Legal Question in Appeals and Writs in California

California

Hi, and thank you for taking the time to read my question. It's a bit complicated but I'll do my best to keep it concise.

In 2003 I was discharged from my employment. I am a Union member so we ended up at arbitration. In 2004 I was reinstated as it was a wrongful discharge. I was awarded back pay. My employer offset my back pay award by $9,620 for the Unemployment Insurance (UI) I collected while unemployed. My employer intended on keeping the offset, even though California State law requires the money to be repaid back to the state.

So, I returned to the Arbitrator and argued that my employer is obligated to either repay the State (EDD) directly or repay me and I will repay the money.

The reasons I insisted the money be repaid to the state was since it was a wrongful discharge then I never should have been paid UI, and the state has a right to recover their money. The other reason, was that the UI created an income tax liability for me with the IRS. The IRS has made it clear that if the money is repaid to the state then I will not have a tax liability. Since my employer deducted that money from my back pay, then why should they get to keep it? Also, I was being double taxed. Not only was I being taxed on the original UI payments, but I was also taxed on my "Gross" back pay award, including the $9,620 offset amount.

The arbitrator agreed and ordered my employer to repay. However, let me be clear, that the arbitrator was not even needed to render this decision as state law requires the employer to repay it anyways.

Here it is a few years later, and I recently discovered that the employer didn't repay the money and just kept it. I discovered this fact because the IRS has started garnishing my wages for the taxes that were never paid on the UI income.

So, I filed a small claims action against my employer in October 2009 for damages resulting from wages being garnished by the IRS. The hearing was in December, and the court ruled in my favor awarding me damages for the tax liability for roughly $5000. Again, let me be clear.. I did not ask the court to enforce the original arbitration decision to repay the UI back to the state, but only pay for the damages (tax liability) I incurred because the money was not repaid. The IRS has repeated that as soon as the money is repaid to the state they will waive the tax obligation, and the IRS was patient for more than 6 years.

Then, my employer filed an appeal from small claims, but they filed a day too late. So, I filed a motion asking the court to dismiss their appeal, and the court agreed with my motion. No excuse for missed deadline.

So, here is the issue and where I may need help.

My employer has filed a new motion to vacate judgment. They are arguing that the court never had jurisdiction as this is a union issue and jurisdiction belongs to the arbitrator. Again, I never asked the court to interpret or enforce the arbitrator's decision. My original argument was for damages as a result of failing to comply with the arbitrator.

I am confused as to why the court is now granting this ex parte application since the appeal was already dismissed for filing too late. My employer is arguing 'surprise' since the service they hired failed to file the papers in time.

This is the statement written by the judge on approving the ex parte application:

" The CCP contemplates a motion by a defendant to vacate judgment only if the defendant did not appear at trial. However it would elevate form over substance to allow that technical defect in (employer) filing to prevent the "CT" (its handwritten so I think it says CT) from reaching the jurisdictional issue. The matter is treated as an appeal. the clerk is to re-set for hearing"

The CCP 116.750 is clear when it states in part that a "notice of appeal shall be filed not later than 30 days" and continues with "a notice of appeal filed after the 30 day period is inefffective for any purpose".

I don't understand. Rules are rules.

Any suggestions?

Thank you


Asked on 3/10/10, 2:50 am

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

That's a very interesting (and long) question. It raises several issues, but I only have time to deal with one or two. Perhaps some of my colleagues will chime in as well.

I don't know whether the small claims court has jurisdiction over your case or not. If it doesn't, though, then the judgment you received is void.

You're right that an untimely notice of appeal would be ineffective. But your employer didn't file a notice of appeal. It filed a motion to vacate the judgment. I don't know whether that motion is subject to the same deadline, but I will presume that it is not.

The court's order that the motion be treated as an appeal seems a little odd to me, but then I am not terribly familiar with small claims procedures. A small claims appeal ordinarily results in a new trial on the merits, but a motion to vacate should lead only to hearing about whether the existing judgment was procedurally proper. If the court decides that it was, that should be the end of the hearing. Your employer should not have an opportunity to re-litigate the merits of your case, though it sounds as if that's what the court intends to give it.

All I can suggest is that you attend the hearing, make your jurisdictional arguments and, if you prevail, argue that the employer is not entitled to the benefits of an appeal because it did not seek one in time.

I hope this is helpful.

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Answered on 3/15/10, 3:46 am


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