Judge: Malcolm Mackey, Case: 23STCV06421, Date: 2023-08-09 Tentative Ruling

Case Number: 23STCV06421    Hearing Date: August 9, 2023    Dept: 55

STOPPELMAN v. EDD,                                                       23STCV06421

Hearing Date:  8/9/23,  Dept. 55.

#8:   DEMURRER TO FIRST AMENDED COMPLAINT OF DAVID STOPPELMAN.

Notice:  Okay

Opposition

MP:  Defendant

RP:  Plaintiff

Summary

On 3/23/23, Plaintiff DAVID STOPPELMAN filed a Complaint.

On 5/23/23, Plaintiff filed a  “1st amended petition writ request of mandate” that included the same causes of action of the initial Complaint--  (1) Failure to pay and (2) Violation of American Rescue Act.  Allegedly, the EDD Appeals Board awarded Plaintiff nothing even though Plaintiff is unemployed.

MP Positions

Moving party requests an order sustaining the demurrer to the operative pleading, on grounds including the following:

·         The pleading fails to allege any statutory violation as the Government Claims Act requires for claims against government agencies.

·         Mr. Stoppelman failed to present his claim before filing his lawsuit as the Act requires.

·         Mr. Stoppelman fails to allege facts establishing any cause of action—he identifies no statutory duty and no breach.

·         The purported first amended writ of mandate is really an amended complaint, and so the parties’ informal agreement was not performed.

RP Positions

Opposing party advocates overruling, or leave to amend, for reasons including the following:

·         The parties had an agreement for Plaintiff to file a petition for writ of mandate, which has been filed, and then Defendant would file an answer.

·         Pursuant to California Civil Code Section 1094.5, Plaintiff may request judicial review of an EDD Appeals Board decision.

Tentative Ruling

The demurrer is sustained, with leave to file a Petition for Writ of Mandamus and/or Second Amended Complaint, or a combination of those.

Plaintiff may serve and file an amended pleading on or before 9/5/23.

Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action.  Schulz v. Neovi Data Corp. (2007) 152 Cal. App. 4th 86, 92.

The cursory opposition only indicates a desire to have a petition for writ of mandate, and shows no effort to address issues raised in the demurrer to the complaint aspect of the operative pleading, such as alleging a statutory duty as to government and making a government claim.

A writ of mandamus or mandate have been cognizable procedures for seeking unemployment benefits.  See  Cal. Judges Benchbook Civ. Proc. After Trial § 5.29 (citing, e.g., Brown v California Unemployment Ins. Appeals Bd. (2018) 20 CA5th 1107, 1112–14  (claimant's motion to enforce writ of mandate to recover unemployment benefits was erroneously denied)).

Often, complainants successfully have combined a petition for writ of mandate with a complaint having causes of action.  E.g.,  Cohan v. City of Thousand Oaks (1994) 30 Cal. App. 4th 547, 553  (‘combined petition for writ of mandate and complaint….”).

A treatise contains this general form for a petition for writ of mandamus:

[Name, office address, telephone number and state bar number of attorney] Attorney for Petitioner

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [name]

[Name], Petitioner,

v.

[Name], as Director of Employment Development, and, [Name], Real Party in Interest, Respondents.

Case No.

PETITION FOR WRIT

 OF ADMINISTRATIVE MANDAMUS

UNEMPLOYMENT DEVELOPMENT DEPARTMENT

and, EMPLOYMENT  INSURANCE APPEALS BOARD

[Unemp. Ins. Code, § 410 Code Civ. Proc., § 1094.5].

Petitioner alleges:

1. Petitioner, [name], is an individual and is now, and at all times mentioned in this petition was, a resident of [name] County, California.

2. Respondent Unemployment Insurance Appeals Board ("appeals Board") and its employees constitute the appeals division within the Employment Development Department.

3. Respondent Employment Development Department ("department"), is a department of the Health and Welfare Agency of the State of California.

4. Respondent [name], ("director") is the Director of Employment Development and by law administers the department and the unemployment compensation program.

5. Real party in interest [name] [specify interest, such as: the employer] is and at all times mentioned in this petition was [specify capacity, for example: a corporation organized and existing under the laws of the State of California, with its principal place of business in [name] County, California].

6. [Set forth facts of employment relationship, termination of employment, and, eligibility for benefits for example: Petitioner was employed with employer from [date] to [date] at employer's business located at [address including county] California on a full-time basis as [describe position]. Petitioner received wages from employer sufficient to qualify petitioner for unemployment compensation benefits.]

7. On [date] petitioner [set forth facts establishing good cause for leaving employment, such as: resigned [his or her]] position to accompany [his or her] spouse to [specify location from which it is impractical to commute to former employment the location of petitioner's spouse's new employment]. Since that time petitioner has remained able, willing, and available to work but has been unable to find employment in spite of conducting a search for employment in compliance with instructions from the department.

8. [Allege administrative history, proceedings, and decisions, for example: Petitioner filed a claim for unemployment compensation benefits on [date]. On [date], petitioner received a written notice of determination denying petitioner's claim for benefits. A copy of this determination is attached to this petition as Exhibit [name] and is incorporated by reference.]

9. On [date], petitioner filed a timely appeal with an administrative law judge who by written decision dated [date], affirmed the denial of petitioner's claim. A copy of this decision is attached to this petition as Exhibit [name] and is incorporated by reference.

10. On [date] which was within 20 days of the mailing of the decision of the administrative law judge, petitioner filed an appeal with the board. A hearing was held on [date]. The board affirmed the decision of the administrative law judge denying petitioner benefits. A copy of the board's written decision is attached to this petition as Exhibit [name] and is incorporated by reference.

11. In affirming the decision of the administrative law judge the appeals board abused its discretion in that its conclusion was contrary to and not supported by the evidence because [specify].

12. Petitioner has exhausted [his or her] administrative remedies. Under Unemp. Ins. Code § 410 the decision of the appeals board is final except as to such action as may be taken by a judicial tribunal as permitted or required by law.

13. Petitioner has no plain, speedy, and adequate remedy in the ordinary course of the law other than the issuance by this court of a writ of mandamus.

14. [If award of reasonable attorney's fees is being sought pursuant to Gov. Code § 800, add: The [finding or determination] sought to be reviewed by this petition was the result of arbitrary or capricious action on the part of the board. Petitioner has retained [name of attorney] to represent petitioner in this proceeding and is personally obligated to pay [name of attorney] [specify hourly rate or other attorney's fee] for those services.]

WHEREFORE, petitioner requests that the court:

1. Issue a peremptory writ of mandamus setting aside respondent's decision [specify, such as: affirming the decision of the administrative law judge denying petitioner unemployment compensation benefits] and ordering respondent appeals board to grant these benefits;

2. Award petitioner the costs of this proceeding;

3. [If award of reasonable attorney's fees is being sought against public entity pursuant to Gov. Code § 800, add: Award petitioner a reasonable attorney's fee pursuant to Gov. Code § 800]; and

4. Award petitioner any other and further relief the court considers proper.

Dated.

[Signature]

Attorney for Petitioner

VERIFICATION

I am the petitioner in this proceeding. I have read the foregoing petition and the matters stated in it are true of my own knowledge.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

[Date and place of execution]

.

[Signature]

Petitioner

[Attach proof of service and record of administrative proceeding being reviewed]

Notes

Notes On Use

Authority: Judicial review of benefit decisions of the Unemployment Insurance Appeals Board is governed by Code Civ. Proc. § 1094.5 providing for writ of administrative mandamus. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. [Code Civ. Proc., § 1094.5, subd. (b); Jacobs v. California Unemployment Ins. Appeals Bd., 25 Cal. App. 3d 1035, 102 Cal. Rptr. 364 (3d Dist. 1972); see Windigo Mills v. Unemployment Ins. Appeals Bd., 92 Cal. App. 3d 586, 155 Cal. Rptr. 63 (5th Dist. 1979) (mandamus sought by employer)]

The standard of review for both employee and employer appeals is the independent judgment test, not the substantial evidence test. [Witkin, 2 Summary of California L., § 355 (9th ed.); for complete discussion of administrative mandamus, see Moore and Thomas, California Civil Practice: Procedure §§ 31:1 to 31:132]

Cal. Civ. Prac. Employment Litigation § 7:55, available at Westlaw.com .