Judge James C. Chalfant, Case Number: 24STCP02596, Date: 2025-03-11 Tentative Ruling

Petitioner Carole S. Myers (“Myers”) seeks a writ of mandate compelling Respondent California Unemployment Insurance Appeals Board (“CUIAB”) to set aside its decision denying her unemployment benefits.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. The Petition

Petitioner Myers filed the Petition for Writ of Mandamus on August 6, 2024. The Petition alleges in pertinent part as follows.

Myers is a former employee of Real Party-in-Interest Spertus, Landes & Umhofer (“Law Firm”). Myers was released from her employment.

Myers filed a claim for unemployment compensation benefits with the Employment Development Department (“EDD”), and the EDD determined Law Firm discharged Myers for misconduct on November 23, 2022. The EED identified the misconduct as “errors on [her] timesheet(s)” and that she was “aware [her] timesheets were incorrect.”

Myers appealed and an Administrative Law Judge (“ALJ”) heard Myers’s appeal on October 24, 2023. The ALJ heard testimony regarding various alleged categories of Myers’s misconduct. The ALJ neither found nor relied on falsification of timesheets, and even noted Myers’s performance issues may not rise to the level of misconduct. However, the ALJ found Myers circulated confidential information including an offer letter, a resignation letter, and a screenshot of a calendar with personal information. The ALJ decided this constituted misconduct, disqualifying Myers from benefits.

Myers appealed to the CUIAB. On March 11, 2024 the CUIAB rendered its final decision, affirming the ALJ’s decision on substantially the same grounds, finding that Myers was discharged for misconduct.

2. Course of Proceedings

Myers served the CUIAB with the Petition on August 20, 2024.

Myers served Real Party Law Firm with the Petition on August 28, 2024.

The CUIAB filed a general denial and affirmative defenses on October 24, 2024. CUIAB filed its Answer on December 11, 2025.

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 CCP section 1094.5 are (1) whether the respondent has proceed 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 §194.5(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.” Bixby v. Pierno, supra, 4 Cal.3d 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 20 Cal.4th at 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, (1971) 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 pag between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 515.

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. Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691. The standard of proof in the original administrative proceedings is irrelevant to this determination. 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 only 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.

Where an agency’s hearing procedure is attacked as a due process violation, the issue is one of law. Mohilef v Janovici, (1996) 51 Cal.App.4th 267, 285; Hall v. Superior Court, (2016) 3 Cal.App.5^th 792, 808. Whether there was a fair trial at the administrative level is a question for the trial court to determine independently. Western Air Lines, Inc. v Schutzbank, (1968) 258 Cal.App.2d 218, 226. See Zurn Eng’rs v State ex rel Department of Water Resources, (1977) 69 Cal.App.3d 798, 835. The trial court’s independent evaluation of the fair trial issue is not a trial de novo; the court renders its independent judgment on the basis of the record. City of Fairfield v Superior Court, (1975) 14 Cal.3d 768, 776.

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.

The Unemployment Insurance Code (“UIC”)[1] governs unemployment eligibility. See §§ 1951-60. 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. §1256. Misconduct connected with the work is a substantial breach by the claimant of an important duty or obligation owed the employer, willful or wanton in character, and tending to injure the employer. Glass Co. v. Stewart, (1959) 1]70 Cal.App.2d 719, 721.

The unemployment insurance laws are remedial and must be construed liberally where benefits are concerned. Kelley v. California Unemployment Insurance Appeals Board, (2014) 223 Cal.App.4^th 1067, 1075. A person is presumed to have been discharged for reasons other than misconduct and not to have voluntarily quit work without good cause unless his or her employer has given written notice to the contrary to the EDD as provided in section 1327, setting forth facts sufficient to overcome the presumption. Id. The employer has the burden to prove to the to show that the claimant quit without good cause or was fired for misconduct. Id.

The UIC “contains a complete administrative procedure, with provision for one original determination and two appeals, fulfilling every requisite of due process of law.” Abelleira v. District Court of Appeal, Third Dist., (1941) 17 Cal.2d 280, 291. See also §1951 (delegating authority to CUIAB to promulgate rules regarding the “manner in which disputed claims, appeals and petitions shall be presented”); 22 Cal. Code Reg. §5000 et seq. (CUIAB regulations).

Upon receipt of a claim for unemployment compensation benefits, EDD “shall promptly pay benefits if it finds the claimant is eligible or shall promptly deny benefits if it finds the claimant is ineligible.” §1326. EDD “shall consider the facts submitted by an employer . . . and make a determination as to the claimant’s eligibility for benefits.” §1328(a). EDD shall then “promptly notify the claimant” and employer “of the determination . . . and the reasons therefor.” Ibid.

Myers worked for Law Firm as an Office Assistant for approximately nine months during 2022. AR 104. On October 6, 2024, Law Firm terminated Myers. AR 104.

On August 5, 2012, Myers filed a claim for unemployment insurance benefits with EDD. AR 4.

EDD prepared a Record of Claim Status Interview Misconduct (MC) (“Misconduct Claim”) (AR 104-06), which reflects as follows.

On November 15, 2022, EDD contacted Law Firm’s managing partner, James W. Spertus, Esq. (“Spertus”). He claimed Law Firm terminated Myers for “many reasons”, including mistreatment of fellow employees, refusal to comply with work requests from her direct supervisor, unauthorized access to confidential computer information containing sensitive employee financial information, and falsification of timesheets. AR 104.

Spertus stated that Myers was given a formal warning on May 24, 2022 which Myers refused to sign. AR 104. She was given an additional warning because she was never at the reception area where she was supposed to be. AR 105. The final dispute occurred on October 4, 2022 when Myers had a dispute with her supervisor regarding a time entry and she was not truthful about her falsified time record. AR 105.

EDD contacted Myers, who stated that she was terminated because Spertus told her that he was tired of playing referee and that she was given no specific reason for termination. AR 105. Myers stated she did not receive any oral or written warning prior to her termination. AR 105.

On November 23, 2022, EDD issued a Notice of Determination (“NOD”) stating that Myers was ineligible for unemployment benefits because Law Firm discharged her for misconduct. AR 4. The NOD specified Myers’s misconduct as falsifying her timesheets. AR 2. See also AR 106.

On September 27, 2023, Administrative Law Judge M. Carr (the “ALJ”) issued a Notice of Hearing (“NOH”) to the parties that the appeal hearing was scheduled for October 24, 2023, and that any further evidence must be submitted by October 17, 2023. AR 13.

The NOH specified the issues to be heard: (1) “Should the employer’s reserve account be charged for any benefits paid to claimant.”; and (2) “Did the claimant voluntarily leave his or her most recent employment without good cause. Was the claimant discharged for misconduct connected with his or her most recent work. (See UI sections 1256, 1256.1, 1256.2, 1256.5)”. AR 14.

The ALJ heard the appeal on October 24, 2023. AR 22. Myers represented herself and testified. AR 22. Spertus represented Law Firm and testified. AR 22. Also testifying were witnesses Sandra Seto (“Seto”) and Lindsey Hay (“Hay”). AR 22. Among other exhibits, the NOD to each party, appeal transmittal, claim information sheets and claim notes were marked as Exhibit 1. AR 28. The Misconduct Claim (AR 104-06) was marked as Exhibit 12 and the NOHs to each of Law Firm and Myers was marked as Exhibits 13-14. AR 28. Each of these exhibits was received in evidence. AR 29.

Spertus testified that Myers had performance issues early in her employment. AR 30. Hay, a Law Firm attorney, and Nolan Burkholder (“Burkholder”), a Law Firm staff member, met with and coached Myers, warning her that failure to comply with office policies would result in termination. AR 30. She did not comply, and her performance got worse. AR 30. Hay coached and warned Myers a second time on May 24, 2022. AR 30-31. Hay walked Myers through a written performance letter admonishing her that she must improve her performance, or she could be terminated. AR 31. Myers was disgruntled and may have stormed out. AR 31.

Over the following weeks and months, Spertus began receiving reports that Myers’s timesheets were falsified. AR 31. Myers’s timesheets did not match electronic door lock records which show when people come in and out of the office. AR 31. There were manual alterations to the timesheets. AR 31. Myers offered explanations for these modifications that she forgot to clock in, but Spertus believed she was lying. AR 31.

Myers began to behave generally “dishonest” and “aggressive”. AR 31. Myers would intentionally incur overtime by, for example, working through breaks impermissibly. AR 33-34. Myers frequently left the reception desk unattended for long periods of time. AR 32.

Myers accessed privileged information by breaking into Law Firm’s network. She accessed private financial information such as employee offer letters and emailing them out. AR 35. Spertus had signed up for “BetterHelp” on how to draw boundaries around work and have a more balanced life with his family. AR 32. Myers accessed Spertus’ calendar, taking a screenshot of his personal work life balance, and sharing that information with other employees: “[L]ook, he has some mental health issues trying to get a work/life balance”. AR 35.

Myers’s attitude and performance prompted Law Firm to terminate her on October 6, 2022. AR 35-36. Lying about time records and invasion of the financial information of other employees were the straws that broke the camel’s back. AR 35.

Myers did not cross-examine Spertus initially, but later in the hearing requested that he acknowledge only certain employees could modify timesheets. AR 57. Spertus confirmed. AR 57.

Hay testified that, near the beginning of Myers’s employment, Myers requested a meeting with Burkholder. AR 53-54. Burkholder asked Hay to sit in on the meeting because of multiple complaints about Myers’s behavior. AR 54. At the March 28, 2022 meeting, Hay conveyed to Myers the need for her to respect Emma Garelick, Myers’s supervisor. AR 54, 55. Hay also discussed the need for professionalism and the necessity of remaining at the reception desk unless other duties required Myers to go elsewhere. AR 54-55.

Hay had a second meeting with Myers on May 24, 2022. AR. 55. This more formal meeting included a written document detailing the three issues previously discussed with her. AR 55. Myers was not living up to those three things. AR 55. Myers caused issues described as “toxicity”. AR 55.

Seto, an accountant for Law Firm, testified that she manually changed Myers’s timesheet one time, on or before July 7, 2022, to credit Myers with 30 additional minutes of work. AR 58. Additionally, Garelick changed Myers’s timesheet once, on or before October 4, 2022, to credit Myers with a full day of work when she had left early. AR 58-59.

Myers testified that she worked as a receptionist for Law Firm for about ten months. AR 36. Her final pay rate was about $26 per hour. AR 36-37. Law Firm did not inform Myers why she was terminated; Spertus only told her he was “tired of being a referee.” AR 37.

Myers never received coaching or warnings over her performance, and she requested the March meeting to discuss office toxicity. AR 37-38, 40-48, 52. She did not recall ever being asked to sign a document regarding her performance or professionalism. AR 37, 48.

Myers never circulated another employee’s offer letter around the office by email, and she could not access that kind of document. AR 38-39. Nor did she take a screenshot of Spertus’ personal calendar showing a BetterHelp appointment and circulating it. AR 42. She did not have access to Spertus’ calendar. AR 42.

In response to Myers’s denial, Spertus uploaded a copy of three emails from Myers to Kawasi Weston. AR 42. One email forwarded the resume and offer letter to Benjamin Hopper, Law Firm employee. Another forwarded an offer letter to Susie Park, who Law Firm offered a position. The third was an email attaching a Law Firm employee’s resignation. Also forwarded was a screenshot of Sperlus’ personal calendar showing a BetterHelp appointment on October 4 that was emailed by Myers to another remployee. AR 42, 117-20.

Myers denied sending any of the emails. AR 43. She testified that she could not recall her Law Firm email address. AR 43-44.

She denied manipulating her time records. AR 49. Law Firm did not allow overtime, with very few exceptions. AR 41-42. Even when Myers needed to change her timesheet, she would have to ask her supervisor to change the timesheet for her, as she could not do so herself. AR 40-41, 56.

Myers had job duties which took her away from the reception desk for long periods of time. AR 39-40.

On October 26, 2023, the ALJ issued a decision affirming the EDD determination. AR 133, 136. The ALJ found that Myers was coached and counseled about her performance twice during her employment. AR 134. First, Law Firm held an informal discussion with Myers on March 28, 2022 about leaving the reception desk unattended for too long, incurring overtime under questionable circumstances, and not recognizing her supervisor appropriately. AR 134. Second, Law Firm held a formal meeting with Myers on May 24, 2022 in which they discussed the same issues of staying at her assigned workstation, respectfully interacting with her supervisor, and overtime policy. AR 134. Law Firm memorialized the second meeting in a performance letter that Myers refused to sign. AR 134. These issues persisted after the formal meeting. AR 134.

Myers circulated three emails to a co-worker about a confidential job offer, resignation letter, and a screen shot of a partner’s calendar showing a counseling appointment. AR 135. Myers did not have access to and was not authorized to access the digital locations where these records were stored. AR 135. Myers denied sending the emails and argued that anyone could have used the reception desk to send them from her account. AR 135. She denied sending the screenshot of the partner’s calendar and made ‘pointed comments” about the partner’s need to address mental health concerns in an “almost mocking tone”. AR 135.

The ALJ concluded that Law Firm discharged Myers for ongoing performance issues and circulation of confidential information. AR 135. Myers’ argument that anyone could have sent the emails from her workstation seemed highly improbable since the three separate emails were sent to the same person. AR 135. Additionally, her tone of voice about mental health concerns lessened her credibility. AR 136.

While Myers’s performance issues may not reach the level of misconduct, the egregious breach of confidentiality did. AR 136. Her misuse of employer information was harmful to the employer in that information not subject to firmwide distribution was passed along by Myers. AR 136. Consequently, Myers was discharged for misconduct, and was ineligible for benefits. AR 135-36.

Myers appealed the ALJ’s decision to the CUIAB. AR 142-43. Myers argued that the ALJ improperly judged her credibility based on her tone and irrelevant comments. AR 169. She further argued that the ALJ failed to consider the merits of her arguments. AR 169. Finally, Myers argued the evidence presented was insufficient to overcome the general presumption that employees are terminated for reasons other than misconduct. AR 169.

The CUIAB upheld the ALJ’s findings with the exception of the ALJ’s discussion of Myers’s pointed comments and mocking tone, which were deleted. AR 174. The CUIAB added further analysis finding Myers’s testimony not credible and elaborating on the rule for finding a connection between the termination and the employee’s misconduct. AR 175-76.

The CUIAB pointed to Myers’ denial of any counseling, meetings or warnings and the contradiction of her by the testimony of a lawyer about two meetings and a written warning. AR 175. The CUIAB concluded that Myers’s claim that she did not remember her work email address was “inherently improbable” and that her testimony about meetings and warnings was contradictory and not credible. AR 175.

The CUIAB also did not find Myers’ testimony that she did not send the emails to a co-worker to be credible. AR 176. Her argument that it was not shown how she accessed the confidential material was unpersuasive as “there are multiple ways an employee can obtain information contained within work computers.” AR 176. The CUIAB affirmed the ALJ’s decision. AR 176.

Petitioner Myers seeks to set aside the CUIAB’s decision affirming the denial of her benefits based on her discharge for misconduct on three procedural grounds: (a) inconsistency between notices, (b) improper handling of evidence, and (c) violation of due process.

On November 23, 2022, EDD issued the NOD stating that Myers was ineligible for unemployment benefits because Law Firm discharged her for misconduct. AR 4. The NOD specified Myers’s misconduct as falsifying her timesheets. AR 2.

On September 27, 2023, the ALJ issued the NOH which specified the issues to be heard: (1) “Should the employer’s reserve account be charged for any benefits paid to claimant.”; and (2) “Did the claimant voluntarily leave his or her most recent employment without good cause. Was the claimant discharged for misconduct connected with his or her most recent work. (See UI sections 1256, 1256.1, 1256.2, 1256.5)”. AR 14.

Myers argues that the NOD (AR 02) is the foundational document outlining the reasons for the hearing. However, the NOH -- which should derive from and mirror the NOD -- did not accurately reflect its substantive content, resulting in procedural unfairness. Under the federal Employment Training Handbook No 382, 3rd Edition (“Handbook”), “the issues must be stated as required under state law and must be sufficiently clear so as to allow the parties to adequately prepare for the hearing.” Appendix B of the Handbook, “A Guide to Unemployment Insurance Benefit Appeals Principles and Procedures” (“Guidelines”) underscores that “[t]he appeal tribunal should not permit a ‘fishing expedition’ to seek out issues not already implicated by the existing record or the initial determination.” App. B, pp. 7-8. By failing to align the NOH with the detailed allegations in the NOD, the ALJ deviated from these established guidelines and created the conditions for a procedurally unfair hearing. Pet. Op. Br. at 4.

Furthermore, the NOH only indicated “misconduct” as the issue—a term so broad that it could encompass anything from cell phone use to tardiness and fighting. Without a specific articulation of the alleged misconduct, Myers was unable to marshal relevant evidence, identify suitable witnesses, or formulate a coherent defense. This ambiguity compelled the ALJ to engage in an impermissible “fishing expedition,” straying beyond the bounds of the NOD and inviting unfocused inquiries that undermined the integrity of the hearing process. Administrative notices must accurately and specifically reflect the determinations on which they are based to ensure procedural fairness. See Bell v. Burson, (1971) 403 U.S. 535; Leach v. State Board of Education, (1992) 3 Cal.4th 220. The discrepancies between the NOD and NOH are arbitrary and capricious because they hindered Myers’ ability to prepare a meaningful defense. Pet. Op. Br. at 4.

Myers cites no authority about what the NOD or NOH must set forth. Her reliance on the Handbook for handling appeals does not explain what the contents of the EDD’s NOD must be, and the Handbook does not address the NOH except in the Guidelines, which only require the information that was set forth in the NOH. App. B, p. 10.[3]

Moreover, there is no inconsistency between the NOD and NOH. The NOD stated that Myers was ineligible for unemployment benefits because Law Firm discharged her for misconduct and it specified Myers’s misconduct as falsifying her timesheets. AR 2, 4. The NOH which specified the issues to be heard, including: “Was the claimant discharged for misconduct connected with his or her most recent work[?] AR 14. The NOH is broader than the NOD, but there is no inconsistency between them.

Finally, Myers failed to object to either the NOH or NOD at either administrative hearing. As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies. See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554. Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080. The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary. Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th377, 391. Myers gave neither the ALJ nor the CUIAB the opportunity to correct any inconsistency between the NOD and NOH. There was no procedural violation.

Myers argues that, because the NOD and NOH differed, the ALJ received and evaluated evidence in a manner that failed to meet the requirements of Evidence Code sections 350, 413, and 780. Without clarity on the actual issues, the authentication and admission of evidence were compromised, prejudicing Myers’ ability to confront the evidence effectively. Pet. Op. Br. at 5.

The ALJ went further by using evidence that was never formally entered into the record (AR 42, AR 117–20) and was irrelevant to the NOD. This rebuttal evidence was unrelated to the alleged misconduct in the NOD, diverting attention from material issues and tainting the hearing with extraneous matters. The new evidence was not authenticated or admitted into the record for proper scrutiny. This violated Evidence Code sections 350, 413, and 780 by depriving Myers of any real opportunity to examine, challenge, or respond to the proffered material. By failing to enter this evidence into the record, the ALJ deprived Myers of the chance to review or contest it, violating her due process rights. This reliance on unentered and irrelevant evidence constitutes an abuse of discretion rendering the decision invalid. Pet. Op. Br. at 5.

Myers adds that the ALJ also did not pause the proceedings to let her prepare for the unexpected evidence. These procedural shortcomings strongly indicate potential bias and a disregard for due process safeguards. See Miller v. People, (2007) 152 Cal.App.4th 1152 (procedural deviations leading to arbitrary or capricious outcomes justify invalidation of an administrative decision); Beal v. University of California, (1998) 16 Cal.4th 104 (procedural fairness demands both the right to present evidence and to challenge opposing evidence). Pet. Op. Br. at 6.

Although she does not specify this improper evidence, Myers clearly is referring to the fact that, in response to her denials that she ever circulated another employee’s offer letter around the office by email (AR 38-39) or that she took a screenshot of Spertus’ personal calendar showing a BetterHelp appointment and circulating it (AR 42), Spertus uploaded a copy of three emails from Myers to Kawasi Weston. AR 42. One email forwarded the resume and offer letter to Benjamin Hopper, Law Firm employee. Another forwarded an offer letter to Susie Park, who Law Firm offered a position. The third was an email attaching a Law Firm employee’s resignation. Myers also forwarded a screenshot of Sperlus’ personal calendar showing a BetterHelp appointment on October 4 that was emailed by Myers to another remployee. AR 42, 117-20. After Spertus uploaded these documents, Myers denied sending any of the emails. AR 43. She could not recall her Law Firm emailed address. AR 43-44.

Again, Myers failed to exhaust her arguments that this evidence was improperly used without receipt into the record and without giving her any real opportunity to examine, challenge, or respond to it. Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4^th at 391. Myers gave neither the ALJ nor the CUIAB the opportunity to correct any deficiency in the use of this evidence, including the ALJ’s failure to admit the exhibits into evidence. She also failed to ask the ALJ for a continuance or ask the CUIAB for the chance to present opposing or additional evidence.

Moreover, the CUIAB is correct that it and its ALJs “are not bound by common law or statutory rules of evidence or by technical or formal rules of procedure but may conduct the hearings and appeals in such manner as to ascertain the substantial rights of the parties.” §1952. Unless prohibited by law, “any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions.” 22 CCR §5062(e). The ALJ did not fail to comply with any evidentiary rules because the Evidence Code does not strictly apply to these hearings. Opp. at 15-16.

Additionally, Spertus uploaded the documents and used them to attack Myers’ credibility. This would be permissible even under the rules of evidence. As impeaching documents, they did not need to be disclosed before Myers testified. While Myers contends the ALJ improperly relied the documents on “unentered and irrelevant evidence,” there is no evidence that the ALJ relied on the documents as opposed to Spertus’ testimony. The documents were not admitted into evidence, and Myers does not identify anything in the ALJ’s decision or the CUIAB’s final decision that expressly relied upon them.

Finally, while Myers contends that the fact that the ALJ did not mark or receive the exhibits (AR 117-20) into evidence, and that prejudiced her ability to confront the evidence effectively, she fails to explain how she was prejudiced. Alford v. Pierno, supra, 27 Cal.App.3d at 691 (petitioner bears the burden of demonstrating a prejudicial abuse of discretion).

Due process is a “flexible concept” and the safeguards necessary under specific circumstances vary. Ryan v. California Interscholastic Federation-San Diego Section, (2001) 94 Cal.App.4th 1048, 1072.) “Elasticity” is required to “tailor the process to the particular need.” Id. When the government seeks to deprive a person of property, it must at a minimum provide notice and an opportunity to be heard. Beaudreau v. Superior Court, (1975) 14 Cal.3d 448, 458; Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141.

The principles of due process determine whether the hearing granted by an agency was fair. Hall v. Superior Court, (2016) 3 Cal.App.5^th 792, 808. The question whether the trial was “fair” encompasses pre-hearing and post-hearing events or procedures affecting the due process requirements of adequate notice and a meaningful opportunity to be heard. See Vollstedt v City of Stockton, (1990) 220 Cal.App.3d 265, 273. Under Govt. Code section 11513(b), each party has the right to call and examine witnesses, cross-examine opposing witnesses, and impeach any witness regardless of which party called him or her.

Myers argues that the administrative decision in this matter is irreparably tainted by serious procedural defects that subverted her fundamental right to a fair hearing. Pet. Op. Br. at 10.

First, Myers argues that due process requires that any party facing administrative proceedings receive notice of specific charges and a fair chance to respond. In this case, the NOH merely cited “misconduct” without offering a precise basis for the claim. This lack of specificity prevented Myers from effectively gathering evidence, identifying key witnesses, or formulating a coherent defense, thereby denying her a legitimate opportunity to defend against the allegations. As Bell v. Burson, (1971) 403 U.S. 535 makes clear, due process requires that parties be informed of the precise claims against them so they may adequately prepare a defense. Pet. Op. Br. at 6-7, 10.

Myers had adequate notice. In a discipline case, due process requires that notice be given to employee sufficient to inform the party of the charge. Cal. School Employees Ass’n v. Livingston Union School District, (2007) 149 Cal.App.4th 391, 399-400 (must account for fact that teachers are away from their employment for months during the summer); Smith v. State Board of Pharmacy, (1995) 37 Cal.App.4th 229, 241 (accusation which misled accused that he was charged with personal wrongdoing and not negligently permitting another to do so violated due process notice requirement). This is not a discipline case. Myers was not charged with any misconduct for which she stood to lose a property right. Rather, she sought to gain a property entitlement of unemployment benefits by challenging EDD’s determination that she was not eligible. In this circumstance, the NOH stating that the issue was whether Meyers was discharged for misconduct connected with his or her most recent work was sufficient to satisfy due process. AR 14.

It is true that the much earlier NOD stated that Myers was ineligible for unemployment benefits because Law Firm discharged her for misconduct of falsifying her timesheets (AR 2, 4) and that was not the main reason why the ALJ and CUIAB upheld her denial of eligibility. Rather, her circulation of three emails to a co-worker about a confidential job offer, resignation letter, and a screen shot of a partner’s calendar showing a counseling appointment was the principal reason for ineligibility. AR 135.

However, all the reasons for denial were expressly set forth by EDD in the Misconduct Claim. AR 104-06. The Misconduct Claim asserted Law Firm’s position that Myers was terminated for “many reasons”, including mistreatment of fellow employees, refusal to comply with work requests from her direct supervisor, her unauthorized access to confidential computer information containing sensitive employee financial information, and falsification of timesheets. AR 104. The final dispute occurred on October 4, 2022 when Myers had a dispute with her supervisor regarding a time entry and she was not truthful about her falsified time record. AR 105.

Myers argues without citation to the record that she received no pre-hearing warning of these serious new allegations and was blindsided. Reply at 6. The record does not reflect when Myers received the Misconduct Claim. However, she must have received it in pre-hearing discovery (the parties do not discuss the discovery procedure) and she certainly had it by the hearing when it was marked as Exhibit 12 and received in evidence. AR 28-29. Thus, Myers had full notice of Law Firm’s position on her misconduct and why she was not eligible for unemployment benefits.

Second, Myers argues that the ALJ relied heavily on evidence never formally entered into the record and irrelevant to the allegations in the NOD, thus depriving her of the opportunity to examine, challenge, or rebut the material. The ALJ’s approach amounted to an impermissible “fishing expedition.” Rather than confining the inquiry to the substantive allegations in the NOD, the ALJ conducted broad, unfocused questioning and permitted the introduction of irrelevant rebuttal evidence. As the Handbook clarifies, an appeal hearing must be both fair in form and appear fair to the participants and any observer. Even a “technically” fair hearing that appears biased or procedurally suspect fails to meet the standard of fundamental fairness. This procedural lapse contravenes Evidence Code provisions 350, 413, and 780 regarding proper authentication and relevance, while also violating due process standards. As Goss v. Lopez, (1975) 419 U.S. 565 and Beal v. University of California, (1998) 16 Cal.4th 104 emphasize, due process is violated when a party is denied notice, a fair opportunity to defend, or a chance to rebut opposing evidence. Pet. Op. Br. at 8-9, 10.

Myers adds that the principle that an adjudicator’s findings must rest on evidence formally introduced into the record is deeply rooted in American jurisprudence. In Whitfield v. Hanges, (8th Cir. 1915) 222 F. 745, 749, the court held that an administrative or judicial decision “shall not be without substantial evidence taken at the hearing to support it.” By basing the decision on irrelevant or unentered evidence, the ALJ directly contradicts this rule, thus further underscoring the abuse of discretion and due process violations present here. Pet. Op. Br. at 7.

The Guidelines cite Philadelphia Co. v. SEC. Philadelphia Co. v. Securities & Exchange Commission, 175 F.2d 808, 817 (D.C. Cir. 1948), dismissed by 337 U.S. 901 (1949), for the proposition that fairness requires not only technical compliance with procedural rules but also an actual, practical ability for each party to mount a defense. This underscores the principle that an administrative proceeding must afford the parties a fundamentally fair hearing, which includes: meaningful notice of the charges or issues at stake; opportunity to be heard, present evidence, and challenge adverse evidence; and procedural safeguards preventing arbitrary or biased decision-making. The NOH's vagueness and the ALJ's introduction of irrelevant or unentered rebuttal evidence exemplify the fishing expedition that the Guidelines expressly caution against. This undermined Myers’ right to a fair adjudication and contravenes established due process standards. These procedural lapses not only undermine the hearing’s integrity but also jeopardized Myers’ substantive interests—potentially affecting employment status, eligibility for benefits, and professional reputation. Pet. Op. Br. at 8-9.

The court addressed the use of Spertus’ testimony and the rebuttal documents ante. His testimony and cross-examination of Myers was properly offered to rebut Myers’ testimony that she did not circulate another employee’s offer letter around the office by email (AR 38-39), and did not take a screenshot of Spertus’ personal calendar showing a BetterHelp appointment and circulating it (AR 42). This was not a fishing expedition but rather proper rebuttal. Nor was this broad, unfocused questioning or the introduction of irrelevant evidence. While Spertus’ supporting documents probably should have been marked as exhibits and received in evidence, the hearing must be fair, not perfect. “[T]here is no precise manner of hearing which must be afforded; rather the particular interests at issue must be considered in determining what kind of hearing is appropriate.” Saleeby v. State Bar, (1985) 39 Cal.3d 547, 565-66.

Third, Meyers argues that the ALJ’s own findings admit that her performance issues “may not have risen to the level of misconduct.” Despite this admission, the ALJ nonetheless found against her, citing improperly admitted evidence that was never subjected to formal admission, authentication, or cross-examination. This glaring inconsistency highlights the arbitrariness of the decision and the fundamental unfairness of the process leading to it. Pet. Op. Br. at 11.

The short answer is that Law Firm’s evidence about Myers’ circulation of confidential emails and information was properly admitted through Spertus’ testimony and the procedure was fair because Myers had the Misconduct Claim.

Finally, Myers presents no actual evidence of prejudice. A 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). “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”. F isher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20. Myers fails to show how the case would have been different if any of her allegations constituted due process violations. If blindsided by Law Firm’s evidence, she could have sought a continuance, sought to leave the record open, or sought to present new evidence to the CUIAB. See AR 139-40, 148—49. She did none of these things.[4]

The Petition is denied. The CUIAB’s counsel is ordered to prepare a proposed judgment, serve it on Myers 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 April 18, 2025 at 9:30 a.m.

[1] All further statutory references are to the UIC unless otherwise stated.

[2] Myers requests the Court take judicial notice of nine items. The first is a U.S. Department of Labor handbook. While this exhibit is not subject to judicial notice as it was not presented at the administrative hearing, the Board does not object and the request is granted. Evid. Code §452(c). The rest of the items are cases and statutes, with the exception of CUIAB Precedent Decision No. 192. Myers fails to provide a copy of these exhibits in violation of CRC 3.1306(c) and these requests are denied. However, the court need not take judicial notice of legal authority.

[3] The NOH refers to a Hearing Information pamphlet that apparently is not in the administrative record. AR 13.

[4] Although the CUIAB addresses the merits of its decision (Opp. at 17-19), Myers’ opening brief relies only on procedural contentions and does not address the merits. In reply, she makes reference to willful misconduct and the employer’s burden (Reply at 8-9), as well as the weight of the evidence (Reply at 12). These new issues raised for the first time in reply may be, and are, disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.