Judge James C. Chalfant, Case Number: 23STCP01571, Date: 2024-04-30 Tentative Ruling

Petitioner Jose E. Buscaron Herrera (“Herrera”) seeks a writ of mandate compelling Respondent California Unemployment Insurance Appeals Board (“CUIAB”) to (1) set aside its ruling affirming the decision of the Administrative Law Judge (“ALJ”) and (2) order Real Party-in-Interest Employment Development Department (“EDD”), to schedule him for an in-person appointment. Additionally, Herrera asks the court to issue a cease-and-desist order to prevent the EDD from continuing to garnish Herrera’s wages.

The court has read and considered the moving papers, opposition, and reply, (and Herrera’s April 22, 2024 Brief) and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Herrera commenced this action on May 1, 2023, alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

On February 17, 2020, Herrera, along with numerous other employees, was laid off by his full-time employer, the Holiday Inn. Herrera was then directed to the employees’ union for assistance with filing for unemployment. Herrera is mono-lingual and speaks Spanish only.

Herrera provided the EDD with all required documentation and identification information online. On April 11, 2020, Herrera received his first EDD unemployment benefit disbursement. Herrera continually sought new employment during this period.

On June 4, 2020, Herrera was hired by J&A Maintenance as a part-time technician to disinfect City offices. Herrera continued to report his part-time income to EDD through the weekly documentation required.

Sometime after he commenced employment with J&A Maintenance, EDD ceased sending Herrera benefit disbursements. Shortly thereafter, Herrera received notice that EDD was unable to verify Herrera’s identity. Herrera responded online, telephoned, wrote letters, and also emailed EDD in an attempt to verify his identity. Herrera was unable to connect with any live-person, neither telephonically nor through an in-person appointment.

Subsequently, Herrera received notice that he was indebted to EDD due to overpayment. Herrera received a brochure with the notice, informing him of his right to appeal. Herrera sought to attend to the matter but, being mono-lingual, Herrera was only able to proceed after connecting with live-assistance.

Herrera filed an appeal with the EDD and a telephonic hearing was scheduled for January 28, 2022. Immediately preceding the hearing, Herrera contracted Covid-19. Herrera mailed EDD his Urgent Care documentation evidencing his Covid contraction and also called EDD to reschedule. Herrera continued to be impacted with residual Covid symptoms and suffered from respiratory ailments. Herrera mailed medical documentation to EDD a second time.

Herrera then attended his rescheduled telephonic hearing with the ALJ. On August 30, 2022, the ALJ dismissed Herrera’s appeal, reasoning that Herrera had not shown good cause for his untimely appeal and for his failure to appear at his prior hearing. Herrera appealed the ALJ’s decision to the CUIAB, which affirmed the ALJ’s decision.

Herrera now seeks a writ of mandate ordering the CUIAB to set aside its ruling affirming the ALJ’s decision and order EDD to schedule Herrera for an in-person appointment in order to reevaluate Herrera’s documentation. Herrera also requests a cease-and-desist order to required EDD to discontinue the garnishment of Herrera’s tax refund or further income until the matter is properly adjudicated by this court.

2. Course of Proceedings

On May 10, 2023 Herrera filed the Petition.

On June 27, 2023, CUIAB filed a General Denial.

On September 21, 2023, EDD filed a General Denial.

On January 22, 2024, Herrera filed a Notice of Deficient Administrative Record.

B. Standard of Review

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 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, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In 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). The right to practice a trade or profession is deemed to be a fundamental right requiring application of the independent judgment test. Golde v. Fox, (1979) 98 Cal.App.3d 167, 173.

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 CUIAB 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. CUIAB 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, supra, 20 Cal.4th at 817. Further, an agency is presumed to have regularly performed its official duties. Evid. Code §664.

The agency’s decision must be based on the evidence presented at the hearing. CUIAB 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.

C. Governing Law

An unemployment insurance claimant may appeal any written decision by the EDD to the Office of Appeals where their appeal will be heard by an ALJ. 22 CCR §§ 5000-168. If the appeal is untimely, the ALJ shall order the appeal dismissed unless the claimant shows good cause for the untimeliness. 22 CCR §5051. Only if good cause is shown will the appeal be decided on the merits. Ibid.

“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. The term “good cause” is not susceptible of precise definition. Zorrero v. Unemployment Insurance Appeals Board, (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” is defined in the regulations to mean a substantial reason under the circumstances, considering the diligence of the proponent and any burden or prejudice to any person involved. 22 CCR §5000(ii). “Good cause” includes, but is not limited to, mistake, surprise, inadvertence, or excusable neglect. Ibid.

If a claimant fails to appear at the hearing on their unemployment benefits appeal, the ALJ may dismiss the appeal. 22 CCR §5066.1(h). An appeal dismissed for non-appearance may be reopened if the appellant shows good cause for failing to appear at the hearing. 22 CCR §5067(e).

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.

On April 2, 2021, the EDD mailed petitioner a notice finding Herrera ineligible for UI benefits because of outstanding issues with his identity verification. AR 4-5, 89, 235. The EDD determined that Herrera was disqualified from receiving benefits for failing to provide sufficient information and documentation to establish his identity. Id. EDD maintained it was unable to verify Herrera’s identity and process his claim because the information provided at claim filing did not match the information provided to verify him as claimant. AR 4-5, 89. Thus, EDD deemed Herrera ineligible for benefits per UIC section 1253(a), suspended the benefits as of January 11, 2021, and retroactively designated the first affected week of suspension as April 5, 2020. AR 4-5, 120. The notice informed Herrera that his deadline to file an appeal was 30 days from the mailing of the notice, or no later than May 3, 2021. AR 4-5.

On November 3, 2021, EDD mailed Herrera another notice which notified Herrera of that he had received an overpayment. AR 2-3. Herrera was notified his benefits were paid for a period in which he was disqualified under UIC section 1253(a). AR 178. EDD stated that, due to overpayment issued to Herrera from April 11 to August 22, 2020, Herrera was liable to pay the EDD an overpayment in the amount of $3,272 per UIC section 1375. AR 178. The notice also advised Herrera to see “Notice of Determination Dated April 2, 2021”.

The notice specified that Herrera’s deadline was to appeal was no later than December 3, 2021. AR 179. According to the CUIAB, Herrera timely appealed on October 20, 2021. AR 240. (This appeal is not in the record unless the CUIAB was relying on Herrera’s October 20 appeal from denial of benefits. AR 10.

On January 15, 2022, the Office of Appeals mailed Herrera notices for each of the benefits disqualification and overpayment cases, informing him that EDD had scheduled a remote hearing on January 28, 2022. AR 36-40. The issue to be considered for the 7088213 hearing was whether or not the appeal was timely filed and if not, whether or not there was good cause for delay. AR 36. The notice for the overpayment hearing was as follows: (1) Was the appeal timely filed; and (2) Was the claimant overpaid benefits? If so, was any fault on the part of the claimant? If not, would repayment cause an extraordinary financial hardship? AR 40, 235.

Herrera failed to appear for the scheduled January 28 hearing. AR 235. As a result, the ALJ dismissed Herrera’s appeal and mailed Herrera a Notice of Dismissal for each case with a “date mailed” stamp of February 1, 2022. AR 244-47.

Herrera applied to re-open his appeals. AR 30-31. EDD scheduled a remote hearing on his application to reopen both cases for April 19, 2022 before ALJ Brian Kim. AR 30-31, 158. The hearing was scheduled to address both the (1) the benefits disqualification case due to Herrera’s failure to verify his identification in accordance with the EDD (which was dismissed due to late appeal) and (2) the overpayment case which was dismissed due to the January 28, 2021 missed hearing. AR 158, 160.

On April 18, 2022, Herrera submitted a letter addressing (1) good cause why his appeal of the April 2, 2021 Notice of Disqualification of Benefits was five months late and (2) why he missed the January 28, 2022 hearing. AR 98. Herrera also stated the October 20, 2021 appeal was late due to his contraction of COVID in April 2021 which caused him to suffer residual and respiratory ailments. AR 98.

“Today’s hearing is an appeal of a determination which held the claimant not eligible for benefits under code section 1253(a) and a notice of overpayment under code section 1375. The issues for today’s hearing are as follows; (1) does the claim for benefits comply with regulations; (2) was the client overpaid benefits; (3) if so, would repayment cause an extraordinary financial or other hardship; (4) was the appeal timely filed; (5) if not, is there good cause for any delay; and (6) was there good cause for failure to appear at one or more hearings or for reopening a dismissed appeal or petition? AR 160.

As ALJ Kim marked the exhibits, he asked Herrera if he could confirm his receipt of the relevant documents in the mail. AR 161. Herrera responded that he had not received any such recent documentation. AR 161. When ALJ Kim asked Herrera if he would like to either reschedule the hearing after receiving the exhibits via mail or waive his right to receive and physically review the documents, Herrera chose to reschedule. AR 161-63.

Sometime thereafter, Herrera’s hearing for both cases was rescheduled to June 27, 2022. AR 84, 90. Two separate notices of postponement were mailed to Herrera, one corresponding to each case. AR 83-86. On June 3, 2022, EDD mailed Herrera a Notice of Postponement, stating that the hearing for 718964 (overpayment case) had to be postponed “due to circumstances beyond the control of this office.” AR 86. EDD mailed a similar Notice of Postponement for 718964 (benefits disqualification case). AR 86. This notice was mailed on June 27, 2022. AR 86.

Herrera’s hearing to reopen both cases was rescheduled to August 29, 2022 before ALJ Antoinette Morris by telephone. AR 43. An interpreter for Herrera was present. AR 45. ALJ Morris began by labeling the exhibits and Herrera asked questions about them to confirm their dates. AR 48-49.

On December 8, 2020, EDD confirmed receipt of a picture of Herrera’s driver’s license and his social security card. AR 198. Herrera had sent such documentation in response to EDD’s request for further documentation to verify Herrera’s identity. AR 198. Specifically, EDD alleged it was unable to verify Herrera’s identity and process his claim because the information provided at claim filing did not match the information provided to verify claimant. AR 4-5, 89.[2]

Herrera submitted the following declaration dated August 29, 2022. On February 17, 2020, Herrera completed his last day of employment with International Hotel Group (“Hotel Group”) because Herrera was involuntarily discharged due to mass layoffs during the Covid Pandemic. AR 213, Ex. A. That same day, Herrera was advised by his union to apply for unemployment benefits on the EDD portal. Herrera applied and his first unemployment insurance benefit was posted on April 5, 2020. AR 214, ¶1.

On March 28, 2020, Herrera received a Notice of Account Number from EDD and thereafter, EDD issued Herrera a Bank of America debit card to receive his benefits. AR 214, ¶2. On September 15, 2020, Herrera received Notice of his EDD benefits which the EDD had set forth to expire on April 13, 2021. AR 216, Ex. C.

On April 15, 2020, Herrera received EDD Stub #798760 which provided a benefit payment of $318 per week for two weeks. AR 216. Additionally, EDD advised Herrera of a $7,632.00 balance on the account. AR 216, Ex. D.

Herrera was then hired part-time with J&J Maintenance, LLC (“J&J”) as a disinfectant technician and was employed with J&J from June 4 until September 30, 2020. AR 216, Ex. F. Herrera reported all earnings from J&J LLC on his EDD Benefit Form. AR 216, ¶22.

A CUIAB judge requested that he provide identifying information to EDD. AR 216, ¶25. Herrera asked the judge for proof that he received an overpayment, which EDD has yet to provide. AR 216, ¶26. It is EDD that owes Herrera unpaid benefits. AR 216, ¶27.

On December 8, 2020, EDD confirmed receipt of a picture of Herrera’s driver’s license and social security card. AR 198. Herrera sent such documentation in response to EDD’s request for further documentation to verify Herrera’s identity, as the EDD had claimed grounds to question Herrera’s identity and documentation. AR 198. Herrera made multiple attempts to send his documents, but the EDD portal was experiencing processing errors due to the overwhelm of the Pandemic. AR 98. Respondent EDD’s new identification verification system was experiencing claim-processing overload and Herrera was one of many applicants whose identifications remained unprocessed due to dysfunction of “ID.ME.” Id. Herrera was also unable to get through to anyone at EDD through telephone. Id.

On August 15, 2022, Herrera provided an email which refers to a phone conversation between Herrera’s wife and the CUIAB regarding whether he should subpoena documents from EDD or obtain records via another method. AR 55. The email contains handwritten notes indicating that the CUIAB attempted to follow up with Herrera but was unable to reach him. Id.

At the August 29 hearing, ALJ Morris asked Herrera why he was five months late in appealing EDD’s notice of redetermination of benefits, Herrera responded that he had COVID. AR 51. Herrera explained that he got COVID on April 4, 2021. Id. ALJ asked Herrera when he recovered, and Herrera said he could not remember. AR 51. ALJ Morris said she was trying to help him, but she could not hear his case if she could not find good cause. AR 51-52. Herrera said that “we will just…stop now and continue on another day because I don’t remember.” AR 52. ALJ Morris stated that was not how it works. If you file late or miss a hearing, he has to have good cause. AR 52. If he does not remember, that is not good cause and she could not rule in his favor. AR 52. She asked Herrera twice more why he was five months late in filing his appeal and Herrera said he did not have the details. Id.

ALJ Morris then asked why Herrera missed the first appeal hearing on January 28, 2022 to which Herrera responded that he sent the reason why in the documents. AR 52- 53. She asked Herrera again why he missed the hearing, and Herrera stated: “I had COVID”. AR 53. ALJ Morris again asked “You had a hearing that was set for April 19 of ’22 and you missed it. Why did you miss the hearing?” AR 52. Herrera responded: “Oh my God, again. You should have that documentation there.”[3] AR 53. Herrera continued to reference the documents and ALJ Morris stated: “I’m gonna go ahead and end your hearing. You’ll get a copy of the decision in the mail. It seems that either you don’t want to cooperate or you don’t understand my question regarding the good cause explanation.” AR 53-54.

The ALJ found that Herrera had not shown good cause for his late appeal and failure to appear at the January 28, 2022 hearing and issued a decision in each case denying Herrera’s application to reopen his appeals. AR 236-37, 258.

For the benefits disqualification case (718963), ALJ Morris found that Herrera was questioned repeatedly why he delayed for five months in appealing. AR 235. He indicated that he contracted COVID in April 2021, but was unwilling to offer further explanation, including dates of incapacitation, recuperation time, or how his incapacitation impeded his ability to timely appeal. AR 235.[4]

Regarding the overpayment case (7181964), ALJ Morris stated: “During the hearing, the claimant was questioned about the missed hearing on January 28, 2022. He indicated that he contracted COVID in April 2021, but was unwilling to offer further explanation, including dates of incapacitation, recuperation time, or how his incapacitation impeded his ability to timely appeal. AR 240.

Herrera appealed the ALJ’s decision to the CUIAB on or about September 12, 2022. AR 248. The CUIAB consolidated the two appeals. AR 258.

Herrera claimed that ALJ Morris had been disrespectful and biased against him. AR 248. Herrera alleged that ALJ Morris berated him for documentation and addressed only one issue at the hearing, denying him the ability to provide evidence on the merits of his case. AR 248. He further alleged that EDD hid from him the lateness of his appeal as an issue. AR 248. ALJ Morris did not give Plaintiff opportunity to speak to the issues on both of his cases or address financial hardship as good cause in reference to the overpayment case. Id.

The CUAIB found that Herrera, other than saying he had COVID, Herrera was non-responsive to the ALJ why he was five months late in appealing and in missing the first hearing. AR 259. Herrera provided no proof that he had COVID around the date of redetermination. Even if he did, that does not explain why his appeal was five months late. AR 259. He submitted proof of a positive test two weeks prior to the first hearing, but without more testimony or other evidence that indicates he was prevented from filing a timely appeal or appearing at the hearing, his reasons are not good cause. AR 259.

After reviewing the record, the CUIAB determined that Herrera received a fair hearing and that the ALJ did not err in denying his application to re-open his appeal. AR 259-60.

Petitioner Herrera contends that (1) EDD erred in discontinuing his unemployment benefits, he followed verification instructions and provided all necessary information, and EDD illegally placed a lien with the Franchise Tax Board, and (2) he did not receive a fair hearing because the ALJ accepted “ghost declarations” from EDD employees who never spoke with him, the CUIAB’s Presiding ALJ became an agent for EDD by discouraging him from subpoenaing documents from EDD, and ALJ Morris and the CUIAB did not focus on the reason for his appeal that EDD should have processed his claim.

On November 30, 2023, the Court held a trial setting conference with both parties present in the courtroom. Herrera appeared in pro per with the assistance of an interpreter. Beres Decl., Ex. A. During the trial setting conference, the court set the trial for April 30, 2024 and ordered Herrera’s opening brief to be filed and served no later than January 31, 2024, the CUIAB’s opposition to be filed and served no later than March 13, 2024, and Herrera’s reply to be filed and served no later than April 16, 2024.

On February 26, 2024, CUIAB filed its opposition noting Herrera’s failure to file an opening brief.

On March 11, 2024, Herrera untimely filed his opening brief. Herrera begins the opening brief with the statement: “This Brief may appear late due to California Governor’s State of Emergency order during 2024 winter months due to storms, affecting and causing major disruptions and delays in statewide processes and timelines.” Pet. Open. Brief at 2. Herrera may be referring to the Governor’s State of Emergency orders in February of 2024 when it was raining for a few days. This State of Emergency was limited to a few days and should have had no impact on Herrera’s obligation to timely file his brief. Nor does Herrera provide evidence of an adverse impact from the rain.

On April 22, 2024, CUIAB lodged the Administrative Record, Trial Notebook, and Memory Stick.

Herrera filed another brief titled “Herrera’s Final” on April 22, 2024 and an “Amended Final” on April 25, 2024.

The only briefs authorized by statute and the court’s trial setting order are the opening, opposition, and reply briefs. The briefs that serve this function are Herrera’s untimely March 11 opening brief, CUIAB’s April 15 “Reply”, and Herrera’s April 25 Amended Final. The court has considered only these three briefs and refers to them as “Pet. Op. Br.”, “Opp.” and “Reply”.[5]

Although CUIAB argues that the court should deny Herrera’s Petition on the ground that he failed to timely file his opening brief (Opp. at 10-11), it has suffered no prejudice. The court should address issues on their merits, if possible, and will consider the late-filed brief. Herrera’s failure to file a timely opening brief is, however, reflective of ignoring deadlines, an issue that was before the EDD and CUIAB. See post.

Petitioners are obligated to lay out the evidence favorable to the other side and show why it is lacking. The "[f]ailure to do so is fatal" to any substantial evidence challenge and "is deemed a concession that the evidence supports the findings." Defend the Bay v. City of Irvine, (2004) 11928 Cal.App.4th 1261, 1266. The reviewing court should "not independently review the record to make up for appellant's failure to carry his burden." Ibid.

When a petitioner challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is the petitioner’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. A recitation of only the part of the evidence that supports the petitioner’s position is not the “demonstration” contemplated by this rule. Accordingly, if a petitioner contends that some issue of fact is not sustained, he is required to set forth in his brief all the material evidence on the point and note merely his own evidence. Unless this is done, the error is deemed to be waived. Id. (quoting Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881).

Despite the court’s direction, Herrera’s opening brief mostly fails to cite evidence in the record and completely fails to set forth all material evidence on the good cause issues. The CUIAB’s opposition points this out. Opp. at 11. By itself, this failure is reason to deny Herrera’s mandamus claim.

Herrera spends the bulk of his effort explaining why EDD erred in discontinuing his benefits and seeking payment of an overpayment. Specifically, he contends that EDD erred in discontinuing his unemployment benefits, he followed verification instructions and provided all necessary information, and EDD illegally placed a lien with the Franchise Tax Board. Pet. Op. Br. at 3-7, 9-10, 15.

While these were issues for his appeal before the ALJ, they are immaterial to the CUIAB’s decision that he failed to show good cause to re-open the two appeals and that he received a fair hearing. As the opposition argues, the good cause issue was a jurisdictional question that the ALJ was required to decide before reaching the merits of Herrera’s appeals. Opp. at 12. The ALJ decided the good cause issues against Herrera, and the CUIAB upheld those decisions. The only issues for the court are whether Herrera has met his burden of showing that the CUIAB erred.

For the benefits disqualification case, Herrera was five months late in filing his appeal. On April 18, 2022, Herrera submitted a letter addressing good cause why his appeal of the April 2, 2021 EDD decision was five months late. AR 98. He stated that he was infected with COVID. AR 98. He testified at the August 29 hearing that he got COVID on April 4, 2021. AR 51. ALJ asked Herrera when he recovered, and Herrera said he could not remember. AR 51. Obviously, his contraction of COVID in April does not explain why he waited until October 20, 2021 to appeal. AR 10-11, 12. The CUIAB and ALJ correctly found that he had not shown good cause to re-open the appeal after dismissal.

For the overpayment case, Herrera’s letter explained that he also was infected with COVID in January 2022 and that he moved to a different county, resulting in a five-day delay in delivery of letters. AR 98. Hhis January 31, 2022 letter attached a January 12, 2022 positive COVID test result. AR 110. Herrera testified that he missed the appeal hearing on January 28, 2022 and Herrera stated: “I had COVID”. AR 53. ALJ Morris again asked “You had a hearing that was set for April 19 of ’22 and you missed it. Why did you miss the hearing?” AR 52. Herrera responded: “Oh my God, again. You should have that documentation there.”[6] AR 53.

This evidence also was inadequate to establish good cause. Without more, the fact that Herrera tested positive for COVID on January 12, 2022 is insufficient to explain why he did not appear two weeks later on January 28 as he provided no evidence that he had not recovered by January 28. As for his forwarded mail, the notice of the January 28 hearing was sent to Herrera on January 15, 2022. AR 36-40. He had a duty to inform the ALJ if he moved to a new address and any fault for a delay in receiving this notice was his own. Additionally, his evidence shows a five-to-seven day delay in forwarding his mail. The notice mailed to his old address on January 15 and forwarded to his new address should have reached him no later than January 27 (five days for mailing plus seven days for forwarding delay). This was one day before the January 28 hearing. Herrera provided no explanation when he actually received the notice. The CUIAB was correct to conclude that Herrera had not shown good cause for failing to appear on January 28, 2022. AR 259.

Due process does not require a perfectly impartial hearing officer, only a “reasonably impartial, noninvolved reviewer.” Linney v. Turpen, (1996) 42 Cal.App.4^th 763, 770. The issue of personal or political bias focuses on the actual adjudicator, and whether that person is capable of judging a particular controversy “fairly on the basis of its own circumstances. Brown v. City of Los Angeles, (2002) 102 Cal.App.4^th 155, 178. This type of bias cannot be implied and must be clearly established. Id. Adjudicators challenged for reasons other than financial interest are afforded a presumption of impartiality. Withrow v. Larkin, (1975) 421 U.S. 35, 47. A party claiming that a decision-maker was biased must show actual bias rather than an appearance of bias, to establish a fair hearing violation. Southern California Underground Contractors, Inc. v. City of San Diego, (“San Diego”) (2003) 108 Cal.App.4th 527, 549. Bias in an administrative hearing can never be implied and must be shown through “concrete facts” rather than inferred from mere appearances. Weinberg v. Cedars Sinai Medical Center, (“Weinberg”) (2004) 119 Cal.App.4th 1098, 1115. The fact that a petitioner received an unfavorable result does not, in and of itself, establish bias. Andrews v. Agricultural Labor Relations Board, (1981) 28 Cal.3d 781, 795-96.

Herrera argues that he did not receive a fair hearing because the ALJ accepted “ghost declarations” from EDD employees who never spoke with him, the CUIAB’s Presiding ALJ became an agent for EDD by discouraging him from subpoenaing documents from EDD, and ALJ Morris and the CUIAB did not focus on the reason for his appeal that EDD should have processed his claim. Pet. Op. Br. at 13-15.

CUIAB’s opposition rebuts these claims. Herrera argues that ALJ Morris “resorted to intimidation and duress tactics” and “berated” him for information in his file. Pet. Op. Br. at 11. Yet, the transcript of the hearing shows that the ALJ made many attempts to elicit testimony on the good cause issue and Herrera Herrera repeatedly contended that she had the documentation. AR 53. When Herrera continued to reference the documents, ALJ Morris stated: “I’m gonna go ahead and end your hearing. You’ll get a copy of the decision in the mail. It seems that either you don’t want to cooperate or you don’t understand my question regarding the good cause explanation.” AR 53-54. This was not unfair.

Herrera’s argument that he was denied a fair hearing because no one from EDD personally appeared at his hearing is rebutted by the fact that the regulations permit EDD to submit declarations in lieu of appearance for petitioner’s hearing. 22 CCR §5061(c). Moreover, EDD’s declaration addressed the merits of discontinuing benefits, not the good cause issue. AR 62-63.

Finally, Herrera’s allegation that the presiding ALJ revoked his subpoena is not supported by the record. There is no subpoena in the administrative record. Herrera cites an email he sent to CUIAB, which refers to a phone conversation between his wife and CUIAB regarding whether he should subpoena documents from EDD or obtain records via another method. AR 55. The email contains handwritten notes indicating that CUIAB attempted to follow up with Herrera on what documents he wanted but was unable to reach him. AR 55. This document does not support Herrera’s contention, and he fails to explain what documents would have been produced via subpoena that were not before the ALJ.

In reply, Herrera argues that (a) EDD secretly initiated the appeal, not himself (AR 10), (b) CUIAB never ruled on the two original case numbers 7088213 and 7088214, (c) EDD sent letters to him in English despite his selection on the application that he was a Spanish speaker (AR 189, 217), (d) the Presiding ALJ discouraged a subpoena, (e) he never applied to re-open any EDD claim, and (f) EDD and CUIAB are represented by one law firm Reply at 2-11.

Some of these arguments do not help Herrera. If he never appealed, then the time has long passed for any appeal and his mandamus claim cannot lie. Additionally, CUIAB did rule on both his cases; the different numbers exist because CUIAB assigns its own numbers to appeals. His argument that the CUIAB lacks independence is not adequately presented.

Whatever the merits of Herrera’s claims concerning his benefits disqualification and EDD’s demand for overpayment, this mandamus case is about whether the CUIAB erred in affirming ALJ Morris’ denial of re-opening Herrera’s appeals based on good cause. Herrera did not show good cause. Nor was he denied a fair appeal before the ALJ. The Petition is denied.

The CUIAB’s counsel is ordered to prepare a proposed judgment, serve it on Herrera 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 June 4, 2024 at 9:30 a.m.

[1] Herrera filed a Notice of Deficient Administrative Record on January 22, 2024. The notice attached documents that Herrera contended were missing from the certified record. It is not clear if CUIAB included these documents in the administrative record, but Herrera’s opening brief refers to this issue. Pet. Op. Br. at 2. If Herrera contends that records were missing, he should have filed a motion to augment the record. LASC 3.231(g)(3). He did not do so, and the court has considered only the certified record.

[2] It is unclear when Herrera submitted the following evidence. On December 8, 2020, EDD confirmed receipt of a picture of Herrera’s driver’s license and his social security card. AR 198. Herrera had sent such documentation in response to EDD’s request for further documentation to verify Herrera’s identity. AR 198. Specifically, EDD alleged it was unable to verify Herrera’s identity and process his claim because the information provided at claim filing did not match the information provided to verify claimant. AR 4-5, 89.

[3] Herrera did not miss the April 19, 2022 hearing. He missed the January 28, 2022 hearing. He had provided documentation of (1) testing positive for COVID on January 12, 2022, two weeks prior to the January 28 hearing, and (2) his forwarded mail address, arguing that he did not have notice of the January 28, 2022 hearing. AR 107.

[4] ALJ Morris did not actually Herrera these specific questions.

[5] Herrera’s 15-page reply exceeds the ten-page limit of CRC 3.113(d) and the court’s direction at the trial setting. Consequently, the court has considered only the first ten pages.

[6] Herrera did not miss the April 19, 2022 hearing; he missed the January 28, 2022 hearing. He had provided documentation of (1) testing positive for COVID on January 12, 2022, two weeks prior to the January 28 hearing, and (2) his forwarded mail address, arguing that he did not have notice of the January 28, 2022 hearing. AR 107.