Judge: Curtis A. Kin, Case: 23STCP06421, Date: 2024-12-03 Tentative Ruling

Case Number: 23STCP06421    Hearing Date: December 3, 2024    Dept: 86

Plaintiff David Stoppelman petitions for a writ of mandate directing respondent California Unemployment Insurance Appeals Board to set aside its decision affirming the denial of unemployment benefits and grant unemployment benefits to petitioner.

I.       Factual Background

            On 5/1/22, petitioner filed a claim for unemployment insurance benefits. (AR 2, 20 [HT 9:17-19].) Based on a standard base period from 1/1/21 to 12/31/21 or an alternate base period from 4/1/21 to 3/31/22, the Employment Development Department (“EDD”) determined that petitioner did not earn enough wages to establish a valid claim for benefits. (AR 2.)

Petitioner appealed EDD’s determination. (AR 3, 5.) On 12/6/22, Administrative Law Judge Nathaniel B. Fellner (“ALJ”) conducted a hearing regarding whether EDD properly computed petitioner’s benefit award. (AR 10, 13 [HT 2:4-5], 40.) The ALJ admitted into evidence a pay stub from David A. Lazar Accounting Corporation (“Lazar”) dated 10/7/20 showing $114 in wages earned. (AR 14 [HT 3:6-8], 17 [HT 6:11-14], 19 [HT 8:4-5], 33.) Petitioner also sought to have a settlement received in connection with the termination of his employment considered as part of his wages. (AR 18 [HT 7:6:9].) Petitioner also asserted that he was entitled to $400 more a week under the American Rescue Plan Act even if his wages were computed as zero. (AR 17 [HT 6:23-25], 21 [HT 10:15-17].)

On 1/12/23, the ALJ affirmed EDD’s determination, finding that petitioner did not earn sufficient wages during the relevant time periods to receive unemployment insurance benefits. (AR 42-44.) Petitioner appealed the decision of the ALJ to respondent California Unemployment Insurance Appeals Board (“Appeals Board”). (AR 50.) On 3/9/23, finding no errors in the ALJ’s statement of issues, findings of fact, or application of law to the facts, respondent affirmed the decision of the ALJ denying unemployment benefits to petitioner. (AR 60-62.)

II.      Procedural History

            On March 23, 2023, petitioner filed a Complaint. On May 23, 2023, petitioner filed a First Amended Petition for writ of mandate. On August 9, 2023, the Court (Hon. Malcolm Mackey) sustained respondent’s demurrer with leave to amend.[1] (8/9/23 Minute Order.) On August 23, 2023, petitioner filed a Second Amended Petition for writ of mandate.

On March 14, 2024, during a status conference, respondent, by way of counsel, represented that petitioner sued the wrong entity. (See Second Amended Petition [EDD named as respondent].) (3/14/24 Minute Order.) The Court (Hon. Alison Mackenzie) ordered the parties to meet and confer to ensure that the correct entity was sued.

On March 19, 2024, petitioner filed the operative Third Amended Petition (“TAP”) for writ of mandate naming the California Unemployment Insurance Appeals Board as respondent. On April 30, 2024, respondent filed an Answer to the Third Amended Petition.

On March 28, 2024, petitioner filed an opening brief. On April 30, 2024, respondent filed an opposition. On May 13, 2024, petitioner filed a reply. On February 28, 2024, petition filed an administrative record, titled “Exhibit List.”

III.     Standard of Review

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.)

“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.)

IV.     Analysis

As a preliminary matter, while petitioner represents himself in this proceeding, he is held to the same procedural standards as 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 critical issue presented in the operative Third Amended Petition is whether petitioner established his entitlement to unemployment insurance benefits from his 5/1/22 claim. An applicant is not entitled to benefits unless, during the applicant’s base period, the applicant has either (1) been paid at least $1,300 in the base period quarter in which the applicant’s wages were the highest or (2) been paid at least $900 in the base period quarter in which the applicant’s wages were the highest and been paid a total of least 1.25 times the amount of wages paid during this same quarter during the entire base period. (Unemp. Ins. Code § 1281(a).)

            Petitioner sought to have benefits beginning on 5/1/22. (AR 2.) The standard base period for benefit years beginning in April, May, or June is the four calendar quarters ending from the preceding December. (Unemp. Ins. Code § 1275(a).) If the applicant cannot establish a valid claim under the standard base period, the applicant may attempt to establish a valid claim under an alternate base period. (Unemp. Ins. Code § 1275(b).) The alternate base period for benefit years beginning in April, May, or June is the four calendar quarters ending from the preceding March. (Unemp. Ins. Code § 1275(b).)

            Based on the foregoing, the relevant time periods are 1/1/21 to 12/31/21 for the standard base period or 4/1/21 to 3/31/22 for the alternate base period. (See also AR 2.) During the administrative proceedings, the only evidence of wages that petitioner provided was a pay stub dated 10/7/20 reflecting that petitioner had been paid a total of $114 during the year 2020. (AR 33.) This pay stub is outside the standard base period or the alternate base period. Consequently, the pay stub is not pertinent to—and certainly does not establish—petitioner’s eligibility for unemployment insurance benefits.

            In the opening brief, petitioner refers to a check dated 1/6/22 in the amount of $9,000, which was issued to petitioner by Lazar and Company.[2] The check was attached as Exhibit A to the opening brief. Petitioner contends that the $9,000 should have been counted as income during the administrative proceedings. (Opening Br. at 3:6-9.)

While the date of the 1/6/22 check is within the alternate base period, the check 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).) In the opening brief, petitioner contends that extra-record evidence demonstrating the unfairness of the proceeding can be admitted. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 575, fn. 5 [courts could admit extra-record evidence relevant to procedural unfairness].)  Here, the administrative hearing took place on 12/6/22 (AR 10), which was after the date of the 1/6/22 check.  Petitioner thus appears to have been able to present the $9,000 check during the administrative hearing. Petitioner does not explain why he did not do so. Consequently, the Court may not consider the check.

            Even if the Court were to consider the check, petitioner stated during the hearing that he received a settlement from Lazar after he was fired. (AR 18 [HT 7:6:9].) Dismissal and severance pay does not count as wages under the Unemployment Insurance Code. (Powell v. California Dept. of Employment (1965) 63 Cal.2d 103, 109.) In the reply, petitioner asserts that $2,000 of the $9,000 check constituted wages, with the remainder constituting severance pay. (Reply at 2:16-17.) Petitioner’s assertion is supported by no evidence either within or outside of the administrative record. Unlike, for example, the 10/7/20 check contained in the record, the check attached to the opening brief contains no indication that any portion of the $9,000 check constituted wages. (Compare Ex. A to Opening Br. with AR 33 [$114 in wages earned].) Accordingly, petitioner does not meet his burden to demonstrate that the ALJ’s finding that petitioner’s claim was invalid was contrary to the weight of the evidence.[3] (Fukuda, 20 Cal.4th at 817.)

            Petitioner also argues that he is entitled to Federal Pandemic Unemployment Compensation (“FPUC”) under the American Rescue Plan Act. (See 15 U.S.C. § 9023.) Specifically, petitioner asks for $600 per week for 3 years, totaling $86,400. (Opening Br. at 2:11-12.) For weeks of unemployment beginning after December 26, 2020 and ending on or before September 6, 2021, applicants seeking unemployment benefits could receive $300 per week (not the $600 per week sought by petitioner) on top of any payments under state law. (15 U.S.C. § 9023(b)(1)(A), (b)(1)(B), (b)(3)(A)(ii).)

Contrary to respondent’s contention, petitioner raised this issue before the ALJ. (AR 17 [HT 6:23-25], 21 [HT 10:15-17].) Petitioner was also not required to be eligible for unemployment benefits under state law to receive FPUC. The statute only provides that FPUC payments are “additional” to the amount of benefits under state law. (15 U.S.C. § 9023(b)(1)(B).) For the reasons stated above, the amount of unemployment benefits to which petitioner is entitled under state law is $0, but petitioner may have still been entitled to $300 per week on top of the “zero” state unemployment benefits. (See Questions and Answers: Pandemic Unemployment Assistance (PUA) Program, located at https://www.dol.gov/sites/dolgov/files/ETA/advisories/UIPL/2020/UIPL_16-20_Change_1_Attachment_1.pdf at I-3 [unlike monetary requirements under regular unemployment compensation, “There is no minimum monetary requirement for an individual to be eligible for PUA”].)

Nevertheless, an individual is not eligible for FPUC unless the unemployment was caused by COVID-19. (15 U.S.C. § 9021(c)(1)(A), (a)(3)(A)(ii)(I).) During the hearing, petitioner admitted that he was fired. (AR 18 [HT 7:6-7]; see also AR 24, 30, 36 [misconduct noted in claim file].) The record does not contain any indication that petitioner’s employment with Lazar ended due to COVID-19. Accordingly, petitioner does not demonstrate that he was entitled to any FPUC.

            Because petitioner’s contentions raised in the opening brief and reply regarding the sufficiency of his wages during the base periods and his entitlement to FPUC are without merit, the Court need not reach respondent’s contention concerning whether Lazar is an indispensable party. For the foregoing reasons, petitioner fails to demonstrate that respondent’s adoption of the ALJ’s decision was a prejudicial abuse of discretion.

IV.     Conclusion

            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.