Judge: Curtis A. Kin, Case: 22STCP04421, Date: 2024-03-12 Tentative Ruling

Case Number: 22STCP04421    Hearing Date: March 12, 2024    Dept: 82

Petitioner Elizabeth Cruz petitions for a writ of mandate directing respondents Nancy Farias, in her capacity as Director, California Employment Development Department, and California Unemployment Insurance Appeals Board to set aside the decision denying her Pandemic Unemployment Assistance (“PUA”) benefits.

I.            Factual Background

Petitioner provided private tutoring services as an independent contractor. (Pet. ¶¶ 4, 5.) After the onset of the COVID-19 pandemic, petitioner applied for PUA assistance, because she was left with contracts for three students to finish and could not obtain any other teaching positions due to the closure of schools. (Pet. ¶¶ 8, 10.)

Business owners, self-employed workers, and independent contractors who were out of business or had significantly reduced their services due to the pandemic and were denied regular unemployment benefits could apply for PUA benefits. (Pet. ¶ 1.)

The Employment Development Department (“EDD”) approved petitioner’s application. (Pet. ¶ 10.) On March 8, 2020, petitioner began receiving weekly benefits in the amount of $167. (Pet. ¶ 11.)

At a hearing on April 4, 2021, petitioner was told she had to demonstrate progress toward returning to work. (Pet. ¶ 12.) On December 3, 2021, petitioner was told that the evidence she provided to EDD was insufficient to demonstrate that she planned to be self-employed or employed. (Pet. ¶ 14.)

On December 13, 2021, petitioner appealed the decision of the EDD. (Pet. ¶ 26.) Petitioner’s hearing took place on April 4, 2022 by phone before the California Unemployment Insurance Appeals Board (“Board”). (Pet. ¶¶ 27, 28.) On April 20, 2022, the administrative law judge (“ALJ”) denied the appeal, finding that petitioner did not substantiate her self-employment from January 1, 2019 through March 8, 2020. (Pet. ¶ 28.)

On April 27, 2022, petitioner appealed. (Pet. ¶ 30.) On April 20, 2022, the Board adopted the decision of the ALJ.[1] (Pet. ¶ 31.)

II.      Procedural History

            On December 20, 2022, petitioner filed a Verified Petition for Administrative Mandamus and Complaint for Declaratory and Injunctive Relief. No answer has been filed. However, respondent California Unemployment Insurance Appeals Board specially appeared during the trial setting conference on July 18, 2023.

            On July 18, 2023, the Court set the hearing on the writ petition for March 12, 2024. (7/18/23 Minute Order.) The Court ordered petitioner’s opening brief to be filed sixty days prior to the hearing date, i.e., by January 12, 2024. The Court ordered petitioner to file a reply and lodge the administrative record fifteen days prior to the hearing date, i.e., by February 26, 2024. Counsel for petitioner was present at the trial setting conference.

            Petitioner has not filed an opening brief in support of the petition or a reply brief. No opposition brief has been received. The parties have not lodged the administrative record.

III.     Analysis

The petition for writ of mandate is brought pursuant to CCP § 1094.5. (Pet. ¶¶ 16, 24, 25, 32, 34-38.) Under CCP § 1094.5, “the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.)

Petitioner also seeks traditional or ordinary mandamus relief pursuant to CCP § 1085. (Pet. ¶ 24; see also Pet. at 12:1-2, 12:17-18, 13:7-8, 14:1-2.) “There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.) An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “The petitioner always bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

A memorandum of points and authorities is required for a noticed motion, including for mandamus. (See CRC 3.1113(a); Local Rule 3.231(b) [describing noticed motion procedure for prerogative writs].) The absence of a memorandum is an admission that the motion is not meritorious and may be denied. (CRC 3.1113(a).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (CRC 3.1113(b); see also Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)

Rule of Court 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party’s theories”. (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) The Court cannot evaluate arguments that are not made in the briefs and cannot make the parties’ arguments for them. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-63 [argument waived if not raised]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

On July 18, 2023, the Court held a trial setting conference. (7/18/23 Minute Order.) The Court ordered petitioner to serve and file the opening brief at least 60 days prior to the hearing date of March 12, 2024. (7/18/23 Minute Order.) Petitioner was ordered to lodge the administrative record on the same day the reply brief was filed. (7/18/23 Minute Order.)

No opening brief was filed, timely or otherwise. No administrative record was lodged, timely or otherwise. Accordingly, petitioner has not met her burden of proof under CCP § 1094.5  to show a prejudicial abuse of discretion or a denial of a fair trial, or that respondent proceeded without or in excess of jurisdiction. Petitioner also has not met her burden of proof under CCP § 1085 to demonstrate a ministerial duty on the part of respondents or her entitlement to performance of that duty.

IV.     Conclusion

            The petition is DENIED.