# Pressler v. Donald L. Bren Co.

> California Supreme Court · December 6, 1982 · 32 Cal. 3d 831

URL: https://www.frixlaw.com/law-library/cases/9605319

## Case

- **Full name:** J. GEORGE PRESSLER, Plaintiff and Respondent, v. DONALD L. BREN COMPANY, Defendant and Appellant; DEPARTMENT OF INDUSTRIAL RELATIONS, Intervener and Respondent
- **Court:** California Supreme Court
- **Decided:** December 6, 1982
- **Citations:** 32 Cal. 3d 831; 187 Cal. Rptr. 449; 654 P.2d 219; 25 Wage & Hour Cas. (BNA) 1202; 1982 Cal. LEXIS 249
- **Precedential status:** Published
- **Opinion:** Concurring in part by Broussard
- **Judges:** Bird, Broussard
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9605319

## Opinion text

BROUSSARD, J., Concurring and Dissenting.
I concur in the result, but I cannot agree with the majority opinion’s holding that the time for filing a notice of appeal pursuant to Labor Code section 98.2 is not only mandatory but also jurisdictional. I do not think that the Legislature intended to preclude a reviewing court from conducting a hearing de novo after an informal administrative wage claim proceeding merely because the appealing party failed to file a notice of appeal within 10 days. Instead, I believe that the time period, although mandatory, is not jurisdictional, and that the reviewing court has discretion to excuse a delay in filing a notice of appeal on a showing of good cause.
This court has held that the time for filing conventional appeals is jurisdictional. (Estate of Hanley (1943) 23 Cal.2d 120, 123 [ 142 Cal.Rptr. 423 , 149 A.L.R. 1250 ]; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674 [ 125 Cal.Rptr. 757 , 542 P.2d 1349 ].) In Hollister, however, we recognized an exception for the case of a belated filing of a notice of appeal from a judgment of the small claims court ( Hollister, supra, 15 Cal.3d at pp. 671-672, approving Mills v. Superior Court (1969) 2 Cal.App.3d 214 [ 82 Cal.Rptr. 469 ]) on the basis of “special considerations applicable to small claims court. As the court [in Mills] points out, the rules ‘governing appeals in small claims cases (rule 151 et seq.) contain no rule like rules 45(c) and 138(c), both of which prohibit the reviewing court from extending the time for filing a notice of appeal. Nor are small claims appeals the subject of any rule similar to rules 45(e) and 143(b), both of which provide that “[t]he reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with these rules, except the failure to give timely notice of appeal. ” ’ ” (15 Cal.3d at pp. 671-672, italics added.)
The same special considerations apply to appeals pursuant to Labor Code section 98.2. As the majority opinion points out, these appeals differ significantly from conventional appeals. The majority, however, recognizes only one significant difference—section 98.2, like the small claims rules, provides for a hearing de novo instead of a review of the proceedings below. There are, however, other important differences.
These appeals are not taken from judicial decisions but from agency determinations rendered after informal hearings. Dismissal of the appeal for failure *839 to file timely notice thus deprives the parties of their opportunity to obtain a judicial determination on the merits of the case. In addition, the 10-day period for filing the notice of appeal, like the 20-day period in small claims cases, is significantly shorter than the 60 days permitted for conventional appeals. Finally, as in the case of appeals from the small claims court, the Legislature omitted from section 98.2 any express language either prohibiting extension of time for filing the notice of appeal or indicating that the time requirement is intended to be jurisdictional. Thus, the reasons which led us to conclude that a court may excuse the late filing of a small claims appeal apply with equal or greater force in the present setting.
The 10-day period for filing an appeal under Labor Code section 98.2 clearly is mandatory. Relief from default in timely filing the notice cannot be granted under Code of Civil Procedure section 473. 1 The reviewing court, however, may still excuse late filing in some circumstances. Courts possess inherent power to excuse noncompliance with mandatory, nonjurisdictional procedural rules when the interests of justice require, even if the procedures are required by statute. (Van Gaalen v. Superior Court (1978) 80 Cal.App.3d 371, 378-379 [ 145 Cal.Rptr. 509 ]; see Pianka v. California (1956) 46 Cal.2d 208, 212 [ 293 P.2d 458 ].) Expression of this inherent power is found in California Rules of Court, rules 45(e), 143(b) and 186(b), which allow reviewing courts, for good cause, to relieve a party from default occasioned by failure to comply with any rule of court except the rules establishing the time for giving notice of appeal.
Because the 10-day filing period required by Labor Code section 98.2 is not. jurisdictional, reviewing courts should have discretion to allow late filing for good cause. This discretionary power would preserve the settled policy favoring trials and hearing of appeals on the merits instead of the dismissal of cases for technical noncompliance with procedural requirements. (See Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [ 48 Cal.Rptr. 620 , 409 P.2d 700 ]; Lundy v. Laken (1949) 89 Cal.App.2d 849, 852 [ 202 P.2d 369 ].) In addition, it would protect a worker who, lacking assistance of counsel, may be caught short by the unusually brief 10-day deadline for filing an appeal. It does not serve the statutory purpose of protecting the worker’s right to his wage to hold that, no matter how compelling his excuse for failing to file his appeal within the 10-day period, the reviewing court lacks jurisdiction to hear the matter.
I conclude that, on a sufficient showing, a court has the power to grant relief from noncompliance with the 10-day limit of section 98.2.1 believe, however, that the showing in the present case was insufficient. Neglect of a party’s attorney may constitute good cause for granting relief from default, but only if *840 the circumtances show that the neglect was “clearly excusable.” (Estate of Wolper (1956) 146 Cal.App.2d 249, 251 [ 303 P.2d 578 ].) The circumstances in this case do not indicate clearly excusable neglect. Bren’s attorney prepared the notice of appeal six days before the filing deadline and instructed his secretary to serve and file it. He apparently took no further steps to ensure that the notice had been filed, and gives no reason for his failure to do so. For that reason, I concur in affirming the order dismissing the appeal.
Section 473 allows a court to relieve a party “from a judgment, order, or other proceeding taken against him . . . . ” As the majority notes, a party’s default in timely filing a notice of appeal is not a proceeding taken against him. (Maj. opn. fit. 5, ante.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9605319. Public record. Not legal advice.