Utgard v. Employment Dev. Dept.
Filed 6/7/06 Utgard v. Employment Dev. Dept. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| ROBERT D. UTGARD, Plaintiff and Appellant, v. EMPLOYMENT DEVELOPMENT DEPARTMENT et al., Defendants and Respondents. | G035811 (Super. Ct. No. 04CC09382) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Gregory Munoz, Judge. Affirmed.
Robert D. Utgard, in pro. per., for Plaintiff and Appellant.
Bill Lockyer, Attorney General, James M. Humes, Chief Assistant Attorney General, James M. Schiavenza, Assistant Attorney General, Marsha S. Miller and Paul C. Epstein, Deputy Attorneys General, for Defendants and Respondents.
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Plaintiff Robert D. Utgard appeals from a judgment entered after the court sustained a demurrer to his second amended complaint without leave to amend. Plaintiff sued the Employment Development Department (EDD) for damages arising out of denial of his unemployment benefits and the Department of Industrial Relations (DIR) for failure to act on a claim for nonpayment of wages and unfair labor practices. (The Division of Labor Standards Enforcement is part of the DIR, not a separate entity. Therefore, we treat any claims involving the former as against the DIR.) Plaintiff did not exhaust his administrative remedies, there is no mandatory duty for either of the defendants to perform the acts plaintiff alleges, defendants are not liable for negligence per se, and plaintiff cannot recover under any constitutional claims. Therefore we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On appeal from a judgment after a demurrer is sustained without leave to amend, we assume the truth of all facts properly pleaded and any inferences arising from them. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)
This assumption, however, does not apply to conclusions of law or fact, deductions, or contentions. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)
Plaintiff alleges he filed for unemployment benefits in February 2000. In March he received a notice that benefits were denied because, based on information from his former employer, he had quit and made false statements to obtain benefits. After the hearing on plaintiff's appeal, the administrative law judge stated he was remanding the case back to the EDD for further investigation. The EDD thereafter affirmed its decision to deny benefits.
In 2003 plaintiff began filing complaints with the Labor Commissioner and the DIR for unpaid wages and unfair labor practices in violation of the Labor Code. He alleges most of these were never answered.
Plaintiff's first amended complaint contained causes of action labeled â€
