Bedrossian v. California EDD

Filed 1/27/10 Bedrossian v. California EDD 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

Hratch Bedrossian, in pro. per., for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

* * * * * * * *

INTRODUCTION

Hratch Bedrossian appeals from the denial of his petition for writ of administrative mandamus. Appellant sought reversal of the decision of the California Unemployment Insurance Appeals Board (Board), affirming the decision of the administrative law judge (ALJ) who heard evidence and affirmed the determination of the California Employment Development Department (EDD or Department). The Department had determined that appellant was not entitled to certain unemployment insurance benefits, and that due to his false representations and willful material omissions, he was required to repay the benefits with assessed penalties. The Department had further determined appellant should be disqualified for a specified period from receiving future benefits. After an independent review of the administrative record, the trial court denied the petition. We conclude that appellant has not met his burden to show that the trial court erred, and we affirm the judgment. Respondents have not filed briefs or otherwise appeared in this proceeding.

BACKGROUND

1. The Administrative Appeals

On July 18, 2006, appellant was notified by the Department that he was not eligible to receive unemployment benefits, because he had voluntarily quit his job without good cause. At the same time, appellant was given notice to return benefits paid over 18 weeks, a total of $5,493, plus a penalty of $1,647. Appellant appealed from the determination, alleging that he had quit his job for good cause, in that he discovered that he would be required to use his personal vehicle without reimbursement for fuel or other expenses.

Three notices of hearing on appellants appeal were mailed to him August 23, 2006. Each notice was assigned a separate case number and described an issue to be considered at the hearing, which was scheduled for September 12, 2006. The notice for case No. 1894209 described the issues as whether appellant voluntarily left his most recent employment without good cause, or whether he was discharged from his most recent work for misconduct. The notice for case No. 1894210 listed the issues as whether appellant was overpaid benefits, and if so, whether the overpayment was caused by a willfully false statement. The notice for case No. 1894211 stated that the issue was whether appellant willfully made a false statement or willfully failed to report a material fact in order to obtain benefits.

Appellants appeal was heard by William Schuberth, an administrative law judge (ALJ). In evidence at the hearing were the notices of hearing and appellants appeal request form, a summary of EDD telephone interviews with appellant and the employer, and computer generated summaries of appellants claims for unemployment benefits and disclosures to the Department. In his interview, appellant admitted that he quit, explaining that when he showed up with his tools, the employer wanted him to use his personal vehicle to make deliveries and pick up materials, rather than work as a carpenter. The employers bookkeeper reported that when appellant quit, he said did not like the job because he was required to travel to different constructions sites, but preferred to work in a shop or at one site. She claimed that when appellant was hired, he was told that he would have to travel.

Appearing without an attorney, appellant was the only witness at the hearing. The employer did not appear. Appellant testified that he was employed by CPI, also known as Berry & Berry, for $15 per hour. He stated that although he was hired to be a carpenter, the job turned out to be an errand boy, without reimbursement for the expenses he incurred using his own vehicle. Appellant denied that he told the Department that he was laid off due to lack of work, explaining that he had signed with a temporary agency, doing casual jobs lasting only one or two days at a time. Appellant claimed that he quit because the job was costing him more in expenses than he was being paid. He admitted that he was not fired or laid off.

2. Decision in Case No. 1894209: Voluntary Separation Without Good Cause

The ALJ issued a separate opinion for each case number. In case No. 1894209, the ALJ affirmed the Departments determination that appellant had left his job with CPI voluntarily and without good cause. In support of the decision, the ALJ found the following facts from the documentary evidence and appellants testimony: Appellant had initially applied for benefits on February 19, 2004, reporting that his last employer was J. R. Abbott Construction, and that his job there, as with all the subsequently reported employers, was temporary and ended in a layoff; appellant failed to mention his employment with CPI, and when first interviewed by an EDD representative, was unable to recall the dates he worked for that employer; appellant was unable to explain to the representative why he told the Department he had been laid off, when he had quit; and he testified at the hearing that he did not recall being asked why he was no longer working for CPI.

The ALJ found the statements of the employers representative to the Department to be credible, and found appellants testimony to be devoid of credibility. The ALJ gave credence to the employers statement that appellant was hired as a carpenter and was told at the time he was hired that he would have to travel to different construction sites, and that he told the employer that he quit because he did not like construction work and preferred to work at one site or shop.

3. Decisions in Cases No. 1894210 and 1894211: Overpayment and Penalties

The decisions in cases Nos. 1894210 and 1894211 both referred to the factual findings of case No. 1894209, and to the ALJs conclusion that appellant had willfully omitted to provide the Department with information concerning his employment with CPI, and that he had falsely stated that he had been laid off from his employment with CPI, although he had voluntarily quit the job. In case No. 1894210, the ALJ affirmed the Departments determination that it had overpaid appellant the sum of $5,493, and that appellant should repay that amount with penalties of $1,647.90. In case No. 1894211, the ALJ affirmed the Departments determination that appellant was disqualified from receiving unemployment insurance benefits for five weeks beginning July 16, 2006.

4. Appeal to the Board

Appellant appealed the decisions to the Board. The Board independently reviewed the administrative record, found no material errors in the statements of fact, and did not find that the ALJs finding to be unsupported by the weight of the evidence. The Board therefore adopted the ALJs statements of facts and his reasons for the decisions, and in a single decision on December 27, 2006, affirmed the decisions in all three cases.

5. Petition for Writ of Administrative Mandamus

On April 26, 2007, appellant filed a writ petition in the Los Angeles Superior Court pursuant to Code of Civil Procedure section 1094.5, alleging that the administrative decision was not supported by the facts or law. Real party in interest CPI demurred to the petition, and later answered appellants amended petition.^[1] No new evidence was presented in the trial court. After the matter was submitted on the argument of appellants counsel, the court adopted its tentative decision as the final ruling and denied the petition.

The trial court based its denial of the petition upon appellants failure to support it with a memorandum of points and authorities. The court construed the failure as an admission that the petition was not meritorious, pursuant to California Rules of Court, rule 3.1113(a), noting that appellants opening brief contained no discussion of the administrative record or the legal or factual issues presented by the petition.^[2] The court also noted that appellant had failed to point to anything in the record to support his claim that the Boards findings were not supported by substantial evidence. The trial court nevertheless held, arguendo, that if it reviewed the merits, it would find that the Board acted within its authority and did not abuse its discretion in affirming the administrative decisions. Judgment was entered against appellant on October 21, 2008, and on November 12, 2008, appellant filed a timely notice of appeal.

DISCUSSION

The trial courts inquiry in an administrative mandamus proceeding under Code of Civil Procedure section 1094.5, subdivision (b), extend[s] to the questions whether the [trial court] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

The trial court conducted an independent review of the administrative record. (See generally Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1531.) In conducting an independent review, the trial court reweighs the evidence and may admit new evidence. (OConnell v. Unemployment Ins. Appeals Bd. (1983) 149 Cal.App.3d 54, 58.) Our review, however, is limited to determining whether the trial courts findings and decision are supported by substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) We begin our review with the presumption that the trial court judgment is correct. (County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 910.) We resolve any conflicts in favor of the judgment, and draw all legitimate and reasonable inferences necessary to uphold the trial courts findings. (Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671, 685.)

Appellant has failed to provide in his appellate brief a cogent summary of the significant facts adduced in the administrative record, as required by California Rules of Court, rule 8.204. He has further failed to specify his assignments of error under separate headings, as required by the same rule. Further, he has not made a coherent argument in his brief, but has instead set forth a stream-of-consciousness opinion regarding the unfairness of administrative and trial court procedures, the malpractice of his attorney, and the unethical behavior of the employer. Specific headings and coherent arguments are required so that the appellate court may be advised . . . of the exact question under consideration, instead of being compelled to extricate it from the mass. (Landa v. Steinberg (1932) 126 Cal.App. 324, 325.) Any points not specifically set forth in a heading are forfeited. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291.)

Moreover, a substantial evidence review begins with the presumption that the evidence to support the judgment is sufficient, and it is appellants burden to demonstrate that it is not. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Appellants failure to summarize the evidence, particularly the evidence favorable to the respondent, results in a presumption that there is substantial evidence in the record to support every finding of fact. (Ibid.; Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. [Citations.] (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) It is appellants burden to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

Thus, appellant was required to tender explicit arguments; it is not this courts responsibility to examine undeveloped claims, or to make appellants arguments for him. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) In addition, appellant was required to furnish a legal argument showing just how the trial courts rulings constituted an abuse of discretion, and to support his argument with a citation to authority for each point made. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) Because appellant has failed to do so here, we treat any claimed error in the decision of the court . . . as waived or abandoned. (Wilson v. Board of Retirement (1957) 156 Cal.App.2d 195, 212-213.)^[3]

Moreover, appellant has failed to provide a complete record necessary for appellate review. The party challenging a judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) The clerks transcript does not contain the amended petition or the answer, and appellant did not request a reporters transcript of the hearing. Nor has appellant included in the record the Opening Brief that the trial court found insufficient to raise any issues. We are unable to review the courts discretion in denying the petition on this ground and must presume that the document supports its decision and that the decision was correct. (See Wheelright v . County of Marin (1970) 2 Cal.3d 448, 454.)

The trial court found that appellant voluntarily quit without good cause, that he failed to mention that he had worked for CPI, and that he worked temporary jobs during that period, falsely claiming he was laid off when there was no more work. Our own review of the administrative record reveals substantial evidence to support those findings. Appellant admitted that he quit voluntarily. Contrary to appellants claim that he quit due to economic hardship caused traveling to different sites, the employer stated that appellant had been told when he accepted the job that he would be required to travel, and that the reason appellant gave for quitting was that he did not like the job and did not working at various construction sites. Appellant also admitted that he did not disclose to the Department that he had quit voluntarily until he was asked. Although we find no evidence that appellant stated that he had been laid off in those words, appellant admitted having reported that his jobs during that period were temporary, lasting only one or two days in duration -- in essence representing that he was laid off at the end of the period for which he was hired.

On appeal, appellant proffers additional evidence in the form of computer print-outs from the Website of the Contractors State License Board (CSLB), showing that the Responsible Managing Officer of both CPI and Berry & Berry Construction is the same person.^[4] Appellant suggests that either the evidence was excluded by the trial court or that his attorney failed to present the evidence in support of his petition.^[5] Because we have an inadequate record to review any order excluding the evidence, we must presume that the trial court did not err in doing so. (See Hernandez v. CaliforniaHospitalMedicalCenter (2000) 78 Cal.App.4th 498, 502.)

Moreover, although we have the power under Code of Civil Procedure section 909 to admit additional evidence, [t]he power to invoke the statute should be exercised sparingly, ordinarily only in order to affirm the lower court decision and terminate the litigation, and in very rare cases where the record or new evidence compels a reversal with directions to enter judgment for the appellant [citation]. The procedure under section 909 is not a substitute for a motion for a new trial on the basis of newly discovered evidence. [Citations.] (Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal.App.3d 826, 830.) Even if the procedure were such a substitute, appellants contention that the evidence was erroneously excluded or not presented establishes that it is not newly discovered evidence.

Further, although the documents provide additional support for appellants claim that he reported his employment with CPI by reporting that the employer was Berry & Berry, appellant has not suggested how admitting the documents here would compel reversal. To be entitled to relief under Code of Civil Procedure section 1094.5, it is not enough to show that a particular finding was not supported by substantial evidence; appellant must also show that he was prejudiced by the error. (See Code Civ. Proc.,  1094.5, subd. (b); Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1215.) To show prejudice, appellant must demonstrate that the trial court probably would have reached a more favorable result without the erroneous finding. (Cal. Const., art. VI,  13; Code Civ. Proc.,  475; People v. Watson (1956) 46 Cal.2d 818, 836 [prejudice established only if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error].)

Appellant bears the burden of spelling out exactly how an asserted error has caused him prejudice. (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there. [Citation.] (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) As appellant has not undertaken a prejudice analysis, we decline to make the argument for him, and we deem the point waived. (See Paterno v. State of California, at pp. 105-106.) We deny appellants request to present additional evidence and conclude that appellant had not met his burden to establish an abuse of discretion or other reversible error.

DISPOSITION

The judgment is affirmed.

LICHTMAN, J.^*

We concur:

FLIER, ACTING P.J. BIGELOW, J.

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^[1] Appellant did not request a reporters transcript, and the clerks transcript does not contain the ruling on the demurrer, the amended petition, or the answer.

^[2] The document filed in the trial court as appellants Opening Brief, has not been included in the appellate record.

^[3] Appellant seeks to impose a similar rule of forfeiture upon respondents. Appellant has filed a Motion for Summary Judgment in this court, asking for reversal and remand with instructions to enter judgment in his favor, because respondents have not filed briefs on appeal. Because there is no such motion in the appellate court, we treat it as a supplemental opening brief with additional argument for reversal of the judgment. However, we reject appellants contention that reversal is mandated by respondents failure to file briefs. Respondents failure does not relieve appellant from his burden to demonstrate error. (See Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226-227.)

^[4] Appellant does not make clear just what the CSLB documents are intended to prove. However, as the EDD records in evidence at the administrative hearing show that appellant reported his employment with Berry & Berry, the documents are apparently offered to support appellants testimony that he did not fail to report his employment with CPI; he merely called it by a different name.

^[5] Assuming the exclusion of evidence was the result of attorney error, as appellant suggests, it was invited error which cannot justify reversal on the ground of insufficiency of the evidence. (Watenpaugh v. State Teachers Retirement (1959) 51 Cal.2d 675, 680.)

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