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Palagin v. Paniagua Construction, Inc.

California Court of Appeals, First District, Fifth Division

December 16, 2013

IGOR PALAGIN, Plaintiff and Appellant,
PANIAGUA CONSTRUCTION, INC., et al., Defendants and Respondents.

Order File Date January 15, 2014

Superior Court of the City and County of San Francisco, No. CGC-12-522131, Lynn O’Malley Taylor, Judge.

The Law Office of George W. Wolff, George W. Wolff and Kristin Kerr, for Plaintiff and Appellant.

Law Offices of Frank S. Moore, APC., and Frank S. Moore, for Paniagua Construction, Inc., and Alfred Martinez, individually and doing business as Martinez & Sons Contractors, Defendants and Respondents.



IT IS ORDERED that the opinion filed on December 16, 2013, is modified as follows:

1. On page 10, delete footnote 6 and replace it with the following footnote 6:

6 These other bases for the court’s conclusion are not germane, at least now that the Legislature has amended section 98.2(b). For example, as the Legislature has since observed, Progressive Concrete misperceived the legislative purpose; and Code of Civil Procedure section 995.240 sheds no light on whether the Legislature intended the undertaking requirement to be jurisdictional, since that statute would have no effect to the extent it is inconsistent with a specific statute like section 98.2. (Code Civ. Proc., § 995.020, subd. (a).) By this observation, however, we do not decide the extent to which Code of Civil Procedure sections 995.020 or 995.240 may or may not apply to section 98.2, or rely on the interplay of these statutes in deciding this appeal; respondents did not seek relief under Code of Civil Procedure section 995.240 in the trial court, and the parties did not present meaningful argument on the issue in their appellate briefs.

The modification effects no change in the judgment.

The petition for rehearing is denied.


Igor Palagin (Palagin) appeals from a judgment, entered against him after a trial de novo in the superior court, concerning a wage claim he initially brought before the Labor Commissioner. (Labor Code, § 98 et seq.)[1] Palagin contends: (1) the court should have dismissed the proceedings, because respondents did not post an undertaking by the statutory deadline (§ 98.2(b)); (2) the court erred in allowing respondents to withdraw the undertaking after entry of judgment; and (3) the court erred in ruling that Palagin was not respondents’ employee (§ 2750.5).

We conclude that the statutory deadline for an employer to post an undertaking, which the Legislature has identified as “a condition to” the filing of the notice that commences the court’s jurisdiction, is a jurisdictional deadline that cannot be extended by the trial court. (§ 98.2(b).) We therefore agree with Palagin that his motion to dismiss the proceeding should have been granted, and we reverse the judgment.


Palagin is a welder who was allegedly not paid for work he performed for respondents Paniagua Construction, Inc., and Alfred Martinez, an individual doing business as Martinez & Sons Contractors (Martinez). Pursuant to section 98, he filed a wage claim with the Labor Commissioner (Commissioner). On June 20, 2012, the Commissioner issued an “Order, Decision or Award” in favor of Palagin in the amount of $34, 259.32. The order was served by mail the following day.

Respondents filed a notice of appeal in the San Francisco Superior Court on July 6, 2012. (§ 98.2(a).) The notice of appeal is the statutory prerequisite for obtaining a trial de novo in superior court; 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).)

A. Palagin’s Motion to Dismiss

On July 12, 2012, Palagin filed a motion to dismiss respondents’ appeal, on the ground that respondents failed to timely post an undertaking required by section 98.2(b). Section 98.2(b) provides in 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.”

Respondents opposed the motion, contending that a failure to post the undertaking did not require a dismissal in light of Progressive Concrete, Inc. v. Parker (2006) 136 Cal.App.4th 540, 552-553 (Progressive Concrete), which had held that the undertaking requirement in an earlier version of section 98.2(b) was not mandatory and jurisdictional. In essence, the parties debated the extent to which Progressive Concrete applied to the operative language of section 98.2(b), in light of the fact that the Legislature had amended the language after that decision.

By written order filed on August 7, 2012, the court granted Palagin’s motion in part. The court stated: “Under the clear language of... § 98.2(b), as amended in 2010, Defendants must post a bond before filing an appeal.” Nonetheless, the court extended the deadline for posting the bond: “Defendants are given ten [sic] days to post a bond in the amount of $34, 359.32. If the bond is not posted by 4:00 p.m. on [September 6, 2012], Plaintiff may appear ex parte and have this action dismissed.”[2]

Respondents did not comply with the court’s August 7, 2012 order. Instead, respondent Martinez posted a cash deposit with the court, in lieu of a bond, on September 10 - a few days after the court’s deadline. By ex parte application of that same date, Martinez represented to the court: “Over the past thirty days Martinez and Paniagua have complied with all underwriting requirements and have received the appeal bond approval. Exhibit B is a copy of a letter from the appeal bond company confirming this approval. There are wet signatures and seals that will take a few more days to secure so in the alternative Martinez and Paniagua shall provide a cashiers’ check to the court as provided in the ...

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