Judge James C. Chalfant, Case Number: 23STCP04382, Date: 2024-05-23 Tentative Ruling

Inyong Okon v. California Unemployment Insurance Board, 23STCP04382

Tentative decision on demurrer: sustained without leave to amend

Respondent California Unemployment Insurance Appeals Board (“CUIAB”) demurs to the Petition filed by Petitioner Inyong Okon (“Okon”).

The court has read and considered the moving papers, opposition (entitled “Notice”), and reply, and renders the following tentative decision.

Petitioner Okon filed the Petition against the CUIAB on December 4, 2023. The Petition alleges in pertinent part as follows.

Okon appeals from her being liable for repayment of $5400 in benefits. The decision stated that she should provide clarification of a birthdate discrepancy, as well as a birth certificate or amended document, and submit it with her appeal. She has finally received an amended passport and can now prove her identity to show that the benefits were going to the right person. Okon has been under a lot of stress from the Employment Development Department (“EDD”) and its continuous reminder that she owes money. She is seeking monetary compensation of $30,000. She also requests that “they” stop the IRS from garnishing her money for an overpayment she was entitled to; they already have taken $500.

A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings. CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257. The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading. CCP §430.10. A demurrer is timely filed within the 30-day period after service of the complaint. CCP § 430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (“Blank”) (1985) 39 Cal.3d 311, 318. The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (“Vance”) (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

“[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” State ex rel. Metz v. CCC Information Services, Inc., (2007) 149 Cal.App.4th 402, 413.

Respondent CUIAB demurs to the Petition filed by Okon.[1] The CUIAB’s principal ground for demurrer is that the Petition is barred by the statute of limitations set forth in Unemployment Insurance Code (“UIC”) section 410.

“A decision of the appeals board is final….Notwithstanding any other provision of law, the right of …any party…to seek judicial review from an appeals board decision shall be exercised not later than six months after the date of the decision of the appeals board….The appeals board shall attach to all of its decisions where a request for review may be taken, an explanation of the party’s right to seek such review.” (emphasis added).

The CUIAB’s decision at issue is AO-467000, which was a consolidated appeal from two Administrative Law Judge (“ALJ”) decisions. RJN Ex. A. In the first case (7358855), the issue was whether Okon was eligible for benefits under UIC section 1253(a) beginning September 6, 2020. Ex. A. The ALJ found good cause for Okon’s late appeal but denied her appeal on the merits. He found that she had submitted a United States passport and California driver’s license with different birth dates. She was advised to provide a corrected version of one of these two IDs with some other proof of birth one month after the hearing. Nothing was received and the appeal was denied. Ex. A.

In case (7358854), the issue was whether Okon was liable for a $5,400 overpayment of benefits. The ALJ again found good cause for Okon’s late appeal but denied her appeal on the merits. Ex. A. Since she had not shown eligibility, the requirement of repayment was correct. Ex. A.

The CUIAB’s decision upheld the two ALJ decisions. Ex. A. Although not dated, the decision has a mailing date of December 22, 2022. Ex. A. As a result, the decision was final on or before that date. The CUIAB complied with UIC section 410 by attaching to its decision an explanation of Okon’s right to seek judicial review. Ex. A.

Okon did not file her Petition until December 4, 2023, nearly a year after the CUIAB’s decision. The Petition is untimely under UIC section 410 and the demurrer is sustained without leave to amend.[2] If she now has the proper documentation, Okon’s remedy lies with a new application to EDD for benefits. Her overpayment and garnishment issues cannot be remedied by this court.

The demurrer to the Petition is sustained without leave to amend. An order to show cause re: dismissal under CCP section 581(f)(1) is set for June 6, 2024 at 9:30 a.m.

[1] The CUIAB’s request for judicial notice of its decision (Ex. A) is granted. Evid. Code §452(c). The request to judicially notice a declaration from the California Office of Risk and Insurance Management concerning the non-filing of a government claim (Ex. B) is denied.

[2] The CUIAB’s demurrer for Okon’s claim for damages is both improper because it is not made for a cause of action and unsupported by the allegations of the Petition or matter subject to judicial notice. As such, it is overruled.