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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38906
Experience:  Retired (mostly)
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I filed for unpaid commissions as an independent contractor.

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I filed for unpaid commissions as an independent contractor. i had (2) hearings by state of calif labor commisioner, the last meeting , the commisioner denied my claim for unable to proove my employer actually was paid for the sales i made. i filed an appeal to labor commisioner 6 days after and said appeal was supposed to be directed to superior court. i then filed at bsuprior court . the allowed time for appeal filing was 10 days from the notice plus 5 days mail time. my employers attorney file for dismissal on the grounds that i filed 1 day late. I filed to labor commisioner 6 days after receiving notice. The judge will allow my appeal if the six day filing with the Labor commissioner will supercede the the superior court filing
jan jones

Here at, you must ask a question before I can "justanswer."

What is your question concerning your circumstances?
Customer: replied 3 years ago.

The Judge will dismiss my case unless I can show a case that that allowed my appeal to Labor Commisioner in lieu of sending appeal to superior court

Customer: replied 3 years ago.

I'm still waiting for an answer.

Okay, I can give you an argument for the court, but it's not a slam dunk." I think it's pretty good, though, and if I were the judge, I would be hard pressed to deny your appeal based upon the following:

1. In Clavell v. North Coast Business Park (1991) 232 Cal. App. 3d 328, the 4th District Court of Appeals writes that the "notice of appeal" language in Labor Code 98.2 would be absurd, were it to be interpreted literally in the application of the 5-day extension of time to file notice under Code Civ. Proc. 1013.

2. Similarly, Govt. Code 68915 provides, "No appeal taken to the Supreme Court or to a court of appeal shall be dismissed for the reason only that the same was not taken to the proper court, but the cause shall be transferred to the proper court upon such terms as to costs or otherwise as may be just, and shall be proceeded with therein, as if regularly appealed thereto."

3. In the case of a Labor Code 98.2 "appeal," the "court of appeals" is the Superior Court, and the "court" to which the appeal was improperly made was the Administrative Law Judge who presides over Labor Commission hearings.

4. Therefore, by filing your appeal timely with the Labor Commissioner, the Superior Court cannot dismiss, but rather the appeal must be transferred from the Labor Commissioner to the Superior Court, pursuant to Govt. Code 68915.

I hope you can understand the argument. If you don't, you may want to simply write it exactly as I have done and submit it to the court. Or, you can contact a legal aid organization and try to get a free/low cost lawyer to help you plead your case.

Please let me know if my answer is helpful, and if I can further assist.

And, thanks for using!
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