Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG09479109
Richman, J.
Respondent Karen Silva was employed by appellant Rose Magno, DDS dba Emeryville Dental Care as office manager. She began work on January 23, 2008, and worked until April 4, 2008, when she was terminated. That month, Silva filed a claim with the Labor Commissioner, seeking unpaid wages and other compensation. Dr. Magno received notice of the claim, filed an answer, sent correspondence to the Commissioner, and received notices from it, including notice of the hearing. She did not, however, attend the hearing, and the hearing officer awarded Silva $23,746.72.
Dr. Magno did not file a timely appeal (though ultimately an untimely one), and an action in the superior court sought to enforce the award. Dr. Magno appeared in the superior court action, and took various steps to resist the enforcement, ultimately to no avail. Meanwhile, Dr. Magno also attempted to obtain relief from the labor commissioner, without success. During all these proceedings Dr. Magno never made reference to any agreement to arbitrate.
After all that, in May 2010 Dr. Magno filed two motions in the superior court: (1) to compel arbitration and (2) for relief under Code of Civil Procedure section 473. Both motions were denied, in thoughtful, detailed orders. Dr. Magno appeals from both orders. We affirm.
BACKGROUND
The Labor Commissioner’s Proceedings
In April 2008, Silva filed a claim with the labor commissioner, seeking unpaid wages and other compensation. By notice dated April 10, 2008, the labor commissioner set the matter for a settlement conference on May 8, 2008 at 1:30 p.m. Dr. Magno did not appear as noticed; rather, at 11:21 a.m. that day she sent a facsimile letter to Emma Rolling, Deputy Labor Commissioner, stating that she “called this morning and left you a message,” that her “nanny called in sick” and that she “respectfully request[ed] for a continuance of this conference to another day.”
The next item in the record is a November 14, 2008 “Notice of Hearing—Plaintiff” sent by Labor Commissioner Hearing Officer Donna Kilmartin, setting the matter for hearing on December 18, 2008.
On November 24, 2008, Dr. Magno filed an answer. On that same day she filed a motion for continuance, which set forth under penalty of perjury Dr. Magno’s “schedules for the remaining calendar year and for the year 2009.” And, Dr. Magno said under oath, she was “available on any other dates not shown in the above schedules.” March 19, 2009 was not shown in the schedules.
Dr. Magno followed up with a December 26, 2008 letter to Hearing Officer Kilmartin, which enclosed Dr. Magno’s “attached schedules of non-availability for the coming year 2009,” and requested that the Hearing Officer advise “when the next hearing in these cases will be.” Again, March 19, 2009 was not listed.
By notice dated February 13, 2009, Hearing Officer Kilmartin reset the matter for hearing for 1:30 p.m. on March 19, 2009.
Dr. Magno did not appear at the March 19, 2009 hearing. The labor commissioner’s file indicates that on the day of the hearing, the office received a facsimile from Dr. Magno’s office, which facsimile consisted of an email confirmation of a March 19, 2009 airline ticket and a purported March 1, 2009 e-mail from Dr. Magno to a staff member, telling the person to notify the labor commissioner of the trip scheduled for March 19, 2009. The March 19, 2009 facsimile was not directed to any particular person or any particular hearing officer, only the “Labor Board.”
Dr. Magno would later assert, in claimed support of her motion for relief described below, that prior to March 19, 2009, she also called the labor commissioner’s office and left a message informing the commissioner of her unavailability and that she had inadvertently omitted the March 19, 2009 trip from a letter of unavailability previously provided to the commissioner. She also claimed that prior to March 19, 2009, she mailed a copy of the trip confirmation to the commissioner. As will be seen, these claims were uncorroborated.
The hearing in fact proceeded on March 19, 2009, at which Silva presented two witnesses, herself and Marlon Rivas, a former coworker.
The next item in the labor commissioner files is a May 27, 2009 letter to Dr. Magno from Robert Brisbee, Senior Deputy Labor Commissioner. The letter references two cases before the commissioner, Silva’s and one for employee Rivas, and provides in pertinent part as follows: “This will acknowledge receipt of a hand written note I believe is a request to reset the above cases. The document is undated and unsigned but appears to have been sent by you as it is in a similar style of prior communications that were attributed to you. [¶] Our records show that you have only one case currently set for hearing which is #07-64051 (Rivas). It is set for June 10, 2009 at 10:00 AM. The other case you have referred to is #07-64020 (Silva—not Schisler as you state in your note) and it was previously heard on March 19, 2009. Our records indicate that only the Plaintiff appeared and there was no appearance by you or a representative.” Thus, upon receipt of this letter Dr. Magno knew that Silva’s hearing had in fact proceeded on March 19.
On July 31, 2009 Hearing Officer Kilmartin issued her order, decision, or award (ODA). The ODA was five pages in length and, following findings of fact and legal analysis, concluded that Silva was entitled to $23,746.72, itemized as follows: (1) $2,325 for unpaid regular wages; (2) $4,023 for unpaid overtime wages; (3) $7,104 for unpaid wages in the form of a “manager’s bonus”; (4) $1,200 for premium pay for missed rest periods; (5) $1,894.72 for interest on those unpaid wages; and (6) $7,200 for penalties pursuant to Labor Code section 203.
The ODA was served on Dr. Magno by mail on July 31, 2009, and specifically set forth Dr. Magno’s right to appeal: “The parties herein are notified and advised that this Order, Decision or Award of the Labor Commissioner shall become final and enforceable as a judgment in a court of law unless either or both parties exercise their right to appeal to the appropriate court within ten (10) days of service of this document.... If service on the parties is made by mail, the ten (10) day appeal period shall be extended by five (5) days.” Thus, the deadline for Dr. Magno to file a timely appeal was August 17, 2009.
Dr. Magno did not file by that date, but in fact filed an appeal on October 14, 2009, a filing that, as best we can ascertain, did not comply with the Labor Code. Despite this, and the fact that the appeal was untimely, apparently the clerk of the superior court set the matter for trial de novo, and sent out a notice setting it on April 30, 2010. This was Alameda Superior Court action no. RG 09479109.
If an employer appeals the labor commissioner’s award, “ ‘[a]s 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 undertaking shall consist of an appeal bond issued by a licensed surety or a cash deposit with the court in the amount of the order, decision, or award.’ (Labor Code, § 98.2, subd. (b).) The purpose of this requirement is to discourage employers from filing frivolous appeals and from hiding assets in order to avoid enforcement of the judgment. (Sen. Com. on Labor and Industrial Relations, Analysis of Assem. Bill No. 2772 (2009-2010 Reg. Sess.) as amended Apr. 8, 2010, p. 4.)” (Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 673.)
The Superior Court Activity
Meanwhile, with no timely appeal having been taken, the ODA became final and, pursuant to Labor Code section 98.2, was entered as a clerk’s judgment in the Alameda County Superior Court action no. RG 09-480510 (the enforcement action). Silva began activity to enforce the judgment, which led to a flurry of activity in the enforcement action.
Labor Code section 98.2, subdivision (d) provides that “if no notice of appeal of the order, decision, or award is filed... the order, decision, or award shall,... be deemed the final order.”
On December 24, 2009, and now represented by counsel, Dr. Magno filed a notice of appearance in the enforcement action, and on December 29, 2009 an ex parte application to “Recall and/or Quash Writ of Execution and to Vacate Execution Levy and Judgment.” She also filed a claim of exemption, to which Silva filed an opposition, and on January 13, 2010 Dr. Magno filed an objection to Silva’s opposition to her claim of exemption. This led to more activity, including the matter being set for examination of judgment debtor. Dr. Magno did not appear, and Silva requested a bench warrant be issued. Dr. Magno’s claim of exemption was ultimately denied, and Silva’s enforcement efforts were successful, with the sheriff levying $24,118.89 from Dr. Magno’s bank account.
While the enforcement action was underway, on December 23, 2009, Dr. Magno applied for relief from the ODA pursuant to Labor Code section 98, subdivision (f). As noted above, the clerk of the superior court had sent notice of trial de novo, upon receipt of which the Department of Labor Standards Enforcement (DLSE) filed a notice of representation that it would be representing Silva, and filed opposition to Dr. Magno’s request for relief. On March 10, 2010 the labor commissioner denied the application for relief, holding that Dr. Magno was “properly notified of the hearing date. Further, the date chosen was in accordance with your letter of December 26, 2008, outlining your dates of availability.”
Section 98, subdivision (f) provides: “If the defendant fails to appear or answer within the time allowed under this chapter, no default shall be taken against him or her, but the Labor Commissioner shall hear the evidence offered and shall issue an order, decision, or award in accordance with the evidence. A defendant failing to appear or answer, or subsequently contending to be aggrieved in any manner by want of notice of the pendency of the proceedings, may apply to the Labor Commissioner for relief in accordance with Section 473 of the Code of Civil Procedure. The Labor Commissioner may afford this relief. No right to relief, including the claim that the findings or award of the Labor Commissioner or judgment entered thereon are void upon their face, shall accrue to the defendant in any court unless prior application is made to the Labor Commissioner in accordance with this chapter.”
On March 16, 2010, Silva, now represented by DLSE, filed a motion to dismiss Dr. Magno’s October 14, 2009 appeal as untimely, setting the motion for April 15, 2010.
On March 23, 2010, Dr. Magno filed in action no. 09-479109 her appeal of the labor commissioner’s denial of her application for relief. On that same day Dr. Magno filed a peremptory challenge to the Honorable Frank Roesch, the law and motion judge in Alameda County (and the one who had denied her claim of exemption), and the matter was thereafter reassigned to the Honorable Wynne Carvill, with the pending motion(s) reset to be heard on April 22, 2010.
The appeal was pursuant to Labor Code section 98.2, subdivision (a), which provides in part: “Within 10 days after service of notice of an order, decision, or award the parties may seek review by filing an appeal to the superior court, where the appeal shall be heard de novo.... For purposes of computing the 10-day period after service, Section 1013 of the Code of Civil Procedure is applicable. (See also Gonzalez v. Beck (2007) 158 Cal.App.4th 598, 606.)
On April 1, 2010, Dr. Magno filed opposition to Silva’s motion to dismiss Dr. Magno’s appeal, the “Introduction” of which opposition conceded as follows: “Dr. Magno does not dispute that any appeal from the Labor Commissioner’s judgment of July 20, 2009 must be dismissed. Ms. Silva, however, ignores and never addresses the issue that Dr. Magno is also timely appealing the Labor Commissioner’s decision denying her application for relief pursuant to Labor Code section 98(f) and Civil Procedure Code section 473. [¶] Dr. Magno filed the notice of appeal of the July 20, 2009 judgment as a precautionary measure to preserve her right to apply for relief from the labor commissioner pursuant to Labor Code section 98(f) and Civil Procedure Code section 473, and subsequently filed such an application for relief. More than two months later on March 9, 2010, the Labor Commissioner denied Dr. Magno’s application for relief and served notice of its denial by mail. Consequently, on March 23, 2010, Dr. Magno timely filed an appeal from the Labor Commissioner’s denial of her application for relief in this matter.”
On April 1, 2010, Dr. Magno also filed a motion to continue the trial date.
As is apparent from the above, several motions and requests, in different proceedings, had been filed, and in connection with which Judge Carvill issued a tentative ruling that “the parties appear.” And, apparently following a hearing, Judge Carvill issued a comprehensive order that thoughtfully addressed the many pending matters, in pertinent part ruling as follows:
There is no transcript of this, or any other, hearing in the record, a fact not helpful to Dr. Magno, as neglect in arranging for a court reporter can have significant adverse effect on appeal. As the leading practical treatise puts it: “Transcript may be essential for appellate review: Unless a court reporter is present, the losing party may have no effective way of challenging the court’s ruling by writ or appeal: ‘In the absence of a transcript, the reviewing court will have no way of knowing... what grounds were advanced, what arguments were made, and what facts may have been admitted, mutually assumed or judicially noticed at the hearing. In such a case, no abuse of discretion can be found except on the basis of speculation.’ (Snell v. Sup.Ct. (Marshall Hosp.) (1984) 158 [Cal.App.]3d 44, 49,... (emphasis added); see also GT Inc. v. Sup.Ct. (Santa Cruz Sentinel Publishers, Inc.) (1984) 151 [Cal.App.]3d 748, 756....) [¶] PRACTICE POINTER: If you are appearing in a court in which law and motion hearings are not regularly reported, and there is the slightest chance you would seek appellate review if the judge rules against you, be sure to have a court reporter present!” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group (2011)) §§ 9:172 9:173, p. 9(1)-114.)
“1. That the motion [to dismiss] is GRANTED IN PART and DENIED IN PART in conjunction with the following stipulated provisions.
“2. That Actions #RG09-479109 and #RG09-480510 are hereby CONSOLIDATED with the low-numbered action being the lead case;
“3. That the Judgment entered on December 3, 2009, in Action No. RG09-487396 is VACATED;
“4. That Action No. RG09-487396 is hereby DISMISSED WITHOUT PREJUDICE;
“5. That the April 30, 2010 court trial date in Department 1 is VACATED;
“6. That the Motion to Stay Proceedings and Compel Arbitration currently set for May 18, 2010 in Department 31 is CONTINUED to June 17, 2010 in Department 21 at 8:30 a.m.;
“7. That any motion for relief pursuant to Labor Code §98(f) shall (a) be filed and set for hearing on June 17, 2010 in Department 21 at 8:30 a.m., (b) trail the Motion to Stay Proceedings and Compel Arbitration on that date and (c) be without prejudice to the merits of the request to compel arbitration.
“8. That it is stipulated that there is no ‘appeal’ pending from Commissioner’s July 20, 2009 award.”
Judge Carvill’s order went on to confirm “at the hearing that the complexity of this matter is in part due to the failure of the litigants to observe the requirement in Rule 3-300 re the filing of Notices of Related Cases. They were admonished at the hearing, but on this occasion sanctions will not be imposed.”
The Motions Pertinent Here
On May 24, 2010 Dr. Magno filed a motion to compel arbitration and to stay action. It was accompanied by a memorandum of points and authorities, and a three paragraph declaration of Dr. Magno, the second and third paragraphs of which read as follows: “2. I interviewed Karen L. Silva prior to her working for me. Before Ms. Silva started work, she completed an employment application form, and was further given the opportunity to voluntarily execute the arbitration provision. [¶] 3. My practice has a custom and practice of maintaining files for past and present workers. Attached here to as Exhibit 1 is a true and correct copy of excerpts of Karen L. Silva’s employment application, including her executed agreement of the provision to submit to binding arbitration of all disputes and claims that might arise out of her employment, which I obtained from her file which was created near the time when I interviewed her....”
As noted from paragraph 6 of Judge Carvill’s order, apparently Dr. Magno had been earlier referred to arbitration. According to Dr. Magno’s brief, “[o]n March 24, 2010, Dr. Magno reserved the motion to compel hearing for May 18, 2010.” Such reservation is not in the record.
On June 3, 2010, Silva filed opposition to the motion to compel arbitration. The opposition made several arguments, including that Dr. Magno waived any right to arbitration and that “no valid, enforceable agreement to arbitrate was entered into by the parties.” Concerning this latter argument, Silva’s declaration testified as follows: “2. When I applied for the job with [Dr.] Magno in January 2008, I filled out an Application for Employment. I was not given a copy of the application. The application did not contain an arbitration agreement. I did not sign an arbitration agreement at any time either before or after I began working for [Dr.] Magno. I am aware that [Dr.] Magno has produced as Exhibit ‘1’ to her Declaration and Application for Employment which contains an arbitration agreement. I did not sign that agreement and it is not my signature on the agreement. The purported arbitration agreement produced as page 5 to Exhibit ‘1’ to [Dr.] Magno’s Declaration does not contain my signature nor does it contain the correct birth date for me. None of the writing on the purported Arbitration Agreement is mine. I did fill out the application and the writing on the application is mine.”
On May 24, 2010, Dr. Magno also filed a motion for relief under Labor Code section 98, subdivision (f) and Code of Civil Procedure section 473. This motion sought relief from her failure to appear at the Labor Commissioner hearing due to her “mistake, inadvertence or neglect,” the claimed basis of which is discussed below. On June 3, 2010, Silva filed her opposition to the motion for relief.
Both motions came on for hearing before Judge Carvill on June 17, 2010. On June 18, Judge Carvill entered separate orders denying both motions, orders that are thorough in their analysis, as set forth in detail below. Suffice to say here that Judge Carvill ruled that the petition to compel could be denied on three separate bases: (1) the dispute before him was not within the claimed arbitration provision; (2) Dr. Magno had not clearly demonstrated an agreement to arbitrate; and (3) “if any valid arbitration agreement covering the present dispute were in effect, Dr. Magno waived her right to compel arbitration through her conduct.” As to the motion for relief, Judge Carvill found that “Dr. Magno has not made a sufficient showing to entitle her to relief from the Labor Commissioner’s award of July 20, 2009, under Labor Code § 98(f) or C.C.P. § 473(b).”
On June 18, 2010, Judge Carvill entered formal orders denying both motions, from which Dr. Magno filed a timely appeal.
DISCUSSION
Some General Principles Regarding Agreements to Arbitrate
“ ‘ “The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. [Citations.]’ [Citations.]” Code of Civil Procedure sections 1281.2 and 1290.2 provide for the resolution of motions to compel arbitration in summary proceedings in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence.... [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.’ [Citation.]... ‘We will uphold the trial court’s resolution of disputed facts if supported by substantial evidence. [Citation.]’ ” (Guiliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284; accord, Owens v. Intertec Design, Inc. (1995) 38 Cal.App.4th 72, 74 [factual determination whether arbitration agreement exists is a question of fact, and will be affirmed if supported by substantial evidence].)
As indicated, Silva denied she signed any agreement to arbitrate, in connection with which Judge Carvill found as follows: “[A]s to the argument that Plaintiff did not sign the arbitration agreement, the evidence is in conflict. Plaintiff asserts that it is not her signature, and submits signatures on her passport and driver’s license that appear different in many respects from it. Dr. Magno, on the other hand, states that Plaintiff returned the application ‘completed and signed,’ and that Dr. Magno ‘never’ completes or signs such forms. She also submitted a signature on a W-9 form signed by Plaintiff on the same date as the application that appears somewhat similar to that on the application. Because Dr. Magno has the burden of proving the existence of a valid agreement to arbitrate (see, e.g., Rodriguez v. Superior Court (2009) 176 Cal.App.4th 1461, 1469), this conflict provides a further basis for denying the application.”
That said, Judge Carvill went on to observe that he “does not deem it necessary to decide the motion on this basis.” Therefore, we will not decide the appeal on this basis either. Nor will we reach the issue of whether the current dispute is within the agreement to arbitrate. We affirm on the third basis, holding that substantial evidence supports Judge Carvill’s finding that, assuming a valid agreement to arbitrate existed, Dr. Magno waived any right to arbitration by her conduct.
Judge Carvill’s Finding of Waiver Is Fully Supported By the Law and By the Evidence
Our Supreme Court discussed the concept of waiver in the context of arbitration, in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187 (St. Agnes), beginning its analysis with confirmation of the rule that “Generally, the determination of waiver is a question of fact, and the trial court’s finding, if supported by substantial evidence, is binding on the appellate court. [Citations.] ‘When, however, the facts are undisputed, the issue is one of law and the reviewing court is not bound by the trial court’s ruling.’ ” (St. Agnes, supra, at p. 1196.) As a recent case has confirmed, we “may not reverse the trial court’s finding of waiver unless the record as a matter of law compels finding nonwaiver....” (Zamora v. Lehman (2010) 186 Cal.App.4th 1, 12, citing Berman v. Health Net (2000) 80 Cal.App.4th 1359, 1363; accord, Adolph v. Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1443, 1449-1450.)
The issue in St. Agnes was whether the party’s mere participation in litigation waived its right to arbitration. Relying on the strong public policy favoring arbitration (St. Agnes, supra, 31 Cal.4th at p. 1195), and the principle that waiver of the right to arbitration should not be lightly inferred (ibid.), the Supreme Court concluded that the only conclusion that could be drawn from those facts was that there had been no waiver. (Id. at p. 1206.)
Such holding notwithstanding, much of what the Supreme Court said is persuasive here in affirming Judge Carvill’s ruling. Specifically, while the St. Agnes court concluded that participating in litigation involving an arbitrable claim does not itself waive a party’s right to seek arbitration, at some point that litigation does justify a finding of waiver. And, the court said, while there is no single test for establishing waiver, the court “agreed” that six factors are “relevant and properly considered in assessing waiver claims,” which factors are: “ ‘ “(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether the ‘litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) “whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing party.” ’ ” (St. Agnes, supra, 31 Cal.4th at pp. 1195-1196; accord, Zamora v. Lehman, supra, 186 Cal.App.4th at pp. 13-15; Adolph v. Coastal Auto Sales, Inc., supra, 184 Cal.App.4th at pp. 1449-1450.)
While St. Agnes does not require that all six factors need be present to support a finding of waiver, most, if not all, such factors are present here. Judge Carvill’s comprehensive order describes in detail why. We can hardly improve on it, and thus quote it at length, as follows:
“Third, after considering the applicable factors, the Court finds that, if any valid arbitration agreement covering the present dispute were in effect, Dr. Magno waived her right to compel arbitration through her conduct. (See C.C.P. § 1281.2(a); St. Agnes Medical Center v. PacifiCare of California[, supra,] 31 Cal.4th 1187, 1196.) Plaintiff filed her wage claim with the Commissioner in April 2008, more than two years before the present motion was filed. During the intervening time the following occurred: (1) the claim was set for a settlement conference before the Commissioner, at which Dr. Magno failed to appear; (2) the matter was set for two hearings (the first of which Dr. Magno successfully continued and the second of which she unsuccessfully sought to continue by a last minute request); (3) an Award was entered against Dr. Magno after Plaintiff appeared and presented evidence; (4) a judgment was entered in this Court after Dr. Magno failed to timely seek review of the Award; (5) Dr. Magno resisted collection efforts through various ex parte applications and motions in this Court; (6) Dr. Magno applied for relief from the Award under Labor Code § 98(f); (7) Dr. Magno filed an appeal from the denial of such relief; and (8) Plaintiff prepared and presented a motion to dismiss the purported untimely appeal from the Award. Throughout all of this, Dr. Magno never mentioned the arbitration agreement, much less that she wanted any part of the present controversy to be heard by an arbitrator, prior to a passing reference in an opposition brief filed on March 31, 2010. Such conduct included substantial invocation of the ‘litigation (and administrative) machinery’ that is inconsistent with the right to arbitrate. (See St. Agnes, supra, 31 Cal.4th at p. 1196.) Regardless of whether Dr. Magno would have been successful in seeking to arbitrate the wage claim had she raised it prior to the Commissioner’s award in July 2009 (a matter currently under review by the California Supreme Court), her failure to so much as raise the prospect of arbitration during the entire proceeding or during the nine months of proceedings in this Court thereafter amounts to a waiver under the circumstances.”
As demonstrated by the facts recited above, Judge Carvill’s finding is supported by substantial evidence. But there is even more.
Apropos the third St. Agnes criterion—focusing on diligence versus delay—the rule is that a petition to compel arbitration “should be brought within a reasonable time.” (Zamora v. Lehman, supra, 186 Cal.App.4th at p. 17.) This rule was recently confirmed in Augusta v. Keehn & Associates (2011) 193 Cal.App.4th 331, where the Court of Appeal elaborated : “In Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, the Court of Appeal found waiver and reversed an order granting a defendant’s petition to compel arbitration, in part because of unreasonable delay. The defendant filed the petition to compel nearly four months after the complaint was filed. The court pointed out that the defendant knew about the arbitration provision when the complaint was filed, but ‘has nevertheless failed to offer any explanation for its decision to defer for three months its demand for arbitration.’ (Id. at p. 557; see Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 996 [10-month delay unreasonable]; Kaneko Ford Design v. Citipark, Inc. (1988) 202 Cal.App.3d 1220, 1228 [five-and-a-half month delay unreasonable.)” (Augusta v. Keehn Associates, supra, 193 Cal.App.4th at p. 338.)
Here, it cannot be gainsaid, waiting until May 2010 to file a petition to compel arbitration is not a reasonable time, especially in light of the issue between the parties, a claim for lost wages, a claim calling for fast resolution.
The law has long recognized a strong public policy that favors the “full and prompt payment of wages due an employee.” (Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319, 326.) “[B]ecause of the economic position of the average worker and, in particular, his dependence on wages for the necessities of life for himself and his family, it is essential to the public welfare that he receive his pay when it is due.” (In re Trombley (1948) 31 Cal.2d 801, 809-810.) As our Supreme Court confirmed just months ago, quoting Trombley, “ ‘ “It has long been recognized that wages are not ordinary debts, that they may be preferred over other claims, and that, because of the economic position of the average worker and, in particular, his dependence on wages for the necessities of life for himself and his family, it is essential to the public welfare that he receive his pay when it is due.” ’ [Citation.]” (Sonic Calabasas A, Inc. v. Moreno, supra, 51 Cal.4th at p. 679.)
Gonzalez v. Beck, supra, 158 Cal.App.4th 598, the case relied on heavily at oral argument, is not to the contrary. There, a former employee filed a claim for unpaid wages; the employers failed to answer or appear at the hearing, and the labor commissioner entered an award on which a judgment was entered in the superior court. The employers filed a motion in that court seeking to set aside the judgment, which was denied, the court finding that the employers had failed to exhaust their administrative remedies. The Court of Appeal affirmed. (158 Cal.App.4th at pp. 602, 606), applying the express language of section 98 subdivision (f) quoted in footnote 3 above: “A defendant failing to appear... may apply to the Labor Commissioner for relief in accordance with Section 473 of the Code of Civil Procedure.... No right to relief... shall accrue to the defendant in any court unless prior application is made to the Labor Commissioner in accordance with this chapter.” (Id. at p. 604.)
Gonzalez does not assist Dr. Magno here, where she waited over four months to even seek the relief—in a setting, as noted, where the law recognizes the necessity for prompt payment. As Dr. Magno’s counsel conceded at oral argument, she could have moved for relief under section 98 subdivision (f) in early August. And, assuming she could make the requisite showing, she could have persuaded the commissioner to stay all proceedings pursuant to section 98.2 subdivision (g): “Notwithstanding subdivision (e), the Labor Commissioner may stay execution of any judgment entered upon an order, decision, or award that has become final upon good cause appearing therefor and may impose the terms and conditions of the stay of execution.” Instead, she did nothing, except delay.
Silva filed her claim for wages in April 2008 and, as her brief accurately puts it, “fought long and hard for her wages and had to wait through objection by [Dr.] Magno to finally partially[] collect them.” This, Judge Carvill found, was a waiver, a finding, we conclude, that is supported by substantial evidence.
The “partially” refers to the fact that Silva collected $24,118.89, which is slightly less than the full amount of the judgment, including interest.
Judge Carvill Did Not Abuse His Discretion in Denying Relief Under Code of Civil Procedure Section 473, Subdivision (b)
Section 473, subdivision (b) states that a court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Because the statute is remedial, it is “highly favored and is liberally applied.” (8 Witkin, Cal. Proc. (5th ed. 2008) Attack on Judgment in Trial Court, § 144, p. 736.) Still, this part of section 473 is recognized as invoking the trial court’s discretion, and the judgment of the trial court “ ‘shall not be disturbed on appeal absent a clear showing of abuse.’ ” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)
As noted, Dr. Magno moved for such discretionary relief on the basis of “mistake, inadvertence or excusable neglect.” Despite that these bases are separate and distinct, Dr. Magno did not differentiate among the three, lumping them together without elaboration. And at the heart of Dr. Magno’s position is the explanation in her declaration as to why she should be granted relief from her failure to appear at the March 19, 2009 hearing. That explanation is as follows:
“3. On December 26, 2008, I wrote a letter to the Labor Commissioner showing my future dates of unavailability, a true and correct copy of which is attached hereto as Exhibit 3. I had forgotten I had written this letter until I was recently provided a copy from my counsel since it is not in my files.
“4. Both before and after I transmitted my December 26 letter, I had multiple and separate calendars which I and my staff maintained regarding my availability and unavailability for my patients; for my personal affairs, such as family court hearings regarding my children; mandatory continued education courses required for my profession; and my post-graduate courses taken at the Las Vegas Institute for Advanced Dental Studies (LVI) in Las Vegas, Nevada. When I transmitted the December 26 letter to the Labor Commissioner, I had inadvertently failed to include my unavailability for the dates of March 19 to 22, 2009 for a Chicago continuing education conference and course for which I was scheduled to attend since I overlooked the fact that I had not yet entered it into my calendar, or given it to my staff to enter. I subsequently booked my non refundable airline ticket for the Chicago conference and courses on January 16, 2009. A true and correct copy of my airline information is attached hereto as Exhibit 4. When I finalized my travel plans, the Labor Commissioner had not yet provided me with notice of the continued hearing dates for approximately one month.
“5. Sometime in February, 2009, I received the Labor Commissioner’s notice resetting Ms. Silva’s hearing to March 19, 2009. A true and correct copy of the notice I received is attached hereto as Exhibit 5. Upon receipt of this notice I informed the Labor Commissioner that I was not available on this date, and that I had inadvertently failed to include my unavailability for this date in my December 26 letter. I further provided written documentation showing my unavailability on March 19, 2009.
“6. Instead of providing this information to the hearing officer assigned to Ms. Silva’s case, I inadvertently and mistakenly provided this information to the hearing officer assigned to the case of Marlon Rivas which was also active during the same time period as Ms. Silva’s case. The hearing officer assigned to Mr. Rivas’s case was not the same hearing officer assigned to Ms. Silva’s case. Based upon the hearing officer’s prior vacating of the December 18 hearing date when I informed her of my unavailability due to a calendar conflict, I mistakenly thought the hearing officer had received notice of my unavailability and vacated the hearing date again. I did not think that the Labor Commissioner would hold the hearing in my absence when I submitted documentation to it showing my unavailability. I did not notice I had inadvertently and mistakenly provided the documentation to the wrong hearing officer at the Labor Commissioner’s office until after the hearing occurred.”
Dr. Magno’s reply papers included a two-paragraph supplemental declaration, the one paragraph of substance of which testified as follows: “2. I previously declared that sometime in February, 2009, I received the Labor Commissioner’s notice resetting Ms. Silva’s hearing to March 19, 2009. I also previously declared that after I received this notice, I informed the Labor Commissioner that I was not available on this date, and that I had inadvertently failed to include my unavailability for this date in my December 26 letter. One of the methods that I informed the Labor Commissioner was by telephoning their office and leaving a message. I also informed the Labor Commission of my unavailability by mailing to their office a copy of my non-refundable airline ticket reservation before the March 19, 2009 hearing date, but I do not recall who I addressed the document to.”
Judge Carvill concluded that Dr. Magno’s showing was inadequate, a conclusion with which we agree. Put in standard of review terms, Judge Carvill did not abuse his discretion. Before setting forth the reasons why, we have a few observations about Dr. Magno’s declarations, especially what they do not include—any documentary support for several assertions. For example, Dr. Magno testified that on receipt of the February 19, 2009 notice resetting the hearing, she “informed the Labor Commissioner that I was not available on this date, and that I had inadvertently failed to include my unavailability for this date in my December 26 letter. I further provided written documentation showing my unavailability on March 19, 2009.” Dr. Magno provides no corroboration for any such “inform[ing],” no notes from any conversation, no identification of the person she claims to have talked to, no nothing. As to the “written documentation” she claims in paragraph 5 to have provided, no copy is attached, unlike her December 26, 2008 letter referred to in paragraph 3 or the “airline information” in paragraph 4, copies of both of which were attached. Finally, and despite that Dr. Magno’s claimed conflict on March 19, 2009 was a program in Chicago, nowhere is there any evidence that she in fact attended the program.
As a leading Supreme Court case held, “In order to qualify for [discretionary] relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) Indeed, the statute itself provides that application for relief must be made “within a reasonable time, in no case exceeding six months....” (Code Civ. Prod., § 473, subd. (b).) And “relief is not warranted unless the moving party demonstrates diligence in seeking it. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.) ‘ “The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.” ’ (Id. at p. 625, italics omitted.) Whether a party has acted diligently is a factual question for the trial court. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 528.)” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.) Dr. Magno’s declaration did not measure up.
To begin with, Dr. Magno was notified by letter of May 27, 2009 that the hearing had in fact proceeded on March 19, 2009. Assuming this date marks the beginning of the six-month period, Dr. Magno’s motion was late, as Judge Carvill noted in his order: “Here, the Commissioner notified Dr. Magno in a letter on May 27, 2009 that the hearing had been held in her absence, and the Award was mailed on July 31, 2009. Nevertheless, Dr. Magno did not seek relief until December 23, 2009. Arguably, this is beyond the six month period after notice of the proceeding, but even if the application was filed within the maximum six-month period, this does not render it a ‘reasonable time’ as a matter of law. (See, e.g., Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181.) While Dr. Magno clearly had other matters on her mind at the time, she did not present sufficient evidence that they precluded her from turning her attention to this important matter, especially when the record as a whole reflects a pattern of delay and neglect. (Cf. Davis v. Thayer (1980) 113 Cal.App.3d 892, 904-905.)”
But even if the motion was not time barred, Judge Carvill’s conclusion that Dr. Magno’s motion was not filed within a reasonable time is certainly supported here, especially in light of the strong public policy discussed above regarding resolution of wage claims.
Beyond all that, Dr. Magno’s declaration did not demonstrate a basis for relief. As Judge Carvill elaborated in his order, “Among other things, Dr. Magno did not sufficiently demonstrate that her belief that the hearing on the Silva matter had been continued was reasonable under the circumstances. While Dr. [Mango] states that she relied on the Commissioner’s previous ‘representation,’ in late 2008, that providing documentation of a conflict would allow her to continue a hearing, the letter sent to Dr. Magno by the Commissioner on December 2, 2008 stated that ‘the regulations governing hearings under Labor Code § 98(a) provide for continuances only when there are extraordinary circumstances,’ and that ‘[i]n order to CONSIDER a continuance, you will need to provide me with documentation....’ (Decl. of Susan Dovi, Exh. E [emphasis added].) [¶] In light of that stated policy, Dr. Magno’s assumption that the hearing was continued because of her (or her staff’s) correspondence shortly before the hearing, which did not include the name of the claimant (“Silva” rather than “Schisler”) or the case number or the name of the hearing officer, and without receiving any confirmation from the Commissioner that the request was granted, is not ‘excusable neglect.’ (Cf. Nicholson v. Nicholson (1948) 85 Cal.App.2d 506, 509-510.) Further, the hearing date was not listed on Dr. Magno’s prior letter stating the dates of unavailability, and the request was the third time Dr. Magno had sought a continuance in the same case, including the prior instance in which she sought to continue the hearing from a date not listed on her prior statement of unavailability.” We find no abuse of discretion.
The three cases Dr. Magno cites are not to the contrary. Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th 249 involved, in Dr. Magno’s own words, a situation where “a legal assistant mistakenly typed in an offer of judgment ‘against’ the client when the intent was a judgment ‘in favor of’ the client. (Zamora, 28 Cal.4th at 259.) The court held that this mistake was excusable and constituted grounds for relief..., even though the attorney failed to review the document. (Id.) This type of error was a clerical or ministerial mistake that anybody could have made. (Id.) New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420, involved a request to withdraw an admission. And Prieto v. Rivero (1979) 95 Cal.App.3d 275 involved a situation where the court found that the failure to provide notice of the hearing was not the plaintiff’s fault, and that plaintiff was prejudiced by that failure.
DISPOSTION
The orders are affirmed.
We concur: Kline, P.J., Lambden, J.
The appeal was filed by counsel, Murphy, Pearson, Bradley and Feeney, despite that the firm had not yet filed a substitution of attorney, which was not in fact filed until April 1, 2010.