Filed 6/17/26 Nguyen v. Cal. Unemployment Ins. Appeals Bd. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
PETER NGUYEN,
Plaintiff and Appellant, G065410
v. (Super. Ct. No. 30-2022-
01273960)
CALIFORNIA UNEMPLOYMENT
INSURANCE APPEALS BOARD, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County,
Michael J. Strickroth, Judge. Dismissed in part, affirmed in part.
Peter Nguyen, in pro. per., on behalf of Plaintiff and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant
Attorney General, Gregory D. Brown, Darin L. Wessel and Devynn N.
Azevedo, Deputy Attorneys General, for Defendant and Respondent.
Plaintiff Peter Nguyen initiated the underlying case against the
State of California Unemployment Insurance Appeals Board (Board) after the
Board affirmed the decision of an administrative law judge (ALJ) who denied
plaintiff unemployment benefits and ordered him to both repay benefits he
received and pay a penalty assessment.
In this appeal, plaintiff challenges (1) the trial court’s judgment
denying his administrative writ petition and (2) the court’s order denying
plaintiff’s motion for reconsideration of its order granting the Board’s anti-
1
SLAPP motion as to certain of plaintiffs’ tort claims (the anti-SLAPP order).
We dismiss the portion of the appeal directed to the motion for
reconsideration because plaintiff did not timely appeal the underlying anti-
SLAPP order that was the subject of plaintiff’s motion for reconsideration
and the order denying reconsideration is a nonappealable order. As to the
judgment, we conclude it is supported by substantial evidence and affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
I.
PLAINTIFF’S EMPLOYMENT AND APPLICATION FOR UNEMPLOYMENT BENEFITS
Plaintiff worked for the Employment Development Department
(EDD) as a claim interviewer for approximately 20 years. He voluntarily
resigned from EDD on April 3, 2021, and retired as of April 30, 2021.
Plaintiff applied for unemployment benefits on April 25, 2021,
and listed a restaurant named “Secret Pho” as his last employer. Plaintiff
received $10,350 in unemployment benefits through October 2021, when the
EDD found him ineligible for unemployment benefits on the ground his last
1
An anti-SLAPP motion is “a special motion to strike a ‘strategic
lawsuit against public participation (SLAPP).’” (Parrish v. Latham &
Watkins (2017) 3 Cal.5th 767, 773–774.)
2
employer was EDD and plaintiff had resigned from that employment without
good cause.
II.
ADMINISTRATIVE PROCEEDINGS
As part of a claim status interview and review of plaintiff’s claim,
the EDD representative found plaintiff’s explanation for listing Secret Pho as
his last employer lacked credibility and was inconsistent. EDD’s investigation
found no evidence of any employment relationship with Secret Pho or any
self-employment: plaintiff did not return EDD’s calls or EDD’s Form DE 23
postcard, and the auditor was unable to verify his employment by or receipt
of wages from Secret Pho.
On October 27, 2021, EDD issued a “Notice of Determination”
finding plaintiff was ineligible for unemployment benefits under
Unemployment Insurance Code section 1256 (section 1256)2 and was further
disqualified under Unemployment Insurance Code section 1257, subdivision
(a)3 for giving the EDD incorrect information, or withholding information,
concerning the reason plaintiff was no longer working with the EDD. That
2
Section 1256 provides, in pertinent part: “An individual is
disqualified for unemployment compensation benefits if the director finds
that he or she left his or her most recent work voluntarily without good
cause . . . .”
3
Unemployment Insurance Code section 1257, subdivision (a)
provides: “An individual is also disqualified for unemployment compensation
benefits if: [¶] (a) He or she willfully, for the purpose of obtaining
unemployment compensation benefits, either made a false statement or
representation, including, but not limited to, using a false name, false social
security number, or other false identification, with actual knowledge of the
falsity thereof, or withheld a material fact in order to obtain any
unemployment compensation benefits under this division.”
3
same day, EDD mailed plaintiff a “Notice of Overpayment” informing him he
owed the overpayment amount of $10,350, plus a penalty of $3,105, for a total
of $13,455.
Plaintiff appealed EDD’s determination on the ground he
“worked for Secret Pho as [an] independent contractor and got [paid] by
cash.” Plaintiff testified before the ALJ at the administrative hearing.
Plaintiff confirmed he resigned from his position with EDD after working
there for 20 years. He testified he quit to help his wife care for his daughter,
who was ill, and because EDD did not have a part-time position available.
Plaintiff further testified he was hired by Secret Pho as an independent
contractor to do odd jobs—such as delivering food, loading and unloading
deliveries, and mopping—for varying amounts of pay. Plaintiff said he
performed these odd jobs over three days, from April 21 through April 23,
2021.
Notably, plaintiff testified he did not know who owned Secret
Pho. According to plaintiff, he happened to be eating at the restaurant and
during a casual conversation with the manager, the manager mentioned the
restaurant needed some help with odd jobs. Plaintiff did not fill out any
paperwork and was not paid an hourly rate. Plaintiff testified the restaurant
paid him various amounts in cash, such as $20 to deliver food and $30 to
clean, for a total of a few hundred dollars over three days. As it turned out,
however, plaintiff was the owner of Secret Pho.4
4
Plaintiff’s actual relationship with Secret Pho was revealed
when the Board’s counsel obtained public records showing plaintiff owned
Secret Pho and asked the trial court to take judicial notice of them.
4
The ALJ ruled against plaintiff in three separate decisions. In the
first decision (case No. 7089334), the ALJ found (1) plaintiff was not an
employee of Secret Pho, (2) plaintiff’s most recent employment was with
EDD, and (3) plaintiff had quit his employment with EDD to retire. The ALJ
concluded plaintiff was ineligible for unemployment benefits under section
1256 because he left EDD voluntarily without good cause.
In the second decision (case No. 7089335), the ALJ found plaintiff
was disqualified from receiving benefits for making willfully false statements
or representations, or willfully failing to report a material fact, in violation of
Unemployment Insurance Code section 1257. The ALJ found plaintiff’s
testimony that he did not know the difference between working as an
independent contractor versus an employee, such that he believed his last
employer was Secret Pho, to be inherently improbable given his 20 years of
experience at EDD performing claim status interviews. The ALJ expressly
found plaintiff had knowingly given EDD false information when he reported
his last employer as Secret Pho. Specifically, the ALJ concluded plaintiff’s
testimony was too untrustworthy to support a claim based on the
circumstances of his relationship with Secret Pho, i.e., “he was allegedly paid
cash, he had no set pay rate, he only worked a few days, [and] the last day of
work was within the same month as his last day of working at the EDD.”
In the third decision (case No. 7089336), which addressed the
overpayment notice issued by the EDD, the ALJ incorporated the prior two
decisions and found plaintiff had been overpaid benefits. The ALJ further
found plaintiff received the overpayments based on his willful false
statements about the identity of his last employer, and therefore the
overpayment could not be waived. Finally, the ALJ found plaintiff’s willful
false statements subjected him to a penalty under Unemployment Insurance
5
5
Code section 1375.1 (section 1375.1). The ALJ affirmed both the
overpayment and the penalty.
Plaintiff appealed the ALJ’s decisions to the Board. Plaintiff
continued to assert that, after he left EDD, he was self-employed, working as
an independent contractor for Secret Pho, and that he was eligible for
unemployment benefits due to COVID 19. He maintained that he “got paid
cash, no set pay rate (because I was not [a] regular employee), [and] only
worked a few days (temporary).” Plaintiff described his status as “[o]n call
due to COVID-19.” (Underscoring omitted.) Plaintiff claimed listing Secret
Pho as his last employer was inadvertent and caused by insufficient
information in EDD’s system.
The Board independently reviewed the record underlying each of
the three ALJ decisions, considered plaintiff’s contentions on appeal and
affirmed all three decisions, as amended,6 concluding the ALJ, sitting as the
trier of fact, was free to reject plaintiff’s testimony and evidence as
outweighed by the EDD evidence. The Board rejected plaintiff’s appeal.
5
Section 1375.1 provides, in pertinent part: “If the director finds
that an individual has been overpaid unemployment compensation benefits
because he or she willfully, for the purpose of obtaining unemployment
compensation benefits, either made a false statement or representation, with
actual knowledge of the falsity thereof, or withheld a material fact, the
director shall assess against the individual an amount equal to 30 percent of
the overpayment amount.”
6
The Board amended the reasons in the first ALJ decision (case
No. 7089334) by adding additional language that the definition of “‘[m]ost
recent work,’” as used in section 1256, does not include self-employment, and
noting certain precedent that defines a claimant who voluntarily retired as
one who voluntarily left employment without good cause.
6
III.
TRIAL COURT PROCEEDINGS
On August 8, 2022, plaintiff filed a petition for writ of
administrative mandate and complaint for intentional infliction of emotional
7
distress (the writ and complaint) in the underlying case.
On November 28, 2022, the Board filed a demurrer and motion to
strike directed to the writ of mandate and complaint. On December 28, 2022,
plaintiff filed a supplemental complaint for abuse of process and intentional
infliction of emotional distress (supplemental complaint). On January 27,
2023, the Board filed an anti-SLAPP motion directed to the supplemental
complaint. Plaintiff filed an opposition to the anti-SLAPP motion and a
separate opposition to the Board’s demurrer.8
On May 15, 2023, the court granted the Board’s unopposed
motion to strike portions of the writ and the complaint, and it continued the
hearing on the demurrer to the complaint. On or about July 24, 2023, the
court overruled the portion of the Board’s demurrer challenging the
sufficiency of the petition for writ of administrative mandate and sustained
the portion of the Board’s demurrer to plaintiff’s cause of action for
intentional infliction of emotional distress with 20 days leave to amend.
Plaintiff did not file an amended petition and complaint by the deadline set
7
Plaintiff failed to designate a copy of the petition as part of the
record on appeal.
8
Plaintiff did not designate his supplemental complaint, the
Board’s anti-SLAPP motion, plaintiff’s opposition to the anti-SLAPP motion,
the demurrer, or the opposition to the demurrer as part of the record on
appeal.
7
by the court, and the Board filed an answer to the original petition for writ of
administrative mandate.
On March 25, 2024, the court issued the anti-SLAPP order
granting the Board’s anti-SLAPP motion and awarding the Board $10,631.45
9
in attorney fees incurred in bringing the motion. The Board served a notice
of ruling on March 26, 2024.
On April 2, 2024, plaintiff filed a motion for reconsideration of
the trial court’s anti-SLAPP order. Ten days later, on April 12, 2024, plaintiff
filed a document entitled “[i]nterlocutory [m]otion,” which also sought
reconsideration of the court’s anti-SLAPP order.10 On July 29, 2024, plaintiff
filed a document entitled “Supplemental . . . Claim to Petitioner’s Opening
Brief.”11 The Board filed an opposition brief in connection with the hearing on
plaintiff’s petition for writ of mandate on August 9, 2024.
On October 25, 2024, the trial court denied plaintiff’s writ
petition, his motion for reconsideration of the anti-SLAPP order, and his
motion for interlocutory relief, which had also sought reconsideration of the
anti-SLAPP order.
On October 28, 2024, plaintiff filed a document entitled
“Supplemental . . . Claim in Support of Motion for Reconsideration.”12 On
9
Plaintiff failed to designate the March 25, 2024 order as part of
the record on appeal.
10
Plaintiff failed to designate the April 2 and April 12, 2024
motions as part of the record on appeal.
11
Plaintiff failed to designate the July 29, 2024 filing as part of
the record on appeal.
12
Plaintiff failed to designate the October 28, 2024 filing as part
of the record on appeal.
8
January 13, 2025, the trial court denied plaintiff’s motion for reconsideration
of the anti-SLAPP order. The court explained that plaintiff’s motion failed to
satisfy the requirements of Code of Civil Procedure section 1008, subdivision
(a). The court found plaintiff had failed to state specific grounds to support
his motion and did not provide legal authority for his argument that the
imposition of attorney’s fees chilled his right of free speech. The court also
found plaintiff’s motion was procedurally defective because it failed to include
a notice of motion and failed to include a proper supporting memorandum of
points and authorities as required by the California Rules of Court and Code
of Civil Procedure. The court concluded plaintiff’s motion for reconsideration
was based on the same arguments made in his opposition to the Board’s anti-
SLAPP motion that had already been considered by the court, and it denied
the motion.
IV.
NOTICE OF APPEAL
On April 14, 2025, plaintiff filed a notice of appeal seeking review
of (1) the October 25, 2024 minute order denying his petition for writ of
mandate,13 (2) the January 13, 2025 order denying his motion for
reconsideration, and (3) the Board’s notice of ruling relating to that January
13, 2025 order.14
13
We treat this aspect of plaintiff’s appeal as an appeal
prematurely taken from the judgment, which was not entered until April 24,
2025, after plaintiff initiated this appeal.
14
Plaintiff’s notice of appeal indicates he is appealing an order
dated January 14, 2025, but there was no order issued that date. The order
from which plaintiff appears to be appealing was issued the day before, on
January 13, 2025, so we treat his notice as an appeal from that order.
9
DISCUSSION
I.
PLAINTIFF’S APPEAL OF THE ORDER DENYING RECONSIDERATION OF THE
UNDERLYING ANTI-SLAPP ORDER IS DISMISSED
As a preliminary matter, we dismiss the portion of plaintiff’s
appeal directed to the January 13, 2025 order that denied his motion for
reconsideration of the anti-SLAPP order because the January 13, 2025 order
is non-appealable and plaintiff did not timely appeal the underlying anti-
SLAPP order issued on March 25, 2024.
“The time for appealing a judgment is jurisdictional; once the
deadline expires, the appellate court has no power to entertain the appeal.”
(Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins.
Agency, Inc. (1997) 15 Cal.4th 51, 56.) The appellate court must dismiss the
appeal if the notice of appeal is not timely filed. (Maughan v. Google
Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247 (Maughan); see Cal.
Rules of Court, rule 8.104(b) [“no court may extend the time to file a notice of
appeal. If a notice of appeal is filed late, the reviewing court must dismiss the
appeal”].)
Anti-SLAPP orders are immediately appealable under Code of
Civil Procedure section 904.1. (Maughan, supra, 143 Cal.App.4th at pp.
1246–1247; Code Civ. Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13).)
Appellate review of an order granting an anti-SLAPP motion therefore
requires a timely appeal from that order—not from the subsequent judgment;
a party who fails to appeal from an order on an anti-SLAPP motion cannot
later challenge the trial court’s ruling by appealing from the final judgment.
(Maughan, supra, 143 Cal.App.4th at p. 1247 [because “the order on the anti-
SLAPP motion is itself appealable, we are foreclosed from reviewing that
10
order on appeal from the judgment”]; Norman I. Krug Real Estate
Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46 [“‘If a judgment or
order is appealable, an aggrieved party must file a timely appeal or forever
lose the opportunity to obtain appellate review’”].)
There is no timely appeal of the anti-SLAPP order before us.
Plaintiff purports to appeal from the January 13, 2025 order denying his
motion for reconsideration of the anti-SLAPP order. Pursuant to Code of Civil
Procedure section 1008, however, “An order denying a motion for
reconsideration . . . is not separately appealable. However, if the order that
was the subject of a motion for reconsideration is appealable, the denial of the
motion for reconsideration is reviewable as part of an appeal from that
order.” (Id., subd. (g).)
The question, then, is whether plaintiff’s notice of appeal can be
construed as a timely appeal from “the order that was the subject of [the]
motion for reconsideration” (Code Civ. Proc., § 1008, subd. (g)), namely the
anti-SLAPP order.
The answer is no. Even if we were to construe plaintiff’s notice of
appeal as seeking review of the anti-SLAPP order, the appeal from that order
still would be untimely. A valid motion for reconsideration of an appealable
order extends the time to appeal “until the earliest of” the following: “(1) 30
days after the superior court clerk or a party serves an order denying the
motion or a notice of entry of that order; [¶] (2) 90 days after the first motion
to reconsider is filed; or [¶] (3) 180 days after entry of the appealable order.”
(Cal. Rules of Court, rule 8.108(e).)
Here, plaintiff did not file his notice of appeal until April 14,
2025, more than a year after the issuance of the anti-SLAPP order on March
25, 2024, and also nearly a year after plaintiff filed his motion for
11
reconsideration on April 2, 2024. Plaintiff therefore did not meet either the
90-day or 180-day deadlines under California Rules of Court, rule 8.108(e),
and any appeal from the anti-SLAPP order is untimely. Accordingly, we do
not reach the merits of plaintiff’s appeal directed to the anti-SLAPP order,
including his challenge to the attorney fee award made pursuant to Code of
15
Civil Procedure section 425.16, subdivision (c)(1).
Finally, plaintiff contends the trial court mischaracterized his
interlocutory motion as a motion for reconsideration of the anti-SLAPP order
under Code of Civil Procedure section 1008 and then ruled on that motion
without first issuing a tentative ruling, without adequate notice, and without
giving him a meaningful opportunity to be heard. First, as noted above,
plaintiff failed to designate the interlocutory motion as part of the record on
appeal. “‘“A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown. This is not
only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.” [Citation.]’ [Citations.] ‘A
necessary corollary to this rule is that if the record is inadequate for
meaningful review, the appellant defaults and the decision of the trial court
should be affirmed.’” (Gee v. American Realty & Construction, Inc. (2002) 99
Cal.App.4th 1412, 1416.)
Moreover, plaintiff fails to explain what relief the interlocutory
motion sought if not reconsideration of the anti-SLAPP order, and how the
15
Among other things, plaintiff contends the attorney fee award
made as part of the anti-SLAPP order runs afoul of the fee waiver he
obtained in the underlying litigation. We note a waiver of costs does not
extend to an award of statutory attorney fees against the party who obtained
a fee waiver. (See Cal. Rules of Court, rules 3.55 and 3.56.)
12
motion should have been construed if not as a motion for reconsideration
under Code of Civil Procedure section 1008. In addition, the trial court’s
October 25, 2024 minute order is part of the appellate record and shows the
court held a hearing on plaintiff’s motion, plaintiff appeared at the hearing,
and the court issued a written ruling on the motion after taking it under
submission. Plaintiff does not cite any legal authority—and we are aware of
none—that required the court to issue a tentative ruling before issuing its
final ruling.
II.
THE JUDGMENT IS AFFIRMED
When the appellant challenges the sufficiency of the evidence
supporting the trial court’s findings in denying a petition for writ of
administrative mandate, “‘all material evidence on the point must be set
forth and not merely [the appellant’s] own evidence.’” (Toigo v. Town of Ross
(1998) 70 Cal.App.4th 309, 317.) “‘Failure to do so amounts to waiver of the
alleged error and [the appellate court] may presume that the record contains
evidence to sustain every finding of fact.’” (Ibid.)
Plaintiff’s appeal of the judgment is based on his contentions that
he is entitled to Pandemic Unemployment Assistance (PUA), a program
created by Congress as part of the Coronavirus Aid, Relief, and Economic
Security Act (CARES Act) (Pub. L. No. 116-136, § 2102 (Mar. 27, 2020), 134
Stat. 281), and that he always sought PUA relief, not regular state
unemployment insurance.
We reject plaintiff’s contention and conclude the trial court’s
ruling on that issue is supported by substantial evidence. Plaintiff
acknowledges in his appellate briefing that “[f]ederal law dictates that PUA
eligibility depends solely on whether unemployment is COVID-related.” As
13
the court explained in its detailed October 25, 2025 order denying plaintiff’s
writ petition:
“Even assuming [plaintiff] was entitled[, as he argued], to PUA
benefits as the owner of Secret Pho, [plaintiff] never submitted the required
documentation [during the administrative proceedings] to establish eligibility
for PUA as an owner of Secret Pho. Under federal guidance governing PUA,
self-employed individuals were required to submit proof of self-employment.
‘Proof of self-employment includes, but is not limited to, state or Federal
employer identification numbers, business licenses, tax returns, business
receipts, and signed affidavits from persons verifying the individual’s self-
employment.’ (Unemployment Insurance Program Letter No. 16-20, Change
4, dated Jan. 8, 2021, at I-10.) ‘Individuals who do not provide documentation
substantiating employment/self-employment (or planned employment/self-
employment) within the required timeframe, as described above, are not
eligible for PUA.’ (Id., at I-11.)
“Further, under the fact sheet for PUA eligibility, as an
individual claiming to be self-employed, [plaintiff] was required to provide his
tax returns and proof of earnings from self-employment to establish
eligibility. [Plaintiff] never submitted any such documentation showing self-
employment as owner of Secret Pho. Instead, he deceived those involved in
the investigation and the ALJ by claiming he was simply acting as an
independent contractor performing odd jobs for Secret Pho, and never
revealed his ownership of the restaurant.”
Plaintiff has failed to point to anything in the administrative
record reflecting otherwise. For instance, plaintiff’s argument that “[t]he
record clearly established [plaintiff] resigned due to his 11-year-old
daughter’s medical vulnerability, remained home to protect her during the
14
pandemic, and that Secret Pho ultimately closed as a direct result of COVID-
related economic hardship” is unsupported by any citation to the record.
Plaintiff’s failure to provide record citations constitutes grounds to deem his
argument of entitlement to PUA benefits waived. If “‘a party fails to support
an argument with the necessary citations to the record, . . . the argument
[will be] deemed to have been waived.’” (Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246; Cal. Rules of Court, rule 8.204(a)(1)(C) [all appellate
briefs must “[s]upport any reference to a matter in the record by a citation to
the volume and page number of the record”].) As a self-represented litigant,
plaintiff “is entitled to the same, but no greater, consideration than other
litigants and attorneys.” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.)
In addition, plaintiff failed to cite any legal authority in support
of his conclusory arguments that the Board’s findings that plaintiff willfully
misrepresented facts by failing to list EDD as his last employment “are
irrelevant under PUA” and “[t]he Board and court improperly weaponized
state [unemployment] fraud provisions to deny federally mandated benefits.”
We may disregard legal arguments that are not supported by citations to
legal authority (People v. Stanley (1995) 10 Cal.4th 764, 793 [an unsupported
legal point may be treated as waived]), or are conclusory. (See Strutt v.
Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873 [“[a]n appellate
court is not required to consider alleged errors where the appellant merely
complains of them without pertinent argument”].)
III.
PLAINTIFF WAIVED ANY CLAIM OF JUDICIAL MISCONDUCT
Plaintiff contends that, although the trial judge denied doing so,
the court “may have” engaged in improper ex parte communications with the
Board’s counsel and the record reflects an ambiguity as to whether such
15
communications occurred. First, plaintiff has failed to cite to the record in
support of his accusation of wrongful conduct by the trial court and has
thereby waived his contention on appeal. (Nwosu v. Uba, supra, 122
Cal.App.4th at p. 1246.) In addition, the accusations appear to be based
purely on speculation. We caution plaintiff to refrain from making
unsupported accusations that attack the integrity of the court. Judicial bias
is a serious matter. To make such an accusation without any evidence to
support it is a grievous misuse of the judicial system and will not be
tolerated. (See In re Koven (2005) 134 Cal.App.4th 262, 264–265 [briefs
falsely accusing court of deliberate dishonesty resulted in contempt
proceedings and monetary fine].)
16
DISPOSITION
The appeal of the January 13, 2025 order is dismissed. The
judgment entered April 22, 2025, is affirmed. Respondent shall recover costs
on appeal.16
GOODING, J.
WE CONCUR:
MOORE, ACTING P. J.
SANCHEZ, J.
16
On October 24, 2025, plaintiff filed and served a document
entitled “Protective Objection to Any Claim for Costs,” (some capitalization
omitted) in which plaintiff argues, among other things, that any award of
costs in favor of the Board against a self-represented plaintiff who is a senior
citizen and exercising his right to petition under the First Amendment would
“unconstitutionally burden and chill this protected activity.” (Boldface
omitted.) It appears plaintiff is raising this argument for the first time, after
the close of briefing, when the Board has no opportunity to respond. (Provost
v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295.) In
addition, plaintiff failed to obtain the permission of the presiding justice to
file this document. (See Cal. Rules of Court, rule 8.200(a)(4).) We therefore
decline to consider it.
17