Angela Reddock (Bar No. 183159)

Angela Reddock (Bar No. 183159)

H. Scott Leviant (Bar No. 200834)

Collins, Mesereau, Reddock & Yu

1875 Century Park East, Suite 600

Los Angeles, CA 90067

Telephone: (310) 284-3120

Fax: (310) 284-3122

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

FLORENTINO CRUZ APELES, an individual; FLORENTINO CRUZ APELES dba WEST L.A. CAR WASH & DELI-MART,
Petitioners,
vs.
CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF LABOR STANDARDS ENFORCEMENT; LABOR COMMISSIONER, STATE OF CALIFORNIA; HEARING OFFICER BRUCE A. DARBY
Respondents. / Case No.:
PETITION FOR WRIT OF ADMINISTRATIVE MANDATE, PROHIBITION OR OTHER APPROPRIATE RELIEF; MEMORANDUM OF SUPPORTING POINTS AND AUTHORITIES; VERIFICATION; DECLARATION OF ANGELA REDDOCK, ESQ.
Petition Filed:May 28, 2004
Trial Date:

Petitioners FLORENTINO CRUZ APELES and WEST L.A. CAR WASH & DELI-MART complain of Respondents and allege as follows in support of their Petition for Writ of Administrative Mandate (Mandamus), Prohibition or Other Appropriate Relief:

1

Petition For Writ Of Administrative Mandate, Prohibition Or Other Appropriate Relief

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

TABLE OF EXHIBITS

I.INTRODUCTORY ALLEGATIONS

II.PETITION FOR WRIT OF MANDATE, PROHIBITION OR OTHER APPROPRIATE RELIEF.

A.Authenticity of Exhibits.

B.Beneficial Interest of Petitioner; Capacities of Respondent.

C.Basis for Relief.

D.Chronology of Pertinent Events.

E.Labor Code Sections 226.5, 558 and 1197.1 Expressly Provide For Petitioners’ Statutory Right To Review By Writ Proceeding.

III.PRAYER

IV.MEMORANDUM OF POINTS AND AUTHORITIES

A.The $120,350.00 Civil Penalty Assessed Against Petitioners Violated Both Their Substantive And Their Procedural Due Process Rights By Exacting An Excessive Penalty In The Absence Of Counsel.

1.Under Hale’s Case-By-Case Constitutionality Analysis, The Grossly Excessive Nature Of The $120,350.00 Penalty Violates Petitioner’s Substantive Due Process Rights.

2.By Proceeding In The Absence Of Petitioners’ Counsel And Obtaining An Oppressive Civil Penalty, The DLSE Violated Petitioners’ Procedural Due Process Rights.

B.The Hearing Officer’s Failure To Reduce The DLSE’s Penalty Assessments Is Either De Facto Unlawful, Or An Unreasonable Abuse Of Discretion, In Light Of The Failure To Consider Uncontested Evidence Of “Inadvertence”.

C.The $120,350.00 Penalty Assessed Against Petitioners Is Unjustified, In Light Of The Ambiguous Provisions Of The Labor Code, The Ambiguity Found In The Labor Commission’s Enforcement Guidelines, And The Harsh Outcome.

D.This Issue Will Resurface, Irrespective Of Whether This Petition Is Granted.

V.CONCLUSION

TABLE OF AUTHORITIES

Cases

Balmoral Hotel Tenants Assn. v. Lee (1990) 226 Cal.App.3d 686...... 13

California Pine Box & Lumber Co. v. Superior Court (1910) 13 Cal.App. 65...... 19

Hale v. Morgan(1978) 22 Cal.3d 388...... passim

In re Dennis M. (1969) 70 Cal.2d 444...... 14, 15

Kinney v. Vaccari (1980) 27 Cal.3d 348...... 15

McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348...... 15

Nightlife Partners v. City of Beverly Hills (Cal.App.2nd Dist. 2003) 108 Cal.App.4th 81...... 16

People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621...... 13

Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095...... 21

Universal City Studios, Inc., v. Worker's Comp. Appeals Bd. (1979) 99 Cal.App.3d 647...... 15

Federal Citations

Boddie v. Connecticut (1971) 401 U.S. 371...... 13

Bracy v. Gramley (1997) 520 U.S. 899...... 16

Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422...... 16

Richardson v. Perales (1971) 402 U.S. 389...... 16

Statutes

Code of Civil Procedure section 1094.5...... 18

Labor Code section 1197...... passim

Labor Code section 1197.1...... passim

Labor Code section 22...... 20

Labor Code section 226...... passim

Labor Code section 226.3...... passim

Labor Code section 510...... 9, 19, 21

Labor Code section 558...... passim

Labor Code section 98...... 17

Regulations

8 California Code of Regulations section 13507...... 16

8 California Code of Regulations section 13508...... 17

TABLE OF EXHIBITS[1]

Exhibit “1”:Incomplete Notice of Findings and Order.

Exhibit “2”:Corrected Notice of Findings and Order.

Exhibit “3”:Hearing exhibits introduced at the March 26, 2004 hearing of Petitioners administrative appeal of citations issued by the Department of Labor Standards Enforcement.

Exhibit “4”:Enforcement Guidelines issued by the Department of Industrial Relations, Division of Labor Standards Enforcement.

1

Petition For Writ Of Administrative Mandate, Prohibition Or Other Appropriate Relief

PETITION FOR WRIT OF MANDATE, PROHIBITION OR OTHER APPROPRIATE RELIEF

I.INTRODUCTORY ALLEGATIONS

“Summum ius summa iniuria [Extreme justice is extreme injustice]” – Legal Maxim, cited by Cicero in De Officiis, I, 10, 33.

1.The California Department of Industrial Relations, Division Of Labor Standards Enforcement (hereinafter “DLSE”), should be in the business of dispensing even-handed, measured justice. In this sad instance, however, the DLSE left reason and fairness behind, engaging, instead, in a mechanical form of extreme injustice when it assessed a civil penalty of $120,350.00 against Petitioner West L.A. Car Wash & Deli-Mart.

2.What alleged malfeasance justified the DLSE’s mighty fine? According to the DLSE, Petitioner West L.A. Car Wash & Deli-Mart gave its employees paychecks that didn’t have the right type of detachable wage withholdings stubs. In addition, according to the DLSE, Petitioner West L.A. Car Wash & Deli-Mart didn’t meet overtime pay and minimum wage requirements when it paid certain employees on a “commission” or “piece work” basis (irrespective of the fact that the employees demanded that they remain on the “commission” pay system). The DLSE tallied up hundreds of instances of alleged offending conduct, added up the civil penalties like a ponderous adding machine, and then enforced their penalties without remorse, without moderation, without consideration of any mitigating factor.

3.West L.A. Car Wash & Deli-Mart is a small business. A civil penalty of $120,350.00 is tantamount to a death blow. The extreme justice of the DLSE is no justice at all. Petitioners ask this Court to safeguard their substantive due process rights by intervening to correct a grossly excessive example of justice taken to destructive excess.

II.PETITION FOR WRIT OF MANDATE, PROHIBITION OR OTHER APPROPRIATE RELIEF.

A.Authenticity of Exhibits.

4.All exhibits accompanying this Petition are true copies of original documents on file with the Respondent Dept. of Industrial Relations, Div. Of Labor Standards Enforcement (hereinafter “DLSE”) or otherwise available to Respondent DLSE. (See, Declaration of Angela Reddock attached hereto, at ¶¶ 2-4.) All of the Exhibits are incorporated herein by reference as though fully set forth in this Petition.

B.Beneficial Interest of Petitioner; Capacities of Respondent.

5.Petitioners are the Responding Parties (and Appellants) in an action entitled In the matter of Civil Penalty Citation/Assessment: Florentino Cruz Apeles, an individual dba, West L.A. Car Wash & Deli-Mart, Division of Labor Standards Enforcement Case No. 35-45498-025, before the California Department of Industrial Relations, Division of Labor Standards Enforcement. Respondents are the DLSE, which issued and prosecuted the relevant citations/assessments against Petitioners, the Labor Commissioner of the State of California, and Hearing Officer Bruce A. Darby, who represented the Labor Commissioner and presided at the hearing of Petitioners’ administrative appeal of the citations issued by the DLSE.

C.Basis for Relief.

6.The issues presented by this Writ Petition are: (1) whether the Labor Commissioner and the DLSE violated Petitioners’ substantive due process rights by assessing a grossly excessive $120,350.00 civil penalty; (2) whether the Labor Commissioner and the DLSE violated Petitioners’ procedural due process rights by proceeding with a hearing in the absence of Petitioners’ counsel, when Petitioners were imperiled in an amount of approximately $120,350.00; (3) whether the Labor Commissioner violated provisions of the Labor Code by failing to consider and apply the uncontested mitigating factor of “inadvertence” to reduce the penalty assessment issued against Petitioners; and (4) whether provisions of the Labor Code are so ambiguous as to render unjust the DLSE’s calculation of the $120,350.00 civil penalty.

D.Chronology of Pertinent Events.

7.Petitioner West L.A. Car Wash & Deli-Mart is located at 11350 W. Olympic Boulevard, in Los Angeles. West L.A. Car Wash & Deli-Mart provides carwash and “convenience store” services to its patrons. West L.A. Car Wash & Deli-Mart has been in operation since 1996.

8.Petitioner Florentino Cruz Apeles, an individual doing business as West L.A. Car Wash & Deli-Mart, operates his carwash business with the assistance of his wife, Agnes Apeles. [Mr. and Mrs. Apeles immigrated to the United States in ______.]

9.Prior to July 2003, the employees of West L.A. Car Wash & Deli-Mart were paid on a “piece work” (commission) system, based upon the number of cars washed during the day. West L.A. Car Wash & Deli-Mart maintained payroll records for all employees that listed information about wages and withholdings. On several instances prior to July 2003, West L.A. Car Wash & Deli-Mart offered to pay carwash employees on an hourly basis; however, the employees uniformly refused hourly pay, asserting that they had the opportunity to earn more on the 23% “commission” system.

10.On or about July 29, 2003, the employees at West L.A. Car Wash & Deli-Mart were advised that, beginning on or about Wednesday, July 30, 2003, the employees would be paid on an hourly basis. The employees of West L.A. Car Wash & Deli-Mart, angry about the planned shift to hourly pay, quit their jobs at West L.A. Car Wash & Deli-Mart and engaged in a “strike” lasting about two days (July 31, 2003 – August 1, 2003). The “strike” received media coverage when the “striking” and/or former employees gathered across the street from the business to protest on Thursday and Friday. Mr. Apeles, speaking to press reporters, said that the employees were all welcome to return to work.

11.During their protest “strike”, the employees also filed complaints against West L.A. Car Wash & Deli-Mart at the offices of the Labor Commission. Soon thereafter, several of the employees returned to work at West L.A. Car Wash & Deli-Mart.

12.On August 6, 2003, Deputy Labor Commissioner Lilia Ramirez issued three citations against West L.A. Car Wash & Deli-Mart. The citations charged numerous violations of Labor Code sections 226, 510 and 1197. Specifically, the DLSE asserted 387 separate violations of Labor Code section 226. In addition, the DLSE asserted 236 separate violations of Labor Code sections 510 and 1197.

13.With respect to Labor Code section 226, the DLSE calculated 387 violations of that section by alleging that every paycheck issued by Petitioner West L.A. Car Wash & Deli-Mart to each of eleven separate employee during the period of 8/6/2002 to 8/1/2003 lacked the correct type of detachable check stub listing withholding information.

14.With respect to Labor Code sections 510 and 1197, the DLSE calculated 236 separate violations of each section by alleging that on 236 separate instances, eight employees of Petitioner West L.A. Car Wash & Deli-Mart did not receive correct overtime wages or correct minimum wages. The citations for violations of sections 510 and 1197 were cumulative in that Petitioner West L.A. Car Wash & Deli-Mart attempted to pay workers on a “commission” basis, but the DLSE allege that the “commission” system did not correctly provide for a minimum wage or overtime pay. As a result, each paycheck to eight separate employees during the period of 8/6/2002 to 8/1/2003 was determined by the DLSE to provide a basis for two separate violations (in addition to the alleged violation for not providing the correct type of check withholdings informational stub).

15.On August 13, 2003, West L.A. Car Wash & Deli-Mart appealed the DLSE citations and requested a hearing.

16.On August 29, 2003, Petitioners went to the offices of Deputy Labor Commissioner Lilia Ramirez and submitted employee payroll records. On October 6, 2003, prior counsel for Petitioners submitted their response to the employee complaints filed with the Labor Commission on or about July 31, 2003.

17.On December 1, 2003, December 5, 2003 and January 6, 2004, Petitioners received notices of withdrawal of the several employee complaints filed against West L.A. Car Wash & Deli-Mart, leaving only the appeal of the DLSE citations unresolved.

18.In mid-February 2004, West L.A. Car Wash & Deli-Mart received a notice of a March 26, 2004 appeal hearing before the Department of Industrial Relations. However, at this time, Mr. and Mrs. Apeles were out of town. The office employees at West L.A. Car Wash & Deli-Mart believed that the letter from the Department of Industrial Relations pertained to a Cal-OSHA matter, since the envelope was identical to that used for Cal-OSHA correspondence. When Mr. and Mrs. Apeles returned and discovered the notice, they had little time to prepare for the hearing. To make matters worse, their former counsel, Toni J. Jaramilla, was out of town on March 26, 2004.

19.Petitioners requested a continuance of the March 26, 2004 hearing so that their attorney could be present. Petitioners’ request was denied, and the hearing commenced as set.

20.During the hearing, the DLSE introduced a series of exhibits. True and correct copies of the DLSE’s hearing exhibits are attached to the Declaration of Angela Reddock as Exhibit “3” and are incorporated herein by reference.

21.At the hearing, Petitioners testified that their alleged violations of Labor Code sections 226, 510 and 1197 were not intentional or malicious. Instead, Petitioners testified that the alleged violations were unintentional. The DLSE did not introduce any evidence that would suggest that Petitioners violated Labor Code sections 226, 510 and 1197 willfully, maliciously, intentionally, recklessly, or with any other culpable mens rea.

22.On April 12, 2004, Petitioners received Hearing Officer Bruce A. Darby’s Notices of Findings and Orders thereon. However, the Notices were all misdated and the Findings were incomplete, missing several pages. A true and correct copy of the misdated and incomplete Notice of Findings and Orders is attached to the Declaration of Angela Reddock as Exhibit “1” and is incorporated herein by reference. A true and correct copy of the corrected and complete Notice of Findings and Orders, obtained by Petitioner’s counsel, is attached to the Declaration of Angela Reddock as Exhibit “2” and is incorporated herein by reference. The Hearing Officers’ Orders confirmed civil penalties in amounts of $96,750, $11,800 and $11,800, for a total civil penalty of $120,350.00. The Hearing Officer’s findings included the finding that Petitioners asserted that the alleged violations were unintentional. The Hearing Officer’s findings did not include any finding, or reference any evidence, that would suggest that Petitioners violated Labor Code sections 226, 510 and 1197 willfully, maliciously, intentionally, recklessly, or with any other culpable mens rea. The Hearing Officer did exercise any discretion when he declined to reduce the civil penalties to a reasonable and constitutionally acceptable level.

23.Petitioners hereby exercise their right to review by Petition for a Writ of Mandate.

E.Labor Code Sections 226.5, 558 and 1197.1 Expressly Provide For Petitioners’ Statutory Right To Review By Writ Proceeding.

24.Labor Code section 226.5 provides, in pertinent part:

“A writ of mandate may be taken from this finding to the appropriate superior court, as long as the party agrees to pay any judgment and costs ultimately rendered by the court against the party for the assessment. The writ shall be taken within 45 days of service of the notice of findings, findings, and order thereon.”

Labor Code section 1197.1 similarly provides that, with respect to any finding under this section, a “writ of mandate may be taken from this finding to the appropriate superior court.” (Labor Code, § 1197.1.) Labor Code section 558 provides, “The procedures for issuing, contesting, and enforcing judgments for citations or civil penalties issued by the Labor Commissioner for a violation of this chapter shall be the same as those set out in Section 1197.1.”

III.PRAYER

Petitioners pray that this Court:

1.Issue a Peremptory Writ in the First Instance prohibiting Respondent from assessing or recovering a civil penalty from Petitioners in any amount.

2.In the alternative, issue a Peremptory Writ in the First Instance remanding the matter for further proceedings to determine whether any penalty, in a reasonable and constitutional amount, should be assessed against Petitioners.

3.In the alternative, issue an Alternative Writ mandating that Respondents either withdraw the penalty assessment imposed upon Petitioners orshow cause why they should not be prohibited from assessing and/or recovering a civil penalty from Petitioners in any amount.

4.In the alternative, issue an Alternative Writ mandating that Respondents either withdraw the penalty assessment imposed upon Petitioners and conduct further proceedings to determine whether any penalty, in a reasonable and constitutional amount, should be assessed against Petitioners orshow cause why this matter should not be remanded for further proceedings to determine whether any penalty, in a reasonable and constitutional amount, should be assessed against Petitioners.

5.Award Petitioner their costs pursuant to Rule 56.4 of the California Rules of Court; and

6.Grant such other relief as may be just and proper.

Dated this 27th day of May 2004.Respectfully submitted,

Collins, Mesereau, Reddock & Yu

By: / Angela Reddock, Esq.
Attorneys for Petitioners FLORENTINO CRUZ APELES, an individual dba WEST L.A. CAR WASH & DELI-MART

1

Petition For Writ Of Administrative Mandate, Prohibition Or Other Appropriate Relief

IV.MEMORANDUM OF POINTS AND AUTHORITIES

A.The $120,350.00 Civil Penalty Assessed Against Petitioners Violated Both Their Substantive And Their Procedural Due Process Rights By Exacting An Excessive Penalty In The Absence Of Counsel.

Petitioners’ challenge to the constitutionality of civil penalties imposed by Labor Code sections 226.3, 558 and 1197.1 is believed by Petitioners to be a question of first impression in California.

Petitioners assert a violation of their substantive due process rights, based upon the grossly excessive size of the penalty issued against them.Specifically, Petitioners contend that the mechanical application of civil penalties imposed by Labor Code sections 226.3, 558 and 1197.1 is unconstitutional here, due to the disparity between the nature of the charged offenses and the resulting size of the penalty. (Hale v. Morgan (1978) 22 Cal.3d 388.)