appeal filed in this manner is valid.

The Labor Commissioner issued a decision awarding petitioner Stanley Rogers $1,925.90 for back wages against his employer Solar Electric Engineering, Inc., real party in interest (Solar). The award was served on Solar on November 4, 1985. Solar did not appear at the hearing on the wage claim, asserting that it did not receive notice of the hearing. The award provided in pertinent part: “If an appeal is filed by a corporation, present law requires that the corporation must be represented by an Attorney-at-Law, licensed to practice in the State of California, during all phases, including the filing of Notice of Appeal. A corporation’s failure to be represented by an attorney may be cause for dismissal.” Within 10 days, Solar filed a notice of appeal signed on behalf of the corporation by its president, Gary Starr, who is not an attorney. Counsel for the corporation did not

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appear until the filing of the points and authorities in opposition to petitioner’s motion to dismiss.

Petitioner, represented by the Labor Commissioner, filed a motion to dismiss the appeal on the ground that the notice of appeal was not signed by a licensed attorney. The municipal court denied the motion, and petitioner filed a petition for a writ of mandate with the superior court directing the municipal court to dismiss the appeal. An alternative writ of mandate was issued and a hearing was held. After hearing arguments, the superior court denied the petition. Relying on

City of Downey

v.

Johnson

(1968) 263 Cal.App.2d 775, 781 [69 Cal.Rptr. 830], the court drew a distinction between “the capacity of a corporation to sign and file a notice of appeal in propria persona and the capacity of a corporation to execute and file actual pleadings, papers, and briefs in a trial court and argue legal and factual matters in the [absence] of counsel.” Although not discussed by the parties in their briefs, the appeal from the judgment denying the petition for writ of mandate directed to the municipal court is nonappealable. (Code Civ. Proc., § 904.1, subd. (a)(4).) The court made the parties aware of this at oral argument, but no party urged the appeal be dismissed. Under unusual circumstances, we may decide to treat an improper appeal as a petition for an extraordinary writ. (Code Civ. Proc., § 904.1, subd. (a)(4); 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 210, pp. 836-837.) This matter presents an issue of first impression. The issue has been thoroughly briefed and our determination is purely one of law. To dismiss the appeal rather than exercise our discretionary power to reach the merits would be “ ‘ “unnecessarily dilatory and circuitous.” ’ [Citation.]” (See