Miller v. Foremost Motors, Inc.

Opinion

SILLS, P. J.

We transferred this case from the appellate department of the superior court on our own motion (Cal. Rules of Court, rule 62(a)) to determine whether an employer can unilaterally dismiss an action after it had appealed a Labor Commission award by seeking a trial de novo in municipal court. Consistent with the practice concerning trial de novo following arbitration, we hold an employer does not have a unilateral right to dismiss once it has filed a request for trial de novo. Accordingly, we reverse the order of the municipal court.

Facts

We adopt, in substance, the statement of facts contained in the opinion of the appellate department of the superior court. On November 25, 1991, plaintiff Stella R. Miller obtained an award of $655.35 from the Labor Commissioner for a commission due on a mobilehome sale. Defendant Foremost Motors, Inc. (Foremost), Miller’s employer, appealed the Labor Commissioner’s award pursuant to Labor Code section 98.2.

1

Under that statute, an “appeal” takes the form of a trial de novo in the appropriate court; here, because of the amount of the award, the trial de novo would take place in municipal court.

Shortly before trial was scheduled to commence, new counsel for Foremost filed a request for dismissal without prejudice. The municipal court

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clerk entered the dismissal.

2

On May 20, the day set for trial, Foremost did not appear; however, Miller did and moved to vacate the dismissal. Miller had not given notice to Foremost that she would move to vacate the dismissal. The trial court ruled that Foremost’s request for dismissal was “denied” (meaning, we assume, that Miller’s motion to vacate was granted), and awarded Miller $3,376 for her commission, $7,500 as a penalty, $381 in interest, and $2,085 in attorney fees, for a total of $13,342. Judgment was entered on June 4.

On June 18, Foremost moved to vacate the judgment. The motion was based on several grounds, two of which are pertinent to this appeal. First, Foremost argued it had the unilateral right to dismiss the municipal court action under section 98.2, and that the trial court therefore had no jurisdiction to enter a judgment. Second, it contended that it had been denied due process, because Miller never gave notice of her motion to vacate the dismissal. The trial court granted the motion to vacate and reinstated Foremost’s original request for dismissal without further comment. The appellate department of the superior court affirmed.