Judge: Michael J. Strickroth, Case: 2022-01273960, Date: 2023-05-15 Tentative Ruling
Motion to Strike Complaint
Respondent California Unemployment Insurance Appeals Board’s unopposed Motion to Strike Portions of the Petition and Complaint is GRANTED.
Exhibit B
The Board moves to strike Exhibit B, which is a letter dated 7-23-22, after the Board’s final decision. The letter is allegedly from a manager at Secret Pho Restaurant stating Nguyen worked as an independent contractor for a few days in April 2021 but was not given more work because of Covid. The Board contends this exhibit was not presented during the administrative proceedings and therefore should be stricken.
“Public policy requires a litigant to produce all existing evidence on his behalf at the administrative hearing,” and matter outside of the administrative record may only be introduced where the requirements of Code of Civil Procedure section 1094.5, subdivision (e), have been satisfied. Windigo Mills v. Unemployment Insurance Appeals Board (1979) 92 Cal.App.3d 586, 595. Code of Civil Procedure § 1094.5(e) provides as follows:
Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.
The Board argues he contents of Exhibit B plainly indicate that it was information Nguyen could have presented during the underlying administrative proceedings and there is no reasonable excuse for not doing so.
Nguyen has failed to oppose the motion or present any argument why the letter was not presented at the administrative hearings. Therefore, the motion to strike Exhibit B to the Petition should be granted.
Prayer for “Legal Books” and “Legal Advice”
Nguyen prays for costs not permitted by Code of Civil Procedure section 1033.5. (Pet. p. 9:7-8.) Specifically, he prays for recovery of the costs for “legal books” and “legal advice.” (Id.) These are not recoverable costs. Code Civ. Proc., §§ 1021, 1033.5.) The portion of paragraph 3 of the prayer seeking $2,516.10 in costs consisting of legal books and legal should be stricken from the Petition.
Respondent California Unemployment Insurance Appeals Board’s unopposed Motion to Strike Portions of the Petition and Complaint is GRANTED.
The following is stricken from the Petition and Complaint:
--Paragraph 4 at page 3, line 22, through page 4, line 2, and Exhibit B on grounds that the letter was not presented during the administrative proceedings and the letter is dated after the Board’s decision at issue in the petition for writ of administrative mandate.
--Paragraph 3 of the Prayer at page 9, lines 7-8, seeking costs not permitted by Code of Civil Procedure section 1033.5, consisting of costs for “legal books” and “legal advice.”
Respondent to give notice.
Demurrer to Complaint
Respondent the California Unemployment Insurance Appeals Board’ Demurrer to Petitioner Peter Nguyen’s Petition for Writ of Mandate and claim for Intentional Infliction of Emotion Distress is CONTINUED to July 24, 2023, at 1:45 PM in Department C15.
Respondent submitted new evidence on reply, attached to its Request for Judicial Notice (ROA 56), regarding Petitioner’s alleged ownership of Secret Pho Restaurant, the entity he allegedly worked for as an independent contractor. The Court continues the hearing on the Demurrer to provide Petitioner an opportunity to respond to the newly submitted evidence. Should Petitioner choose to respond to Respondent’s evidence in reply, such papers are to be filed no later than nine court days before the continued hearing date.
Respondent to give notice.
Case Management Conference
The Case Management Conference is continued on the Court’s own motion to July 24, 2023, at 1:45 PM in Department C15.
Respondent to give notice.