Parvizian v. Cal. Unempl. Ins. App. Bd.

Filed 5/5/10 Parvizian 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, James C. Chalfant, Judge. Affirmed.

Kamelia Jalivand for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Douglas Press, Assistant Attorney General, Leslie P. McElroy and Eric Deon Bates, Deputy Attorneys General, for Defendants and Respondents.

* * * * * *

Syrus Parvizian appeals the trial courts partial denial of his petition for writ of administrative mandamus. Appellant sought an order directing respondents California Unemployment Insurance Appeals Board (Board) and California Employment Development Department (Department) to grant him (1) unemployment benefits (a) retroactive to March 2003 and (b) for his post-March 2003 part-time employment, and (2) disability benefits. The court issued an amended judgment that (1) granted the petition in part and directed the Department to make a determination on appellants application for disability benefits, and (2) denied the petition with respect to unemployment benefits. We affirm.

FACTS AND PROCEDURAL HISTORY

Appellant filed an application for unemployment benefits with the Department in early November 2005. He sought benefits retroactive to March 2003, the date he asserted he first became unemployed upon departure from the California Department of Transportation as an engineering geologist. Appellant alleged he had previously filed for disability benefits in March 2003 and for unemployment benefits in May 2003.He alleged he corresponded with the Department several times between May and December 2003, in response to its requests for additional materials, but the Department never acted on his application. Each time appellant corresponded with the Department, it was with a different office. The analysis of his income justifying unemployment benefits was piecemeal, with different analyzers not seeing income that had been given to other branches. Eventually, the Departments recorded telephone answer told appellant it would take several months to determine his eligibility.

From December 2003 through October 2005, appellant did nothing to follow up with the Department on his claim. He was focused on getting his job back, and he did not believe the Department would provide him with any benefits. Appellant did some occasional temporary work during that period, but he was not employed full time.

The Department found appellant ineligible for unemployment benefits based on his failure to earn sufficient wages prior to November 2005 and failure to file a claim for the period in question under Unemployment Insurance Code section 1253, subdivision (a). In June 2006, the Department mailed a notice of determination informing appellant his request for unemployment benefits was denied.

Appellant appealed his denial of benefits to the Board.

In June 2006, an administrative law judge conducted a hearing regarding appellants claim for unemployment benefits based on his alleged part-time employment. During this hearing, appellant claimed to be entitled to unemployment benefits based on his part-time work for various business entities from September 2003 through the end of 2005. The administrative law judge issued a decision affirming the Departments denial of benefits, finding appellant did not have sufficient work and wages to qualify for benefits based on his part-time work.

In July 2006, the Board conducted a further hearing before a different administrative law judge regarding appellants claim for unemployment benefits based on his pre-March 2003 employment. At the hearing, appellant sought to have his claim backdated to March 2003, a period when he had pertinent wages. He attempted to support his contentions by offering documents relating to his application for disability benefits in 2003 and a Social Security Administration application. The administrative law judge refused those documents as irrelevant. He issued a decision affirming the denial of appellants request for unemployment benefits based on pre-March 2003 employment. He noted that appellant was eligible for unemployment benefits for his pre-March 2003 employment only if he timely filed a claim. The issue was whether appellant filed a claim in conformance with Department regulations or had good cause for failing to do so. Precedential decisions of the Board, the administrative law judge indicated, reflect that claimants who do not attend to their claims with reasonable diligence may have their right to claim benefits cut off. The administrative law judge found that, even assuming appellant filed a claim in March 2003 as contended, he took no action to pursue his claim for two years; as a result, there was not good cause to backdate appellants claim.

Appellant requested new hearings before the Board. After review, the Board affirmed both decisions of the administrative law judges.

Appellant filed a petition for writ of administrative mandamus with the superior court. The trial court heard appellants petition on August 25, 2008, and, after independently reviewing the administrative record, the court ruled appellant was not entitled to have his claim relate back to his alleged 2003 application for unemployment benefits because he failed to act with diligence and had not pursued the claim for two years. However, the court reserved a ruling on whether appellant was entitled to disability benefits or to unemployment benefits based upon his part-time employment.

The court addressed the reserved issues in a further hearing on December 3, 2008. The court found substantial evidence that appellant was not entitled to unemployment benefits for part-time employment for the period immediately prior to 2005, because appellant had not worked and made sufficient income to qualify for such benefits. However, the court determined that appellant had raised an issue regarding disability insurance that the Department had failed to address and therefore directed the Department to address that issue.^[1]

Respondents counsel prepared a proposed judgment, reviewed it with opposing counsel, and submitted it to the court. In preparing the proposed judgment, however, counsel overlooked the courts August 2008 ruling denying appellants petition with respect to backdating his unemployment application to March 2003. Specifically, the proposed judgment provided that (1) the petition for writ of mandate is granted in part and denied in part; (2) appellants writ is denied as to unemployment benefits for [appellants] part-time work from September 2003-November 2005; and (3) appellants writ is granted insofar as a writ will issue to [the Department] to make a determination on [appellants] application for disability benefits . . . . The proposed judgment completely omitted the courts prior ruling denying appellants request for unemployment benefits backdated to March 2003. The trial court, not noticing the omission, signed and entered the judgment as submitted on December 18, 2008.

On January 22, 2009, appellant filed a notice, appealing from the Judgment after court trial.

After appellant filed his notice of appeal, respondents counsel discovered he had erroneously omitted the courts August 2008 ruling in preparing the proposed judgment. He therefore submitted an amended judgment to remedy the omission. The amended judgment added a paragraph to the judgment stating that [appellants] writ of administrative mandamus is denied as to backdate [appellants] unemployment application to March 2003.^[2] The court signed and entered the amended judgment on March 10, 2009.^[3] Appellant challenges this judgment as well.^[4]

CONTENTIONS

Appellant contends that (1) the trial court erred in finding substantial evidence to support the administrative law judges ruling that appellant was not entitled to unemployment insurance benefits, (2) respondents failed to make available a complete administrative record, and (3) the trial court had no jurisdiction to issue an amended judgment.

STANDARD OF REVIEW

When reviewing decisions that affect a fundamental vested right, the trial court independently reviews the administrative record. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Decisions of the Board are reviewed under the independent judgment test. (Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36 Cal.3d 575, 585; Lozano v. Unemployment Ins. Appeals Bd. (1982) 130 Cal.App.3d 749, 754.) In a limited trial de novo, the trial court makes its own credibility determinations and draws its own inferences, affording a strong presumption of correctness to the administrative decision. (Fukuda v. City of Angels(1999) 20 Cal.4th 805, 811-812 (Fukuda); Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868 (Morrison).) The burden of proof rests on the complaining party to convince the court the agencys decision is contrary to the weight of the evidence. (Fukuda, supra, at pp. 817, 820.) Moreover, an agency is presumed to have regularly performed its official duties. (Evid. Code, 664.) When a petitions allegations of irregular procedure or insufficient evidence have been denied, presumptions arise that the administrative proceedings were in fact regular and supported by the evidence. (Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 574.)

Although the trial court applies an independent judgment test, this court reviews the trial courts findings and decision for substantial evidence. (Fukuda, supra, 20 Cal.4th at p. 824.) When the evidence supports more than one reasonable inference, we may not substitute our deductions for those of the trial court. (Morrison, supra, 107 Cal.App.4th at p. 868.)

DISCUSSION

1. Substantial Evidence

Appellant contends in his opening brief that the trial court erred in denying his petition for writ of administrative mandamus regarding his unemployment benefits because the judgment is not supported by substantial evidence.

The trial court indicated a central issue in this case was whether appellant acted with diligence from year-end 2003 until November 2005. The court found no evidence to substantiate appellants assertion that he filed a claim in March 2003. However, even assuming appellant filed such a claim, the court found he was not entitled to have his November 2005 unemployment insurance application relate back to March 2003 because appellant did not act with diligence and pursue his claim in the two-year period from the end of 2003 to November 2005. The court reasoned that if appellant had filed an application for unemployment benefits that the Department failed to process, his remedy was to ask the Department to process it. The Departments failure to act would yield the right to seek a writ under Code of Civil Procedure section 1085 to compel the Department to do so. The court concluded that appellant may not wait two years and then seek to backdate his claim.

Appellant asserts the decision of the Department was fraud, the decisions of the administrative law judges were violation of law and the trial judge erred in supporting them without any reasonable evidence.

We have reviewed the entire record, including the augmented record submitted by appellant. Reviewing the evidence before the trial court, we find substantial evidence to support the courts findings. Regardless of whether appellant filed a claim in March 2003, it was not disputed that appellant did not do anything to follow up on his alleged claim during the approximately two-year period between the end of 2003 and November 2005. During the administrative hearing, appellant testified that after 2003 he did not hear from the Department. He was asked by the administrative law judge whether he did . . . anything about it? He responded, No, I was wanting to get[] my old job back. He admitted he did not take any action until November 2005, almost two years later, and indicated no reason for failing to take action, testifying he thought the Department was not going to pay, [s]o I tried to get my job back . . . .

In issuing his decision, the administrative law judge found on this evidence that appellant failed to articulate any compelling reason or good cause for not pursuing his claim in a diligent manner. The trial court agreed, noting that precedential decisions of the Board reflect that claimants who do not attend to their claims with reasonable diligence may have their right to claim benefits cut off.

As to appellants claim for unemployment insurance benefits for part-time employment, appellant claimed there were two jobs at which he was classified by the Board as an independent contractor rather than an employee. In the trial court, appellant claimed he performed work as a consultant soils engineer for an attorney at the home of the attorneys parents, and he was under the impression he was an employee of the attorney. Appellant also asserted his work for the City of Los Angeles as an election campaign worker too should have been considered as qualified employment. The trial court was not persuaded appellant was an employee in either situation. The court explicitly found that appellants earnings from part-time employment was so far below the necessary threshold for qualifying wages that I dont see any possibility that he would have made [the threshold] in any case.

In his reply brief, appellant asserts [to] add up the amount of checks is [a] single calculation in [a] matter of 5 minutes. The record establishes that the administrative law judge and the Board considered appellants claimed part-time employment earnings, determined upon conflicting evidence that only a portion constituted wages earned as an employee rather than an independent contractor, and they found appellant failed to prove he had earnings of at least $900 in the requisite quarter as required by Unemployment Insurance Code section 1277. The trial judge reviewed the evidence and made the same independent findings. We also have reviewed the entire record with respect to appellants claimed part-time earnings and are satisfied substantial evidence supports the trial courts findings.

2. Administrative Record

Appellant contends respondents failed to provide a complete administrative record to the trial court. Appellant apparently argues the absence of documents he believes were relevant constituted a failure to have a complete administrative record, and accordingly respondents provided a false and incomplete administrative record. Appellant does not specify what documents appellant believes should have been included in the record.

Code of Civil Procedure section 1094.5, subdivision (a) provides in pertinent part: Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondents points and authorities, or may be ordered to be filed by the court. A complete administrative record consists of all of the evidence presented at the administrative proceeding. (8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, 323, p. 1243.)

It is the general rule that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) The record may be augmented solely within the strict limits of subdivision (e) of Code of Civil Procedure section 1094.5, which provides in relevant part: Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case. Absent a proper preliminary foundation that one of the exceptions provided for in Code of Civil Procedure section 1094.5, subdivision (e) applies, it is error for the trial court to allow the record to be augmented. (Toyota, supra, at p. 881; see also Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) Whether an exception applies lies within the discretion of the court, and the courts exercise of discretion will not be disturbed unless it is manifestly abused. (Pomona Valley Hospital Medical Center, at p. 101.)

Appellant claimed in the court below that the record of proceedings was incomplete and sought to augment the record. The court found many of the documents were irrelevant to the unemployment insurance claim and, to the extent any were relevant, appellant had made no showing they could not have been presented at the administrative hearing. On appeal, appellant has not identified with any specificity the records he claims were omitted, shown that the foundational requirements of Code of Civil Procedure section 1094.5, subdivision (e) were met or demonstrated that the trial court abused its discretion in declining to consider documents outside the record.

We find no error by the trial court in this regard.

3. Amended Judgment

Appellant contends the trial court had no jurisdiction to amend a judgment after a notice of appeal had been filed and any such amendment of the judgment was void as a matter of law. We disagree. The amended judgment merely corrected clerical error, and the court retained jurisdiction to amend the judgment even after the filing of a notice of appeal.

In the present case, the trial court ruled in August 2008 that appellant was not entitled to any claim for unemployment insurance benefits based on his pre-March 2008 employment because, among other things, he failed to act with diligence. The court reserved a ruling on whether appellant was entitled to unemployment benefits based upon his part-time employment or whether he was entitled to disability benefits, and then issued a ruling on these reserved issues in December 2008. Respondents counsel was directed to prepare a judgment for the courts signature, but he inadvertently failed to include the August 2008 ruling in the initial judgment entered in December 2008. Although the trial court signed this judgment, it is clear from the record that the initial judgment did not accurately reflect the courts intended judgment. The trial court obviously intended to deny appellants writ petition as to backdating his application for unemployment insurance benefits to March 2003. It is also clear from the record that this ruling was omitted from the original judgment solely due to counsels inadvertence and that the court did not change its mind on this matter. Indeed, at the later hearing of appellants objection to the amended judgment, the judge expressly stated, I believe that that amended judgment was proper in the sense that I had ultimately ruled on all three issues that are within its scope. (Italics added.)

The signing of a judgment that does not express the actual judicial intention of the court is clerical error. (In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151; Zisk v. City of Roseville (1976) 56 Cal.App.3d 41, 47, citing Bastajian v. Brown (1941) 19 Cal.2d 209, 216.) Clerical errors or inadvertent omissions made by attorneys in drafting judgments constitute clerical mistakes that may be amended or corrected. In such event, the court may summarily correct such an erroneous judgment. (Russell v. Superior Court (1967) 252 Cal.App.2d 1, 8.) As Russell notes, In these times busy judges must of necessity rely heavily upon the attorneys to prepare orders and judgments accurately so that they express that which was done at the trial and that which the judge had called for. (Ibid.)

The power to correct a clerical error in the judgment exists even if an appeal has been taken and is pending. (Fay v. Stubenrauch (1904) 141 Cal. 573, 575 [trial court loses jurisdiction over cause upon appeal but does not lose jurisdiction of its records]; In re Roberts (1962) 200 Cal.App.2d 95, 97 [courts inherent power not suspended by pendency of appeal or habeas corpus proceeding].) Further, the judgment may be corrected nunc pro tunc as of the original date, without notice and on the courts own motion so as to make it conform to the judicial decision actually made. (Roberts, supra, at p. 97.)

The trial court therefore properly entered the amended judgment.^[5]

DISPOSITION

The amended judgment is affirmed. The parties are to bear their own costs on appeal.

FLIER, J.

We concur:

RUBIN, Acting P. J.

LICHTMAN, J.*

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^[1] Appellant has requested that we take judicial notice of an additional document that he purports is a page from the Departments brochure entitled, A Guide for Injured Workers. We deferred ruling on this request pending consideration by the panel and now deny it as irrelevant to the issues before us. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [only relevant matters may be judicially noticed], overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)

^[2] Appellant filed an objection to the amended judgment. The court placed appellants motion off calendar, ruling it had no jurisdiction to rule on the motion due to the pending appeal. However, the trial court orally indicated it believed the amended judgment was proper in the sense that the court had ultimately ruled on all three issues encompassed by the amended judgment.

^[3] The parties failed to include a copy of the amended judgment in the record before us. However, we have independently obtained from the Los Angeles Superior Court website a copy of the amended judgment as filed and entered. Attached to the amended judgment is a declaration of respondents counsel certifying that he provided appellants counsel with a copy of the proposed amended judgment and she indicated she had no objections to the amended proposed judgment. The trial court signed and entered the amended judgment, [b]ased on the lack of any objection.

^[4] We liberally construe appellants notice of appeal of the Judgment after court trial filed January 22, 2009, to include an appeal of the judgment as amended. (See Cal. Rules of Court, rules 8.100(a)(2), 8.104(e); see Luz v. Lopes (1960) 55 Cal.2d 54, 59; Etheridge v. Reins Internat. California, Inc. (2009) 172 Cal.App.4th 908, 912-913.)

^[5] In light of our holding, we do not address whether appellant waived any objection because of his counsels consent to entry of the amended judgment.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.