Filed 10/13/22 Del Real v. Ernst CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

EFRAIN DEL REAL,

Plaintiff and Respondent,

v.

MARITZA LUCERO ERNST,

Defendant and Appellant.

B312088

(Los Angeles County

Super. Ct. No. 20STCP03671)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Stephen I. Goorvitch, Judge. Affirmed.

Law Offices of Timothy L. O’Reilly and Timothy L. O’Reilly

for Defendant and Appellant.

Max Norris for Plaintiff and Respondent.

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2

Efrain Del Real initiated proceedings before the Labor 

Commissioner to recover unpaid wages and penalties based on 

painting work performed for Maritza Lucero Ernst. Following a 

hearing, the Labor Commissioner issued an award in favor of Del 

Real in the amount of $31,786.18. Ernst timely appealed that 

award to the superior court but did not post a bond as required by 

Labor Code1 section 98.2, subdivision (b), or obtain a waiver of 

that bond requirement, a jurisdictional requirement of her 

appeal. The superior court therefore dismissed Ernst’s appeal.

Del Real then obtained a judgment from the superior court 

based on the final award of the Labor Commissioner. Ernst 

moved to vacate that judgment, but the superior court denied the 

motion, concluding, among other things, that Ernst’s failure to 

properly appeal the Labor Commissioner’s award under section 

98.2 prevented it from addressing the merits of Ernst’s motion.

Ernst appeals from the judgment and the denial of her 

motion to vacate it. We agree that Ernst’s failure to properly 

appeal the Labor Commissioner’s award to the superior court 

barred the court from granting her relief from the judgment, and 

we affirm.

1 All statutory references are to the Labor Code unless noted 

otherwise.
3

FACTUAL AND PROCEDURAL BACKGROUND

I. Background2

Maritza Lucero Ernst is a homeowner in Los Angeles

County. Ernst hired Efrain Del Real in November 2017 to paint 

her house. Del Real did not have a contractor’s license. Ernst 

knew this, but hired Del Real anyway in order to save money.

According to Del Real, Ernst first hired him to paint the 

outside of her house for $2,600. Ernst then hired Del Real to 

paint the interior of her house. Ernst wanted the interior 

painting completed in six days and agreed to pay Del Real $4,300 

for painting and $700 for replacing light fixtures. Del Real 

worked twelve hours a day for six days to complete the job. 

Although Ernst provided Del Real a check for $1,000, Ernst later 

stopped payment on the check. Ernst did not pay Del Real what 

she owed him for the interior work because she was dissatisfied 

with his performance.

According to Ernst and her husband, Ernst hired Del Real 

to perform painting work on her house as an independent 

contractor and agreed to pay him by the job instead of by the 

hour. Her agreement with Del Real was not in writing. Del Real 

brought others with him to perform the work and supplied the 

necessary paint and materials. Ernst and her husband did not 

supervise Del Real’s work, Del Real set his own work hours, and 

Del Real hired and paid his crew. After Ernst’s husband found 

2 Our description of the facts underlying Del Real’s wage 

claim is based on the testimony and findings described in the 

order, decision, and award of the Labor Commissioner. 

Appellant’s Appendix does not include a transcript or any other 

record of the proceedings before the Labor Commissioner.
4

Del Real painting the interior of the house in the dark, he 

terminated Del Real’s services.3

II. Labor Commissioner Proceedings

On November 22, 2017, Del Real filed a claim against Ernst 

with the Labor Commissioner seeking $5,000 in regular wages4; 

$300 in business expenses; liquidated damages (§ 1194.2); 

waiting time penalties (§ 203); and penalties for the stopped 

check (§ 203.1).

After an administrative hearing in October 2019, the Labor 

Commissioner issued an order, decision, and award (Award). 

Finding that Del Real’s painting work required a contractor’s 

license but that Del Real lacked one, the Labor Commissioner 

applied section 2750.5, which establishes “a rebuttable 

presumption affecting the burden of proof that a worker 

performing services for which a license is required pursuant to 

Chapter 9 (commencing with Section 7000) of Division 3 of the 

Business and Professions Code, or who is performing such 

services for a person who is required to obtain such a license is an 

employee rather than an independent contractor.” After 

weighing the factors for determining independent contractor 

3 The Labor Commissioner’s award suggests that Ernst 

and/or her husband terminated Del Real because, in addition to 

painting in the dark, Del Real was found drinking beer on the 

job.

4 The Labor Commissioner’s award initially states that Del 

Real sought $5,400 in regular wages, but later states he sought 

$5,000 in regular wages. The discrepancy is not material to the 

outcome of the appeal.
5

status listed in section 2750.5, subdivisions (a) through (c),

5 the 

Labor Commissioner concluded that Del Real was Ernst’s 

employee, not an independent contractor as Ernst alleged, and 

awarded Del Real wages, liquidated damages, interest, and 

waiting time penalties totaling $31,786.18. The Labor 

Commissioner’s office served the Award by mail on Ernst on 

April 22, 2020.

5 Those factors are as follows: “(a) That the individual has 

the right to control and discretion as to the manner of 

performance of the contract for services in that the result of the 

work and not the means by which it is accomplished is the 

primary factor bargained for. [¶] (b) That the individual is 

customarily engaged in an independently established business.

[¶] (c) That the individual’s independent contractor status is bona 

fide and not a subterfuge to avoid employee status. A bona fide

independent contractor status is further evidenced by the 

presence of cumulative factors such as substantial investment 

other than personal services in the business, holding out to be in 

business for oneself, bargaining for a contract to complete a 

specific project for compensation by project rather than by time, 

control over the time and place the work is performed, supplying

the tools or instrumentalities used in the work other than tools 

and instrumentalities normally and customarily provided by

employees, hiring employees, performing work that is not 

ordinarily in the course of the principal’s work, performing work 

that requires a particular skill, holding a license pursuant to the 

Business and Professions Code, the intent by the parties that the

work relationship is of an independent contractor status, or that 

the relationship is not severable or terminable at will by the

principal but gives rise to an action for breach of contract.” 

(§ 2750.5, subds. (a)–(c).)
6

III. Superior Court Proceedings

A. Ernst’s Appeal from the Labor Commissioner 

Proceedings

Ernst timely appealed the Award to the superior court on 

May 6, 2020, but did not post the required bond with the court in 

the amount of the Award. (§ 98.2, subds. (a), (b).) Instead, Ernst 

concurrently filed a request to waive the bond requirement based 

on her alleged indigency. (Code Civ. Proc., § 995.240.) 

On May 13, 2020, the court, Judge Mark C. Kim presiding,

denied Ernst’s request to waive the bond requirement. On May 

28, 2020, Ernst moved for reconsideration of that ruling. After 

initially hearing the motion, the court granted a continuance to 

permit Ernst additional time to provide evidence of her 

indigency.

Ernst apparently did not supply sufficient evidence, and on 

October 22, 2020, the court denied her motion for reconsideration 

and issued an order to show cause based on her failure to post the 

required bond. By November 5, 2020, the date of the hearing on 

the order to show cause, Ernst had not posted the required bond. 

The court therefore dismissed her appeal without prejudice.

B. Entry of Judgment on Final Labor Commissioner 

Award

On November 6, 2020, the superior court clerk entered

judgment on the Award.

6 (§ 98.2, subds. (d), (e).)

6 Judgment was entered in the amount of $34,058.33, which 

included post-hearing interest and costs. The matter was 

assigned a different case number from that assigned to Ernst’s 

previously dismissed appeal.
7

Ernst then moved to vacate the judgment pursuant to Code 

of Civil Procedure section 663.7 Ernst contended that, as found 

by the Labor Commissioner, Del Real lacked a required 

contractor’s license to perform painting work for Ernst. Ernst 

argued that judgment on the Award was therefore inconsistent 

with Business and Professions Code section 7031, subdivision (a),

which prohibits any “person engaged in the business or acting in 

the capacity of a contractor” from bringing any action or 

recovering “in law or equity in any action, in any court of this 

state for the collection of compensation for the performance of 

any act or contract where a license is required by this chapter

. . . .”

Del Real opposed Ernst’s motion. He argued that because 

Ernst abandoned her de novo appeal of the Award by failing to 

post the required bond, she was barred from challenging the 

7 Code of Civil Procedure section 663 provides: “A judgment 

or decree, when based upon a decision by the court, or the special 

verdict of a jury, may, upon motion of the party aggrieved, be set 

aside and vacated by the same court, and another and different 

judgment entered, for either of the following causes, materially 

affecting the substantial rights of the party and entitling the 

party to a different judgment: [¶] 1. Incorrect or erroneous legal 

basis for the decision, not consistent with or not supported by the 

facts; and in such case when the judgment is set aside, the 

statement of decision shall be amended and corrected. [¶] 2. A 

judgment or decree not consistent with or not supported by the 

special verdict.” Del Real contends a motion to vacate under this 

statute does not apply to the entry of judgment based on the final 

award of the Labor Commissioner, as opposed to “a decision by

the court, or the special verdict of a jury.” (Ibid.) Because we 

affirm the superior court’s denial of Ernst’s motion to vacate on 

other grounds, we need not resolve that issue in this appeal.
8

clerk’s subsequent entry of judgment. Del Real further argued 

that Ernst’s motion to vacate the judgment pursuant to Code of 

Civil Procedure section 663 was improper because the judgment 

was not “based upon a decision by the court, or the special verdict 

of a jury” (Code Civ. Proc., § 663), but instead was based on the 

Award.

On February 5, 2021, the superior court, Judge Stephen I. 

Goorvitch presiding, denied Ernst’s motion to vacate the 

judgment. Relevant here, the court concluded that it lacked 

jurisdiction to grant the relief sought by Ernst because she failed 

to properly appeal from the Award, and that granting her relief 

following entry of judgment would permit a second appeal of that 

Award contrary to section 98.2.8

Ernst timely appealed the judgment and the order denying 

her motion to vacate.

DISCUSSION

A. Standard of review

“[A]n appealed judgment is presumed correct, and 

appellant bears the burden of overcoming the presumption of 

correctness.” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 

645, 649–650.) 

“The governing standard of review of a trial court order 

refusing to vacate a judgment is that ‘if any applicable ground 

will sustain the trial court’s order, the ruling will not be 

8 The superior court cited several additional grounds for its 

ruling. We do not address these rulings because, as discussed 

herein, we agree with the superior court that Ernst’s failure to 

properly appeal from the Labor Commissioner’s award bars the 

relief she seeks.
9

disturbed on appeal . . . .’ ” (Philippine Export & Foreign Loan 

Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1076.)

“[A] motion in the trial court to set aside a judgment is addressed 

to its sound discretion and will not be reversed without a clear 

showing of abuse of discretion.” (Id. at p. 1077.)

B. Statutory Scheme

“If an employer fails to pay wages as required by statute 

or contract, an employee may . . . seek administrative relief by 

filing a wage claim” with the Labor Commissioner under the 

statutory scheme set forth in section 98 et seq. (Palagin v. 

Paniagua Construction, Inc. (2013) 222 Cal.App.4th 124, 129 

(Palagin).) The Labor Commissioner may then hold a hearing 

conducted by a deputy commissioner. (Ibid.) That hearing “is 

designed to provide a speedy, informal, and affordable method of 

resolving wage claims, avoiding recourse to costly and timeconsuming judicial proceedings.” (Ibid.) After the hearing, the 

Labor Commissioner files and serves its order, decision, or award 

on the parties. (Ibid.) 

Within 10 days of service of the notice of the award, 

extended by five days if service is by mail, “the parties may file a 

notice of appeal in the superior court, ‘where the appeal shall be 

heard de novo.’ ” (Palagin, supra, 222 Cal.App.4th at pp. 129–

130; § 98.2, subd. (a); Code Civ. Proc., § 1013, subd. (a).) “[T]he 

filing of the notice of appeal vests jurisdiction in the superior 

court to conduct the trial de novo.” (Palagin, at p. 132.) 

If an employer files a notice of appeal, however, it “shall 

first post an undertaking with the reviewing court in the amount 

of the . . . award.” (§ 98.2, subd. (b).) The “immediate purpose” 

of this undertaking requirement “is to provide assurance that 

a judgment in favor of the employee will be satisfied.” (Palagin,
10

supra, 222 Cal.App.4th at p. 130.) The “broader purpose of this 

provision . . . is to ‘discourage employers from filing frivolous 

appeals and from hiding assets in order to avoid enforcement 

of the judgment.’ [Citation.]” (Ibid.) Because this undertaking 

requirement is “a condition to filing an appeal,” the requirement 

is mandatory and jurisdictional. (§ 98.2, subd. (b); Palagin, at 

pp. 126, 132, 140.) Thus, “[i]f the appeal and the undertaking are 

not filed within the time set forth in section 98.2, the trial court is 

without jurisdiction to hear the case.” (Tabarrejo v. Superior 

Court (2014) 232 Cal.App.4th 849, 864.)

However, a party appealing a decision of the Labor 

Commissioner “is entitled as a matter of due process to seek relief 

from the section 98.2 undertaking requirement.” (Burkes v. 

Robertson (2018) 26 Cal.App.5th 334, 343 (Burkes).) An

“employer may obtain a court order waiving the requirement of a 

bond or undertaking on the grounds of both indigency and 

inability to obtain the necessary bond.” (Williams v. 

Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 614 (Williams).) 

But “that application for relief must be made prior to expiration 

of the time provided for appeal under section 98.2.” (Burkes, at 

p. 347.) Moreover, “a necessary consequence of subsequent denial 

of an application found by the court to be unmeritorious would be 

dismissal of the appeal.” (Id., fn. 10.)

“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.” (§ 98.2, subd. (d).) “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 
11

has been reached by the parties and approved by the Labor 

Commissioner. Judgment shall be entered immediately by the 

court clerk in conformity therewith.” (§ 98.2, subd. (e).)

C. The Superior Court Correctly Entered 

Judgment in Favor of Del Real

As an initial matter, we note that Ernst does not challenge 

the superior court’s dismissal of her de novo appeal from the 

Award. It is undisputed that Ernst failed to post the required 

bond with her appeal to the superior court in accordance with 

section 98.2, subdivision (b), and Ernst did not appeal the 

superior court’s ruling that she failed to support her bond waiver 

application with adequate evidence. (See Williams, supra, 123 

Cal.App.4th at p. 615 [affirming dismissal of de novo appeal to 

superior court under section 98.2 where employer failed to post 

bond or obtain waiver of bond requirement].) 

Notwithstanding the dismissal of her appeal from the 

Award, Ernst argues that she retained the ability to challenge 

the superior court’s subsequent entry of judgment. According to 

Ernst, the Labor Commissioner erred in determining that Del 

Real was an employee, not an independent contractor, when he 

performed the disputed work. Ernst further argues that because 

Del Real was an independent contractor but lacked a required 

contractor’s license, Business and Professions Code section 7031, 

subdivision (a), barred the Labor Commissioner from awarding 

Del Real unpaid wages, and similarly barred the superior court 

from entering judgment based on the Labor Commissioner’s

allegedly erroneous award.

We are not persuaded by Ernst’s arguments, which would 

permit an end-run around the strict requirements for de novo 

appeal of a Labor Commissioner award under section 98.2. An 
12

appeal to the superior court in accordance with the procedure set 

forth in section 98.2—including a timely appeal, and either 

posting a bond or obtaining a waiver of that bond requirement

(§ 98.2, subds. (a), (b); Williams, supra, 123 Cal.App.4th at 

p. 614)—is the sole means to challenge the merits of a Labor 

Commissioner award. Courts have therefore declined to reach 

the merits of such an award where those requirements were not 

met, and so do we.

For example, in Williams, an employer and its director 

appealed to the superior court under section 98.2 from the Labor 

Commissioner’s award finding that the employer and director 

were jointly and severally liable to an employee for unpaid wages. 

(Williams, supra, 123 Cal.App.4th at pp. 612–613.) As here, 

because the employer and director failed to post the required 

bond or provide adequate evidence to obtain a waiver of the bond 

requirement, the superior court dismissed the action. (Id. at 

p. 613.) 

The Court of Appeal affirmed the superior court’s 

determination that the employer and director were not entitled to 

a waiver of the bond requirement. (Williams, supra, 123 

Cal.App.4th at p. 615.) Relevant here, the court declined to 

address the argument of the employer and director that the 

Labor Commissioner erred by holding them jointly and severally 

liable for the employee’s unpaid wages: “Indeed, if we addressed 

the merits of the above claim, it would be tantamount to relieving 

[the employer and director] of the requirement of posting a bond. 

Because the requirements for filing an appeal of the Labor 

Commissioner’s order, decision or award were not met, the trial 

court properly did not consider the merits of the case, and neither 

may we.” (Ibid.)
13

The court reached a similar conclusion in Cardinal Care 

Management, LLC v. Afable (2020) 47 Cal.App.5th 1011

(Cardinal Care). There, the Labor Commissioner awarded 

unpaid wages to former employees of several residential care 

facilities. (Id. at p. 1016.) The employers appealed the Labor 

Commissioner’s award to the superior court pursuant to section 

98.2 and applied for a waiver of the bond requirement. (Ibid.) As 

here, the superior court denied the employers’ request for a 

waiver and dismissed their appeal. (Id. at p. 1018.)

On appeal, the court declined to consider the argument that 

the Labor Commissioner erred by imposing individual liability on 

the employers’ principal. (Cardinal Care, supra, 47 Cal.App.5th 

at p. 1023.) Citing Williams, the court ruled that it “would be 

inappropriate here to decide whether the [Labor] Commissioner

erred in holding [the principal] individually liable, for to address 

the merits of appellants’ challenge to the [Labor] Commissioner’s 

ruling would be tantamount to relieving appellants of the 

requirement that they post a bond to appeal that ruling.” (Ibid.)

As in Williams and Cardinal Care, we decline to reach the 

merits of Ernst’s challenge to the Award. Indeed, Ernst’s 

principal argument on appeal is that the Labor Commissioner 

erred in determining Del Real was an employee, not an 

independent contractor, when he performed the disputed work. 

This is a direct challenge to the merits of the Award. Because 

Ernst failed to post the bond required by section 98.2, subdivision 

(b), or obtain a waiver from that requirement, reaching the 

merits of her challenge to the Award would be tantamount to 

relieving her of the requirements of section 98.2. (Cardinal Care,

supra, 47 Cal.App.5th at p. 1023; Williams, supra, 123 

Cal.App.4th at p. 615.) 
14

Nor are we persuaded a different result is warranted 

because Ernst appeals the superior court’s entry of judgment, not 

the dismissal of her de novo appeal of the Labor Commissioner’s 

award under section 98.2. This argument elevates form over 

substance. The reason Ernst contends the superior court was 

barred from entering judgment under Business and Professions 

Code section 7031, subdivision (a), is the Labor Commissioner’s 

allegedly erroneous determination that Del Real was entitled to 

unpaid wages despite being an unlicensed contractor. In other 

words, the foundation of Ernst’s argument that the superior court

erred in entering judgment is her challenge to the merits of the 

Award. For the reasons described earlier, we decline to address 

the merits of Ernst’s challenge to the Award.9

D. Ernst’s Remaining Arguments Lack Merit

Ernst raises several additional arguments in support of her 

appeal. She contends that the Labor Commissioner’s imposition 

of liquidated damages and waiting time penalties of more than 

$25,000 was unconstitutionally excessive; that requiring her to 

9 Ernst relies on Fillmore v. Irvine (1983) 146 Cal.App.3d 649 

in support of her argument that Business and Professions Code 

section 7031, subdivision (a), barred the superior court from 

entering judgment based on the Labor Commissioner’s award. 

That case is distinguishable. It does not concern the superior 

court’s authority to enter judgment based on a final award of the 

Labor Commissioner where an appeal from the Labor 

Commissioner’s award was forfeited. We express no view about 

whether, had Ernst raised her argument regarding Business and 

Professions Code section 7031, subdivision (a), in connection with 

a proper de novo appeal, the argument would have been 

meritorious.
15

post a bond as a condition of a de novo appeal under section 98.2 

deprived her of due process and that subjecting her to the bond 

requirement while permitting others with similar claims to 

access the courts without imposing a bond requirement violated

equal protection.

Ernst forfeited these arguments by failing to raise them 

before the trial court. (See Jackpot Harvesting Co., Inc. v. 

Superior Court (2018) 26 Cal.App.5th 125, 154 [“As a general 

rule, ‘constitutional issues not raised in earlier civil proceedings 

are waived on appeal.’ ”]; Fourth La Costa Condominium Owners 

Assn. v. Seith (2008) 159 Cal.App.4th 563, 585 [declining to reach 

due process and equal protection arguments not raised in trial 

court].) But even if we were to consider them for the first time on 

appeal (Hale v. Morgan (1978) 22 Cal.3d 388, 394 (Hale)), we 

would conclude they lack merit.

1. The Labor Commissioner Did Not Impose 

Excessive Penalties Against Ernst 

Ernst cites only Hale in support of her argument that 

imposition of liquidated damages and waiting time penalties was 

unconstitutionally excessive, but Hale emphasized that the

statutory scheme at issue in that case imposed “potentially 

infinite penalties.” (Hale, supra, 22 Cal.3d at p. 402; see also id. 

at p. 399 [“importantly, the duration of the penalties is 

potentially unlimited”]; id. at p. 404 [“operation of the penalty . . . 

is mandatory, mechanical, potentially limitless in its effect”].) 

In concluding the penalty provision at issue could produce 

unconstitutionally excessive penalties, Hale contrasted the

provision with other statutes appropriately limiting penalties “to 

a fixed multiple of actual damages, to a specified total amount 

per ‘violation’ or to a fixed duration,” and cited Labor Code 
16

section 203—the very provision at issue in Ernst’s appeal10—as 

one such example. (Hale, supra, 22 Cal.3d at p. 401 [“One 

statute, Labor Code section 203, while imposing a daily penalty 

for a continuing failure to pay wages due at an employee’s 

termination, nonetheless limits the penalty to 30 days.”]; § 203, 

subd. (a) [imposing penalty of unpaid wages but providing that 

“the wages shall not continue for more than 30 days.”].) Hale 

further observed that imposition of the challenged penalty 

provision “over a limited period may indeed, in a given case, be a 

perfectly legitimate means of encouraging compliance with [the] 

law.” (Hale, at p. 404.)

Hale therefore undermines, not supports, Ernst’s argument

that the penalties imposed by section 203 are unconstitutionally 

excessive. Because Ernst fails to direct our attention to any other 

case law, let alone a case holding that imposition of the maximum 

statutory penalty under section 203 was unconstitutionally 

excessive, we decline to reach that conclusion here.

10 Ernst challenges both the Labor Commissioner’s imposition 

of $24,999.99 in penalties pursuant to section 203, and $480 in 

liquidated damages pursuant to section 1194.2. Given the 

significantly greater penalty imposed under section 203, we 

assume Ernst’s challenge focuses on that section. Even so, we 

note that the liquidated damages imposed by section 1194.2, like 

the penalties imposed by section 203, are not potentially 

unlimited like the penalties at issue in Hale. (§ 1194.2, subd. (a) 

[“an employee shall be entitled to recover liquidated damages in 

an amount equal to the wages unlawfully unpaid and interest 

thereon.”].)
17

2. The Bond Requirement Under Section 98.2 

Does Not Violate Due Process or Equal 

Protection

Ernst argues that the bond requirement in section 98.2 

amounts to a “filing fee [that] effectively prevents access to the 

courts, depriving the homeowner of property” in violation of due 

process. We disagree. 

Ernst was not required to post a bond to obtain a de novo 

appeal under section 98.2. As noted, she had the right to seek a 

waiver of the bond requirement (Burkes, supra, 26 Cal.App.5th at 

p. 343), and exercised that right by seeking a waiver of the bond 

requirement with the superior court. 

In any event, we agree with the court’s conclusion in 

Palagin that “even if the jurisdictional undertaking requirement 

did affect the availability of the trial de novo process for 

employers, by no means does it deprive the employer of a full and 

fair opportunity to be heard on the employee’s wage claim.” 

(Palagin, supra, 222 Cal.App.4th at p. 138.) As the court 

observed, the “primary process for deciding wage claims is not the 

trial de novo reflected in section 98.2, but the administrative 

procedure reflected in section 98; requiring a timely bond for a 

trial de novo does nothing to minimize the employer’s ability to 

make its case during the administrative process. A jurisdictional 

undertaking requirement therefore poses no barrier to a fair 

adjudication of the wage claim, but merely conditions the 

availability of a further trial de novo process that the Legislature 

does not have to provide at all.” (Ibid.)

We find the reasoning of Palagin persuasive and conclude 

that the bond requirement under section 98.2 did not deprive 
18

Ernst of due process.

11 (Cf. Cardinal Care, supra, 47 Cal.App.5th 

at p. 1023 [rejecting “appellants’ suggestion that the limited 10-

day time period for obtaining an undertaking deprived them of 

substantive due process.”]; Burkes, supra, 26 Cal.App.5th at 

pp. 344–345 [rejecting argument that “abbreviated appellate 

window under section 98.2(b) makes it unduly burdensome and 

‘harsh’ to require filing a request for [bond] waiver within that 

time, particularly for small, self-represented employer.”].)

11 Ernst cites Payne v. Superior Court (1976) 17 Cal.3d 908

(Payne), Brooks v. Small Claims Court (1973) 8 Cal.3d 661, and 

Wiren v. Eide (9th Cir. 1976) 542 F.2d 757 (Wiren), in support of 

her due process argument. Those cases are distinguishable. 

Payne addressed whether an indigent prisoner was denied due 

process in a civil suit where he was unable to appear and defend 

the suit or afford counsel. (Payne, at pp. 911–912.) By contrast, 

the record suggests Ernst appeared at both the Labor 

Commissioner and superior court proceedings. In Brooks, the

petitioner challenged the undertaking requirement for an appeal 

from small claims court, contending the “undertaking 

requirement unconstitutionally deprive[d] her of her property 

before there has been a due process hearing with the right to 

counsel.” (Brooks, at p. 665.) Here, however, Ernst was entitled 

to be represented by counsel at all stages of her de novo appeal, 

including during her efforts to obtain a waiver of the bond 

requirement. We also note that Skelly v. State Personnel Bd.

(1975) 15 Cal.3d 194, criticized Brooks for using a “rather rigid 

and mechanical interpretation of the due process clause,” which 

was inconsistent with the “somewhat less inflexible” approach of

more recent high court decisions. (Skelly, at pp. 208–209.) Last, 

unlike section 98.2, the statutory scheme at issue in Wiren did 

not provide an indigent claimant a means of obtaining relief from 

the applicable bond requirement. (Wiren, at p. 764.)
19

Last, Ernst contends it violates equal protection to require 

her to post a bond to obtain a de novo appeal under section 98.2, 

“while permitting others to have access to the courts over similar 

claims” without requiring such a bond. We reject this argument

too. 

Ernst’s equal protection argument, which does not identify 

a suspect classification or fundamental right, is entitled to 

rational basis review. (See Ortwein v. Schwab (1973) 410 U.S. 

656, 660 [equal protection challenge to filing fee for review of 

public benefits determination subject to rational basis review]; 

United States v. Kras (1973) 409 U.S. 434, 446 [equal protection 

challenge to bankruptcy court filing fee by indigent petitioner 

subject to rational basis review]; Gates v. Superior Court (1995) 

32 Cal.App.4th 481, 514 [noting high court “has repeatedly 

applied the rational basis test to statutes affecting the right to 

participate in civil litigation.”].) “To mount a successful rational 

basis challenge, a party must ‘ “negative every conceivable 

basis” ’ that might support the disputed statutory disparity.” 

(Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) “If 

a plausible basis exists for the disparity, courts may not secondguess its ‘ “wisdom, fairness, or logic.” ’ ” (Ibid.) 

We have little trouble finding a plausible basis for the bond 

requirement of section 98.2, subdivision (b). The purpose of the 

bond requirement is to “ ‘discourage employers from filing 

frivolous appeals and from hiding assets in order to avoid 

enforcement of the judgment.’ ” (Palagin, supra, 222 Cal.App.4th 

at p. 137; see also Cardinal Care, supra, 47 Cal.App.5th at 

pp. 1018–1019 [bond requirement “discourages unmeritorious 

appeals and minimizes the time for an employer to divest itself of 

assets in order to deprive the employee of the possibility of 
20

enforcing the award”].) Ernst offers no reason that the bond 

requirement in section 98.2, subdivision (b), is not an effective 

means to accomplish this statutory purpose.12 Thus, rational 

basis review is met.

12 Ernst’s reliance on Payne and Wiren in support of her equal 

protection argument is again misplaced. Payne required a 

“compelling state interest” to resolve the equal protection claim 

at issue (Payne, supra, 17 Cal.3d at p. 919); here only rational 

basis review is required, and we find that standard easily 

satisfied. Moreover, the bond requirement at issue in Wiren

barred indigent parties “of the opportunity for any hearing at 

all.” (Wiren, supra, 542 F.2d at p. 763.) Here, Ernst had a 

hearing before the Labor Commissioner on Del Real’s wage claim, 

and the bond requirement did not bar her from seeking a de novo 

appeal under section 98.2. Rather, she had the right to obtain a 

waiver of the bond requirement. (Burkes, supra, 26 Cal.App.5th 

at p. 343.) 
21

DISPOSITION

The judgment is affirmed. Del Real shall recover his costs 

on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

ADAMS, J.*

*

 Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.