Judge: Carolyn M. Caietti, Case: 37-2021-00026578-CU-WM-CTL, Date: 2023-09-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 20, 2023

09/21/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Writ of Mandate Hearing on Petition 37-2021-00026578-CU-WM-CTL SINGLETARY VS CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD CAUSAL DOCUMENT/DATE FILED:

The Court will hear from the parties as indicated herein.

Background This is a petition brought under C.C.P. section 1094.5. Petitioner alleges she filed to collect Pandemic Unemployment Assistance (PUA) benefits from the California Employment Development Department (EDD) after losing her job during the COVID-19 pandemic. After the EDD denied Petitioner's request for benefits because it could not verify she was unemployed due to COVID, Petitioner appealed to an Administrative Law Judge (ALJ) and was granted a hearing. As alleged, prior to and during the hearing, Petitioner's prescription medication caused her to experience difficulty with memory, focus and anxiety and she was unable to properly prepare for and represent herself at the hearing. The ALJ denied Petitioner's claim for PUA benefits. Petitioner appealed to the CUIAB, which denied Petitioner's appeal.

In this writ, Petitioner seeks an order to CUIAB to set aside its decision or grant a new hearing.

Standard of Review In administrative mandamus proceedings under C.C.P. section 1094.5, using independent review, the trial court examines the record of the administrative proceedings to determine whether the administrative agency's findings are supported by substantial evidence. (Johar v. California Unemployment Ins.

Appeals Bd. (2022) 83 Cal.App.5th 259, 275, citing Kelley v. California Unemployment Ins. Appeals Bd.

(2014) 223 Cal.App.4th 1067, 1073-74.) In exercising independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court the administrative findings are contrary to the weight of the evidence.

(Land v. Cal. Unemploy. Ins. App. Board (2020) 54 Cal.App.5th 127, 138-39, citing Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) The presumption provides the trial court with a starting point for review and it may be overcome. (Id., at p. 139; Fukuda, at p. 818.) The court is free to substitute its own findings after first giving due respect to the agency's findings. (Ibid.) An abuse of discretion by the administrative agency is established if the court determines the findings are not supported by the weight of the evidence. (Land, supra, citing C.C.P., § 1094.5(c).) Discussion Here, under this standard, the evidence supports the CUIAB and ALJ's decisions that Petitioner did not Calendar No.: Event ID:  TENTATIVE RULINGS

2984230  45 CASE NUMBER: CASE TITLE:  SINGLETARY VS CALIFORNIA UNEMPLOYMENT INSURANCE  37-2021-00026578-CU-WM-CTL meet the federal criteria for PUA benefits as related to her employment's termination.

In its decision, as affirmed by the CUIAB, the AJL found Petitioner's work ended when the company determined the claimant was not a good fit and did not have jobsites for her to work at. (AR 51.) Further, Petitioner gave 'vague and ambiguous responses to the questions put to her' including dates and conflicting explanations for why the job ended – 'she never mentioned anything about COVID when first reporting to the department.' 'The claimant was not found to be [a] reliable historian, and the upshot is that the claimant's unemployment was not a direct result of the Covid-19 pandemic; rather it was due to the employer terminating the claimant because she was not a good fit.' (AR 51.) First, the date of Petitioner's termination is evidence her unemployment was not due to the pandemic.

Evidence in the record shows Petitioner's employment ended in early February 2020 and before the more serious impacts of COVID-19. (AR 41 [Claim Info., LDW 020520]; AR 56 [Petitioner's appeal, stating Feb. 7, 2020]; AR 22:4-9 [Petitioner did not remember her last day of work being around February].) Critically, the Verified Petition alleges Petitioner was employed as a leasing consultant from December 2019 through February 2020 and was terminated on approximately February 2, 2020.

(Petition, at ¶¶ 19-20.) While COVID-19 was certainly an issue in early February, it was not until March 2020, that the World Health Organization declared COVID-19 a pandemic. (Kuciemba v. Victory Workworks, Inc. (2023) 14 Cal.5th 993, 1004; SVAP III Poway Crossings, LLC v. Fitness International, LLC (2023) 87 Cal.App.5th 882, 886 ['In March 2020, California Governor Gavin Newsom proclaimed a State of Emergency in California due to the threat of COVID-19. Soon after, he issued an executive order placing limitations on residential and commercial evictions for non-payment of rent.'].) Second, Petitioner represented she was fired because she was not a 'good fit' with her place of employment, and not because of the pandemic. (AR 42, 18:3-7.) The Claim Notes state, 'Clmt separation not COVID-19 related; Clmt reported on AC Claim details company fired me saying that I wasn't a good fit and they did not have any more job sites for me to work.' (AR 42 [emphasis omitted].) These findings are presumed correct.

Thus, substantial evidence supports these findings, precluding the relief requested.

However, the Court will hear from the parties on whether the CUIAB abused its discretion by not admitting and considering additional evidence of Petitioner's new anti-epilepsy medication Petitioner was adjusting to with side effects including fatigue, difficulty with speech and concentration and memory loss.

(AR 56.) A party who files a board appeal has the right to file an application to present new or additional evidence. (Code Regs., tit. 22, § 5102(a).) It is 'only in a very unusual case' that a reviewing court concludes an appeals board abused its discretion in failing to consider new evidence. (Land v. Cal. Unemploy. Ins. App. Board (2020) 54 Cal.App.5th 127, 144.) In Land, the appellate court found the CUIAB prejudicially abused its discretion in refusing to consider a customer's declaration as to the date of when a service incident occurred which led to the applicant's termination. This date was pivotal to the ALJ's decision and the CUIAB's reasoning. (Id., at p. 144-45.) Petitioner claimed in her appeal that she would have been able to show she was unable to find work due to COVID-19 despite having received her real estate salesperson license. (ROA 57.) She further argued, had she not been adjusting to this new medication, she would have been able to properly present her case and advocate for herself at the hearing.

At the hearing with the ALJ, Petitioner could not recall when her niece lived with her and when she had COVID-19, requiring Petitioner to quarantine. She also articulated her difficulty in finding work to the ALJ: '...because of COVID-19, you know, we're in the middle of the pandemic...I've been looking for additional work, and I haven't been able to find any work because of COVID. You know, the leasing industry...the work is very extremely limited – limited with the – you know, the state of the – you know, the state of the pandemic, and it has been very hard for me.' (AR 21:12-20; see also, AR 13:1-11 Calendar No.: Event ID:  TENTATIVE RULINGS

2984230  45 CASE NUMBER: CASE TITLE:  SINGLETARY VS CALIFORNIA UNEMPLOYMENT INSURANCE  37-2021-00026578-CU-WM-CTL [Petitioner states she is unable to find work and has not had any job interviews due to COVID]; AR 27:16-28:3 [Petitioner states she cannot find a job due to COVID].) The CUIAB found, '[e]ven if we were to accept the new facts being offered, we do not find this information to be particularly relevant as it would not impact the outcome in this matter. The fact that the claimant was willing and able to work after being laid off or terminated in February, March or April of 2020 by a prior employer is not sufficient to establish eligibility for PUA benefits. In addition, the fact that the claimant may have had to quarantine during her unemployment or obtained a real estate license on May 28, 2020 but could not subsequently find employment in that field does not establish eligibility.' (AR 84.) The Court will hear from the parties on whether: (i) the medication impacted Petitioner's ability to testify to facts concerning her niece's sickness/Petitioner's quarantine and whether she was unable to obtain employment in the real estate industry due to COVID-19; and (ii) if and how Petitioner would have been eligible for PUA benefits due to her caregiving/quarantine and inability to obtain such employment.

The Court will also hear from the parties on: the status of Petitioner's claim for standard unemployment benefits; the status of the original claim form or filing and where it is in the administrative record; if and when the EDD will make a determination of the standard unemployment benefits claim; and, if Petitioner is disqualified, when and how the EDD informed Petitioner of that decision.

Accordingly, the Court will hear from the parties as discussed herein.

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