Lilia Garcia-Brower vs Elmer Chacon Guevara

Case Number

25CV04450

Case Type

Hearing Date / Time

Fri, 11/14/2025 - 10:00

Nature of Proceedings

Order to Show Cause

Tentative Ruling

For all reasons stated herein, the petition of petitioner Labor Commissioner Lilia Garcia-Brower, is granted. Petitioner shall submit a corrected proposed order for the court’s signature, which conforms to the court’s ruling herein. Further, petitioner shall, on or before November 21, 2025, serve and file proof of service of notice of the court’s ruling herein on respondent Elmer Chacon Guevara.

Background:

On July 17, 2025, petitioner Lilia Garcia-Brower (the Commissioner), who is the chief of the Division of Labor Standards Enforcement (the DLSE), also known as the Office of the Labor Commissioner, of the Department of Industrial Relations of the State of California, filed a petition against respondent Elmer Chacon Guevara (Guevara), doing business as J & R Gardening Service, to compel compliance with an administrative subpoena. As alleged in the petition:

Guevara operates a gardening business located at 411 E. Canon Perdido Street in Santa Barbara, California, and employs labor. (Pet., ¶¶ 2-3.) On May 2, 2025, the Commissioner served an investigative subpoena (the Subpoena) on Guevara, seeking information to verify compliance with the Labor Code. (Pet., ¶ 16 & Attachment A.) The discovery sought by the Subpoena spans the period from May 2, 2022, to May 2, 2025, and is relevant and necessary to enable the Commissioner to investigate whether Guevara has been complying with minimum wage and overtime pay requirements, and if not, to determine the identities of underpaid employees, the amounts due as underpayments and for liquidated damages and penalties for such underpayments, and the identities of any individuals who may share liability with Guevara for any such amounts that may be owed. (Pet., ¶ 16.)

On May 30, 2025, the day appointed to appear, Guevara failed to appear at the Commissioner’s office to provide the requested documents. (Pet., ¶ 16.) Guevara has not produced the requested documents. (Pet., ¶ 18.) The Commissioner seeks an order compelling Guevara to produce the records sought in the Subpoena. (Pet., ¶ 19.)

On July 17, 2025, the court signed an order setting an order to show cause hearing on the petition (the OSC) for September 12. The court further ordered that the OSC and all papers filed by the Commissioner in this action be served on Guevara no later than August 1, that any opposition to the OSC by Guevara be served and filed not later than August 18, and that any reply by the Commissioner be filed and served by September 3.

On August 1, 2025, the Commissioner filed a memorandum in support of the OSC, which is supported by a declaration of Susan Maroko (Maroko) who is a Deputy Labor Commissioner for the DLSE’s Bureau of Field Enforcement (the BOFE). (Maroko Decl., ¶ 1.) Maroko asserts that on September 5, 2023, she was assigned to investigate a “Report of Labor Law Violations” that was filed with the Commissioner’s office on July 11, 2023. (Maroko Decl., ¶ 2.) Maroko further asserts that twenty-two “Wage Adjudication Claims” that were filed with the Commissioner’s office against Guevara between November 22, 2022, and February 21, 2024, were placed on “stay” to allow the BOFE to investigate under is auspices. (Maroko Decl., ¶ 3.)

Maroko states that on May 2, 2025, the BOFE served Guevara with the Subpoena, seeking information to verify Guevara’s compliance with the Labor Code. (Maroko Decl., ¶ 4 & Exh. 1.) Guevara failed to appear at the Commissioner’s office on May 30, the day appointed to appear, and has avoided any attempt from the BOFE to fully investigate Labor Code violations. (Maroko Decl., ¶¶ 5-6.) Maroko asserts that, without the requested documents, the BOFE unit cannot complete its investigation of Guevara. (Maroko Decl., ¶ 7.)

At the hearing on the OSC held on September 12, 2025, counsel for the Commissioner informed the court that the Commissioner attempted to serve the OSC on Guevara by July 17, 2025, but was unable to do so. (Oct. 2, 2025, Order at p. 1.) The Commissioner further stated that they obtained an alternative address for Guevara, and requested that the court continue the OSC to November 14, which the court granted. (Id. at p. 2.) The court ordered that Guevara be served with all papers, including the court’s orders, by October 16, and set a new briefing schedule as to any opposition to the OSC that may be made by Guevara, and any reply to that opposition. (Ibid.)

The Commissioner filed a second memorandum and declaration by Maroko on October 21, 2025, which appear to be identical to the memorandum and declaration filed by the Commissioner on August 1, and described above.

On October 31, the Commissioner filed a proof of service signed by Colleen M. Dennis, who is employed by Ace Attorney Service, Inc., and who declares that the petition, OSC, the memorandum, and the Maroko declaration were personally served on Guevara on October 16, 2025.

As of this writing, the court has no record of Guevara having filed any opposition to the OSC, or otherwise responding to the petition.

Analysis:

“Except as provided in subdivision (c), if any witness refuses ... to attend or testify or produce or permit the inspection or copying of any papers or other items described in subdivision (e) of Section 11181 required by subpoena, the head of the department may petition the superior court in the county in which the hearing or investigation is pending or the county in which testimony is designated in the subpoena to be given or documents or other items are designated in the subpoena to be produced, for an order compelling the person ... to attend and testify or produce and permit the inspection and copying of the papers or other items required by the subpoena before the officer named in the subpoena.” (Gov. Code, § 11187, subd. (a).)

“Upon the filing of the petition the court shall enter an order directing the person to appear before the court at a specified time and place and then and there show cause why the person has not attended, testified, ... or produced or permitted the inspection or copying of the papers or other items described in subdivision (e) of Section 11181 as required. A copy of the order shall be served upon the person in the manner provided for the service of a summons described in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure. If it appears to the court that the subpoena was regularly issued, ... by the head of the department, the court shall enter an order that the person appear before the officer named in the subpoena at the time and place fixed in the order and testify or produce and permit the inspection and copying of the required papers or other items described in subdivision (e) of Section 11181 as required ....” (Gov. Code, § 11188.)

The proof of service described above is sufficient to show on its face that the OSC was personally served on Guevara on October 16, 2025. The present record also shows that the Subpoena was regularly issued by the Commissioner, which the undisputed record described above indicates is the head of the DLSE. The petition also sets forth the matters required under Government Code section 11187, subdivision (b)(1) through (3), and is procedurally appropriate.

“The Labor Commissioner, his deputies and agents, may issue subpoenas to compel the attendance of witnesses and parties and the production of books, papers and records; administer oaths; examine witnesses under oath; take the verification, acknowledgment, or proof of written instruments; and take depositions and affidavits for the purpose of carrying out the provisions of this code and all laws which the division is to enforce.” (Lab. Code, § 92.) “Obedience to subpoenas issued by the Labor Commissioner, or his deputies or agents shall be enforced by the courts.” (Lab. Code, § 93.)

“An administrative subpoena may be enforced if it is issued ‘for “a lawfully authorized purpose, within the power of [the legislative body] to command.” ’ [Citations.] The documents demanded must be relevant and ‘ “adequate, but not excessive, for the purposes of the relevant inquiry.” ’ [Citation.]” (Millan v. Restaurant Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 480-481 (Millan), original italics.)

The court has reviewed the Subpoena, which is directed to Guevara, and which commands Guevara to appear and produce the documents described in the Subpoena to the Commissioner’s office in Santa Barbara, California. (Maroko Decl., Attachment 1 at pdf p. 4.) The request for the production of documents is limited to the period beginning May 2, 2022, and ending May 2, 2025. (Id. at pdf pp. 4-5, ¶¶ 1-9.)

The Subpoena shows on its face that the documents requested by the Commissioner for the time period stated above include: records which reflect the hours worked by every person who performed services for Guevara; a list of individuals who performed these services; each individual’s job title, rate of pay, date of hire, and contact information; all non-sufficient funds checks issued by Guevara to these individuals; documents kept by Guevara under Labor Code section 226; documents reflecting cash payments issued to any individual who performed services for Guevara; entity agreements and proof of ownership for Guevara’s business, including a list of each of Guevara’s partners, officers, or members; quarterly wage and withholding reports; and workers’ compensation insurance policies. (Maroko Decl., Attachment 1, ¶¶ 1-9.)

The DLSE “may enforce the provisions of [the Labor] [C]ode and all labor laws of the state the enforcement of which is not specifically vested in any other officer, board or commission.” (Lab. Code, § 95, subd. (a).) Considering the nature of the purported or potential Labor Code and other labor law violations by Guevara as alleged in the petition and described in the Maroko declaration further discussed above, the category or type of records described in the Subpoena, and absent any dispute by Guevara, it appears that the documents sought in the Subpoena by the Commissioner “are necessary so the DLSE can enforce the labor laws which it is empowered to enforce.” (Millan, supra, 14 Cal.App.4th at p. 487.)

For all further reasons discussed above, the court will grant the petition, and direct the Commissioner to submit a corrected proposed order that conforms to the court’s ruling herein. The proposed order to be submitted by the Commissioner shall set forth an appropriate date for Guevara’s appearance and compliance with the Subpoena. Further, the court will order the Commissioner to, on or before November 21, 2025, serve, and file proof of service of, notice of the court’s ruling herein on Guevara.