Munoz v. Ojogho

1

JOSE MUNOZ, Plaintiff and Appellant, v. ENYINNAYA CHRISTIAN OJOGHO, Defendant;

GREAT AMERICAN INSURANCE COMPANY, Respondent.

JOSE MUNOZ et al., Plaintiffs and Appellants, v. A-1 SOCCER WAREHOUSE, INC., Defendant;

GREAT AMERICAN INSURANCE COMPANY, Respondent.

B312317, B316065

California Court of Appeals, Second District, Third Division

October 26, 2023

NOT TO BE PUBLISHED

APPEALS from postjudgment orders of the Superior Court of Los Angeles County, Nos. 20STCP03450, No. BS172763 David Sotelo and Stuart M. Rice, Judges. Affirmed.

Law Office of Eugene Lee and Eugene D. Lee for Plaintiffs and Appellants.

Lanak & Hanna and Mac W. Cabal for Respondent.

EGERTON, J.

INTRODUCTION

This is the second time this matter has come before us. In the first appeal, we affirmed the superior court's dismissal of defendant A-1 Soccer Warehouse, Inc.'s (A-1) de novo appeals from separate Labor Commissioner awards totaling more than $500,000 in favor of 13 of its employees, including current appellants and plaintiffs Jose Munoz and Jackelinne Chonay.

The superior court had dismissed A-1's appeals after finding it failed to post with the court the undertaking required by Labor Code^[1] section 98.2, subdivision (b) (section 98.2(b)). Relevant here, as to its de novo appeals of the awards in favor of plaintiffs Munoz and Chonay, A-1 had filed notices of appeal with the superior court, attaching uncertified copies of corporate surety appeals bonds issued by current nonparty respondent Great American Insurance Company (Great American). A-1 asserted it had posted the original bonds with the Labor Commissioner. Section 98.2(b) required A-1-as a condition to filing the appeals-to "first post an undertaking with the reviewing court in the amount of the . . . award." (Italics added.)

Plaintiffs Munoz and Chonay now appeal from orders- entered by two different superior court judges-denying motions to enforce judgments (1) jointly and severally against defendant Enyinnaya Christian Ojogho, as bond principal, and against Great American, as surety on the bond (Judge Sotelo's order); and (2) jointly and severally against defendant A-1 as bond principal, and against Great American, as surety on the bond (Judge Rice's order). Plaintiffs also appeal from Judge Rice's order denying their request for attorney fees. Defendants A-1 and Ojogho are not parties to this appeal.

We affirm the orders.

FACTS AND PROCEDURAL BACKGROUND^[2]

On May 18, 2018, the Labor Commissioner issued separate monetary awards to 13 of A-1's employees, finding A-1 and Ojogho each separately liable-for the full amount of each employee's award-for various Labor Code violations including unpaid overtime, denied meal and rest breaks, and penalties. Munoz and Chonay were awarded $29,988.44 and $85,658.78, respectively. In its decision accompanying the awards, the Labor Commissioner found Ojogho-the CEO of A-1-was individually liable for plaintiffs' wages both as the alter ego of A-1 and under section 558.1, which provides owners, directors, officers, and managing agents of an employer may be held responsible for wage and hour violations.

A-1 timely filed notices of appeal in the superior court.^[3](Ojogho did not file any notices of appeal with the superior court.) The 13 de novo appeals were consolidated.

As a condition to filing its appeals under section 98.2, A-1 first had to post undertakings with the superior court in the amount of each award. (§ 98.2(b).) As we noted, for its appeals from the awards to employees Munoz and Chonay, A-1 attached to its notices of appeal copies of corporate surety bonds issued by Great American in the respective award amounts. The bonds bear the caption and case numbers from Munoz's and Chonay's underlying cases filed with the Labor Commissioner. They each state:

"Whereas Enyinnaya Christian Ojogho, as Principal, desire [sic] to give an undertaking for an Appeal as provided by Labor Code Section 98.2. [¶] Now, Therefore, Great American Insurance Company, a corporation authorized to transact the business of Surety in the State of California, does hereby obligate itself, its successors and assigns to the plaintiff as shown above under said statutory obligations in the sum of [the Labor Commissioner's award]."^[4]

The bonds are "[s]igned, sealed and dated" as of June 7, 2018, by Great American's authorized attorney-in-fact.

On November 26, 2018, the superior court held a hearing on whether the appeals should be dismissed for A-1's failure to post undertakings with the court. As part of its opposition, A-1's attorney declared that for each appeal from the Labor Commissioner's awards, "bond/undertaking[s] were filed."

The court took the matter under submission and issued its ruling later that day. There is no reporter's transcript of the hearing. The court found that it lacked jurisdiction "because no undertaking was posted with the court in any of the consolidated cases" and dismissed the appeals.

On December 4, 2018, new counsel for A-1 substituted into the case and moved the court to reconsider its order dismissing the consolidated cases. The motion asked the court to reconsider its ruling as to the appeals involving Munoz and Chonay because A-1 posted surety bonds in those two cases. A-1's counsel argued that its former attorney may not have made the court aware that on June 7, 2018, A-1 had posted undertakings of corporate surety bonds through a licensed surety under section 98.2 obligating the surety to pay the stated amounts to those two employees. A-1's counsel attached to his declaration copies of the surety bonds and copies of the notices of appeal A-1 had filed in those two cases that included the copies of the surety bonds.

On December 31, 2018, the court heard and denied the motion for reconsideration. There is no reporter's transcript of the hearing. The court then signed the order dismissing the consolidated actions with prejudice. As discussed, we affirmed that order on March 19, 2020. In so doing, we noted A-1 had presented no declaration to the trial court stating it had posted the original bonds with the Labor Commissioner, and the uncertified copies attached to its notices of appeal bore no indication-such as a dated file stamp-that they had been posted or filed with the Labor Commissioner. Nor did the appellate record include a reporter's transcript or settled statement of the hearing on the court's dismissal of A-1's de novo appeals. We thus only could infer the trial court found the uncertified copies of the corporate surety bonds insufficient proof that A-1 indeed had posted the required bonds. Our opinion became final on May 27, 2020.^[5]

Following remittitur, on September 18, 2020, the trial court entered judgment in favor of each of the 13 plaintiff-employees, including Munoz and Chonay, and against A-1. For each plaintiff-employee, the judgment ordered the section 98.2 "undertaking[s]/bond[s] posted by Defendants with [the] Court . . . be released and delivered" to plaintiffs' counsel's trust account. That same day, plaintiffs' counsel asked Great American to release the two bonds. Great American denied plaintiffs' claims on October 7, 2020, having concluded the bonded principal-Ojogho-was not named in the awards included in A-1's de novo appeal packages filed with the superior court and not liable on the judgment entered against A-1.

Because Ojogho never filed a notice of appeal-nor paid the Labor Commissioner awards-on October 16, 2020, the Labor Commissioner filed 13 separate actions with the superior court asking the clerk to enter judgment against Ojogho in the amount of the Labor Commissioner awards plus interest and filing fees. The clerk entered judgment that same day. Munoz's and Chonay's actions against Ojogho were assigned to different judicial officers.

On December 14, 2020, in the Munoz-Ojogho action, Munoz moved to enforce judgment on the bond jointly and severally against Ojogho, as bond principal, and Great American, as surety, and for attorney fees.^[6] On January 25, 2021, Judge Sotelo heard Munoz's motion and denied it without prejudice as to Great American. Judge Sotelo agreed with Great American that, because Ojogho neither filed an appeal nor posted a bond with the court, the bond was not effective and thus the provision for bond forfeiture under section 98.2(b) did not apply.

Munoz filed a motion for reconsideration on February 4, 2021, which Judge Sotelo denied on April 5, 2021, after a hearing. The order states, "A-1 filed notices of appeal, thirteen in total, while Ojogho did not. [¶] Additionally, A-1 filed undertakings for thirteen appeals. Defendant Ojogho filed these undertakings on A-1's behalf and one of these undertakings was an appeal bond of [Munoz's] award. [¶] The issue is whether Defendant Ojogho filed this bond on his own behalf. Surety [Great American] argues that [O]ogho] filed the bond on behalf of A-1 but not himself. [¶] . . . [¶] Again, the court finds that Ojogho did not post the bond on his own behalf. The language of the bond controls over its caption: it states that Ojogho, as A-1's principal, desires to file an undertaking. It does not say that [O]ogho] is posting the bond in his individual capacity. Thus, [O]ogho] filed the bond on behalf of A-1 and not in his individual capacity."

Munoz appealed the January 25, 2021 order on March 25, 2021.

In May 2021, in the A-1 action, plaintiffs moved to enforce the A-1 judgment jointly and severally against A-1 and Ojogho, as bond principals, and Great American, as surety, and for attorney fees. The trial court, Judge Rice, denied the motion- on the ground Ojogho was not a party to the A-1 action and had not filed an appeal-without prejudice to plaintiffs filing a motion for judgment as to A-1...