Judge Stephen I. Goorvitch, Case Number: 24STCP00661, Date: 2025-01-15 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP00661, Date: 2025-01-15 Tentative Ruling

California Unemployment Insurance Department: 82 Appeals Board Judge: Stephen I. Goorvitch

Petitioner Essam Assaad (“Petitioner”) was terminated from his job at Zenith Insurance Company on June 9, 2021, and he filed a claim for unemployment benefits on August 29, 2022. The Employment Development Department (the “EDD”) denied the claim, and Petitioner appealed the decision to Respondent California Unemployment Insurance Appeals Board (“Respondent” or the “CUIAB”). The administrative law judge (the “ALJ”) affirmed the EDD’s decision, finding that Petitioner “made no attempt to file a claim before August 29, 2022” and that “[t]here was no legitimate reason for the claimant’s failure to file the claim earlier than the claimant ultimately did.” The CUIAB affirmed the ALJ’s decision finding Petitioner ineligible for benefits because he did not submit a timely claim. Now, Petitioner seeks a writ of mandate to set aside this decision and to grant his request for benefits. The ALJ and the CUIAB erred in two respects. There is insufficient evidence to support the finding that Petitioner “made no attempt” to file a claim before August 29, 2022. In fact, the uncontradicted evidence demonstrates that he made attempts to do so. More important, the ALJ relied on evidence outside the record—hearsay statements made by other litigants in other cases indicating that claims could have been filed during the relevant time period—without providing Petitioner notice and opportunity to challenge this evidence. Therefore, the court grants the petition for writ of mandate and remands the case for a new trial. The court denies the petition to the extent Petitioner seeks a writ entitling him to benefits. That must first be decided on the merits by the administrative law judge and reviewed by the CUIAB.

On Wednesday, June 9, 2021, Petitioner was terminated from his employment at Zenith Insurance Company. (AR 56, 19.) At all relevant times, Petitioner was continuously unemployed since his termination. (AR 4.) Petitioner filed a claim for unemployment benefits in person at the Canoga Park office of the EDD on August 29, 2022, which was 445 days after he was terminated. (AR 17, 26, 56-57.) On November 3, 2022, the EDD notified Petitioner that his request to backdate his claim was denied. (AR 2, 16, 21.)[1] Petitioner then appealed that decision and a hearing was held before an ALJ.

According to Petitioner’s sworn testimony before the ALJ, the offices of the EDD were not open to the public in 2021 and through mid-2022 due to restrictions related to the Covid-19 pandemic. (AR 24.) Petitioner testified that he made multiple unsuccessful attempts to file his claim for unemployment benefits online and by telephone starting in or about June 2021, after he was terminated. (AR 22.) Petitioner testified that the EDD offices opened to the public around July or August 2022, when he filed his claim in person at the EDD’s office in Canoga Park. (AR 22, 26.) Petitioner testified that the EDD’s offices “may have reopened in July of 2022 but not much earlier than that.” (AR 22.) Respondent has not cited any evidence in the administrative record contradicting Petitioner’s testimony that the EDD’s physical offices did not reopen until mid-2022. (See Opposition (“Oppo.”) 7-8.)

The ALJ asked Petitioner if he had “any screenshots or any kind of documents that indicate [his] attempts to file a claim ... online ... or any of [the] error messages … [he] received.” (AR 23.) In response, Petitioner stated that he did not have a screenshot of the error messages. (Ibid.) Petitioner also testified, however, that he “certainly would have an email from EDD … when I first attempted to file my claim,” but that he had not submitted such evidence prior to the hearing before the ALJ, as required by the notice of hearing. (Ibid.; see also AR 9 [notice of hearing].)

On June 21, 2023, the ALJ issued a decision upholding the EDD determination that Petitioner was ineligible for unemployment benefits “for twelve (12) weeks beginning June 5, 2022 and ending August 27, 2022.” (AR 56.) In a section of the decision titled “Findings of Fact,” the ALJ made several factual findings, including:

The claimant made no attempt to file a claim before August 29, 2022. The claimant's delay in applying for benefits was due to procrastination. There was no legitimate reason for the claimant's failure to file the claim earlier than the claimant ultimately did.

(AR 56.) In a section of the decision titled “Credibility,” the ALJ also found Petitioner’s testimony was not credible, even though it was not contradicted. In relevant part, the ALJ reasoned as follows:

If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. (Evidence Code, section 412.)

During [the] fifteen-month period, the claimant never once sought to correspond with the Department in writing either electronically or by U.S. mail concerning his desire to apply for benefits or the purported difficulties he was having in applying for such benefits.

The claimant has no documentary evidence, such as emails or screenshots, concerning any of his failed attempts to apply for benefits. Because it was within the claimant’s power to produce stronger and more satisfactory evidence, the evidence offered, including the claimant's testimony, is viewed with distrust. Moreover, the Administrative Law Judge has conducted hearings that involved claimants during the same time period who were able to converse with Department representatives at field offices, even if only through a door or partition when not allowed entry into the office itself. Based on the Administrative Law Judge’s experience, the Administrative Law Judge finds the claimant not credible and therefore does not accept as true the claimant’s testimony, even though the testimony is uncontradicted. Accordingly, the facts are as above.

On July 21, 2023, Petitioner appealed the ALJ’s decision to the CUIAB and submitted a copy of an email dated July 18, 2021, confirming he created an EDD account after his termination and over 45 pages of news articles. (AR 90-146, 162, and 221.) The news articles included an op-ed, letters to the editor, and various other articles about the EDD and its response to the pandemic. (AR 90-146.) With his appeal, Petitioner also included a lengthy, sworn declaration. (See AR 64-67.)

On September 5, 2023, the CUIAB affirmed the ALJ’s decision finding Petitioner ineligible for benefits because he did not submit a timely claim. (AR 231-238.) The CUIAB admitted into evidence and considered the email dated July 18, 2021, but not Petitioner’s other new evidence. (Ibid.) In all other respects, the CUIAB did not upset or modify the findings made by the ALJ. This writ petition followed.

Under Code of Civil Procedure section 1094.5(b), the pertinent issues 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 agency 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(b).)

Unemployment benefits of the nature involved here have long been held to be subject to the independent judgment standard of review. (Douglas v. Unemployment Ins. Appeals Bd. (1976) 63 Cal.App.3d 110, 114.) Furthermore, “remedial statutes involving welfare benefits are to be interpreted in a manner that minimizes the hardship of unemployment. Because unemployment insurance benefits are a property right, and because the unemployment insurance laws are remedial in nature, the Unemployment Insurance Code must be liberally construed to further the legislative objective of reducing the hardship of unemployment.” (Johar v. California Unemployment Ins. Appeals Bd. (2022) 83 Cal.App.5th 259, 276, internal citations and quotation marks omitted.)

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 (1971) 4 Cal. 3d 130, 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 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 (1999) 20 Cal. 4th 805, 817.)

“An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the director finds that: (a) A claim for benefits with respect to that week has been made in accordance with authorized regulations….” (Unemployment Insurance Code § 1253(a).) The authorized regulations are found at California Code of Regulations, title 22, sections 1253-1 and 1326-1, et seq.[2] These regulations state, among other things, that claimants file new claims by contacting the EDD and providing the required application information. (§ 1326-2(b).) Further, the regulations define a “week of unemployment” as “the week of unemployment in which an individual registers in person at an employment office prior to the close of business on Friday of such week.” (§ 1253-2; see also § 1253-1.)

The EDD “shall … extend the period prescribed for the filing of a new … claim … if the department finds that the failure of the individual to file any such claim or to register for work within the prescribed time was due to good cause.” (§ 1326-10(a).) “Good cause” includes “mistake, inadvertence, surprise, or excusable neglect,” but “does not include negligence, carelessness, or procrastination, in the absence of circumstances excusing these causes for delay.” (§ 1326-10(a)(7).) “The individual shall file such claim or register for work with reasonable diligence after the termination of good cause, usually not later than during the week following the week in which such termination occurs.” (§ 1326-10(b).) “A first or subsequent partial claim or other claim for benefits or registration for work shall not be valid if it is filed more than 13 weeks after the end of the benefit year (actual or potential) during which the week of partial unemployment or week of unemployment occurred.” (§ 1326-10(c).)

In relevant part, the ALJ and the CUIAB found that Petitioner “made no attempt to file a claim before August 29, 2022.” (AR 56 [emphasis added].) The ALJ and the CUIAB did not find that Petitioner made attempts to file a claim online or by phone during part of the relevant time period (e.g., shortly after his termination). Rather, the ALJ and the CUIAB found that he did not make any attempt to file a claim before August 29, 2022. This finding was based on the

ALJ’s determination that Petitioner was not a credible witness. Specifically, the ALJ reasoned as follows:

The claimant has no documentary evidence, such as emails or screenshots, concerning any of his failed attempts to apply for benefits. Because it was within the claimant’s power to produce stronger and more satisfactory evidence, the evidence offered, including the claimant’s testimony, is viewed with distrust. Moreover, the Administrative Law Judge has conducted hearings that involved claimants during the same time period who were able to converse with Department representatives at field offices, even if only through a door or partition when not allowed entry into the office itself. Based on the Administrative Law Judge’s experience, the Administrative Law Judge finds the claimant not credible and therefore does not accept as true the claimant’s testimony, even though the testimony is uncontradicted.

(AR 68-69.) These findings and credibility determination were affirmed by the CUIAB and adopted as its own. (AR 233-234.)

Exercising its independent judgment on the record, the court concludes that these specific factual findings are not supported by the weight of the evidence. Starting with Petitioner’s credibility, the ALJ and CUIAB did not “identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination” that Petitioner was not credible. (See Gov. Code § 11425.50(b).)[3] Accordingly, the ALJ and CUIAB’s credibility findings are not entitled to any special deference from this court. (See ibid. and Rutter, Administrative Law, ¶ 5:584 [“the rule requiring the court to give ‘great weight’ to the presiding officer’s credibility findings applies only if the credibility findings are based on demeanor”].)

At the administrative hearing, Petitioner testified in detail about numerous, unsuccessful attempts to contact the EDD by phone and also to file his claim online and by phone:

I -- I attempted to do it online -- file the claim online, which is what the website and the phone message advises, using two different forms of government issued picture ID, and received the same error that says approximately, unable to validate, or verify your identity. You have to file your claim in person. Attempting to contact the EDD obviously in person was not an option. I made many, many attempts to contact EDD by phone and even staying on hold was not an option. The -- the recording says due to a high call volume, we can’t take your call at this time. Please -- please try again later and clicked. You are disconnected. That’s all I got for a very long time. I kept checking back periodically after a few months until EDD opened in person. I may not have been there on the first day EDD opened in person, but I don't think I was much later than physical service was available and that’s when I went in and did it in person.

(AR 22.) When questioned by the ALJ, Petitioner consistently testified that he attempted to file a claim with the EDD by phone and online. For example, when asked by the ALJ what he did to prepare for the hearing, Petitioner testified in part as follows:

I simply reviewed the documents you sent me. I don’t have anything else to add other than EDD was closed. I – I’m not sure I need to why I need to prove that EDD offices were closed through at least all of 2021 and some of 2022. I -- I -- I can't imagine how that fact can be in dispute. I mean that’s all that this delay hinges on. Why didn’t I do it sooner? Because it would’ve been impossible to do it sooner ‘cause online the system wouldn’t let me and by phone I wasn’t able to reach anyone…. And in person was not possible until sometime mid 2022.

(AR 24.) The ALJ then asked, “Are you telling me that in 15 months, you were not able to reach the EDD by phone?” (Ibid.) Still under oath, Petitioner responded: “Yes, I am.” (Ibid.) Upon further questioning from the ALJ, Petitioner also testified that “my income was zero so I didn't need any motivation or deadlines to [file a claim].” (AR 25.)

Although Petitioner did not produce screenshots documenting his failed attempts to apply for benefits, he did submit with his appeal an email dated July 18, 2021, from the EDD confirming successful registration of an online benefits account. (AR 233.) That email, which the CUIAB admitted into evidence, corroborates Petitioner’s testimony that he attempted to file a claim online after he was terminated in June 2021. (AR 22.) On the narrow factual issue of whether Petitioner made attempts to file a claim with the EDD online and by telephone after he was terminated in June 2021, the court finds Petitioner’s testimony to be credible, consistent, and uncontradicted. Accordingly, the court finds that the ALJ’s and CUIAB’s finding that Petitioner “made no attempt to file a claim before August 29, 2022” is not supported by the weight of the evidence. (AR 56 [emphasis added].) Tellingly, Respondent introduced no evidence demonstrating that its officers were, in fact, open during the relevant time period.

More important, the ALJ based her credibility determination on evidence outside the record, specifically, hearsay statements from litigants in other unemployment cases. The ALJ stated:

Moreover, the Administrative Law Judge has conducted hearings that involved claimants during the same time period who were able to converse with Department representatives at field offices, even if only through a door or partition when not allowed entry into the office itself. Based on the Administrative Law Judge’s experience, the Administrative Law Judge finds the claimant not credible and therefore does not accept as true the claimant’s testimony, even though the testimony is uncontradicted.

(AR 68-69.) The CUIAB did not overturn this specific finding or state that it was not relying upon it. (AR 233-234.) In that regard, the CUIAB prejudicially abused its discretion. The statements of other claimants upon which the ALJ relied were not submitted into evidence. Accordingly, the weight of the evidence does not support the ALJ and the CUIAB’s credibility determinations for this additional reason.

In the opposition brief, Respondent fails to address Petitioner’s argument that the ALJ and the CUIAB prejudicially abused their discretion in relying on hearsay statements that were not submitted into evidence and were not “public knowledge.” (See OB 12; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Although not raised by Respondent, the ALJ apparently relied upon Government Code section 11425.50(c), which states:

The statement of the factual basis for the decision shall be based exclusively on the evidence of record in the proceeding and on matters officially noticed in the proceeding. The presiding officer’s experience, technical competence, and specialized knowledge may be used in evaluating evidence.

Respondent has not argued, or shown, that the ALJ complied with section 11425.50(c). The ALJ did not purport to take official notice of the truth of hearsay statements of the other claimants and she did not give Petitioner notice that she would take official notice of those hearsay statements, as required by law. (See Gov. Code § 11515.) Nor could she take official notice of such hearsay statements, which are not “generally accepted technical or scientific matter” or otherwise subject to judicial notice by the courts of this state. (See ibid. & Evid. Code § 452.) Further, the ALJ was not simply applying her experience and expertise in evaluating the evidence presented by the parties at the hearing. (See Vinson v. Synder (1999) 75 Cal.App.4th 182, 186-189.)[4] Rather, the ALJ affirmatively relied upon hearsay statements of other claimants that were not presented into evidence in the administrative hearing at issue. Thus, in violation of section 11425.50(c), the factual basis of the decision was not “based exclusively on the evidence of record in the proceeding.” This error was prejudicial because the ALJ and the CUIAB relied, in part, on this extra-record evidence in finding that Petitioner was not credible.

Exercising its independent judgment on the record, the court finds that the weight of the evidence does not support the finding that Petitioner lacked credibility in his testimony that he made multiple, unsuccessful attempts to file a claim with the EDD, both by telephone and through the EDD’s website. (See AR 22-26.) Exercising its independent judgment, the court also concludes that the weight of the evidence does not support the finding that Petitioner “made no attempt to file a claim before August 29, 2022.” (AR 56 [emphasis added].) Given Petitioner’s detailed testimony, which is not contradicted, and the email dated July 18, 2021, from the EDD, the court finds it credible that Petitioner did make attempts to file a claim with the EDD after he was terminated in June 2021. The ALJ and the CUIAB also prejudicially abused their discretion in relying on evidence from outside the record.

Under Code of Civil Procedure section 1094.5(b), the pertinent issues include whether there was a fair trial. “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) “[C]ommon law requirements for a fair hearing under section 1094.5 do not allow an administrative board to rely on evidence that has never been revealed to the accused.” (Id. at 247.) The California Supreme Court has summarized this principle as follows:

The action of such an administrative board exercising adjudicatory functions when based upon information of which the parties were not apprised and which they had no opportunity to controvert amounts to a denial of a hearing. [Citations.] Administrative tribunals which are required to make a determination after a hearing cannot act upon their own information, and nothing can be considered as evidence that was not introduced at a hearing of which the parties had notice or at which they were present. [Citations.] ... [T]he right of a hearing before an administrative tribunal would be meaningless if the tribunal were permitted to base its determination upon information received without the knowledge of the parties. A hearing requires that the party be apprised of the evidence against him so that he may have an opportunity to refute, test, and explain it, and the requirement of a hearing necessarily contemplates a decision in light of the evidence there introduced.

(Id. at 247-248, quoting English v. City of Long Beach (1950) 35 Cal.2d 155, 158-159.) Due process principles, as applied to administrative proceedings, are similar. (Gross v. Lopez (1975) 419 U.S. 565.) Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)

As discussed, the ALJ based her credibility determination, in part, on hearsay statements of claimants from other unemployment claimants from other cases. (AR 68-69.) The CUIAB did not overturn this specific finding or state that it was not relying upon it. (AR 233-234.) The ALJ did not give Petitioner notice that she would be relying on this evidence, which was not introduced or admitted at the hearing, or an opportunity to respond to it. (See AR 15-28 [hearing transcript].) Government Code section 11425.50(c) and principles of due process did not authorize the ALJ to make a credibility determination based on her personal knowledge of hearsay statements of non-party claimants from other administrative proceedings, especially without giving Petitioner notice and an opportunity to respond to such evidence. Respondent has not advanced an argument or cited any authority to the contrary.[5]

Petitioner argues that the CUIAB improperly disregarded evidence that he submitted with his appeal, specifically his six news articles. (OB 13-16.) The news articles included an op-ed, letters to the editor, and various other articles about the EDD and its response to the pandemic. (AR 90-146.) One of the articles states: “Frustrated workers showing up at the EDD offices during the pandemic were met with iron gates and bolted doors. A sign told them to call the same 800 number they'd been calling over and over.” (AR 99.) Another article states: “EDD’s pandemic operations rapidly devolved into a bureaucratic Chernobyl with immense and prolonged backlogs of claims [and] unresponsive handling of claimants’ inquiries….” (AR 92.)

With his appeal, Petitioner also included a lengthy, sworn declaration which states, in part, as follows:

I am a 58 year old single parent and the sole guardian of my two minor dependent children (now ages 10 and 13). There is no one to replace me in my parental role - my children have no living relatives who can take care of them. There was no daycare, summer camp, babysitters or anything of the sort during the relevant time period. I had to be present at all times to take care of them…. Until the risk of contracting eovid-19 had subsided, I took every precaution to stay safe for myself and my children. From March 2020 until summer of2022 when both CDC and CDPII guidelines eased social distancing restrictions, the only place I visited was the grocery store…. I would believe it is unfair and unjust to look back in time and characterize my behavior during the relevant time period as “procrastination” when it was, in large part, cautious and protective of myself and my children….

I also believe that the ALJ improperly based her Decision on anecdotal hearsay that she heard. For example, on page 2, paragraph 4 of the Decision (Exhibit 1), the ALJ references, without legal support or evidentiary support or foundational support, that other unknown, unidentified claimants “who were able to converse with Department representatives at field offices, even if only through a door or partition when not allowed entry into the office itself.” This statement appears to form the essential basis for the ALJ’s decision in this case that I “procrastinated.”…. I believe that this faulty reasoning created an insurmountable bias against me that is further evidenced by the ALJ’s apparent disregard and general lack of interest in the facts of my case.

The CUIAB declined to admit this new evidence because it was “not pivotal or material to the outcome.” (AR 234.) In Land v. CUIAB (2020) 54 Cal.App.5th 127, the Court of Appeal summarized the legal standard for the CUIAB to admit such evidence, as follows:

In an unemployment insurance benefits case, a party appearing before an ALJ “shall have his or her evidence and witnesses and be ready to proceed.” (Cal. Code Regs., tit. 22, § 5062, subd. (a).) On appeal to the Appeals Board, “An application to present new or additional evidence shall state the nature of the evidence, the materiality of such evidence, and the reasons why such evidence was not introduced at the hearing before the [ALJ]. If the new or additional evidence is documentary in nature, the applicant shall attach the evidence to the application. No such evidence shall be considered by the board unless the board admits it.” (Id., § 5102, subd. (d).)

(Land, supra, 54 Cal.App.5th at 143.) The Court further stated that it “is only in a very unusual case that we will conclude the Appeals Board abused its discretion in failing to consider new evidence.” (Id. at 144.) The CUIAB may abuse its discretion if the evidence is “pivotal to the ALJ’s decision and to the Appeals Board's reasoning for upholding it.” (Ibid.)

Here, the news articles may have some similarities to Petitioner’s testimony that he could not reach the EDD by phone or submit his claim at its physical offices during the pandemic. However, the news articles are hearsay, are not specific to Petitioner’s case, and, over timely objection, would not be sufficient in themselves to support a finding. This is because, in an administrative proceeding, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (Gov. Code § 11513(d); see Lake v. Reed (1997) 16 Cal.4th 448, 458.) Petitioner does not show that the news articles are “pivotal” to the ALJ’s decision or the CUIAB’s reasons for upholding it. Accordingly, the CUIAB did not prejudicially abuse its discretion in excluding this new evidence.

Petitioner has not argued that the CUIAB erred when it did not admit his declaration into evidence. The court declines to make Petitioner’s arguments for him on this point. A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863.)

Petitioner has not shown any prejudicial abuse of discretion in the CUIAB’s decision to exclude Petitioner’s news articles and declaration. Nonetheless, on remand, the CUIAB or assigned ALJ may reconsider whether or not any of this evidence should be admitted. (See Code Civ. Proc. § 1094.5(f).)

2. The court issues a writ directing the CUIAB to set aside the entire decision and to reconsider the matter in light of the court’s opinion and judgment. (Code Civ. Proc. § 1094.5(f).) On remand, Respondent shall afford Petitioner a new trial that is consistent with the court’s ruling. However, this judgment shall not limit or control in any way the discretion legally vested in Respondent. (See ibid.) In other words, this judgment shall not preclude Respondent from reaching the same decision provided that it affords due process and there is sufficient evidence to support the decision.

3. The court denies Petitioner’s request for additional relief, such as a writ establishing “his right to wrongfully withheld unemployment.” The court has an insufficient record upon which to resolve that issue. That issue first must be decided on the merits by the ALJ and reviewed by the CUIAB.

[1] The EDD’s Notice of Determination states that Petitioner did not meet the legal requirements for filing a claim beginning June 5, 2022. (AR 2.) As the ALJ and Respondent have noted, Petitioner is seeking to backdate his claim to June 10, 2021, the week of his termination. (AR 21; Opposition 7:17-19.)

[2] Unless otherwise stated, all further citations are to title 22 of the California Code of Regulations.

[3] Section 11425.50(b) provides in relevant part: “If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.”

[4] For instance, there is no evidence that the experiences of the other claimants at physical EDD offices, as observed by the ALJ at other administrative hearings, would necessarily be the same at the EDD offices near Petitioner.

[5] Petitioner also argues that the ALJ asked him “adversarial questions” and “act[ed] more like a prosecutor than an unbiased factfinder,” depriving Petitioner of due process. (OB 7:24-25, 12:1-9.) “Absent a financial interest, adjudicators are presumed impartial.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 219.) “Bias and prejudice are never implied and must be established by clear averments.” (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 581-582.) Petitioner must show “an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims.” (Nasha LLC v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483, citation omitted.) Petitioner has not discussed the relevant case authorities involving biased adjudicators or applied them to the facts of this case. Given the high standard that applies, Petitioner has not proven that the ALJ was biased simply because she asked him some probing questions at the hearing.