Judge James C. Chalfant, Case Number: 23STCP00186, Date: 2024-02-08 Tentative Ruling

Petitioner Lucine Gabrielyan (“Gabrielyan”) seeks a writ of mandate compelling Respondent California Unemployment Insurance Appeals Board (“CUIAB”) to set aside its decision affirming a determination by the California Employment Development Department’s (“EDD”) that she is ineligible for Pandemic Unemployment Assistance (“PUA”) benefits.

The court has read and considered the moving papers and opposition (no reply was filed), and renders the following decision.

A. Statement of the Case

1. Petition

Petitioner Gabrielyan commenced this proceeding on January 24, 2023. The operative pleading is the First Amended Petition (“FAP”) filed June 6, 2023 against Respondents CUIAB and Uber, alleging a cause of action for administrative mandamus. The unverified FAP alleges in pertinent part as follows.

Gabrielyan is a divorced mother of two children with a difficult financial situation.

During her hearing before the CUIAB’s Administrative Law Judge (“ALJ”), Gabrielyan was out of the country and attended remotely. She asked the ALJ to speak slowly because of her limited English skills. She still was unable to understand the ALJ. Her daughter had COVID-19 at the time, which stressed her out.

Gabrielyan was therefore unable to present facts at the hearing. This included the fact that she opened her Uber Eats (“Uber”) account in November 2019. However, she was unable to start work until February 2022 because of COVID-19.

Gabrielyan seeks a writ of mandate compelling the CUIAB to find her eligible for PUA benefits.

2. Course of Proceedings

On February 4, 2023, Gabrielyan served the CUIAB with the Petition by mail.

On May 18, 2023, the court ordered Gabrielyan to file an FAP naming Uber as a Real Party-in-Interest.

On June 7, 2023, Gabrielyan filed the FAP and served Uber with the FAP and Summons by mail.

On July 10, 2023, CUIAB filed an Answer.

On August 17, 2023, Gabrielyan personally served Uber with the Petition.

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.

“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. 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.

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.

Title 15 United States Code (“15 USC”) section 9021 authorized the provision of unemployment benefits to individuals who were otherwise able and available to work but are unable to do so for one of the COVID-19 related reasons identified in the statute. A “covered individual” includes anyone who provides self-certification that the individual is otherwise able to work and available for work within the meaning of applicable state law, except the individual is unemployed, partially unemployed, or unable or unavailable to work because of one of eleven listed reasons. 15 USC §9021(a)(3)(A)(ii)(I). Alternatively, the individual may provide self-certification that the individual is self-employed, is seeking part-time employment, does not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits under state or federal law or pandemic emergency unemployment compensation under section 9025, and otherwise meets the requirements of section 9021(a)(3)(A)(ii)(I). 15 USC §9021(a)(3)(A)(ii)(II).

In either case, the individual must provide documentation to substantiate employment or self-employment or the planned commencement of employment or self-employment not later than 21 days after the later of the date on which the individual submits a PUA application under 15 USC section 9021 or the date on which an individual is directed by the State Agency to submit such documentation in accordance with Title 20 Code of Federal Regulations (“20 CFR”) section 625.6(e) or any successor thereto, except that such deadline may be extended if the individual has shown good cause under applicable state law for failing to submit such documentation. 15 USC §9021(a)(3)(A)(iii).

CUIAB hearings shall be conducted in English. 22 California Code of Regulations (“22 CCR”) §5063(a). If a party or witness does not proficiently speak or understand English and requests language assistance before the hearing commences, the agency shall provide the party or witness an interpreter in the hearing at the expense of the agency. 22 CCR §5063(b).

A party who files a CUIAB appeal has the right to file an application to present new or additional evidence. 22 CCR §5102(a). Except as otherwise provided in 22 CCR section 5102 or specified by the agency, the application shall be filed and served at the same time the board appeal is filed. Id. The application shall state the nature of the evidence, the materiality of such evidence, and the reasons why such evidence was not introduced at the hearing before the ALJ. 22 CCR §5102(d). If the new or additional evidence is documentary in nature, the applicant shall attach the evidence to the application. Id. No such evidence shall be considered unless the CUIAB admits it. Id.

Gabrielyan applied for PUA benefits. In a January 17, 2022 document styled as an affidavit, Gabrielyan asserted that she is a 36-year-old student at Glendale Community College and a single mother of two children. AR 32. On March 20, 2020, she had an interview with Yerevan Premium Foods (“Yerevan”). AR 32. The interview went well, and she was slated to work as a counter server beginning April 1, 2020. AR 20. The supervisor later called her and said that Yerevan could not hire new employees because of the COVID-19 pandemic. AR 32.

On January 21, 2022, EDD mailed Gabrielyan a Notice of Determination (“NOD”) concluding that her evidence was insufficient to show that she was, or planned to be, self-employed or employed. AR 2. Therefore, she did not qualify for PUA benefits for any weeks of employment ending on or after December 27, 2020. AR 2. The NOD explained that she had until February 22, 2022 to appeal the decision to an ALJ with an explanation of why she disagreed with the NOD. AR 3.

On February 9, 2022, Gabrielyan appealed the EDD’s decision. AR 4. She stated that she interviewed with Yerevan on March 20, 2020 and was hired to start work as a counter server on April 1. AR 4. However, the supervisor called her and said that Yerevan could not hire new employees because of the COVID-19 pandemic. AR 4. Her search for a job in Glendale has otherwise been unsuccessful. AR 4.

The appeal form included a section which inquired whether Gabrielyan needed a translator and in what language. AR 4. Gabrielyan left this question blank. AR 4.

Gabrielyan attached to her appeal a February 9, 2022 letter from Yerevan supervisor Hovhannes Hovhannisyan (“Hovhannisyan”). AR 5. The letter was on a blank sheet of paper without Yerevan letterhead. AR 5. Hovhannisyan confirmed that Gabrielyan was hired on March 20, 2020 but terminated before her April 1 start date because of the pandemic. AR 5. Hovhannisyan invited the EDD to call his office at the listed number. AR 5.

On June 20, 2022, CUIAB sent Gabrielyan a Notice of Hearing informing her of the July 12, 2022 appeal hearing date. AR 9. The notice advised Gabrielyan that she needed to file any additional documents for consideration with the CUIAB’s Pasadena Office of Appeals by June 27, 2022. AR 9. Otherwise, the ALJ could choose to exclude such documents. AR 9. The notice also advised her to contact the Pasadena Office of Appeals if she needed an interpreter or reasonable accommodation. AR 9.

At the hearing, Gabrielyan confirmed that the CUIAB had sent the Notice of Hearing to the correct address. AR 15. The ALJ then explained EDD had found Gabrielyan ineligible for PUA benefits under 15 U.S.C. section 9021(a)(3)(A)(iii), and 20 C.F.R. section 625.6(e)(2) because she did not provide documents to prove that she was employed or self-employed. AR 15. Gabrielyan said that she understood and had no questions. AR 15-16.

Gabrielyan said that she was out of the country and hoped that they would not be disconnected. AR 16. She also said that her English is “not as good.” AR 16. The ALJ replied they could proceed with the hearing and “work on” any disconnections that may arise. AR 16. The ALJ explained the procedure that would be used, and Gabrielyan said that she understood. AR 16-17.

The ALJ reviewed the evidence, including Gabrielyan’s January 17 letter and Hovhannisyan’s February 9 letter. AR 17. Gabrielyan confirmed she had a chance to look through every exhibit and did not object to their admission into evidence. AR 17-18.

Gabrielyan testified that she opened a PUA claim around April 5, 2020 and received payment through August 28, 2021. AR 18-19. She did not work in 2019 because she was a full-time student. AR 19.

The ALJ then asked Gabrielyan if she worked in 2020 before she opened her PUA claim. AR 19. When Gabrielyan did not answer, the ALJ asked if Gabrielyan understood her. AR 19. After Gabrielyan stammered “the question – I – I,” the ALJ noted that she had the chance to ask for an interpreter when she filed her appeal but did not do so. AR 19. Because Gabrielyan was out of the country, the ALJ did not want to have to reschedule the hearing for later that day to find an interpreter; there were too many chances she would not be able to reconnect with Gabrielyan. AR 19-20.

The ALJ then asked if Gabrielyan felt she could go on without an interpreter or whether she needed one. AR 20. When she replied she did need one, the ALJ reiterated that she did not have one present. AR 20. She suggested it would be better for Gabrielyan to have a new hearing. AR 20. Gabrielyan opted instead to try to answer the questions, if the ALJ asked slowly. AR 20. Based on Gabrielyan’s statement, the ALJ said “we’ll go forward.” AR 20.

Gabrielyan testified that she did not work in 2019 or 2020. AR 20. She is still a student but has been looking for work. AR 20-21. She interviewed with Yerevan, a food company that makes and sells sausages and Armenian meat. AR 21-22. When the ALJ asked if it was a grocery market, Gabrielyan denied it and repeatedly said it was like a “fabric.” AR 21. When she clarified Yerevan made and sold food, the ALJ identified it as a “food seller.” AR 21-22.

Gabrielyan would have started work in April 2020, but Yerevan closed because of the pandemic and could not take on new employees. AR 22. The ALJ asked whether Yerevan reopened. AR 22. When Gabrielyan asked her to repeat the question, the ALJ clarified the question was whether it reopened earlier than a lot of other businesses. AR 22-23. Gabrielyan said that it did not. AR 23. The ALJ asked why Gabrielyan did not go back to working for Yerevan when it reopened. AR 23. Gabrielyan replied that it was out of business and still closed. AR 23.

On July 19, 2022, the ALJ mailed Gabrielyan a decision affirming EDD’s decision to deny PUA benefits. AR 45-49.

The ALJ stated that, when Gabrielyan opened a PUA claim on April 5, 2020, she was required to provide documentation to verify employment or self-employment. AR 46. She was not employed between 2019 and 2021 and was a full-time student in 2019 and 2020. AR 46. She still is not working. AR 46.

Gabrielyan had no documents to confirm employment or self-employment prior to opening the claim for benefits. AR 46. Hovhannisyan’s February 9 letter said Gabrielyan was offered a job with Yerevan but terminated before her start date due to the pandemic. AR 46. This letter was not on official letterhead or under penalty of perjury. AR 46.

The ALJ explained that under section 2102(a)(3)(A)(iii) of the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136, someone who applies for PUA assistance before January 31, 2021 and receives assistance for any weeks after December 26, 2020 shall provide documentation of employment or self-employment, or the planned commencement thereof, within 90 days of submission of the application. AR 46-47. It must demonstrate employment or self-employment, or the planned commencement thereof, at some point between the start of the applicable taxable year and the date of filing the PUA claim. AR 47.

Gabrielyan did not provide documentation that would substantiate actual or planned employment or self-employment and therefore was ineligible for PUA under 15 USC section 9021(a)(3)(A)(iii) and 20 C.F.R. section 625.6(e)(2). AR 47.

Gabrielyan had provided a letter from an alleged employer, and she did testify she was offered a job but could not start because of the pandemic. AR 47. However, the ALJ found the testimony improbable and disbelieved it because Gabrielyan had no employment history, she was offered employment after the pandemic began yet did not go to work for the employer once the pandemic restrictions had lifted. AR 47. Gabrielyan also currently was not working. AR 47.

On August 16, 2022, Gabrielyan appealed the ALJ’s decision. AR 50. She attached a letter from Uber dated August 15, 2022, which confirmed that she had an active Uber driver account from February 25 to August 15, 2022. AR 52. Her most recent trip was on June 28, 2022 and she had 98 total trips. AR 52. She also submitted an echocardiogram report from August 3, 2022, and a letter from WM Dental confirming she received outpatient treatment from September to November 2022. AR 53-54.

Gabrielyan asserted on the CUIAB appeal form that she was unable to present these documents at the ALJ hearing because of her limited English skills. AR 50. She was registered to drive for Uber before the COVID-19 pandemic, but that pandemic kept her from working. AR 50. She now works for Uber while attending Glendale Community College. AR 50. Because she was in Armenia during the ALJ hearing to treat her and her children’s heart problems, she could not answer the questions in “full, sufficient English.” AR 50.

On December 21, 2022, the CUIAB affirmed the ALJ decision. AR 64, 66. It had found no material errors in its issue statement or findings of fact, and the reasons for the decision properly applied the law to the facts. AR 65. It therefore adopted all three as its own. AR 65.

As for Uber’s letter and the medical documents, Gabrielyan should have presented them at the hearing. AR 65. The Notice of Hearing advised Gabrielyan to bring all witnesses, statements, documents, and other relevant evidence to the hearing. AR 65. She has not established good cause for her failure to do so. AR 65. In any event, the new evidence only established that she worked for Uber for a period after she filed her PUA claim. AR 65. Her medical records do not support a conclusion that she was employed, self-employed, or planned to commence either. AR 65.

An ALJ has the responsibility of weighing and evaluating the testimony of witnesses and resolving conflicts in the testimony. AR 65. The CUIAB should accept an ALJ’s findings unless they are manifestly against the weight of the evidence. AR 65-66. This was not the case and the ALJ’s decision was affirmed. AR 66.

Petitioner Gabrielyan disputes the CUIAB’s denial of PUA benefits on three grounds: (1) she should have been given an interpreter and (2) the evidence of her employment was sufficient and she did not commit a fraud.

Gabrielyan argues that the ALJ hearing was fraught with linguistic misunderstandings and technical difficulties. English is her second language, and she is not fluent. The ALJ should have rescheduled the hearing until an interpreter was available. Gabrielyan said so at the hearing but the ALJ ignored the request. After she was refused an interpreter, Gabrielyan asked the ALJ to speak slowly so that maybe she would understand. The ALJ should have realized the futility of the situation, as shown by the fact that Gabrielyan referred to Yerevan as a company that makes “Armenian meat” and then “fabric”. There also was a misunderstanding about whether Yerevan was closed because of COVID, or permanently, or both. This lack of clarity was critical to Gabrielyan’s evidence that she was seeking work and the ALJ should have delayed the hearing for an interpreter. Pet. Op. Br. at 1-2.

The CUIAB correctly rebuts Gabrielyan’s argument concerning an interpreter. “[A] fair administrative hearing…affords the appellant a reasonable opportunity to be heard.” Pinheiro v. Civil Service Com. for County of Fresno, (2016) 245 Cal.App.4th 1458, 1463. (internal quotations omitted).

The CUIAB shall provide an interpreter if a party “requests language assistance before the hearing commences.” 22 Cal. Code Regs. §5063(b). Gabrielyan timely appealed EDD’s determination. The appeal form completed by her asked whether a translator would be needed, and if so, in what language. AR 4. Gabrielyan did not request an interpreter. Ibid. Gabrielyan received the notice of the ALJ hearing, and the notice directed her to call the Pasadena Office of Appeals immediately if an interpreter was needed for the hearing. AR 5. Gabrielyan again did not request an interpreter. AR 19. Although twice given the opportunity, Gabrielyan did not request an interpreter before the commencement of the July 12, 2022 ALJ hearing.

At the hearing, Gabrielyan presented her case, which proceeded without any disruptions even though Gabrielyan was out of the country. AR 13-23. When the ALJ then asked Gabrielyan if she worked in 2020 before she opened her PUA claim, Gabrielyan did not answer. AR 19. The ALJ asked if Gabrielyan understood her. AR 19. After Gabrielyan stammered a response, the ALJ noted that Gabrielyan had not asked for an interpreter when she filed her appeal. AR 19. Because Gabrielyan was out of the country, the ALJ did not want to reschedule the hearing for later that day after an interpreter was found; there were too many chances she would not be able to reconnect with Gabrielyan. AR 19-20.

The ALJ then asked if Gabrielyan felt she could go on without an interpreter or whether she needed one. AR 20. When Gabrielyan replied she did need one, the ALJ reiterated that she did not have one present and suggested it would be better to continue the hearing to another day. AR 20. Gabrielyan opted instead to try to answer the questions, if the ALJ asked slowly. AR 20. Based on Gabrielyan’s statement, the ALJ said “we’ll go forward.” AR 20. Thus, Gabrielyan did state her English was not good at the outset of the hearing, but she wanted to go forward with the hearing that day without an interpreter.

Throughout the hearing, Gabrielyan confirmed that she understood the ALJ’s questions and responded to them appropriately. AR 15-23. When asked whether she understood the topics they were going to talk about, Gabrielyan stated she did. AR 15. Gabrielyan confirmed she had a chance to look through every exhibit and did not object to their admission into evidence. AR 17-18. Gabrielyan also asked for clarification when she did not understand a question. AR 22-23.

Gabrielyan was not denied a fair hearing because she did not have an interpreter.

The ALJ explained that Gabrielyan was required to provide documentation of employment or self-employment, or the planned commencement thereof, at some point between the start of the applicable taxable year and the date of filing the PUA claim. AR 47.

Gabrielyan testified that she was offered a job but could not start because of the pandemic. AR 47. Hovhannisyan’s February 9 letter said Gabrielyan was offered a job with Yerevan but terminated before her start date due to the pandemic. AR 46. This letter was not on business letterhead or under penalty of perjury. AR 46.

The ALJ disbelieved the testimony improbable and the letter because Gabrielyan had no employment history, the Yerevan letter stated that she was offered employment that was disrupted by the pandemic, and yet she did not go to work for Yerevan once the pandemic restrictions were lifted. AR 47. Gabrielyan also was not working at the time of the hearing. AR 47. The ALJ concluded that Gabrielyan did not provide documentation that would substantiate actual or planned employment or self-employment and therefore was ineligible for PUA under 15 USC section 9021(a)(3)(A)(iii) and 20 C.F.R. section 625.6(e)(2). AR 47.

Gabrielyan argues that the lack of communication between herself and the ALJ affected the ALJ’s decision. The ALJ cast doubt on the Yerevan letter. However, the letter was written almost two years later, the business was permanently closed, and access to the letterhead of a closed business may be impractical. This was a small business and not many employers would hire an attorney to draft a letter for a person the business did not even hire. Pet. Op. Br. at 2.

The CUIAB’s opposition points out that Gabrielyan’s argument that Yerevan was permanently closed and access to letterhead may be impractical is rebutted by the fact that Hovhannisyan’s letter states to contact his office number listed below. The letter was written on February 9, 2022, and its content makes it appear to be an open business. Opp. at 14.

In short, Gabrielyan had not worked in the years before COVID and did not work after the pandemic, either at Yerevan or anywhere else. Hovhannisyan’s letter is not a reliable document to show Gabrielyan’s planned employment and the ALJ was entitled to disregard Gabrielyan’s bare testimony that she planned to work at Yerevan.

The CUIAB found Gabrielyan’s Uber letter submitted for appeal to be immaterial because it showed Gabrielyan worked from February 25 to August 15, 2022, which was outside the timeframe of the case. Gabrielyan argues that the CUIAB did not consider that Gabrielyan created her Uber account on November 1, 2019. The letter clearly shows that Gabrielyan was an Uber independent contractor beginning November 2019 and commenced employment in February 2022, which satisfies the UPUA requirements. Pet. Op. Br. at 2.

Gabrielyan ignores the fact that the CUIAB was not required to admit the Uber letter.

“An application to present new or additional evidence shall state the nature of the evidence, the materiality of such evidence, and the reasons why such evidence was not introduced at the hearing before the administrative law judge.” 22 Cal. Code Reg. §5102(d).

Gabrielyan failed to make any showing of good cause. The CUIAB found that the Notice of Hearing advised Gabrielyan to bring all witnesses, statements, documents, and other relevant evidence to the ALJ hearing. AR 65. She did not establish good cause for her failure to do so and the Uber letter was properly excluded. See AR 65.

In any event, the August 15, 2022 Uber letter does not aid Gabrielyan. When the ALJ asked if she worked in 2019 or 2020, Gabrielyan testified that she did not work and was a full-time student. AR 19-20. The Uber letter only verified that Gabrielyan was an active driver on the Uber app from February 25, 2022 to August 15, 2022. AR 52. These dates are after the pandemic and do not support her claim seeking benefits for 2020.

The Petition is denied. The CUIAB’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner’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 March 21, 2024 at 9:30 a.m.

[1] Gabrielryan attaches four exhibits to her opening brief. Three of the exhibits are excerpts from the Administrative Record. AR 13-23, 45-47, 64-67. The fourth exhibit is a letter from Uber, dated January 15, 2023, stating that Gabrielryan created her driver account on November 18, 2019.

In administrative mandamus cases, the court’s review is generally limited to the administrative record. Extra-record evidence may be considered only if the party seeking inclusion of such evidence 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); Fairfield v. Superior Court of Solano County, (1975) 14 Cal. 3d 768, 771-772. Western States, 9 Cal.4th at 578-579. In addition, extra-record evidence is admissible only if it relevant. Id. at 570.

The inclusion of extra-record evidence is made through a motion to augment. LASC 3.231(g)(3). As the CUIAB notes, Gabrielryan never moved to augment the record with the Uber letter and the court cannot consider it. See Opp. at 15.