Resnik v. Anderson & Miles

Opinion

HANSON (Thaxton), J.

Defendant Anderson and Miles, a California corporation, doing business as Day Realty (hereinafter Day), appeals the judgment entered in favor of plaintiff Gerald Resnik in a trial de novo of a dispute initially heard by the Labor Commissioner.

Facts

Gerald Resnik worked for Day as a licensed real estate salesperson from February 24, 1976, to November 4, 1977, pursuant to a written contract. During this period he became entitled to a commission of $956.81 as a result of a real estate listing he obtained for Day. Day failed to pay $478.41

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of this amount and Resnik filed a claim for the unpaid sum with the California Labor Commissioner. The commissioner awarded Resnik the $478.41 and Day filed an appeal de novo pursuant to California Labor Code section 98.2 in the superior court.

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That court also found in favor of Resnik for the same amount.

Day made timely motions for dismissal of the action due to a lack of jurisdiction during both the administrative and superior court proceedings, claiming that Resnik was not an employee of Day. The motions were denied although the trial court made findings that Resnik’s contract with Day stated a relationship of independent contractor between the parties; that Resnik was also engaged as a full-time employee with the Bank of America during his association with Day; and that during his 19-1/2 month relationship with Day, Resnik delivered only 1 real estate listing, made no real estate sales, took no “floor time” in Day’s Northridge office and met with management no more than 11 times.

[572]

Issue

Day contends on appeal that neither the Labor Commissioner nor the superior court had subject matter jurisdiction over Resnik’s claim.

Discussion

Day initially contends that the jurisdiction of both the Labor Commissioner and the superior court is limited to employee complaints, and this is conceded by the Labor Commissioner. Labor Code sections 96 and 98, subdivision (a), expressly allow the Labor Commissioner to take assignment of employee claims with the authority to resolve all matters within its jurisdiction. Any party to the proceedings may seek review of the commissioner’s decision by filing an appeal to the superior court where the matter will be heard de novo (Lab. Code, § 98.2).