Judge James C. Chalfant, Case Number: 23STCP00004, Date: 2023-08-03 Tentative Ruling

Petitioner Blue Air FSE, LLC (“Blue Air”) seeks a writ of mandate compelling Respondents California Unemployment Insurance Appeals Board (“CUIAB”) to set aside its decision affirming Respondent California Employment Development Department’s (“EDD”) determination that Real Party-in-Interest Amy Han (“Han”) is entitled to unemployment compensation benefits. Blue Air also moves to augment the administrative record with (1) an audio recording of the administrative hearing before Administrative Law Judge Tammy Bayne (the “ALJ”) and (2) a transcript of the hearing prepared by a third party (“DT Transcript”).

The court has read and considered the moving papers, opposition, and replies,[1] and renders the following decision.

A. Statement of the Case

1. Petition

Petitioner Blue Air commenced this proceeding on January 3, 2023, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.

From December 2019 to April 16, 2021, Han was the Operations Manager for Blue Air’s Shipping & Receiving Department when she voluntarily resigned. When she tendered her written resignation on March 31, 2021, the only reason she gave for resigning was that she was returning to Korea. To document this reason, Blue Air had Han fill out and sign a formal Notice of Resignation. The Notice of Resignation included a statement that Han understood that she was not eligible for unemployment benefits because she voluntarily quit without good cause.

Despite this fact, on April 24, 2021, Han filed a claim for unemployment compensation benefits. An EDD examiner granted the claim because Han’s terms and conditions of employment were substantially modified. On October 7, 2021, the EDD mailed Blue Air a written notice of its determination. The notice made no reference to any health issues resulting from Han’s working conditions.

On October 19, 2021, Blue Air appealed EDD’s determination to the CUIAB. Prior to the hearing, the ALJ admitted a witness declaration submitted by Han. Blue Air objected that it had not seen the declaration, but the ALJ still admitted it.

During the hearing, Han for the first time asserted that she suffered from health issues caused by the stress of work, including headaches, difficulty sleeping, and changes to her menstrual cycle. Han offered no doctor’s notes, records of treatment, or testimony to corroborate this assertion. She also admitted that she never told Blue Air about the work-induced health issues before she quit.

On April 7, 2022, the ALJ affirmed the EDD’s determination. The ALJ ruled that Han voluntarily resigned with good cause, so she was not disqualified for unemployment compensation benefits.

Blue Air sought review of the ALJ’s decision with the CUIAB under Unemployment Insurance Code (“UIC”) section 1336. The CUIAB affirmed the decision on July 5, 2022.

Blue Air seeks a writ of mandate from the CUIAB decision and a finding that Han voluntarily quit her job without good cause, which disqualifies her from benefits under UIC section 1256. This would relieve Blue Air’s reserve account of benefit charges under UIC sections 1030 and 1032. Blue Air also seeks attorney’s fees and costs.

2. Course of Proceedings

On January 5, 2023, Blue Air served the CUIAB and EDD with the Petition and Summons.

On January 10, 2023, Blue Air served Han with the Petition and Summons.

On March 15, 2023, the CUIAB and EDD filed a joint Answer.

At a Trial Setting Conference on April 13, 2023, Blue Air advised the court that it had a third-party service transcribe the hearing. The court advised Blue Air to file a motion to augment the record if it wanted the transcript to be considered.

B. Standard of Review

Code of Civil Procedure (“CCP”) section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15. The pertinent issues under CCP section 1094.5 are (1) whether the respondent has proceeded without jurisdiction, (2) whether there was a fair trial, and (3) whether there was a prejudicial abuse of discretion. CCP §1094.5(b). An abuse of discretion is established if the respondent 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(c).

CCP section 1094.5 does not in its face specify which cases are subject to independent review. Fukada v. City of Angels (1999) 20 Cal.4th 805, 811. Instead, that issue was left to the courts. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). An employer or an employee challenging a decision granting or denying unemployment insurance benefits involves a fundamental right requiring application of the independent judgment test. Interstate Brands v. Unemployment Insurance Appeals Board, (1980) 26 Cal.3d 770, 775-76, 780.

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.” Id. at 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. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

However, “[i]n 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. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby v. Pierno, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

Whether an employee has good cause to leave his employment is a question of law decided by the court without deference to the CUIAB. Norman v. California Unemployment Insurance Board, (1983) 34 Cal.3d 1, 6.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 15.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Id. at 691. The standard of proof on mandamus review of factual determinations of a tribunal is governed by the degree to which it is appropriate to presume correctness of such determinations. An independent judgment review carries a strong presumption that the agency’s findings are correct (Evid. Code §664), and the party challenging such findings is required to "convince the court that the board's decision is contrary to the weight of the evidence," which means that the evidence does not preponderate in favor of the agency’s decision. Chamberlain v. Ventura County Civil Service Commission, (1977) 69 Cal.App.3d 362, 369, 370-71.

C. Governing Law

In California, employment is presumed to be at will. Labor Code §2922; Foley v. Interactive Data Corp., (1988) 47 Cal.3d 654, 677. The essential character of the employment relationship is the employer’s right to control the employee in his or her actions. Villanazul v. City of Los Angeles, (1951) 37 Cal.2d 718, 721. An employee must substantially comply with all directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee. Labor Code §2856.

1. The Taxing Component

The UIC provides benefits for persons unemployed through no fault of their own. UIC §100. To finance these benefits, both the employer and employee contribute to the unemployment fund. First Aid Services of San Diego, Inc. v. California Employment Development Department, (“First Aid”) (2005) 133 Cal.App.4th 1470, 1477. Unemployment insurance contributions “constitute special taxes.” Modern Barber Colleges, Inc. v. California Emp. Stab. Com., (1948) 31 Cal.2d 720, 724. Employers contribute to the unemployment fund based on wages paid to their employees. Employees contribute based on wages received, and the employer withholds the employee contribution from his or her paycheck. First Aid, supra, 133 Cal.App.4th at 1477. The taxing sections of the UIC are completely separate from the benefits provisions. Ibid.

Each employer has a reserve account with EDD, and a former employee’s unemployment benefits are charged to that employer’s reserve account. UIC §1025. The employer’s contributions are based on the ratio of average payroll to the amount of revenue with which the employer is credited. Chrysler Corp. v. California Employment Development Commission, (1953) 116 Cal.App.2d 8, 14-15. This ratio may be impacted by a final award of unemployment benefits to a former employee, resulting in a reduction in the employer’s reserve account, thereby increasing the employer’s required rate of contribution. Thus, an employer has an economic interest in the status or condition of its reserve account and is entitled to a limited trial de novo (mandamus) as to the propriety of charges made against its account. Id.

An individual is disqualified from receiving unemployment insurance benefits if she left her most recent work voluntarily without good cause or was discharged for work-related misconduct. UIC §1256. “Good cause” is not defined in the UIC, but it means at minimum real circumstances, substantial reasons, objective conditions that operate to produce correlative results or adequate excuses that bear the test of reason. California Portland Cement Co. v. California Unemployment Insurance Appeals Board, (1960) 178 Cal.App.2d 263, 272-73.

Fault is the basic element to be considered in determining whether an employee left work voluntarily. An employee need not actually choose to be unemployed; it is enough that his unemployment was his own fault -- a willful act causing or instigating his unemployment. See Evenson v. California Unemployment Insurance Appeals Board, (“Evenson”) (1976) 62 Cal.App.3d 1005, 1016. By denying unemployment benefits to one who voluntarily terminates employment without good cause, the state assures that unemployment benefits are reserved for persons who are unemployed through no fault of their own, so as to reduce the suffering attendant or involuntary unemployment to a minimum. Hildebrand v. California Unemployment Insurance Appeals Board, (1977) 19 Cal.3d 765, 770; Morgan v. California Unemployment Insurance Appeals Board, (1992) 4 Cal.App.4th 762, 767-68 (where claimant resigned in exchange for six weeks of severance pay, even though he would likely have been fired had he not resigned, the claimant voluntarily quit his employment without good cause).

The EDD has adopted regulations defining a voluntary leaving of work under UIC section 1256. Kelley v. California Unemployment Insurance Appeals Board, (“Kelley”) 223 Cal.App.4^th 1067, 1075. 2 CCR (“Reg.”) section 1256-1 “relates to a voluntary leaving of work” and contrasts it with situations in which an individual leaves involuntarily due to discharge, a layoff, disciplinary suspension, or other cessation of employment. Reg. §1256(a). An employee voluntarily leaves work when the employee is “the moving party causing his or her unemployment.” Ibid. (quoting Reg. §1256-1(b)). An employee involuntarily leaves work “when the employer is the moving party in causing the unemployment of an employe at a time when the employee is able and willing to continue working.” Ibid. (quoting Reg. §1256-1(c)). Whether an employee left voluntarily or involuntarily depends on which party initiated the termination of employment. Ibid. (citing Reg. §1256-1(d)).

To qualify for benefits after leaving employment voluntarily, a claimant has a duty to take reasonable steps to preserve the employment relationship and the “[f]ailure to do so negates what would otherwise constitute good cause.” Reg. §1256-23.

Even where an employee leaves voluntarily, she is still eligible for benefits if he left for good cause. Evenson, supra, 62 Cal.App.3d at 1016-17 (disenchantment with union not good cause). The term “good cause” is not susceptible of precise definition. Zorrero v. Unemployment

Insurance Appeals Board, (“Zorrero”) (1975) 47 Cal.App.3d 434, 439. Its definition varies with the context in which it is used. Id. Very broadly, it means a legally sufficient ground or reason for a certain action. Id. Good cause “requires that voluntary termination of employment be based on serious and exigent circumstances. Id.

The employee’s resignation must be for such a cause as would, in a similar situation, reasonably motivate the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the unemployed. Evenson, supra, 62 Cal.App.3d at 1016. Good cause for leaving employment is only found where the circumstances clearly indicate that the leaving was constructively involuntary. See Perales v. Dept. of Human Resources Development, (1973) 32 Cal.App.3d 322, 336-37.

Where an employee accepts work knowing the conditions of employment, a subsequent dissatisfaction with those conditions, standing alone, will not support a finding of good cause to leave work. In other words, an employee cannot establish good cause when he voluntarily leaves his employment merely because he is “dissatisfied with conditions that he well knew existed at the time he accepted employment.” Hildebrand v. California Unemployment Insurance Appeals Board, (“Hildebrand”) (1977) 19 Cal.3d 765, 771. For job conditions to constitute good cause for leaving, they must be “so unsatisfactory as to be intolerable to a reasonable person genuinely desirous of retaining employment.” Reg. §1256-23. Good cause thus exists where work conditions become intolerable or where health or safety is endangered. Reg. §1256-23. Good cause reasons must bear “the test of reason” and the “element of good faith.” Gibson v. California Unemployment Insurance Appeals Board, (1973) 9 Cal.3d 494, 499, n.8 (quitting job to attend school was not good cause).

The unemployment insurance laws are remedial and must be construed liberally where benefits are concerned. Kelley, supra, 223 Cal.App.4^th at 1075. A person is presumed to have been discharged for reasons other than misconduct and not to have voluntarily quit work without good cause, and the employer has the burden to prove to the contrary. Id.

The mere advancing of an excuse is not sufficient to constitute good cause. Vialovos v. Ross & Brown Paper Box Company, (“Viavolos”) (1972) Appeals Board Decision No. P-B-144, p. 3. There must be a substantial or compelling reason, as distinguished from an imaginary pretense, for the action taken upon which good cause is to be found. Id. In other words, an employee has good cause for voluntarily quitting his or her job where the facts disclose a real, substantial, and compelling reason of such nature as would cause a reasonable person genuinely desirous of retaining employment to take similar action. Vicars v. Gardner, (“Vicars”) (1968) Appeals Board Decision No. P-B-27, p. 4.

For example, an employee may leave work with good cause where the production requirements of the job become unreasonable or too difficult, or when the working conditions become intolerable. Odbert v. Garber Ins. Agency, (“Odbert”) (1971) Appeals Board Decision No. P-B-102, p. 2. However, employment conditions will be intolerable only in those cases where they are so onerous as to constitute a threat to the physical or mental well-being of an employee or where the actions of a supervisor are particularly harsh and oppressive will there be good cause for leaving work. Reinesto v. Farmers Ins. Group, (“Reinesto”) (1972) Appeals Board Decision No. P-B-138, p. 2.

Dissatisfaction with a particular work shift, without any complaint to management or request to be assigned to a different shift, does not constitute good cause since an employee genuinely desirous of retaining employment would have complained and afforded management an opportunity to make an adjustment to his work schedule. Burns v. Thrifty Drug Stores, (1968) CUIAB Precedent Decision P-B-8, p. 4. Similarly, transportation difficulties do not establish good cause for leaving employment where the employee has failed to consider common sense solutions, such as use of public transportation or a change of residence. Thome v. Pacific Telephone, (1968) CUIAB Precedent Decision P-B-25, p. 8.

In Baringer v. Sears, Roebuck & Co. (“Baringer”) (1976) Appeals Board Decision No. P-B-263, p. 2, the claimant asserted that she quit her job because of a susceptibility to cold from the air-conditioning and because of nervousness from the noise and confusion. Prior to quitting, Barringer took six days in the previous year and two days in each of the last two weeks off work due to colds. Id. She visited the doctor the day after she quit and continued to see him on regular intervals, but he told her she was not eligible for benefits under a disability insurance plan. Id.

At the CUIAB hearing, Barringer submitted a statement from the physician that he advised her because of her condition to seek work that lessens nervous strain or has no air-conditioning. Id. The doctor prescribed rest until the condition which caused her nervousness had ceased. Id. Barringer took two months of rest before she sought work again. Id., p. 4.

The CUIAB concluded that Barringer left work with good cause. Id., pp. 3-4. It had previously held that leaving work for health reasons was for good cause even though the claimant did not consult a physician but relied upon self-treatment. Id., p. 3. Here, the fact that Barringer visited the doctor and rested as prescribed after she quit was proof that she acted in good faith. Id. at 4. Barringer had also sought a place at her old job free of air-conditioning drafts before she quit, which was further evidence in her favor. Id.

In Collins v. Douglas Aircraft, (“Collins”) (1976) Appeals Board Decision No. P-B-225, p.3, the employer terminated the claimant because he refused to accept the work the employer had for him. Collins rejected that work because he believed that he could not satisfactorily perform the duties, either due to the heavy lifting required or the pressure due to his nervous condition. Id. Collins’s concerns were substantiated because the voluntary plan in effect found him disabled and paid unemployment compensation disability benefits. Id. The CUIAB agreed that he voluntarily left his work with good cause. Id.

In In the matter of Evans, (“Evans”) (1956) Appeals Board Decision No. PB-254, pp. 1-2, the claimant left work because she was in the second month of her pregnancy. Because she did not attempt to show that her health required her to leave her employment, the CUIAB held that she voluntarily left her employment without good cause. Id., p. 2.

In Tichgelaar v. The Northwest Paper Company, (“Tichgelaar”) (1971) Appeals Board Decision No. P-B-117, p. 1, the claimant quit his job in Los Angeles to move to Oregon. Based on his own evaluation and with no advice from a doctor, the claimant was concerned about the ill effects of smog on himself and his family. Id. He testified that they suffered from eye and respiratory irritation. Id. A specialist in pulmonary matters and thoracic surgery testified to this effect from Los Angeles’s “photochemical smog.” Id., p. 2. The CUIAB found that, while the claimant felt that he had good cause for quitting, he left based on his own suspicions rather than a physician’s advice and there was no evidence of an immediate compelling medical reason. Id., pp. 3-4.

An individual is disqualified for benefits if, for the sole purpose of obtaining benefits, he or she either willfully made a false statement or representation, or willfully failed to report a material fact. §1257(a). “Willful” means intending the result which actually comes to pass and does not imply any malice or wrong. To do a thing willfully is simply to do it knowingly. In re Mary E. Brown, (1969) CUIAB Precedent Decision-B-72. Knowledge of falsity may be established by a showing that the declarant had actual knowledge of the falsity, lacked an honest belief in its truth, or made the statement carelessly or recklessly in a manner not warranted by information available to the declarant. Wishnick v. Frye, (1952) 111 Cal.App.2d 926, 930; CUIAB Precedent Decision P-B-436. A disqualification under section 1257(a) of an individual paid benefits as a result of his or her false statement or willful omission to report a material fact cannot be less than five nor more than fifteen weeks. §1260(d).

Han was the Blue Air Operations Manager beginning in December 2019. See AR 64. In December 2020, the Chief Operating Officer circulated a new Organizational Chart for the company, effective January 1, 2021. AR 80. Between the New Jersey Branch and Shipping & Receiving, six employees reported to Han under this reorganization. AR 88.

On March 20, 2021, Blue Air manager Roberto Kim (“Roberto”) emailed Han a warning that she had overstepped her boundaries by making certain decisions on her own. AR 92.

On March 31, 2021, Han wrote a resignation email to Roberto and Blue Air Office Administrator Min Kim (“Min”), effective April 16. AR 53.

On April 16, Han completed and signed a formal Notice of Resignation that said that the reason for her resignation was that she was going back to South Korea. AR 56. The Notice of Resignation included a statement that Han understood that she was not eligible for unemployment benefits because she was voluntarily quitting without good cause. AR 54.

On April 24, 2021, Han filed a claim for unemployment benefits with the EDD. AR 67. On September 29, 2021, EDD examiner Ken San (“San”) interviewed Han. AR 60, 62. Han asserted that she left Blue Air due to a change in working conditions. AR 60. She said that on February 28, 2021, a change in ownership increased Han’s workload outside of her usual area and forced her to perform Human Resources functions and manage branches outside of California. AR 60.

After two months of trying to adjust to these conditions, she found them too stressful. AR 60. Although she discussed the extra workload with management, it largely ignored her complaints. AR 60. When she decided to quit, she again discussed those issues with Blue Air’s Employee Relations department, not Min. AR 60. Employee Relations wanted to fix those issues, but Han knew it would take a while given the “inorganized” (sic.) new management and still decided to quit. AR 60.

The EDD’s form includes a space to note any steps an employee took to preserve their job, which San left blank. AR 60.

San contacted Blue Air Operations Manager Min and asked for her perspective, noting that Min was not the Employee Relations person with whom Han explained why she was leaving. AR 61. Min asserted that Han’s work performance was not good. AR 61. Han had said that she needed to go back to South Korea due to health issues. AR 61. She never mentioned issues with extra workload during the time she worked with Blue Air’s new ownership. AR 61. The change in ownership did not increase Han’s workload. AR 61.

On October 6, 2021, San determined that Han qualified for unemployment compensation benefits. AR 62. He reiterated most of Han’s assertions during the interview and added that she exhausted all reasonable steps to resolve the issue short of termination. AR 62. She gave Blue Air two months and made a real effort to preserve her job. AR 62.

The EDD mailed the Notice of Determination to Blue Air on October 7, 2021. AR 58. The Notice of Determination stated that Han quit because the terms and conditions of her employment were substantially modified and that Blue Air’s reserve account would be subject to charges. AR 58.

Blue Air appealed the EDD determination on October 19, 2021. AR 52. Blue Air attached Han’s email of resignation and Notice of Resignation to assert that she resigned solely to go back to South Korea, which did not constitute good cause. AR 51-54.

The CUIAB gave notice that the hearing would occur before the ALJ on March 24, 2022. AR 11. The issues identified in the notice included whether (1) Blue Air’s reserve account should be charged for any benefits paid to Han, (2) whether Han voluntarily left her employment without good cause, and (3) whether she was discharged for misconduct connected with her work. AR 12.

At 8:30 a.m. that morning, Han submitted a declaration from Young Huh (“Huh”), who could not attend the hearing in person because he lived in South Korea. AR 42. Huh was Han’s general manager and a Blue Air employee from October 1, 2018 to April 9, 2021. AR 44. During that time, he also owned 4% of Blue Air. AR 44.

Huh’s declaration asserts that, although Blue Air’s statement indicated that Han quit for personal reasons, she had more critical reasons for her resignation. AR 44. On February 28, 2021, a new change in management at Blue Air increased Han’s workload beyond that which was in her job description. AR 44. Her extra duties required her to handle more Human Resources matters and manage branches outside of California. AR 44.

Although she tried to discuss these issues with management, it largely ignored her complaints. AR 44. Han waited for two months to see if the situation would get better, but it did not. AR 44. About that time, Huh also decided to leave the company. AR 44.

Min represented Blue Air at the remote hearing, and neither party hired counsel. AR 15, 19. At the beginning of the hearing, the Korean interpreter Soobong Song (“Song”) stated that he is a qualified interpreter approved by the Inglewood Office of Appeals who has handled more than 300 interpretation cases. AR 17.

The ALJ stated that the issues were whether (1) Blue Air’s reserve account should be charged for any benefits paid to Han, (2) whether Han voluntarily left her employment without good cause, and (3) whether she was discharged for misconduct connected with her work. AR 21.

Min initially did not object to admission of any of the proposed exhibits into evidence. AR 22-23. She then said that she did not have a copy of the Huh declaration. AR 23. Although she disputed its assertions, she did not object to its admission once the ALJ explained that she did not have to accept everything therein as true. AR 24.

As Blue Air Operational Manager, Han handled most of the operations, customer service, and daily shipping schedules. AR 25. Han worked from Monday to Friday, from 8:00 a.m. to 4:30 p.m. AR 26. Her final annual salary was $65,000 when her employment ended on April 16, 2021. AR 26.

Han resigned because, although she enjoyed working with her team and customers, she did not feel safe after the company organization changed in February 2021. AR 26-27. The company became “inorganized”, which significantly increased her workload beyond what she could manage. AR 27.

Management changed in February 2021. AR 27. The old manager resigned, and the new one did not know much about the sales and decision-making work for which he was now responsible. AR 27. These responsibilities then fell to Han, who still continued her operations and customer service duties at the same time. AR 28. Han’s workload almost doubled as a result. AR 28.

Han tried to tell the new manager her feelings about this change, but he largely ignored them. AR 28-29. She gave him two months, during which she informally talked to him three to five times. AR 29, 32. She kept saying that she did not feel safe because the workload was just too much. AR 29, 33. There was no alignment in communication. AR 29.

The manager said he would try to help, but he did not. AR 30. Han said she needed changes within a short period of time. AR 30. The manager said it would take time but he would try to help. AR 30. He did not. AR 30.

As a result of the workload increase, Han was no longer able to read through all the customer emails. AR 30. The stress began to affect her mental health. AR 30. She stopped eating properly and going outside for her breaks. AR 31. Her menstrual period also stopped going properly. AR 31. She stopped sleeping properly, and she took Tylenol at least once a week due to headaches. AR 32. Han mentioned a few of these problems to Min, but she did not talk about her menstrual problems with the new manager. AR 32.

These physical symptoms told Han something was wrong, so she decided to quit. AR 31. She submitted her letter of resignation on March 31, 2021. AR 33. She did not mention the physical symptoms in her resignation letter because she knew it would not change anything in the short-term and she wanted to leave professionally. AR 33.

Han did not leave to go back to Korea, but she figured that was the way to leave the company. AR 33-34. She did eventually go to Korea for two months; she left in Mid-October 2021 because something that happened with her mother kept her here. AR 34.

When Han left Blue Air, Min was the Administration Manager. AR 36. She dealt with Human Resources issues, but she was not in a position to influence Han’s situation. AR 36. Min’s duty was to support Han, not give her any direction or order. AR 38. Min received all the information as to Han’s workload and knew what was going on. AR 38. Han’s workload did not double; she only received work that was “communication related”. AR 36-37.

This hearing was the first time Min heard of Han’s medical or stress-related issues with her workload. AR 36. Han’s e-files do not reflect additional work. AR 37. No one mentioned extra work at the January 2021 meeting. AR 37. Han had a final interview on April 16, 2021 and all she said was that she needed to go back to Korea. AR 37.

Roberto was Han’s new direct supervisor. AR 37-38. Min did not notice any big changes to either Han’s workload or to the office when Roberto took over. AR 38. While Han says she became involved with operations and services, Min only knew that she dealt with operations. AR 38. Min had not found any evidence to support Han’s assertions that she had extra workload or that she became involved with New Jersey operations or decision-making. AR 39-40.

Min disputed Han’s assertion that Roberto as the new manager did not know what he was doing. AR 40. Roberto had five years of experience before he joined Blue Air. AR 40. Min met with Roberto about Han when Roberto first joined the group and again when Han turned in her resignation letter. AR 40. They then worked together to generate the report about Han’s final interview. AR 40.

Min asked if there was any evidence as to Han’s assertions about her menstrual period and other health issues. AR 40-41. The ALJ replied she had nothing beyond the evidence already discussed. AR 41. Min reiterated that the only reason Han gave Min for her resignation was that she was leaving for South Korea. AR 41.

The ALJ decided that Han was in charge of operations and customer service for an airline. AR 69. When a new manager joined Blue Air in February 2021, he expected Han to handle sales and decision-making in addition to her other duties. AR 69. Han told the new manager three to five times that she could not handle the increased workload. AR 69. The manager said he would adjust her workload but failed to do so. AR 69.

Han began experiencing stress, which led to problems with her menstrual cycle, headaches, and sleeping. AR 69. Han told her employer about these problems several times. AR 69. Han left this out of her letter of resignation because she wanted to maintain a professional relationship with Blue Air. AR 69.

The ALJ concluded that there was good cause for Han voluntarily leaving work when the facts disclose a real, substantial, and compelling reason as would cause a reasonable person who is genuinely desirous of retaining employment to take similar action. AR 70. Precedent Decision P-B-25 held that a claimant left with good cause when the only work available was beyond his physical and emotional capacity to perform. AR 70. Han voluntarily left her employment because the work was beyond her physical and mental capacity to perform. AR 70. She was also experiencing health issues related to the stress caused by the increased job duties. AR 70. She complained to her manager several times without results. AR 70.

The ALJ therefore concluded that Han quit with good cause after she gave her employer an opportunity to correct the working conditions. AR 70. She was not disqualified from unemployment benefits and Blue Air’s reserve account is subject to charge. AR 70.

On May 5, 2022, Blue Air appealed the ALJ decision to the CUIAB. AR 72. Blue Air argued that it was self-evident that Han resigned without good cause. AR 72.

Blue Air denied that Han worked as an Operations Manager for an airline. AR 72. Blue Air is a wholesale distributor, not an airline. AR 72. When combined with how the ALJ switched pronouns for Han, this shows the ALJ’s lack of care in this case. AR 72.

The change in management was on January 1, 2021, not February 28. AR 72. Upon that change, the new management met with each employee to hear their own opinions as to workload and ideas for how to avoid confusion. AR 72. Blue Air also denied that Han ever had customer service duties. AR 73.

On July 5, 2022, the CUIAB affirmed the ALJ’s decision. AR 103-04. The CUIAB Decision found no material errors in the ALJ decision’s factual findings or issue statement, and the reasons for the decision properly apply the law to the facts. AR 104. Although Blue Air contended that the weight of the evidence did not support these findings, the ALJ is the initial arbiter of the credit and weight for each piece of evidence. AR 104. The CUIAB did not find the ALJ decision’s findings arbitrary or against the weight of the evidence. AR 104.

The CUIAB did remove the letters “REV” from the top of the ALJ decision because it was not a reversal of the EDD Determination. AR 104.

Blue Air moves to augment the record with (1) a cd of the audio recording of the appeal hearing on March 24, 2022 (Markson Decl., Ex. A); and (2) Daily Transcription’s version (“DT Transcript”) of that hearing (Markson Decl., Ex. B).

The administrative record includes the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence and any other papers in the case. Govt. Code §11523.

“The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. The court can only admit additional evidence where the party seeking its inclusion shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e).

The CCP does not expressly provide for a motion to augment or correct the administrative record, but such motions are routinely made. See e.g., Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal.App.4th 93, 101.

In November 2022, Blue Air received a copy of the audio recording of the hearing. Markson Decl., ¶3. The recording revealed that Song would sometimes summarize long passages of Min’s testimony instead of translating them directly. Markson Decl., ¶¶ 3-4, Ex. A. The translator sometimes did not translate questions and answers at all. Markson Decl., ¶¶ 3-4, Ex. A.

Blue Air’s counsel hired third-party transcription agency Daily Transcription to transcribe the audio. Markson Decl., ¶5, Ex. B. The DT Transcript shows when Song spoke Korean to translate what other had said. Markson Decl., ¶5, Ex. B. It also shows when the ALJ paused proceedings so that Song could interpret the previous questions and answers for Kim. Markson Decl., ¶5, Ex. B, pp. 14-15. The substance of the questions and answers in the DT Transcript remains the same as the transcript in the record. Markson Decl., ¶5, Ex. B.

In support of its Petition, Blue Air has argued that the audio recording shows that Song did not translate the entire proceeding for Kim. Pet. Op. Br. at 17. He summarized large blocks of testimony involving multiple questions and answers. Id. This violates CRC 2.890(b), which requires any interpretation to be accurate and as stated in the original language without embellishments, clarifications, omitting or editing the testimony. Mot. at 6. Blue Air seeks to use both the audio recording and the DT Transcript to support this due process argument. Id.

There is no dispute that the extra-record evidence at issue could not have been presented to the agency in the exercise of reasonable diligence. See CCP §1094.5(e). The audio and transcript of an administrative hearing did not exist until after the hearing has concluded. The CUIAB then issued its decision on July 5, 2022, four months before Blue Air received a copy of the audio recording. Markson Decl., ¶¶ 3-4, Ex. A.

The CUIAB[2] does not oppose inclusion of the audio recording for the court to compare against the official transcript. Mot. to Aug. Opp. at 5. CUIAB argues that the DT Transcript is unnecessary because the court can use the audio recording to verify and clarify the testimony. Id.

Blue Air replies that a party who seeks to offer into evidence an electronic sound recording of a deposition or other testimony must lodge a transcript thereof with the court. CRC 2.1040(a). Reply at 2. Because of this, the CUIAB’s concession for the admission of the recording also requires admission of the transcript. Id.

Blue Air’s argument ignores the fact that there already is a transcript of the hearing in the administrative record. AR 15-41. As a result, Blue Air cannot rely on CRC 2.1040(a) to submit another transcript.

The CUIAB also asserts that purported gaps in translation could be because Min was able to understand and respond in English to some questions before the interpreter had an opportunity to translate the questions into Korean. Opp. at 5-6. The court agrees with Blue Air that this is speculation that cannot justify denial of a motion to augment. Reply at 4.

The CUIAB finally argues that to the extent that Blue Air seeks to prove a due process violation, it does not identify any prejudice. Opp. at 5. Blue Air replies without citation to authority that inaccurate interpretation is inherently unfair and prejudicial to the foreign-language party. Reply at 4. It also cites Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 485 to assert that the court may consider the evidence when it is relevant to whether the petitioner was denied due process or a fair hearing. Reply at 4.

Blue Air does not need to demonstrate prejudice to augment the record with evidence supporting a due process violation. It is sufficient if the evidence is relevant to that contention. The motion to augment the record is granted as to both the audio recording and the transcript.[3]

Petitioner Blue Air seeks mandamus to set aside the CUIAB’s decision on two grounds: (1) the finding that Han had good cause to quit is not supported by the weight of the evidence and (2) Blue Air was denied a fair hearing.

It is undisputed that Han left her employment at Blue Air voluntarily. The issue is whether she did so with good cause, meaning with a legally sufficient ground or reason. Zorrero, supra, 47 Cal.App.3d at 439. An employee cannot establish good cause when he voluntarily leaves his employment merely because he is “dissatisfied with conditions that he well knew existed at the time he accepted employment.” Hildebrand, supra, 19 Cal.3d at 771. The good cause must be such that a reasonable worker in the same situation would be motivated to leave his employment and join the ranks of the unemployed. Evenson, supra, 62 Cal.App.3d at 1016-17. For job conditions to constitute good cause for leaving, they must be “so unsatisfactory as to be intolerable to a reasonable person genuinely desirous of retaining employment.” Reg. §1256-23. Good cause thus exists where work conditions become intolerable or where health or safety is endangered. Reg. §1256-23. An employee has good cause for voluntarily quitting his or her job where the facts disclose a real, substantial, and compelling reason that would cause a reasonable person genuinely desirous of retaining employment to take similar action. Vicars, supra, Appeals Board Decision No. P-B-27, p. 4.

Blue Air argues that the ALJ’s finding of good cause is not supported by the weight of the evidence because Han’s new excuse about health-induced problems due to a stressful workload is not a substantial or compelling reason for quitting. Pet. Op. Br. at 9-10.

According to Blue Air, the ALJ determined that Han had good cause for quitting based solely on her testimony that she began to experience medical problems (headaches, sleeplessness and menstrual irregularity) because of her stressful workload. AR 70. An “undue risk of injury or illness” at work may support a finding of good cause. Reg. 1256-15 (b). The claimant must both believe that he or she has an undue risk of injury or illness from working conditions and take reasonable steps to preserve the employment relationship, such as by taking a sick leave or seeking transfer. Id. A “mere concern with one’s health or safety is not sufficient to justify good cause for leaving work.” Reg. 1256-15(d). The claimant must present evidence of an immediate, compelling medical necessity, typically presented in the form of medical evidence. Pet. Op. Br. at 10-11.

Blue Air relies on Tichgelaar, supra, No. P-B-117 (benefits denied where claimant had general concern about eye irritation and respiratory irritation from Los Angeles smog and presented evidence from pulmonary specialist, but there was no “immediate compelling medical reason” because the decision to quit was not based on the advice of a physician). Corroborating medical evidence is generally required because it tends to show that the claimants’ health concerns were in good faith. See Baringer, supra, No. P-B-263 (claimant quit with good cause because of nervousness and susceptibility to colds where she previously took multiple days off work due to colds which she attributed to the air-conditioning at work, saw her physician for treatment, and presented a statement from her physician confirming her extreme nervous state and hyper-susceptibility to colds and recommending that she seek work where there is no air-conditioning). Pet. Op. Br. at 11-13.

Blue Air notes that Han presented no evidence of an “undue risk of illness” or “immediate compelling medical necessity” for quitting. She presented no evidence of “a reasonably foreseeable and substantial probability of incurring…[an] illness which would require hospitalization or services of a physician for proper medical care,” as required by Reg. section 1256-15(c). She presented no evidence showing that she required any medical treatment, or that it was “reasonably foreseeable” and probable that she would need such treatment if she continued working. Like the claimant in Tichgelaar, Han’s self-serving testimony about her health issues is insufficient to establish good cause. Pet. Op. Br. at 13-14; Reply at 5-6.

Blue Air’s argument is a red herring. Han did not quit because of health issues. Neither she nor the ALJ suggested that she left Blue Air because of an “undue risk of injury or illness” from her working conditions under Reg. section 1256-15(b). Rather, the ALJ found that Han voluntarily left her employment because the work was beyond her physical and mental capacity to perform. AR 70. Good cause exists where work conditions become intolerable or where health or safety is endangered. Reg. §1256-23. Either will suffice. Han and the ALJ relied on intolerable work conditions, not endangered health or safety. Han’s health issues caused by the stress from her increased job duties was offered as evidence of her work burden, not as a separate ground for good cause. See AR 70. In this circumstance, Han did not need evidence of an immediate, compelling medical necessity presented through medical evidence.[4]

Blue Air next argues that Han’s shifting, contradictory reasons for quitting cast doubt as to the veracity of her new medical excuse. The sole reason Han gave Blue Air for quitting was that she was “Going back to S. Korea.” AR 53. She told Blue Air as much in a resignation email and again on her Notice of Resignation. AR 53-54. Given this reason, Blue Air is entitled to a presumption that Han left without good cause. See In the Matter of Reliable Window Cleaners, (1978) Appeals Board Decision No. P-R-376 (employer entitled to a presumption that claimant left its employ without good cause when claimant refused to give any reason other than she was leaving for personal reasons). That presumption is supported by Han’s admission on the Notice of Resignation: “I am voluntarily quitting without good cause.” AR 54. Pet. Op. Br. at 14.

Blue Air concludes that Han’s shifting, inconsistent story demonstrates a lack of credibility. See Reeves v. MV Transportation, Inc., (2010) 186 Cal.App.4th 666, 677 (a party’s “shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions” puts their credibility at issue). Therefore, little weight should be given to her self-serving uncorroborated testimony. Pet. Op. Br. at 14-15.

During the hearing, Han testified that her “workload increased to the point that [she] wasn’t able to manage.” AR 27. Her previous manager quit so she had to see operations and customer service, almost doubling her workload. AR 28. She tried to talk to the new manager, but her workload concern was ignored by the management. AR 29. She had three to five “informal” meetings with the new manager, and the new manager said he would help but did not. AR 30. Her work situation started to affect her health due to the stress. AR 30. She was not eating properly and did not go outside to take a break, her menstrual period was irregular, she was not sleeping every night, and she was taking Tylenol “for headache[s].” AR 31-32.

This testimony is consistent with what Han told the EDD Examiner. She told him that Han asserted that she left Blue Air due to a change in working conditions. AR 60. She said that on February 28, 2021, a change in ownership increased Han’s workload outside of her usual area and forced her to perform Human Resources functions and manage branches outside of California. AR 60. After two months of trying to adjust to these conditions, she found them too stressful. AR 60. Although she discussed the extra workload with management, it largely ignored her complaints. AR 60. When she decided to quit, she again discussed those issues with Blue Air’s Employee Relations department. AR 60. Employee Relations wanted to fix those issues, but Han knew it would take a while given the “inorganized” (sic.) new management and still decided to quit. AR 60.

It is true that Han’s testimony and unemployment benefits application are inconsistent with the reason that she gave to Blue Air for quitting, which was that she was going back to Korea. She also stated on the Notice of Resignation: “I am voluntarily quitting without good cause.” AR 54. Nonetheless, Han explained at the hearing that she said she was going back to Korea because she wanted to “leave professionally” and did not mention her physical symptoms because it would not change anything. AR 33-34.

These reasons are sufficient, and Han’s credibility is not significantly undermined. This is particularly true because Han was corroborated by the Huh declaration. Huh was Han’s general manager until April 9, 2021. AR 44. Huh declared that Han had more critical reasons for her resignation than personal reasons. AR 44. On February 28, 2021, a new change in management at Blue Air increased Han’s workload beyond that which was in her job description. AR 44. Her extra duties required her to handle more Human Resources matters and manage branches outside of California. AR 44. Although she tried to discuss these issues with management, it largely ignored her complaints. AR 44. Han waited for two months to see if the situation would get better, but it did not. AR 44.

Blue Air fails to even mention this corroborating evidence. Instead, it argues that Han failed to present specific business metrics (sales volume, production targets) or evidence that she worked long hours or into the night. Reply at 4. While Han could have been more specific, Blue Air did nothing to significantly rebut Han’s position either. Min’s testimony was even more vague and appeared to lack foundation as to her personal knowledge of Han’s duties.

Thus, the ALJ correctly concluded there was a management change at Blue Air in February 2021. AR 69. The new manager expected Han to handle sales and decision-making in addition to her other duties. AR 69. Han advised the new manager three to five times, from February to April 2021, that she was unable to handle the increased workload. AR 69. The new manager said he would adjust Han’s assignments but failed to do so. AR 69.

Accordingly, the ALJ correctly ruled that Han quit her employment at Blue Air with good cause. AR 70. She voluntarily left her employment because the work was beyond her physical and mental capacity to perform. AR 70. Good cause was not negated because Han gave Blue Air a full two months to correct the working conditions through her complaints to Blue Air’s management. See also AR 62 (EDD Examiner’s conclusion). This is an intolerable working condition per Reg. section 1256-23.

Blue Air notes that interpreters are required to provide a complete and accurate interpretation of everything that is said during the entire proceeding. CRC 2.890(b). The interpreter’s job is to accurately interpret each question and answer exactly as stated in the original language, without embellishments, clarifications, omitting or editing the testimony. Id. The rule is consistent with the fundamental notion that the parties are entitled to an opportunity to meaningfully participate in the proceeding. A party cannot meaningfully participate and respond to evidence/testimony if the foreign-language interpreter does not interpret the entire proceeding. Pet. Op. Br. at 16-17.

Blue Air contends that the audio recording of the hearing shows that Song did not translate the entire proceeding for Kim. There was no evidence that Song is court-certified, registered, or adequately qualified in accordance with the provisional qualification procedures adopted by the Judicial Council. Throughout much of the hearing, the ALJ inquired of Han and Song did not translate the questions and answers. As the ALJ’s examination of Han progressed, Song summarized large blocks of testimony involving multiple questions and answers. The spotty “interpreter summaries” involved Han’s testimony on the primary factual questions of her stress-induced health issues and complaints to her supervisor. The EDD’s failure to provide proper and complete foreign-language interpretation was a denial of due process. Pet. Op. Br. at 17.

The CUIAB’s opposition does not address this issue (see Reply at 7), but it is specious. The court has listened to the hearing audio and compared it to the augmented transcript (Ex. B). The hearing was conducted remotely, apparently with Song and Kim at separate remote locations. Remote interpretation is difficult, but both the ALJ and Song did an admirable job of ensuring that Song interpreted for Kim.

Contrary to Blue Air’s argument, there were only a few pages of transcript (Ex. B, pp. 15, 19, 22) where Song did not translate immediately after a question and answer. At these stages, the ALJ asked a series of questions without giving Song an opportunity to interpret, and he subsequently interpreted a summary of those questions and answers. This may not have been perfect, but perfection is not required in an administrative hearing. Kim never professed any misunderstanding of Song’s interpretation and her statements in context show that she fully understood and made appropriate answers.[5] Nor did Kim ever object to Song’s credentials or his interpretations. As a result, Blue Air’s current objection was waived.

Finally, any due process violation requires a showing of prejudice. Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice). Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation. People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay). Blue Air fails to even suggest that it was prejudiced by any imperfection in the interpretation.

Blue Air also argues that the ALJ’s decision is “replete with erroneous factual findings”. First, the ALJ’s decision states that Han “did not state the reasons for resigning in her letter of resignation” (AR 69), but that is not accurate. Han stated her reason for resigning in her Notice of Resignation that she was going back to Korea. AR 54.

Blue Air misses the ALJ’s point. The ALJ stated: “The claimant did not state the reasons for resigning in her letter of resignation because she wanted to maintain a professional relationship with the employer.” AR 69. The ALJ was clearly referring to Han’s testimony about her true reasons for resigning, which were not in her letter of resignation.

Next, Blue Air argues that the ALJ’s decision states that Han “mentioned her health concerns regarding the working conditions to her employer on several occasions.” AR 69. There is no evidence to support that finding. Although Han testified that she complained to her employer about her stressful workload (AR 29), she did not specifically testify that she told her supervisor or anyone else at Blue Air about any stress-induced health issues. AR 32-37, 41. She only testified that she “just told him [supervisor Roberto Kim] that I -- the work was too much.” AR 33.

Blue Air is incorrect. Han testified that she let the manager know that she was experiencing stress because of the increased workload. Ex. B, p. 20. She also talked to Kim “a little bit”. Id.

Finally, Blue Air argues that the ALJ’s decision contains several less significant errors. The ALJ’s decision states that Han was the operations manager for “an airline.” AR 69. Blue Air is not an airline. Also, the letters “REV” at the top of the ALJ’s decision (“reversal”) was not accurate (AR 69), and the CUIAB corrected that error. AR 104. True, but these two errors are not significant. The CUIAB corrected the “REV”. The ALJ’s decision made a mistake about an airline and she made the same mistake during the hearing by referring to Blue Air as “Korean Airlines” and then correcting herself. Ex. B, p. 12. Her error may have stemmed from the Blue Air name, which has the word “Air” in it, as well as the fact that there is an airline that has the word “Blue” in it (Jet Blue). In any event, Blue Air fails to show a due process violation or any prejudice.

The Petition is denied. The CUIAB’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner Blue Air’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 7, 2023 at 9:30 a.m.

[1] Blue Air failed to lodge courtesy copies of the moving papers, opposition, and reply for the motion to augment as required by the Presiding Judge’s First Amended General Order re: Electronic Filing and its counsel is admonished to do so in the future.

[2] For convenience, the court will refer to the opposition filed on behalf of both the CUIAB and EDD as CUIAB’s opposition.

[3] Daily Transcription’s certification of the DT Transcript arguably is an inadequate authentication. Blue Air also should have met and conferred with opposing counsel over the transcript changes before making the motion to augment. The CUIAB does not oppose on either ground, however.

[4] Since Han was not relying on her work conditions as an undue risk to her health, she obviously was not required to support her health problems with corroborating evidence. See Pet. Op. Br. at 15-16. Nor was she required to seek a leave of absence for health reasons before quitting. See Reg. §1256-16(d) (“Good cause for leaving work is nullified if the employee fails to request a leave of absence” which is available and would probably have been granted). Blue Air acknowledges that this regulation governs an employee quitting for health-related concerns. Pet. Op. Br. at 16.

[5] She also appeared to answer in English twice (Ex. B, pp. 11, 23), apparently demonstrating a minimal understanding of English.