Chavez v. Sarumi

Filed 12/24/18

CERTIFIED FOR PUBLICATION

APPELLATE DIVISION OF THE SUPERIOR COURT

STATE OF CALIFORNIA, COUNTY OF HUMBOLDT

JODY CHAVEZ, ) CV180230 ) Plaintiff and Appellant, ) ) OPINION v. ) ) GBOLAHAN SARUMI, ) ) Defendant and Respondent. ) )

Appeal from a Judgment of the Superior Court of Humboldt County, Kaleb Cockrum, Judge. Reversed. M. Colleen Ryan, Industrial Relations Counsel, Department of Industrial Relations, Division of Labor Standards Enforcement, State of California, for Real Party-in-Interest State Labor Commissioner, on behalf of Plaintiff and Appellant. Owens & Ross, Dustin Owens, for Defendant and Respondent. * * * The trial court or superior court is referred to herein as “Trial Court” and the appellate division as the “Appellate Division.” The State of California, Division of Labor Standards Enforcement on behalf of Jody Chavez, referred to herein as “Appellant,” is the appellant at the Appellate Division

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and Gbolahan Sarumi, dba Orick Motel & RV Park, referred to herein as the “Respondent,” is the respondent at the Appellate Division. Respondent was the party, however, who filed the initial notice of appeal at the Trial Court appealing the Labor Commissioner’s underlying decision. Procedural History Appeal from Labor Commissioner. The appeal from the Labor Commissioner (WC-CM-255394) was filed in CV180230 by Respondent on March 13, 2018 (for a trial de novo in the Trial Court). Amended notice of appeal was filed April 4, 2018 (correcting attachment). The appeal included only the decision as to Respondent. According to Respondent, defendant Bolamon Properties, Inc. did not file an appeal in the matter because it is a suspended corporation. Therefore, the Labor Commissioner’s decision as to Bolamon Properties, Inc. is final and not included in the appeal for a trial de novo or this appeal. Trial Court Dismissal of Appeal and Release and Exoneration of Appeal Bond. On April 30, 2018, by written order the Trial Court dismissed Respondent’s appeal of the Labor Commissioner’s Order, Decision or Award and ordered that judgment be entered in favor of Appellant in the amount of the award of the Labor Commissioner plus attorney’s fees. The appeal was dismissed because Respondent did not file a timely undertaking with the notice of appeal as required by Labor Code §98.2(b). Respondent’s notice of appeal was filed on March 13, 2018 and the appeal bond was filed on April 5, 2018 (“Appeal Bond”). On June 13, 2018, by written order the Trial Court found that the late-filed undertaking posted by Respondent with the Trial Court pursuant to Labor Code §98.2(b) should be exonerated and released to the surety because it “was an attempted bond as opposed to an actual bond as a result of a lack of jurisdiction” (emphasis in original) (“June 13, 2018 Order”). Additionally, on June 13, 2018, by written order the Trial Court granted a stay of execution of the order exonerating and releasing the appeal bond. The Trial Court then extended that stay by order filed November 21, 2018, “until 15 calendar days after the Humboldt County Superior Court