Mario Saikhon, Inc. v. Agricultural Labor Relations Board

Opinion

BROWN (Gerald), P. J.

The Agricultural Labor Relations Board (Board) has moved to dismiss a petition for a writ of review of its decision and order. The Board contends the petition of Mario Saikhon, Inc. (Saikhon) was not filed within the 30-day jurisdictional time limit of Labor Code section 1160.8.

On December 15, 1982, a decision and order finding Saikhon had committed certain unfair labor practices was entered by the Board. The decision and order was mailed to Saikhon the same day. January 17, 1983—33 days later— Saikhon filed a petition for review of the Board’s order with this court.

Labor Code section 1160.8 states the petition for review “shall be filed with the court within 30 days from the date of the issuance of the board’s order.” The time for seeking judicial review is jurisdictional

(United Farm Workers

v.

Agricultural Labor Relations Board

(1977) 74 Cal.App.3d 347, 350 [141 Cal.Rptr. 437]).

[583]

Because the decision and order was mailed to it, Saikhon contends section 1013, subdivision (a) of the Code of Civil Procedure

1

applies, extending the time five more days for filing a petition for review. Section 1013, subdivision (a) provides: “In case of service by mail, . . . The service is complete at the time of the deposit, but any prescribed period of notice and any right or duty to do any act or make any response within any prescribed period or on a date certain after the service of such document served by mail shall be extended five days if the place of address is within the State of California, ...”

Section 1013, subdivision (a) by its terms deals only with the “case of service by mail,” and with acts or responses which must be performed within a prescribed period “after the service” of a document. Labor Code section 1160.8 does not say the petition for review must be filed within 30 days after service of the Board’s order; it requires the petition be filed within 30 days of the “issuance” of the Board’s decision. Only if “issuance” is synonymous with “service” would section 1013, subdivision (a) apply in this case.