Opinion
D041920.
11-3-2003
RAMON LOPEZ-BARRETO, Plaintiff and Respondent, v. FRENCH PASTRY CAFE, INC., Defendant and Appellant.
French Pastry Cafe, Inc. (the Cafe) appeals an order dismissing, as untimely, its attempted appeal in the superior court from a Labor Commissioner decision in favor of its employee, Ramon Lopez-Barreto. The Cafe contends that its notice of appeal was timely filed and, to the extent it was untimely, the court should have exercised its inherent power to control judicial proceedings to allow the appeal to be heard on its merits. We find the Cafes arguments unavailing and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Barreto-Lopez filed a claim with the Labor Commissioner contending that the Cafe failed to pay him certain wages and on October 30, 2002, the Labor Commissioner issued a decision awarding him $23,163.80 in unpaid wages, interest and penalties. (All relevant dates are in 2002 except as otherwise specified.) The Labor Commissioner served its decision from its San Diego office by first class mail on November 15. The Cafe mailed a notice of appeal on November 27; the superior court received and filed the notice of appeal on December 3.
Thereafter the Labor Commissioner moved to dismiss the Cafes appeal on the ground that its notice of appeal was untimely, thus depriving the superior court of jurisdiction to hear the appeal. The court granted the motion and the Cafe appeals the resulting order.
DISCUSSION
A party that is dissatisfied with a decision of the Labor Commissioner in an administrative proceeding for unpaid wages may seek review of that decision by filing and serving a notice of appeal within 10 days of service of the notice of decision. (Lab. Code, § 98.2, subd. (a); Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 834.) If the Labor Commissioner serves its decision by mail from within California, the 10-day period is extended by 5 days in accordance with Code of Civil Procedure section 1013 (section 1013). (Lab. Code, § 98.2, subd. (a).)
The statutory period for filing a notice of appeal is mandatory and jurisdictional and thus the superior court cannot act on an untimely filing even where the defect results from mistake, inadvertence or excusable neglect. (Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at pp. 837-838.) If a notice of appeal is not filed within the statutorily mandated time, the Labor Commissioners decision becomes final and immediately enforceable, absent fraud. (Id. at p. 837, citing Lab. Code, § 98.2, subd. (c); see also Lab. Code, § 98.1, subd. (a).)
In this case, the Labor Commissioner served the notice of decision by mail on November 15. Thus the statutory time period for filing a notice of appeal from the decision would normally have expired on November 30, but because November 30 was a Saturday, the time for compliance was extended to December 2, the first business day thereafter. (Code Civ. Proc., § 12a.) The Cafe admits that the superior court did not receive its notice of appeal until December 3. It argues, however, that its mailing of the notice of appeal to the superior court on November 27 was sufficient to comply with the statutory requirements because, in accordance with section 1013, service by mail is complete at the time of deposit.
The Cafes argument is unavailing. Pursuant to the statutory provisions, the period during which the Cafe was required to respond to the Labor Commissioners decision was 15 days because the decision was served by mail. (Lab. Code, § 98.2, subd. (a); § 1013.) The fact that the Cafe chose to mail rather than personally deliver its notice of appeal to the superior court did not alter the fact that the notice of appeal had to be filed with the superior court before the expiration of the 15-day period. "Service," even if completed, is not synonymous with "filing." (See In re Gary R. (1976) 56 Cal.App.3d 850, 852, fn. 2 [placement of a notice of appeal in the mail does not constitute a constructive filing of the document]; United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918 [filing requires actual delivery of the document to the court clerk during business hours].)
Because the Cafe failed to timely file its notice, the superior court had no jurisdiction to hear the appeal. (Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at pp. 837-838.)
DISPOSITION
The order is affirmed. The Labor Commissioner is entitled to its costs on appeal.
WE CONCUR: HALLER, Acting P. J. and McDONALD, J.