1

IN THE COURT OF APPEAL OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JOSE MUNOZ, et al.,

Plaintiffs and Respondents,

v.

A-1 SOCCER WAREHOUSE, INC.,

Defendant and Appellant

Ct. Appeals No.: B295516

Sup. Ct. No. BS172763

From the Superior Court for the County of Los Angeles

Hon. Edward Moreton-44 Tel. 213-633-0354

RESPONDENT’S BRIEF

Eugene D. Lee (SBN 236812) LAW OFFICE OF EUGENE LEE

633 W 5th St Ste 2600 Los Angeles, CA 90071

Telephone: (213) 992-3299 Facsimile: (213) 596-0487

Attorneys for Plaintiffs and Respondents Jose Munoz, et al.

3

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................... 3

TABLE OF AUTHORITIES ......................................................... 5

I. INTRODUCTION ................................................................. 7

II. STATEMENT OF FACTS AND PROCEDURAL HISTORY9

A. Labor Commissioner Hearings ......................................... 9

B. A-1’s De Novo Appeals ..................................................... 10

C. A-1’s Alleged Attempts to Post Undertakings ................. 12

D. Trial Court’s Order to Show Cause Re: Dismissal ......... 14

E. A-1’s Motion to Reconsider .............................................. 14

F. Dismissal and Appeal ..................................................... 15

III. LEGAL DISCUSSION ........................................................ 15

A. Statutory Scheme ............................................................. 15

1. Wage Claim Adjudication before the Labor

Commissioner ...................................................................... 15

2. The Bond and Undertaking Law ................................ 17

B. Rules of Statutory Construction ...................................... 19

C. The Instruments Posted by A-1 Did Not Comply with

Labor Code Section 98.2 or the Bond and Undertaking Law

As A Matter of Law. ................................................................ 19

1. Corporate Surety Bonds .............................................. 20

2. Cashier Checks ............................................................ 21

3. Personal Checks ........................................................... 22

D. A-1 Has Waived Its Argument on Appeal ....................... 23

E. There Is A Factual Dispute As To Whether A-1 Ever

Posted Bonds, Cashier Checks or Personal Checks with the

Labor Commissioner and/or the Trial Court ....................... 24

F. A-1 Never Served Notice of Undertakings on Employees26

4

IV. CONCLUSION .................................................................... 27

CERTIFICATE OF WORD COUNT ......................................... 28

PROOF OF SERVICE ................................................................. 29

5

TABLE OF AUTHORITIES

CASES

Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654

..................................................................................................... 22

Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771 ... 22

Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184

Cal.App.4th 313 .......................................................................... 22

Lewin v. Anselmo (1997) 56 Cal. App. 4th 694 ...................... 16, 17

Murphy v. Kenneth Cole Productions (2007) 40 Cal.4th 1094.... 15

Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480 22

Palagin v. Paniagua Constr., Inc. (2013) 222 Cal. App. 4th 124 .. 6,

11, 16, 21

Pressler v. Donald L. Bren Co. (1982) 32 Cal. 3d 831 ................. 21

Rand v. Board of Psychology (2012) 206 Cal.App.4th 565 .......... 22

San Mateo Union High School Dist. v. County of San Mateo

(2013) 213 Cal.App.4th 418 ....................................................... 22

Sierra Club v. Sup. Ct. (2013) 57 Cal.4th 157. ............................. 18

Sonic–Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 .... 14, 15

STATUTES

Cal. C. Civ. Proc. section 1013 ...................................................... 11

Cal. C. Civ. Proc. section 995.260 ........................................... 17, 20

Cal. C. Civ. Proc. section 995.340 ................................................. 17

Cal. C. Civ. Proc. section 995.710 ................................................. 17

Cal. C. Civ. Proc. section 995.710(a)(1)......................................... 12

Cal. Lab. C. section 98 ..................................................................... 8

Cal. Lab. C. section 98 et seq ........................................................ 14

Cal. Lab. C. section 98.1(a) ............................................................ 15

Cal. Lab. C. section 98.2 ......................................................... passim

6

Cal. Lab. C. section 98.2 (a) ..................................................... 11, 15

Cal. Lab. C. section 98.2(b) ...................................................... 16, 17

Cal. Lab. C. section 98.2(d) ............................................................ 15

7

I. INTRODUCTION

Defendant and Appellant A-1 Soccer Warehouse, Inc. (A-1)

appeals from dismissals by the superior court of its de novo

appeals1 from Labor Commissioner awards in favor of 13 of its

former employees (Employees). A-1 contends the trial court erred

in finding that none of the instruments posted by A-1 satisfied

the mandatory and jurisdictional requirement contained in Labor

Code section 98.2 to timely post an undertaking with the trial

court in conjunction with its de novo appeals. A-1 contends the

error is a matter of pure law, requiring de novo review on appeal.

Employees disagree: there is a factual dispute as to whether A-1

ever posted any instruments but, assuming arguendo such

postings did occur, they did not satisfy section 98.2 as a matter of

law. Thus, the trial court did not err and the dismissals should be

upheld.

In 2018, the Labor Commissioner held administrative

1 The Court of Appeal treats the terms “trial de novo” and “appeal” as being

interchangeable:

The notice of appeal is the statutory prerequisite for obtaining

a trial de novo in superior court [under Labor Code section

98.2]; although an ‘appeal’ and ‘trial de novo’ are distinct

concepts, in this context the terms are often used

interchangeably, and for brevity we will usually use the word

‘appeal.’ (§ 98.2(a).)

Palagin v. Paniagua Constr., Inc. (2013) 222 Cal. App. 4th 124,

127.

8

hearings, ultimately awarding over $500,000 to Employees, based

on findings of unpaid overtime, denied meal and rest breaks,

denied records inspection, etc. A-1 appealed de novo to the

superior court pursuant to Labor Code section 98.2. However, A-1

did not post undertakings with the trial court in the amounts of

each of the awards as required by Labor Code section 98.2.

Finding no undertakings had been posted in any of the de novo

appeals, the trial court concluded it had no jurisdiction over them

and dismissed them.

A-1 now appeals the dismissals, claiming the trial court

had committed error by finding that none of the various

instruments allegedly posted by A-1 with the Labor

Commissioner and/or trial court satisfied the statutory

requirements of Labor Code section 98.2. A-1 contends the trial

court’s error is a matter of statutory interpretation entitled to de

novo review on appeal, and urges the Court to adopt an expansive

interpretation of section 98.2 that ignores the plain meaning of

its wording in favor of a loose focus on the statute’s overarching

purpose.

However, there is no competent evidence in the record

establishing that A-1 ever posted any of the alleged instruments,

or authenticating any of the alleged instruments themselves. As

such, there is a factual dispute and the proper standard of review

on appeal is whether there was “substantial evidence” to support

the trial court’s factual determination that no undertaking was

posted with the trial court.

In addition, where the plain meaning of a statute is clear

and admits of no other reasonable interpretation, as is the case

9

with section 98.2, no further inquiry into the purpose or

legislative history of the statute is appropriate. Under the plain

meaning of the statute, none of the instruments allegedly posted

by A-1 satisfy the statute’s express requirements as to posting of

an undertaking with the trial court.

Finally, as A-1 never argued to the trial court that it should

adopt an expansive statutory interpretation of section 98.2, it has

waived the argument on appeal.

Employees respectfully submit that the trial court did not

err and the dismissals should be upheld.

II. STATEMENT OF FACTS AND PROCEDURAL

HISTORY

A. Labor Commissioner Hearings

A-1 is a sporting goods retailer. In 2016, thirteen of A-1’s

former employees – Jose Munoz, Jackelinne Chonay, Ana

Estrada, Gustavo Rodriguez, Daniel Munoz, Irvin Cruz, Edgar

Alfaro, Gabino Moctezuma, Danny Hernandez, Raul Salas, Jose

Luis Salas, Marisol Zamudio, and Dilcia Leiva (Employees) –

filed wage claims with the Labor Commissioner pursuant to

Labor Code section 98. The Labor Commissioner held

administrative hearings, so-called “Berman hearings”, and found

in favor of all thirteen Employees, issuing “Orders, Decisions or

Awards” that were served by mail as follows:

Employee Award ODA Served

Jose Munoz $ 29,988.44 May 24, 2018

Ana Estrada $ 41,532.75 May 24, 2018

10

Gustavo Rodriguez $ 8,074.38 May 24, 2018

Jackelinne Chonay $ 85,658.78 May 25, 2018

Daniel Munoz $ 28,052.16 June 4, 2018

Edgar Alfaro $ 21,443.39 June 14, 2018

Gabino

Moctezuma

$ 6,017.27 June 14, 2018

Irvin Cruz $ 145,367.90 June 21, 2018

Danny Hernandez $ 5,137.64 July 3, 2018

Raul Salas $ 21,507.88 July 3, 2018

Jose Luis Salas $ 46,877.13 July 3, 2018

Marisol Zamudio $ 48,165.83 July 3, 2018

Dilcia Leiva $ 18,597.05 July 3, 2018

TOTAL $ 506,420.60

The awards appear on the following pages of the

Appellant’s Appendix: J. Munoz [AA 6-22], Chonay [AA 23-39],

Estrada [AA 40-55], Rodriguez [AA 56-71], D. Munoz [AA 72-86],

Cruz [AA 87-102], Alfaro [AA 103-116], Moctezuma [AA 117-130],

Hernandez [AA 131-144], R. Salas [AA 145-158], J. Salas [AA

159-174], Zamudio [AA 175-188], Leiva [AA 189-202].

B. A-1’s De Novo Appeals

A-1 filed notices of appeal seeking trial de novo from all 13

of the Labor Commissioner awards with the superior court,

pursuant to Labor Code section 98.2, as follows:

Case No Employee ODA

Served

Appealed

Days

11

BS172763 Jose Munoz May 24,

2018

June 8,

2018

15

BS173870 Ana Estrada May 24,

2018

June 8,

2018

15

BS173929 Gustavo

Rodriguez

May 24,

2018

June 8,

2018

15

BS172764 Jackelinne

Chonay

May 25,

2018

June 8,

2018

14

BS174005 Daniel Munoz June 4,

2018

June 14,

2018

10

BS174101 Edgar Alfaro June 14,

2018

June 20,

2018

6

BS174102 Gabino

Moctezuma

June 14,

2018

June 20,

2018

6

BS174068 Irvin Cruz June 21,

2018

June 29,

2018

8

BS174244 Danny

Hernandez

July 3, 2018 July 9, 2018 6

BS174245 Raul Salas July 3, 2018 July 9, 2018 6

BS174246 Jose Luis Salas July 3, 2018 July 9, 2018 6

BS174322 Marisol Zamudio July 3, 2018 July 9, 2018 6

BS174323 Dilcia Leiva July 3, 2018 July 9, 2018 6

The dates of filing and case numbers appear on the

following pages of the Appellant’s Appendix: J. Munoz [AA 6],

Chonay [AA 23], Estrada [AA 40], Rodriguez [AA 56], D. Munoz

[AA 72], Cruz [AA 87], Alfaro [AA 103], Moctezuma [AA 117],

Hernandez [AA 131], R. Salas [AA 145], J. Salas [AA 159],

12

Zamudio [AA 175], Leiva [AA 189].

Under Labor Code section 98.2, subdivision (a), de novo

appeals must be filed within 10 days of service of the Labor

Commissioner awards. However, the deadline is extended by an

additional five days under Code of Civil Procedure section 1013

when, as here, the Labor Commissioner serves the awards on the

parties by mail.

Here, it appears A-1 filed notices of appeal with the trial

court within 15 days after the awards were served by mail.

Employees subsequently applied ex parte to consolidate all

13 of the de novo appeals under lead case number BS172763,

which the trial court granted. [AA 203].

C. A-1’s Alleged Attempts to Post Undertakings

An employer appealing de novo from a Labor Commissioner

award must also timely post a bond in the amount of the award

pursuant to Labor Code section 98.2. According to the holding in

Palagin v. Paniagua Constr., Inc., the deadline to post a bond for

de novo appeal is the same as the deadline for filing a notice of de

novo appeal and that deadline is jurisdictional. (2013) 222 Cal.

App. 4th 124, 129.

Here, A-1 never posted such bonds, let alone in a timely

manner. Rather, A-1 claims to have engaged in several failed

attempts by allegedly: (a) posting original surety bonds with the

Labor Commissioner (rather than with the trial court as required

by section 98.2) [AA 211-212, 238-241], (b) depositing cashier

checks in lieu of bonds made payable to the Labor Commissioner

(rather than to the trial court, as required by section 98.2) [AA

78, 218-224, 242, 249, 252, 255, 258], and (c) posting personal

13

checks with the trial court (despite the fact that personal checks

are not an acceptable form of deposit pursuant to Cal. Labor Code

section 98.2(b)). [AA 216-218, 224-228, 246-247, 263-264, 266,

267].

A-1 then allegedly attempted to remedy these defects by

replacing the cashier checks and personal checks (but not the

surety bonds) with cashier checks made payable to the trial court;

however, the clerk of the court allegedly rejected them as they

were after the deadline. [AA 213-228, 243, 245, 248, 251, 254,

257, 260-262, 265, 267].

Case No Employee A-1 Alleged Posting

BS172763 Jose Munoz surety bond with Labor

Comm.

BS173870 Ana Estrada cashier check to Labor

Comm.*

BS173929 Gustavo

Rodriguez

cashier check to Labor

Comm.*

BS172764 Jackelinne

Chonay

surety bond with Labor

Comm.

BS174005 Daniel Munoz cashier check to Labor

Comm.*

BS174101 Edgar Alfaro cashier check to Labor

Comm.*

BS174102 Gabino

Moctezuma

cashier check to Labor

Comm.*

14

BS174068 Irvin Cruz cashier check to Labor

Comm.*

BS174244 Danny

Hernandez

personal check to court*

BS174245 Raul Salas personal check to court*

BS174246 Jose Luis Salas personal check to court*

BS174322 Marisol Zamudio personal check to court*

BS174323 Dilcia Leiva- personal check to court*

* A-1 allegedly made a subsequent attempt to post a

cashier check with the trial court, but was rejected for

being after the deadline.

Although Labor Code section 98.2 required A-1 to serve a

notice of the undertakings on Employees, A-1 failed to do so.

D. Trial Court’s Order to Show Cause Re:

Dismissal

On November 26, 2018, the trial court held a hearing on an

order to show cause regarding dismissal for A-1’s failure to post

bonds. Each of counsel for A-1 and for the Employees submitted

briefs and presented oral arguments at the hearing. [AA 204,

209]. The trial court then took the matter under submission.

Later that day, the trial court issued a minute order finding no

undertaking was posted with the court in any of the consolidated

cases and ordering Employees’ counsel to submit a proposed

order of dismissal. [AA 269].

E. A-1’s Motion to Reconsider

On December 4, 2018, A-1’s current counsel substituted in

as counsel of record, replacing A-1’s initial counsel, Wilfred Aka.

15

[272:14-15]. A-1’s new counsel immediately moved for

reconsideration. [270]. However, as Employees pointed out in

their opposition brief, A-1’s motion failed to state new facts or

law, instead merely repeating Mr. Aka’s previous argument to

the trial court that A-1 had posted surety bonds with the Labor

Commissioner in two of the de novo appeals. [AA 324]. The trial

court agreed with Employees and denied A-1’s motion on that

basis. [AA329].

F. Dismissal and Appeal

On December 31, 2018, the trial court entered an order

dismissing all 13 of the consolidated de novo appeals. [AA 330].

On January 29, 2019, A-1 appealed the dismissals. [AA

332].

III. LEGAL DISCUSSION

A-1 raises a single issue on appeal: whether the trial court

should have dismissed the proceedings because the various

instruments A-1 allegedly posted failed to satisfy the bond-

posting requirements set forth in Labor Code section 98.2.

Answering that question first requires a review of the relevant

statutory scheme.

A. Statutory Scheme

1. Wage Claim Adjudication before the

Labor Commissioner

If an employer violates wage and hour laws, an employee

may either file a civil action in court or file an administrative

wage claim with the Labor Commissioner pursuant to a statutory

scheme set forth in Labor Code section 98 et seq. Sonic–

Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 671–672;

16

Murphy v. Kenneth Cole Productions (2007) 40 Cal.4th 1094,

1114–1115. The Labor Commissioner first investigates the wage

claim and, if appropriate, holds an administrative “Berman

hearing”2 that is presided over by a deputy labor commissioner.

Sonic–Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th at 672. A

Berman hearing is designed to be a faster, less formal, less risky

and less expensive alternative to civil court. Sonic–Calabasas A,

Inc. v. Moreno (2011) 51 Cal.4th at 672; Murphy v. Kenneth Cole

Productions (2007) 40 Cal.4th at 1114–1115.

After conclusion of the Berman hearing, the Labor

Commissioner files and serves an Order, Decision or Award

(ODA), awarding the employee a dollar amount of $0 or more.

Labor Code section 98.1(a). The notice of ODA advises the parties

that they have a right to appeal and that their failure to appeal

in a timely manner will result in the ODA becoming final and

enforceable as a judgment by the court. Ibid.

Within 10 days after service of notice of ODA, or 15 days if

the notice of ODA was served by mail, the parties may file a

notice of appeal in the superior court, “where the appeal shall be

heard de novo.” Labor Code section 98.2(a). If no notice of appeal

is timely filed, the ODA is deemed the final order. Labor Code

section 98.2(d).

2 The Berman hearing procedure was added by legislation enacted in 1976

(Stats. 1976, ch. 1190, §§ 4–11, pp. 5368–5371) and is commonly known

as the “Berman” hearing procedure after the name of its sponsor.

Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal. 4th 1109, 1128.

17

In addition, the employer must post a bond with the

superior court in the amount of the ODA by the same deadline.

Section 98.2(b) states in relevant part: “As a condition to filing an

appeal pursuant to this section, an employer shall first post an

undertaking with the reviewing court in the amount of the order,

decision, or award.” The requirement to post this bond is

mandatory and the deadline is jurisdictional. Palagin v. Paniagua

Constr., Inc. (2013) 222 Cal. App. 4th 124, 129. As the Palagin

court noted:

The immediate purpose of this undertaking is to

provide assurance that a judgment in favor of the

employee will be satisfied. (See § 98.2(b).) The broader

purpose of this provision, as articulated by our

Supreme Court, is to “discourage employers from filing

frivolous appeals and from hiding assets in order to

avoid enforcement of the judgment.”

Palagin v. Paniagua Constr., Inc. (2013) 222 Cal. App.

4th at 130–31 (citations omitted).

2. The Bond and Undertaking Law

The terms of a statutory bond are controlled by statute.

Lewin v. Anselmo (1997) 56 Cal. App. 4th 694, 698. Historically,

California statutes had provided for more than 500 different

bonds and undertakings. In 1982, the California legislature

enacted a comprehensive Bond and Undertaking Law, codifying

in one chapter the provisions relating to bonds and undertakings.

This statutory scheme applies to any “bond or undertaking

executed, filed, posted, furnished, or otherwise given as security

pursuant to any statute of this state, except to the extent the

18

statute prescribes a different rule or is inconsistent.” Lewin v.

Anselmo (1997) 56 Cal. App. 4th at 698 (citations omitted).

As it turns out, the undertaking provisions contained in

Labor Code section 98.2 are different from or inconsistent with

the provisions of the Bond and Undertaking Law in only a few

respects.

Section 98.2(b) preconditions de novo appeals on an

employer’s first posting an undertaking “with the reviewing court”

in the amount of the ODA (emphasis added). By contrast, the

Bond and Undertaking Law states: “The bond shall be filed with

the court unless the statute providing for the bond requires that

the bond be given to another person.” Cal. Civ. Proc. Code section

995.340 (emphasis added).

Section 98.2(b) states that the undertaking must be “an

appeal bond issued by a licensed surety or a cash deposit with the

court”. By contrast, the Bond and Undertaking Law enumerates

a wide variety of securities that can be deposited with a trial

court in lieu of a bond or undertaking, including cashier checks,

bearer bonds, investment certificates, and certificates of deposit.

Cal. Code of Civ. Proc. section 995.710.

Section 98.2(b) is silent as to whether an original or a copy

of an undertaking must be posted with the reviewing court. By

contrast, the Bond and Undertaking Law provides: “If a bond is

recorded pursuant to statute, a certified copy of the record of the

bond . . . may be admitted in evidence in an action or proceeding

with the same effect as the original, without further proof.” Cal.

Civ. Proc. Code section 995.260 (emphasis added). As section

98.2(b) is silent, the Bond and Undertaking Law takes effect by

19

default.

B. Rules of Statutory Construction

As the California Supreme Court has stated:

When we interpret a statute, ‘[o]ur fundamental task

... is to determine the Legislature’s intent so as to

effectuate the law’s purpose. We first examine the

statutory language, giving it a plain and commonsense

meaning. We do not examine that language in

isolation, but in the context of the statutory framework

as a whole in order to determine its scope and purpose

and to harmonize the various parts of the enactment.

If the language is clear, courts must generally follow

its plain meaning unless a literal interpretation would

result in absurd consequences the Legislature did not

intend. If the statutory language permits more than

one reasonable interpretation, courts may consider

other aids, such as the statute’s purpose, legislative

history, and public policy.’ [Citation.] ‘Furthermore,

we consider portions of a statute in the context of the

entire statute and the statutory scheme of which it is

a part, giving significance to every word, phrase,

sentence, and part of an act in pursuance of the

legislative purpose.’

Sierra Club v. Sup. Ct. (2013) 57 Cal.4th 157, 165-166.

C. The Instruments Posted by A-1 Did Not Comply

with Labor Code Section 98.2 or the Bond and

Undertaking Law As A Matter of Law.

None of the instruments allegedly posted by A-1 complied

20

with the plain meaning of section 98.2 or the Bond and

Undertaking Law.

1. Corporate Surety Bonds

A-1 states: “A-1 sent the originals [of corporate surety

bonds] to the Labor Commissioner” and “filed copies with the

Superior Court . . . However, the purposes of the statute were

fulfilled”. Appellant’s Opening Brief (AOB), p. 11. A-1 suggests

that the Court should apply a loose interpretation of California

Labor Code section 98.2 which focuses on general fulfillment of

the statute’s overarching purpose rather than a literal reading of

the language of the statute.

However, the language of section 98.2 is clear and does not

admit of more than one reasonable interpretation. Section 98.2

states: “As a condition to filing an appeal pursuant to this

section, an employer shall first post an undertaking with the

reviewing court in the amount of the order, decision, or award.”

(Italics added). The plain meaning of this language is clear: “an

employer shall first post an undertaking with the reviewing court”

(section 98.2(b), italics added). In this case, when A-1 appealed de

novo from the Labor Commissioner’s ODA to the superior court,

the reviewing court was the superior court. A-1 was therefore

required to post an undertaking with the superior court, not with

the Labor Commissioner. The phrase “with the reviewing court”

has a plain meaning that does not permit of any other reasonable

interpretation. The task of statutory interpretation therefore

ends with a literal reading of the language of section 98.2.

Moreover, the Bond and Undertaking Law states that any

copy of a bond submitted to the superior court must be a “certified

21

copy”. Cal. Civ. Proc. Code section 995.260. As section 98.2

contains no provisions – inconsistent, different or otherwise – on

this issue, this provision of the Bond and Undertaking Law

controls. As for the plain meaning of “certified copy”, it is clear

and does not admit of more than one reasonable interpretation;

thus, the task of statutory interpretation ends with a literal

interpretation of the language of the statute. Here, A-1 never

submitted certified copies of the surety bonds with the trial court.

Here, A-1 did not file an original or a certified copy of the

surety bonds with the trial court. Moreover, the face of each bond

is captioned “Labor Commissioner of the State of California”, not

“Superior Court”, at the top. [AA 238, 240]. A-1 therefore failed to

comply with the plain meaning of section 98.2 and the Bond and

Underwriting Law.

2. Cashier Checks

A-1 states: “The cashier’s checks that A-1 had made

payable to the Labor Commissioner also served the purposes of

the statute”. [AOB, 12]. A-1 again suggests that the Court should

apply a loose interpretation of the wording of California Labor

Code section 98.2, focusing instead on the general purpose of the

statute.

However, the language of section 98.2 is clear and does not

admit of more than one reasonable interpretation. Section 98.2(b)

states that the undertaking must be “an appeal bond issued by a

licensed surety or a cash deposit with the court” (emphasis

added). A cashier check made payable to the Labor Commissioner

does not constitute either an “appeal bond” or a “cash deposit

with the court”.

22

3. Personal Checks

A-1 states that it attempted to deposit personal checks with

the trial court six days before the deadline; however, the trial

court rejected them as being improper in form after the deadline

had already passed, making compliance an “impossibility” for A-

1; “But, the law ‘never requires impossibilities”. [AOB 12].

The language of section 98.2 is clear and does not admit of

more than one reasonable interpretation. Section 98.2 states that

the undertaking must be “an appeal bond issued by a licensed

surety or a cash deposit with the court”. As a personal check does

not constitute either an “appeal bond” or a “cash deposit”, it was

not a permissible form of undertaking under a plain reading of

section 98.2. The task of statutory interpretation does not require

the Court to go beyond a literal reading of the language of section

98.2.

As to A-1’s point that the trial court clerk’s rejection of A-

1’s personal checks after the deadline created an “impossibility”

for A-1, A-1 appears to be reading into section 98.2 a right to cure

that does not exist. The deadline to post an undertaking is

jurisdictional and does not recognize mistake, inadvertence or

other similar excuse. Palagin v. Paniagua Constr., Inc. (2013) 222

Cal. App. 4th 124, 129; see also Pressler v. Donald L. Bren Co.

(1982) 32 Cal. 3d 831, 837–38.

A-1 failed to comply with section 98.2‘s plainly-worded

requirement as to the form of undertaking, and thereby failed to

meet the jurisdictional deadline for posting the undertaking. If

the clerk’s alleged late rejection of A-1’s personal checks made it

“impossible” for A-1 to cure the defect, that is of no consequence

23

as the deadline was jurisdictional and does not recognize

mistake, inadvertence or other similar excuse.

D. A-1 Has Waived Its Argument on Appeal

The primary role of the California Courts of Appeal is to

review error. Accordingly, an argument or objection not made in

the trial court is waived on appeal. Ochoa v. Pacific Gas &

Electric Co. (1998) 61 Cal.App.4th 1480, 1488 fn.3 (“It is

axiomatic that arguments not asserted below are waived and will

not be considered for the first time on appeal.”); Carian v.

Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 668 fn. 6;

Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184

Cal.App.4th 313, 332. The rule barring new arguments on appeal

is founded on considerations of fairness to the opposing party and

the orderly and efficient administration of justice. Rand v. Board

of Psychology (2012) 206 Cal.App.4th 565, 587. Permitting new

arguments on appeal would deprive the trial courts and the

parties of the opportunity to correct errors and would require the

appellate courts to spend valuable resources to address purported

errors that could have been corrected in the trial court had an

objection been made. Dietz v. Meisenheimer & Herron (2009) 177

Cal.App.4th 771,799-800. Stated another way, a party that fails

to make an objection or argument in the trial court invites the

error. A party that induces the commission of error is estopped

from asserting an invited error on appeal as a basis for reversal.

San Mateo Union High School Dist. v. County of San Mateo

(2013) 213 Cal.App.4th 418, 436.

Here, A-1 never argued to the trial court that the various

instruments it allegedly posted satisfied the statutory

24

requirements of Labor Code section 98.2 under its expansive

interpretation of the statute. A-1’s sole argument to the trial

court in opposing the dismissals was that the bond-posting

requirement of section 98.2 was not mandatory or jurisdictional

and that the trial court should therefore grant A-1 relief by

extending the bond-posting deadline for A-1. [AA 231-236].

After A-1’s current counsel substituted into the underlying

case, replacing Wilfred Aka, they immediately filed a motion for

reconsideration of the dismissals. [AA 270]. However, as

Employees pointed out in their opposition, A-1’s motion presented

no new facts or laws, but instead merely reiterated Mr. Aka’s

previously stated contention that A-1 had posted surety bonds

with the Labor Commissioner with respect to two of the de novo

appeals. [AA 324].

A-1 now contends for the first time on appeal that A-1’s

allegedly posted instruments did in fact satisfy section 98.2,

using an expansive reading of the statute that glosses over the

express wording set forth in the statute in favor of a loose focus

on the purpose of the statute “to discourage employers from

frivolous appeals and from hiding assets in order to avoid

enforcement of the judgment”. [AOB 11].

By failing to present this expansive statutory

interpretation of section 98.2 to the trial court, A-1 deprived the

trial court and Employees of the opportunity to address this issue

at the time the dismissals were argued. A-1 should be deemed to

have waived the argument on appeal.

E. There Is A Factual Dispute As To Whether A-1

Ever Posted Bonds, Cashier Checks or Personal

25

Checks with the Labor Commissioner and/or

the Trial Court

A-1 alleges it posted surety bonds with the Labor

Commissioner, cashier checks with the Labor Commissioner, and

personal checks with the trial court prior to the appeals deadline,

and then cashier checks with the trial court after the deadline

had already passed. However, there is no competent evidence in

the record substantiating any of these allegations.

A-1’s current counsel filed a substitution of counsel with

the trial court on or around December 4, 2018, which was well

after all of the alleged activities had occurred. [272:14-15]. A-1’s

counsel during the relevant time period was Wilfred I. Aka. The

record contains no declarations by Mr. Aka or any other

percipient witness to support A-1’s contentions that:

“For Case Nos. BS172763 and BS172764, it provided

corporate surety bonds issued by Great American

Insurance Company to the Labor Commissioner”. [AOB 8].

“For Case Nos. BS173870, BS173929, BS174005,

BS174068, BS174101 and BS174102, it provided cashier

checks to the Labor Commissioner”. [AOB 8].

“For Case Nos. BS173870, BS173929, BS174005,

BS174068, BS174101 and BS174102 . . . When informed

that the checks should be made payable to the Superior

Court, A-1 provided replacement cashier checks, but the

Court Clerk refused them, because they were after the

deadline established by section 98.2”. [AOB 8].

“For Case Nos. BS174244, BS174245, BS174246, BS174322

and BS174323, it provided personal checks payable to the

26

Superior Court within the deadline, but the Court Clerk

refused them”. [AOB 8].

“For Case Nos. BS174244, BS174245, BS174246, BS174322

and BS174323 . . . It then provided cashier checks after the

deadline, which the Court Clerk also refused”. [AOB 8].

Moreover, the record does not contain any declarations by

Mr. Aka or any other competent evidence establishing the

authenticity of or laying foundation for any of the copies of surety

bonds, cashier checks or personal checks contained in the record.

As there is a factual dispute as to whether A-1 ever

attempted to post any of the alleged instruments with the Labor

Commissioner and/or the trial court, as well as to their

authenticity, the proper standard of review on appeal is whether

there was “substantial evidence” to support the trial court’s

factual determination that no undertaking was posted with the

trial court. Employees respectfully submit that an independent

de novo review is inappropriate.

F. A-1 Never Served Notice of Undertakings on

Employees

Labor Code Section 98.2(b) requires the employer to

“provide written notification to the other parties and the Labor

Commissioner of the posting of the undertaking.”

Here, there is nothing in the record establishing such

notice was served. The absence of such notice further supports

Employees’ contention that A-1 never actually engaged in any of

its alleged attempts to post surety bonds or cashier checks with

the Labor Commissioner or personal checks with the trial court.

27

IV. CONCLUSION

The trial court did not err in finding no undertaking was

posted with the trial court on any of A-1’s de novo appeals and

subsequently dismissing the de novo appeals. The record contains

no competent evidence establishing that A-1 ever posted any

instruments with the Labor Commissioner or the trial court as

alleged. There was therefore substantial evidence supporting the

trial court’s finding that no undertaking was posted with the trial

court, as required by section 98.2. Moreover, none of the

instruments allegedly posted by A-1 satisfied the requirements of

section 98.2 and the Bond and Underwriting Law as a matter of

law. In any case, A-1 failed to argue its expansive statutory

interpretation of section 98.2 to the trial court and therefore

waived the argument on appeal. Employees respectfully submit

the trial did not err and the dismissals should be upheld on

appeal.

Dated: 7/3/2019 LAW OFFICE OF EUGENE LEE

By: Eugene D. Lee Attorneys for Plaintiffs-Respondents Jose Munoz, et al.

28

CERTIFICATE OF WORD COUNT

Pursuant to Cal. Rules of Court, rule 8.204(c)(1), the text of

this brief consists of 4,772 words, i.e., less than 14,000 words, as

counted by Microsoft Word, the word processing program used to

generate this brief.

Dated: 7/3/2019 LAW OFFICE OF EUGENE LEE

By:

Eugene D. Lee Attorneys for Plaintiff-Respondent Jose Munoz

29

PROOF OF SERVICE I am employed in the County of Los Angeles, California and reside in Los Angeles, CA. I am over the age of 18 and not a party to the action described herein. My business address is LAW OFFICE OF EUGENE LEE, 633 W 5th St Ste 2600, Los Angeles, CA 90071. I served the foregoing document described as

RESPONDENT’S BRIEF

on the persons below as follows:

Calvin House Gutierrez Preciado & House LLP 3020 E Colorado Blvd Pasadena, CA 91107 calvin.house@gphlawyers.com

BY UNITED STATES MAIL: I enclosed the documents in a sealed envelope or package addressed to the persons listed above and deposited the sealed envelope with the United States Postal Service at Los Angeles, California, with the postage fully prepaid.

BY EMAIL: Based on agreement of the parties to accept service by email, I caused the document(s) listed above to be sent to the person(s) listed above at the email address(es) listed above. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: 7/3/2019

_____________________________________ Eugene D. Lee