BILL NUMBER: AB 223	CHAPTERED
	BILL TEXT

	CHAPTER  93
	FILED WITH SECRETARY OF STATE  JULY 22, 2003
	APPROVED BY GOVERNOR  JULY 22, 2003
	PASSED THE SENATE  JULY 7, 2003
	PASSED THE ASSEMBLY  APRIL 3, 2003

INTRODUCED BY   Assembly Member Diaz

                        JANUARY 29, 2003

   An act to amend Section 98.2 of the Labor Code, relating to
employment.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 223, Diaz.  Employment.
   Under existing law, if an employee believes an employer has failed
to pay wages required by contract or statute, the employee may
either file a civil action against the employer or file a wage claim
with the Labor Commissioner seeking administrative relief.  Where the
administrative remedy is pursued, either party may appeal the
decision of the Labor Commissioner to the trial court, for a hearing
de novo.  If an appeal is taken, and the party seeking review is
unsuccessful, current statutory law requires the trial court to
assess costs and reasonable attorney's fees against the party who
filed the appeal.  Case law interpreting this law has held that the
appealing party is unsuccessful unless the court judgment is more
favorable to the appealing party than the Labor Commissioner's award.

   This bill instead would provide that an employee is successful so
long as the employee recovers a judgment in his or her favor thereby
overturning the holding in Smith v. Rae-Venter Law Group (2002) 29
Cal.4th 345 and restoring the prior holdings in Cardenas v. Mission
Industries (1991) 226 Cal.App.3d 952 and Triad Data Services, Inc. v.
Jackson (1984) 153 Cal.App.3d Supp. 1 on this issue.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  It is the intent of the Legislature, in enacting this
act, to overturn the decision in Smith v. Rae-Venter Law Group (2002)
29 Cal.4th 345.
  SEC. 2.  Section 98.2 of the Labor Code is amended to read:
   98.2.  (a) Within 10 days after service of notice of an order,
decision, or award the parties may seek review by filing an appeal to
the superior court, where the appeal shall be heard de novo.  A copy
of the appeal request shall be served upon the Labor Commissioner by
the appellant.  For purposes of computing the 10-day period after
service, Section 1013 of the Code of Civil Procedure shall be
applicable.
   (b) Whenever an employer files an appeal pursuant to this section,
the employer shall post an undertaking with the reviewing court in
the amount of the order, decision, or award.  The undertaking shall
consist of an appeal bond issued by a licensed surety or a cash
deposit with the court in the amount of the order, decision, or
award.  The employer shall provide written notification to the other
parties and the Labor Commissioner of the posting of the undertaking.
  The undertaking shall be on the condition that, if any judgment is
entered in favor of the employee, the employer shall pay the amount
owed pursuant to the judgment, and if the appeal is withdrawn or
dismissed without entry of judgment, the employer shall pay the
amount owed pursuant to the order, decision, or award of the Labor
Commissioner unless the parties have executed a settlement agreement
for payment of some other amount, in which case the employer shall
pay the amount that the employer is obligated to pay under the terms
of the settlement agreement.  If the employer fails to pay the amount
owed within 10 days of entry of the judgment, dismissal, or
withdrawal of the appeal, or the execution of a settlement agreement,
a portion of the undertaking equal to the amount owed, or the entire
undertaking if the amount owed exceeds the undertaking, shall be
forfeited to the employee.
   (c) If the party seeking review by filing an appeal to the
superior court is unsuccessful in the appeal, the court shall
determine the costs and reasonable attorney's fees incurred by the
other parties to the appeal, and assess that amount as a cost upon
the party filing the appeal.  An employee is successful if the court
awards an amount greater than zero.
   (d) If no notice of appeal of the order, decision, or award is
filed within the period set forth in subdivision (a), the order,
decision, or award shall, in the absence of fraud, be deemed the
final order.
   (e) The Labor Commissioner shall file, within 10 days of the order
becoming final pursuant to subdivision (d), a certified copy of the
final order with the clerk of the superior court of the appropriate
county unless a settlement has been reached by the parties and
approved by the Labor Commissioner.  Judgment shall be entered
immediately by the court clerk in conformity therewith.  The judgment
so entered shall have the same force and effect as, and shall be
subject to all of the provisions of law relating to, a judgment in a
civil action, and may be enforced in the same manner as any other
judgment of the court in which it is entered.  Enforcement of the
judgment shall receive court priority.
   (f) In order to ensure that judgments are satisfied, the Labor
Commissioner may serve upon the judgment debtor, personally or by
first-class mail at the last known address of the judgment debtor
listed with the division, a form similar to, and requiring the
reporting of the same information as, the form approved or adopted by
the Judicial Council for purposes of subdivision (a) of Section
116.830 of the Code of Civil Procedure to assist in identifying the
nature and location of any assets of the judgment debtor.
   The judgment debtor shall complete the form and cause it to be
delivered to the division at the address listed on the form within 35
days after the form has been served on the judgment debtor, unless
the judgment has been satisfied.  In case of willful failure by the
judgment debtor to comply with this subdivision, the division or the
judgment creditor may request the court to apply the sanctions
provided in Section 708.170 of the Code of Civil Procedure.
   (g) Notwithstanding subdivision (e), the Labor Commissioner may
stay execution of any judgment entered upon an order, decision, or
award that has become final upon good cause appearing therefor and
may impose the terms and conditions of the stay of execution.  A
certified copy of the stay of execution shall be filed with the clerk
entering the judgment.
   (h) When a judgment is satisfied in fact, otherwise than by
execution, the Labor Commissioner may, upon the motion of either
party or on its own motion, order entry of satisfaction of judgment.
The clerk of the court shall enter a satisfaction of judgment upon
the filing of a certified copy of the order.
   (i) The Labor Commissioner shall make every reasonable effort to
ensure that judgments are satisfied, including taking all appropriate
legal action and requiring the employer to deposit a bond as
provided in Section 240.
   (j) The judgment creditor, or the Labor Commissioner as assignee
of the judgment creditor, shall be entitled to court costs and
reasonable attorney fees for enforcing the judgment that is rendered
pursuant to this section.