Judge: Mitchell L. Beckloff, Case: 21STCP02421, Date: 2023-01-27 Tentative Ruling
Case Number: 21STCP02421 Hearing Date: January 27, 2023 Dept: 86
NWAMO v. EMPLOYMENT DEVELOPMENT DEPARTMENT
Case Number: 21STCP02421
Hearing Date: January 27, 2023
[Tentative] ORDER DENYING PETITION FOR WRIT OF MANDATE
Petitioner, Chijioke L. Nwamo, seeks an order setting aside the decision of Respondent, the California Unemployment Insurance Appeals Board (CUIAB), denying Petitioner’s request for an increase to his weekly pandemic unemployment assistance (PUA) benefits.
CUIAB opposes the petition.
The Petition is DENIED.
STATEMENT OF THE CASE
Petitioner is a self-employed full-time taxi, private and rideshare driver. (AR 46 [schedule C], 53.)
In 2020, Petitioner filed for PUA benefits. At the time of his application, Petitioner certified he earned $35,000 as net annual income in 2019. (AR 44, 65, 98.) Based on that report, the Employment Development Department (EDD) awarded Petitioner a weekly benefit amount of $337, rather than the base amount of $167. (AR 44-45.) The $337 included PUA. (AR 44-45.)
The EDD required Petitioner to submit documentation supporting his representations about his 2019 income “like [a] tax return or something.” (AR 45.) When the EDD received Petitioner’s documentation, it reflected Petitioner’s gross annual income as approximately $50,000 with net income of $4,135. (AR 20, 47, 64.) As a result, EDD lowered Petitioner’s weekly benefit amount from $337 to $167 per week, and issued a potential overpayment of $5,461 in benefits. (AR 2-5, 64, 67-68, 98.) According to the EDD, to receive more than $167 per week in benefits (the minimum weekly award), a claimant must earn at least $4,342 per calendar quarter. (AR 47, 48.)
Petitioner appealed the EDD’s decision to the Office of Administrative Hearings (OAH). (AR 7, 94.) An administrative law judge (ALJ) conducted an administrative hearing on March 2, 2021. (AR 36, 95.) Following the hearing, the ALJ issued a decision finding Petitioner failed to support his claim he earned net annual income of $35,000 prior to the COVID-19 pandemic (in 2019) and was therefore entitled a weekly benefit of $337. (AR 97-101.) Petitioner appealed the decision to the CUIAB. (AR 102-103.) The CUIAB affirmed the ALJ’s decision. (AR 132-134.)
This proceeding ensued.
STANDARD OF REVIEW
Petitioner challenges the CUIAB’s decision pursuant to Code of Civil Procedure section 1094.5.
Petitioner contends the CUIAB erroneously determined Petitioner’s weekly PUA benefit.
Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. 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. (Code Civ. Proc., § 1094.5, subd. (b).)
“In reviewing a decision of the [CUIAB], the Superior Court exercises its independent judgment on the evidentiary record of the administrative proceedings and inquires whether the findings of the administrative agency are supported by the weight of the evidence.” (Lozano v. Unemployment Ins. Appeals Bd. (1982) 130 Cal.App.3d 749, 754.)
Accordingly, the court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) Under independent judgment, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code of Civ. Proc., § 1094.5, subd. (b).)
Finally, Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda v. City of Angels, supra, 20 Cal.4th at 819.)
ANALYSIS
Failure to File an Opening Brief:
Petitioner has failed to file an opening brief containing a memorandum of points and authority or citations to the administrative record. While Petitioner filed a document entitled, “OPENING BRIEF FOR COURT CASE NO: 21STCP02421,” the document is not a brief. The document states:
“I was at the superior court of Los Angeles on May 4th, 2022. The defendant- California Unemployment Insurance Appeals Board (CUIAB) mailed the administrative record to the wrong address. Consequently, my case was rescheduled for January 27, 2023 at 9:30 a.m. All filed documents and exhibits are attached to this opening brief.”
Attached to the note (labeled Opening Brief) is a copy of a May 4, 2022 minute order from a trial setting conference conducted by the court. The court ordered Petitioner to file his opening brief 60 days prior to January 27, 2022, the hearing date on the petition.
Along with other documents, Petitioner attached his Petition for Writ of Mandate Against California Unemployment Insurance Appeals Board (CUIAB) Pursuant to Sec. 1094.5 of the Civil Code. A letter attached to the petition explained Petitioner began receiving a weekly “pandemic unemployment insurance benefit from February 2nd, 2020” with a weekly payment of $337. Petitioner explained despite his evidence at the hearing before the ALJ, the CUIAB denied his request for an increased unemployment insurance benefit. Petitioner advises he had sufficient income in 2019 to justify a weekly benefit of more than $167. (Petitioner’s letter does not reference the administrative record.)
By failing to file an opening brief citing the administrative record in support of his petition, Petitioner has waived any claims alleged in the petition. Petitioner bears the burden of proof in these proceedings and the failure to file an opening brief means Petitioner has not met his burden. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233. [“[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”])
As noted earlier, Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) Given the presumption and Petitioner’s burden in mandamus, it follows that Petitioner has not met his burden here—that is, Petitioner has not overcome the presumption of regularity contained in Evidence Code section 664—where he files no opening brief demonstrating error. (To the extent Petitioner attached his petition to what he has filed as an opening brief, the petition does not cite the administrative record. The court cannot determine from Petitioner’s filing what evidence may have been before the ALJ, and what evidence, if any, constitutes extra-record evidence.)
Moreover, California Rules of Court, Rule 3.1103 provides writ petitions are considered law and motion matters. (Cal. Rules of Court, Rule 3.1103, subd. (a)(2).) A memorandum must be filed in support of a law and motion matter. (Cal. Rules of Court, Rule 3.112, subd. (a)(3).) A party filing a motion “must serve and file a supporting memorandum.” (Cal. Rules of Court, Rule 3.113, subd. (a).) The memorandum must set forth “a statement of facts, a concise statement of the law, evidence and arguments relief on, and a discussion of statutes, cases, and textbooks cited in support of the position advanced.” (Id., at subd. (b).) The failure to file a memorandum may be construed by the court as an admission the motion “is not meritorious and cause for its denial.” (Id. at subd. (a).)
Based on the foregoing, Petitioner has not met his burden; he has not demonstrated agency error. The petition is denied.
While the court could conclude its analysis, the court nonetheless briefly addresses Petitioner’s overall claim on the merits.
Petitioner contends the EDD erred when it calculated Petitioner’s unemployment insurance benefit award at $167 per week.
Petitioner argues the EDD determined his annual net income in 2019 was under $4,342. Petitioner claims his quarterly net income in 2019 was $4,485 with quarterly gross income of $12,500. Petitioner’s income, according to Petitioner, entitled him to an unemployment insurance benefit of $450 per week. (Petitioner provides no legal analysis to support his entitlement to $450 per week.)
Respondent argues an applicant’s net income from services performed in self-employment that determines the correct amount of unemployment benefits. (20 C.F.R. § 625.2, subd. (u) [“Wages means remuneration for services performed for another, and, with respect to a self-employed individual, net income from services performed in self-employment.”])
In order to be eligible for a weekly benefit amount greater than $167, Petitioner would have to have had net earnings over $17,368 in 2019. (AR 48, 133.) While Petitioner submitted tax returns to the EDD showing gross receipts of approximately $50,000 per year, his (Schedule C) net income (after business deductions taken) was only $4,485. (AR 119.) The evidence does not support Petitioner’s income claims.
Respondent also explains it considered Petitioner’s documentation showing additional gross income and his 2019 amended tax return. (AR 133.) Even after considering this addition income evidence, Petitioner’s net income remained too low to warrant an increase to his weekly unemployment insurance benefits of $167. (AR 133.)
CONCLUSION
Based on the foregoing, the petition is DENIED.
IT IS SO ORDERED.
January 27, 2023 ________________________________
Hon. Mitchell Beckloff
Judge of the Superior Court