Judge Curtis A. Kin, Case Number: 23STCP02828, Date: 2024-03-21 Tentative Ruling

Petitioner Susan Tejeda petitions for a writ of mandate directing respondent California Unemployment Insurance Appeals Board to set aside its decision denying her Pandemic Unemployment Assistance benefits.

“In March 2020, the federal government enacted the so-called ‘CARES Act’ (the Coronavirus Aid, Relief, and Economic Security Act), which, among other things, provided for direct economic assistance payments to certain Americans.” (Cerletti v. Newsom (2021) 71 Cal.App.5th 760, 763, fn. 1, citing Pub. L. No. 116-136, § 2201 (Mar. 27, 2020) 134 Stat. 281.) The CARES Act created the Pandemic Unemployment Assistance (“PUA”) program, which provided unemployment benefits to individuals who were unemployed due to COVID-19 and who were not eligible for regular unemployment benefits, including self-employed and gig workers. (15 U.S.C. § 9021.) The federal government provided PUA benefits through agreements with states which processed applications, made eligibility determinations, and administered the benefits. (15 U.S.C. § 9021(f).)

In August 2020, petitioner filed a claim for unemployment benefits with the Employment Development Department (“EDD”). (AR 42, 73.) In her application, petitioner certified that her usual occupation was a medical administrative assistant, and her 2019 income was $4,800. (AR 41.) Petitioner self-certified via the EDD online portal that she was an independent contractor with reportable income who was unable to work due to COVID-19 public health emergency. (AR 40.) EDD determined that she was not eligible for regular unemployment benefits, and petitioner was approved for PUA benefits with a weekly benefit amount of $167. (AR 41.)

In November 2021, EDD sent petitioner a request for substantiation of employment via email. (AR 35.) Petitioner was advised that, if proof was not received, benefits would terminate on February 12, 2022. (AR 41.) On February 14, 2022, EDD found that petitioner was disqualified for PUA benefits based on a failure to substantiate her self-employment and sent a letter to petitioner informing her of the determination. (AR 2). In its explanation, EDD cited petitioner’s failure to provide proof of employment. (AR 2.) Petitioner appealed the determination to respondent California Unemployment Insurance Appeals Board (“CUIAB”). (AR 4.) In her appeal letter, petitioner stated that she had attempted to locate documentation of employment but was unable to do so because she was paid in cash and did not request receipts. (AR 5.)

On August 3, 2022, an administrative law judge (“ALJ”) conducted a hearing in reference to petitioner’s appeal. (AR 15.) During the hearing, the ALJ considered the issue of whether petitioner submitted sufficient documentation to substantiate her employment or self-employment pursuant to 20 Code of Federal Regulations section 625.6(e)(2) and the CARES Act section 2102(a)(3)(A)(iii). (AR 18.)

Petitioner testified that she was employed as a caregiver for a child approximately 3-4 years old for approximately one year. (AR 21.) Typically, she would receive $200 every two weeks as wages. (AR 22.) After petitioner was unable to provide documentation, the ALJ explained that the CARES Act did not make any exceptions for requirement to provide documentation. (AR 20, 23.) When the ALJ requested anything to substantiate petitioner’s claim, even text messages, petitioner testified that she did not have anything, did not even know where her alleged former employer lived, and no longer had a contact number for the former employer. (AR 23-24.) When asked if there was anyone who observed petitioner watch the child, petitioner referenced one individual who would come see her, but petitioner thought that person was incapacitated due to a stroke. (AR 26.) Petitioner, who she described as her “compadre,” stated she could try to reach out to this individual. (AR 26.) The ALJ agreed to keep the record open for a week to allow time for petitioner to reach out to her “compadre.” (AR 26.) Two days later, petitioner emailed CUIAB a letter signed by Irma Tejeda that stated she saw petitioner babysitting a young boy on several occasions. (AR 56.) Shortly thereafter, the ALJ closed the record and admitted the letter into evidence. (AR 16.)

In a decision released September 2022, the ALJ affirmed the EDD’s determination of petitioner’s ineligibility for PUA benefits. (AR 63.) In his reasoning, the ALJ outlined the two different purposes for which proof of employment is used under the controlling statutes. (AR 61.) CARES Act section 2102(a)(3)(A)(iii) requires documentation to substantiate the employment/self-employment which was affected by the pandemic, and 20 Code of Federal Regulations section 625.6(e)(2) requires documentation to substantiate the employment/self-employment which generated the wages that the claimant reported to the department to establish the weekly benefit amount. (AR 62.) The ALJ found the signed letter from Irma Tejeda insufficient to satisfy either requirement. (AR 62.)

Petitioner appealed the ALJ’s decision. (AR 66.) In her appeal, petitioner attached a notarized letter from Irma Tejeda, stating that she is petitioner’s sister, that she observed petitioner provide childcare to a young boy, and that she knew that petitioner received payment for the service because petitioner paid her for petitioner’s half of their bills. (AR 67.) When CUIAB affirmed the ALJ’s decision, it determined that the ALJ properly evaluated the credibility of petitioner’s testimony as well as the weight of the evidence pursuant to Evidence Code sections 412 and 780. (AR 75.) Upon consideration of all the submitted evidence, the CUIAB found petitioner’s evidence insufficient and affirmed the ALJ’s decision. (AR 75.)

On August 17, 2023, petitioner Susan Tejeda filed a Petition for Writ of Mandate. On November 14, 2023, respondent California Unemployment Insurance Appeals Board filed an Answer.

On January 2, 2024, petitioner filed an opening brief. On February 20, 2024, respondent filed an opposition. On March 4, 2024, petitioner filed a reply.[1] The Court has received a hard copy of the administrative record.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

The Court exercises its independent judgment in reviewing denials of applications for public assistance. (See Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 752.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its 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 that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.)

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.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

As a preliminary matter, while petitioner represents herself in this proceeding, the Court must hold her to the same standards as a party represented by an attorney. “Under the law, a party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-47.) “[M]ere self-representation is not a ground for exceptionally lenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.)

The fundamental issue in this petition is whether the documentation submitted by petitioner in support of her application for PUA benefits is adequate to substantiate her employment. The ALJ’s decision, which respondent CUIAB affirmed, relied on two laws: (1) CARES Act section 2102(a)(3)(A)(iii); and (2) Code of Federal Regulations, title 20, section 625.6(e)(2). (AR 62, 76.)

CARES Act section 2102, codified in 15 United States Code section 9021, states in pertinent part:

(ii) provides self-certification that the individual...is unemployed, partially unemployed, or unable or unavailable to work because [employment affected by Covid-19 pandemic]; and

(iii) provides documentation to substantiate employment or self-employment or the planned commencement of employment or self- employment....

On January 8, 2021, through Unemployment Insurance Program Letter (“UIPL”) No. 16-20, Change 4, the United States Department of Labor issued guidance to state workforce agencies regarding the types of acceptable documentation. (See UIPL 16-20, Change 4, accessed at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2021/UIPL_16-20_Change_4.pdf.) According to the guidance, “proof of employment includes, but is not limited to, paycheck stubs, earnings and leave statements showing the employer’s name and address, and W-2 forms when available.” (UIPL 16-20, Change 4 at I-10.) “Proof of self-employment includes, but is not limited to, state or Federal employer identification numbers, business licenses, tax returns, business receipts, and signed affidavits from persons verifying the individual’s self-employment.” (Ibid.)

Code of Federal Regulations, title 20, section 625.6(e)(2) states, in relevant part:

(e) The State agency shall immediately determine…a weekly amount…based on the individual’s statement of employment or self-employment preceding the individual’s unemployment that was a direct result of the major disaster, and wages earned or paid for such employment or self-employment. An immediate determination of a weekly amount shall also be made where…the individual submits documentation substantiating employment or self-employment and wages earned or paid for such employment or self-employment…. An immediate determination shall also be made based on the individual’s statement or in conjunction with the submittal of documentation in those cases where the individual was to commence employment or self-employment on or after the date the major disaster began but was prevented from doing so as a direct result of the disaster.

(1) In the case of a weekly amount determined in accordance with paragraph (e) of this section, based only on the individual’s statement of earnings, the individual shall furnish documentation to substantiate the employment or self-employment or wages earned from or paid for such employment or self-employment or documentation to support that the individual was to commence employment or self-employment on or after the date the major disaster began….

(2) Any individual who fails to submit documentation to substantiate employment or self-employment or the planned commencement of employment or self-employment in accordance with paragraph (e)(1) of this section, shall be determined ineligible….

During the administrative proceedings, petitioner provided a letter and affidavit from her sister, Irma Tejeda. (AR 56, 67.) The ALJ considered a letter from petitioner’s sister which stated:

I am writing this letter to confirm that not only was I aware of Susan Tejeda babysitting for Ms. Kay but I also witnessed her babysitting the young boy on several occasions. I hope you can find this letter helpful. Thank you for your time.

(AR 56, 58, 62.) The ALJ noted that none of the documents presented indicated any net income or revenue. (AR 58, 62.)

In connection with the appeal of the ALJ’s decision, respondent CUIAB considered an affidavit from petitioner’s sister, which stated the following:

My name is Irma Tejeda and I live with my sister Susan Tejeda. On an earlier date of August 5, 2022 I submitted a letter on behalf of my sister confirming her employment as a child care provider for Ms. Kay. I would come home from work and the young boy Andy would be here and his mom shortly after would pick him up. At that time that was my sister's source of income. Ms. Kay would pay her cash every other week. I know this because that is how my sister helped me pay for her half of the bills. Unfortunately right before the school closures Ms. Kay notified my sister she no longer was going to need her services due to the Covid Pandemic emergency and Ms. Kay no longer working. I declare what I am saying is true and hope you will find this document helpful. [¶] Thank you for your time.

As stated above, the federal government charges the states with the responsibility of processing benefit applications, making eligibility determinations, and administering the benefits. (15 U.S.C. § 9021(f).) The federal government requires the state agency, i.e., EDD, to determine a weekly amount of unemployment benefits based on the applicant’s statement of employment or self-employment prior to losing such employment and the wages earned from the employment that was lost due to a major disaster, i.e., the COVID-19 pandemic. (20 C.F.R. § 625.6(e).) The federal government also requires an applicant’s statement of earnings to be supported by documentation. (20 C.F.R. § 625.6(e).) Otherwise, the applicant shall be deemed ineligible for unemployment benefits. (20 C.F.R. § 625.6(e)(2).)

None of the evidence provided by petitioner’s sister indicates the wages earned from petitioner’s self-employment as a caregiver/babysitter which EDD could use to calculate a weekly benefit amount. Instead, petitioner’s sister only averred that the babysitting was petitioner’s only source of income, petitioner’s employer would pay cash every other week, and petitioner would use the cash to pay for half of her and her sister’s bills. (AR 67.) Petitioner’s sister did not mention how much petitioner gave her during the period when petitioner was employed as a babysitter.

While petitioner testified during the administrative hearing that her employer typically paid her every two weeks (AR 22), petitioner’s testimony alone does not comply with the requirement from Congress to support the wages earned from self-employment with documentation. Even if petitioner may not have been required to file a tax return (Opening Br. at 6), which federal guidance states may serve as documentation (UIPL 16-20, Change 4 at I-10), Congress still requires documentation corroborating petitioner’s wages before EDD can administer PUA benefits.

The Court notes that attached to the petition was an affidavit from Francisco Hernandez, the person who petitioner describes as her “compadre.” The letter from Mr. Hernandez was not part of the administrative record. “In an administrative mandamus action, judicial review is limited to matters in the administrative record. Additional evidence is admissible only if it was not available at the time of the administrative hearing or was excluded improperly from the record.” (Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 977, citing Code Civ. Proc. § 1094.5(e).) Petitioner does not explain why the letter was not presented during the administrative hearing. Although petitioner testified that Mr. Hernandez had a stroke, she also testified that she would try calling him. (AR 26) The ALJ kept the record open for a week to allow time for petitioner to provide additional documents. (AR 26, 29.) Petitioner did not submit any letter from Mr. Hernandez while the record was open. Accordingly, the letter from Mr. Hernandez is not subject to consideration.

Even if the Court were to consider Mr. Hernandez’s letter, it simply states that petitioner’s employer would pay her cash every two weeks. Like the statements from Irma Tejeda, Mr. Hernandez does not state how much petitioner earned. Without any documentation quantifying petitioner’s earnings, federal law requires denial of petitioner’s application for PUA benefits.

Petitioner presents several other arguments in the opening brief: (1) respondent failed to respond to the petitioner within 30 days of service; (2) the ALJ was biased; (3) respondent incorrectly stated in its decision that petitioner’s sister represented that petitioner used the money for babysitting to pay for rent; (4) the transcript is not complete because it does not mention another “compadre” by the name of Javi; and (5) petitioner was not asked for documents corroborating earnings when she applied for benefits.

With respect to the first argument, petitioner served the petition on respondent by mail and acknowledgment of receipt of service. (8/22/23 Proof of Service of Summons.) However, petitioner does not present any signed acknowledgement of receipt of service indicating when service of the summons was completed. (See Code Civ. Proc. § 415.30(c) [“Service of a summons pursuant to this section is deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender”]. In any event, even if respondent’s Answer were untimely, petitioner does not show she is entitled to the grant of her petition on that basis. Notably, a “writ cannot be granted by default.” (Code Civ. Proc. § 1088.) Further, “[t]he court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc. § 475.) Insofar as the Answer was untimely, petitioner fails to show how she was adversely impacted.

With respect to the fifth argument, even if petitioner was not asked for documents corroborating earnings when she applied for benefits, petitioner was provided the opportunity to provide such documentation before the administrative hearing (AR 35), after the administrative hearing and before the ALJ’s decision (AR 29), and before the appeal (AR 65). Petitioner failed to provide such documentation in connection with any of the several opportunities afforded her.

With respect to the second through fourth arguments, even if petitioner’s assertions were true, petitioner does not explain how they address the lack of documentation of earnings upon which the denial of PUA benefits was affirmed. An abuse of discretion must be prejudicial for writ of administrative mandate to issue. (CCP § 1094.5(b).) In other words, even if petitioner’s arguments were true, petitioner has still failed to provide documentation of her earnings—the absence of which requires denial of her PUA benefits.

For the foregoing reasons, the weight of the evidence supports denial of petitioner’s Pandemic Unemployment Assistance benefits. Accordingly, the petition is DENIED. Pursuant to Local Rule 3.231(n), respondent California Unemployment Insurance Appeals Board shall prepare, serve, and ultimately file a proposed judgment.

[1] Petitioner served the reply on respondent by mail at 2400 Venture Oaks Way Suite 100, Sacramento, CA 95833. (3/4/24 Proof of Service.) However, respondent’s counsel is located at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013-1230. (11/14/23 Answer; 2/20/24 Opposition.) Nevertheless, petitioner served the opening brief on respondent by mail at the Sacramento address, and respondent was able to file a timely opposition. Accordingly, it appears that respondent can receive filings through the Sacramento address. The Court, therefore, considers the reply.