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American Corporate Security, Inc. v. Su

California Court of Appeals, Third District, San Joaquin

September 10, 2013

AMERICAN CORPORATE SECURITY, INC., Plaintiff and Appellant,
v.
JULIE SU, AS LABOR COMMISSIONER, ETC., Defendant and Respondent.

Order File Date 9/27/13

APPEAL from a judgment of the Superior Court of San Joaquin County, No. 39201100270100CUWMSTK Duane Martin, Judge.

Cassel Malm Fagundes, Scott Malm and Dorothy Luther, for Plaintiff and Appellant.

David Lawrence Bell, for Defendant and Respondent.

DUARTE, J.

Paul Thomas filed a complaint with the Labor Commissioner, claiming that he was fired from his job at plaintiff American Corporate Security, Inc. (ACS) in retaliation for asserting his rights under the Labor Code. Defendant Labor Commissioner investigated the complaint and found reasonable cause to believe there was a violation. The Labor Commissioner, however, did not issue her determination until over three years after Thomas filed his complaint. Labor Code section 98.7 requires the Commissioner to give notice of the determination “not later than 60 days after the filing of the complaint.” (Lab. Code, [1] § 98.7, subd. (e).) ACS petitioned for a writ of mandate to order the Labor Commissioner to retract the determination and order for remedial action.

ACS appeals from an order of dismissal after the demurrer of defendant Labor Commissioner was sustained.[2] ACS contends it was an abuse of discretion to sustain the demurrer because it has no adequate remedy at law to challenge the Labor Commissioner’s procedural unfairness, including the failure to complete the investigation within 60 days as required by statute. As we will explain, ACS has an adequate legal remedy because it can raise these points in defense to the Labor Commissioner’s action to enforce her order. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas worked as a security guard at ACS from January 2007 until November 2007. On May 15, 2008, Thomas filed a complaint with the Labor Commissioner, alleging that he was terminated in retaliation for asserting his rights under the Labor Code. Thomas had complained about not receiving his paychecks and said he would go to “the Labor Board.”

Over three years later, on July 9, 2011, the Labor Commissioner issued a determination that “there is reasonable cause to believe [ACS] violated the Labor Code.” The Labor Commissioner directed ACS to cease and desist retaliation, offer Thomas reinstatement to his position or a substantially equivalent position, and pay Thomas back wages plus interest.

ACS immediately appealed the decision, which the Acting Director of the Department of Industrial Relations upheld.

On September 19, 2011, the Labor Commissioner sent ACS a demand letter. The demand was for $86, 094.56 in back wages for Thomas for the period November 21, 2007 through September 21, 2011, with back wages continuing to accrue until an unconditional offer of reinstatement was made. The demand included 10 percent interest on lost wages--$12, 929.52 as of September 21, 2011--and an unconditional offer to Thomas of reinstatement with restoration of all lost benefits. ACS was given 10 days to comply with the demand.

On September 27, 2011, ACS petitioned for a writ of mandate to command the Labor Commissioner to retract its determination and orders to take remedial action, and to dismiss the complaint filed by Thomas. ACS alleged the Labor Commissioner failed to give ACS notice of her determination within 60 days of Thomas’s complaint, as required by statute. ACS suffered actual prejudice from the delay because its primary exculpatory witness had died in January 2009 and other witnesses moved away. The Labor Commissioner had relied upon the failure of ACS to produce this primary witness in her determination that there was a Labor Code violation

The writ petition alleged that the determination was not supported by the evidence. It alleged that Thomas was not terminated from employment; he resigned. He was not qualified for his position because he engaged in threatening and belligerent behavior, used profane language, and refused to leave the premises. ACS believed that reinstating Thomas would conflict with its duty under sections 6400 and 6403 to provide a safe workplace.

The writ petition also alleged that ACS had no “plain, speedy, and adequate legal remedy” to challenge the Labor Commissioner’s determination. ACS had filed an appeal with the Director of the Department of Industrial Relations, which was ...


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