Late Filing Of Undertaking Causes Employer’s Appeal To Be Dismissed.

A welder prevailed before the Labor Commissioner, and the employer filed a notice of appeal which is the statutory prerequisite for obtaining a trial de novo in superior court. The welder filed a motion to dismiss the employer’s appeal on the ground the employer failed to timely post an undertaking as is required by Labor Code section 98.2(b), which states: “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.” The superior court extended the employer’s time to post the undertaking, and it was not actually posted until 66 days after the notice of appeal was filed. After a trial de novo, the superior court ruled that the welder was not an employee, but was an independent contractor and entered judgment in the employer’s favor. The appellate court stated: “In essence, the question is this: is the requirement in section 98.2(b) to post an undertaking as a condition to filing an appeal a jurisdictional requirement, such that the trial court cannot extend the time for the posting beyond the deadline for the filing of the notice of appeal?”  The appellate court concluded the deadline for posting an undertaking is jurisdictional and cannot be extended by the trial court. It held the welder’s motion to dismiss should have been granted, and reversed the judgment of the superior court. (Palagin v. Paniagua Construction, Inc. (Cal. App. First Dist., Div. 5; December 16, 2013) (As Mod. Jan. 15, 2014) 222 Cal.App.4th 124.