Mathis v. Cal. Unempl. Ins. App. Bd.

Filed 3/8/07 Mathis v. Cal. Unempl. Ins. App. Bd. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Dzintra I. Janavs, Judge. Reversed with directions.

Neighborhood Legal Services and Abby McClelland for Plaintiff and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Thomas R. Yanger, Senior Assistant Attorney General, John H. Sanders, Lead Supervising Deputy Attorney General, and John Venegas, Deputy Attorney General, for Defendant and Respondent.

Plaintiff appeals from a judgment denying her petition for writ of administrative mandamus (Code Civ. Proc., 1094.5), which challenged the California Unemployment Insurance Appeals Boards (board) dismissal of plaintiffs appeal from an administrative law judges (ALJ) denial of State Disability Insurance benefits (SDI). The administrative appeal was dismissed on grounds appellant had not shown good cause for having filed it four days late. The trial court agreed with the board, and then proceeded to opine, negatively, about plaintiffs substantive grounds of appeal, which the board had never decided.

We conclude that the board abused its discretion (Code Civ. Proc.  1094.5, subd. (b)) in refusing to entertain and determine plaintiffs appeal on the merits. We direct issuance of a writ requiring the board to do so without regard for the trial courts further determinations of issues, which are within the boards province and which the court should not have addressed.

FACTS

Plaintiff, a home health care worker, began medical treatment for depression in May 2002. At the end of that month, her employment terminated, because the employer needed and resorted to someone who could drive her, whereas plaintiff did not have a car. In July 2002, plaintiff applied to the Employment Development Department (EDD) for SDI. Her application included the certificate of her treating psychiatrist, stating that plaintiff was suffering from major depressive disorder, and would be incapable of working until approximately September 1, 2002. Plaintiff was taking Zoloft, and displayed depressed mood, anxiety, insomnia, and poor concentration.

Plaintiff was referred for evaluation by an independent medical examiner (IME). In a report of July 29, 2002, the IME reported plaintiffs claim of having been depressed for perhaps a year, but then stated that plaintiff was not reporting any sustained mood disturbance. The IME quoted plaintiff to the effect that I walk around in circles and The reason I havent gone out and found another job is because Im just not motivated. The IME opined that plaintiff was currently functioning adequately, and could return to work immediately.

Based on this report, EDD denied plaintiffs claim, on August 6, 2002. The notice sent to plaintiff that day stated she could file an appeal within 20 days of its mailing. Appellant did so on August 26, 2002. Her appeal letter reiterated her depression, anxiety, and inability to sleep and hence to concentrate.

An appellate hearing before an ALJ (Unemp. Ins. Code,  1328; undesignated section references are to that code) was held on February 19, 2003. Plaintiff appeared in pro. per. She explained that she attended counseling weekly, and saw a psychiatrist monthly, both at a county-sponsored center. She would start with a new psychiatrist that day. Plaintiff stated that I stay to myself too much, and agreed she had no motivation, although the counseling was helping.  . . . I have good days, bad days. She estimated her IME examination had about taken 15 minutes, and the doctor had been rude and demeaning. Plaintiff stated the Zoloft was not helping her, and now she was also taking Remeron.

In a written decision, rendered and mailed on March 5, 2003, the ALJ affirmed the EDDs decision. The ALJ gave great weight to the IMEs evaluation, and held that appellant had recovered from her disability. The front page of the decision stated that it had to be appealed within 20 calendar days from its date of mailing, and an accompanying notice stated the same amount of time for an appeal to the board, while noting that if the appeal were filed beyond 20 days afer the decision was mailed, plaintiff would have to establish good cause for the delay ( 1334).

Plaintiff filed her appeal with the board on March 29, 2003, four days late. She represented that she was so so depressed, while stating, I want my life back on track, and (twice) that Mentally its hard. The board returned a notice that although the appeal had been numbered, for it to be considered plaintiff had to provide the reasons why it was filed late. Plaintiff responded that My appeal was late because I thought it was 20 working days not calender days. [Sic.] My reading comprehension is not that good and my condition makes it worse sometimes. Thats why my appeal was late. I didnt know. I didnt understand.

The board rendered its decision dismissing plaintiffs appeal, for lack of good cause. Holding plaintiffs use of 20 working days to be the reason for the untimeliness, the board found this excuse unreasonable in light of the specific notice provided, and the fact that plaintiff had met the 20-day requirement in her previous appeal.

Plaintiff then commenced this mandate proceeding. Her petition alleged a prejudicial abuse of discretion in the boards failure to find good cause, and prayed alternatively for a writ directing a hearing before the board or that plaintiff be held eligible for benefits. In her points and authorities, plaintiff argued both error in the dismissal of her appeal and entitlement to a favorable SDI decision from the board, as well as that the ALJ had not conducted the hearing properly. The trial court ruled against plaintiff on each of her arguments.

DISCUSSION

We review de novo the trial courts determination, on undisputed facts, of the propriety of the boards ruling that plaintiff did not show good cause for filing her administrative appeal four days late. (Stermer v. Board of Dental Examiners (2002) 95 Cal.App.4th 128, 132.) The statutory specification for such good cause is that it shall include, but not be limited to, mistake, inadvertence, surprise or excusable neglect. ( 1334; accord,  1328 [appeal to ALJ]; cf. Cal. Code Regs., tit. 22,  5000(hh).)

The statutory allowances of good cause are to be liberally construed. Applying an earlier version of section 1328, which allowed 10 days to appeal and did not define good cause, the Supreme Court declared that The provisions of the Unemployment Insurance Code must be liberally construed to further the legislative objective of reducing the hardship of unemployment. (Gibson v. Unemployment Ins. Appeals Bd. (1973) 9 Cal.3d 494, 499 (Gibson).) In that case, the court found good cause for a three-day delay occasioned by a calendaring error in the claimants attorneys office. In a similar case, Division Four of this district opined that no purpose is served by imposing forfeiture

where the delay is minimal and there is no prejudice to others. (Flores v. Unemployment Ins. Appeals Bd. (1973) 30 Cal.App.3d 681, 684 (Flores).) And in discussing the subsequent amendments extending the appeal time to 20 days and defining in part good cause, the same court explained that By these amendments, the Legislature has signalled its intention to liberalize the procedural framework of the Unemployment Insurance Code . . . . (Amaro v. Unemployment Ins. Appeals Bd. (1977) 65 Cal.App.3d 715, 722.)

Under this construction, there was good cause for plaintiffs lateness in appealing to the board. First, her delay was only four days, closely similar to the three-day periods adjudicated in Gibson and Flores, supra. Second, the record reflects no prejudice, to the board, or anyone else. (See Flores, supra, 30 Cal.App.3d at p. 684.) Third, the explanation plaintiff gave and the board recognized, that she had misconstrued the deadline as being 20 working days not sequential days, was not untenable. Plaintiff accounted for her mistake as stemming from poor comprehension, enhanced by her depressed condition. These were credible, tenable causes. As one so operating alone, plaintiff could not necessarily be expected to retain without fail the choice between calendar days and business days.

The board also stressed that plaintiff had filed her prior appeal, to the ALJ, within (i.e., at the end of) its 20 calendar day limit. But given that the board accepted as bona fide plaintiffs explanation that she now had misunderstood, and used working days, the fact that the first appeal was timely was not relevant. The first filing also might have involved the use of working days. If meant to show that plaintiff on another occasion had understood and operated under the calendar day requirement, the time of the prior appeal did not so prove, and did not reflect plaintiffs present state of mind and awareness.

Based on all of the foregoing factors, we conclude that the trial court and the board erred in their decisions that plaintiff did not show good cause for her late appeal. The appropriate remedy is a writ directing the board to hear and determine plaintiffs appeal on the merits. (Gibson, supra, 9 Cal.3d at p. 501.) In that consideration, the board shall not be affected by the further findings of the trial court, which were obiter dicta and rendered in disregard of the boards prerogatives. (Cf. Du Four v. Unemployment Ins. Appeals Bd. (1975) 49 Cal.App.3d 863, 865-867.)

DISPOSITION

The judgment is reversed, and the case is remanded with directions to issue a peremptory writ of mandate, requiring the board to set aside its decision dismissing plaintiffs appeal and to hear and determine the appeal on the merits. Plaintiff shall recover costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

BOLAND, J.

FLIER, J.

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