Case Number: BS139877    Hearing Date: August 19, 2014    Dept: 82

Silvestre Ela
v.
California Unemployment Insurance Appeals Board

Tentative Decision and Order Denying Writ of Mandate

Petitioner Silvestre Ela (“Petitioner”), a former elementary school teacher with Real Party in Interest Los Angeles Unified School District (“LAUSD”), was fired after he was convicted of possessing child pornography. In this lawsuit, Petitioner seeks to vacate and set aside the April 12, 2012 decision of Respondent California Unemployment Insurance Appeals Board (“Board” or “CUIAB”) which affirmed an administrative law judge’s ruling that Petitioner was ineligible for unemployment compensation benefits because he had been discharged for misconduct.

Having reviewed the pleadings, administrative record, and the parties’ briefs, the Court rules as follows:

Requests for Judicial Notice and Objections

In a motion filed on July 28, 2014, Petitioner seeks judicial notice of certain facts and arguments set forth in 18 enumerated paragraphs. The request is denied because it does not set forth the specific evidentiary basis for each of the 18 items. Simply stating that the request, as set forth in the preceding 18 paragraphs, is based on “Evidence Code Sections 451-454” does not allow the Court to review each enumerated request in any meaningful manner. To the extent that Petitioner seeks judicial notice of a published court case, a separate request for judicial notice is not needed. Further, the request for judicial notice is denied because it appears to consist mostly of arguments or relates to matters reasonably subject to dispute. Finally, Petitioner may not circumvent his obligation to cite to the administrative record, or to file a duly noticed motion to augment the record under Code of Civil Procedure § 1094.5(e), through a request for judicial notice.

In a document entitled “Objections to Exhibits and Added Attachments to Administrative Hearing Record,” Petitioner asserts “general objections” to LAUSD’s exhibits. It is well settled that evidentiary objections must be specific and accompanied by a reasonable, definite statement of the grounds. See Evidence Code § 353 (a) (objections must “make clear the specific ground of the objection”); People v. Porter, (1947) 82 Cal. App.2d 585, 588 (“An objection must usually be specific and point out the ground or grounds relied upon in a manner sufficient to advise the trial court and opposing counsel of the alleged defect so that the ruling may be made understandingly and the objection obviated if possible.”). With these principles in mind, the Court overrules Petitioner’s objections.

LAUSD’s August 5, 2014 request for judicial notice of Exhibits A and B is granted under Evidence Code § 452(c).

Petitioner’s Briefs are Seriously Deficient

Before reaching the merits, it is necessary for the Court to comment on the state of Petitioner’s briefs and the burden of proof in a writ proceeding.

An agency is presumed to have regularly performed its official duties. Evidence Code § 664. Therefore, a petitioner seeking administrative mandamus has the burden of proof. See Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal. App. 2d 129, 137; Afford v. Pierno, (1972) 27 Cal. App. 3d 682, 691 (“[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.”). Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, the existence of substantial evidence in support of Petitioner’s position. South Orange County Wastewater Authority v. City of Dana Point, (2011) 196 Cal.App.4th 1604, 1612. Moreover, Rule 3.231(i)(2), Los Angeles County Court Rules, explicitly states that each material fact in the parties’ briefs “must be supported by a citation to a page or pages from the administrative record as follows: (AR 23).” Whether a petitioner is seeking administrative or traditional mandamus, a party’s opening brief must contain, among other things, “a statement of facts which fairly and comprehensively sets forth the pertinent facts.” Rule 3.231(i)(2), Los Angeles County Court Rules.

Petitioner’s opening brief is 55 pages long in violation of CRC 3.1113(d). Further, while Petitioner’s opening brief includes a statement of facts consisting of eight sentences, he does not cite to the administrative record. Instead of presenting a summary of the material evidence and administrative proceedings with appropriate citations to the administrative record, Petitioner launches into a discussion of jurisdiction and standing with the assumption that the reader is familiar with the administrative proceeding or the challenged decision. Moreover, Petitioner’s citations to the administrative record in his 55-page brief consist of approximately six citations to the hearing transcript. (Opening Brief pp. 7, 31, 38, 54-55).

Petitioner’s reply brief is deficient because it is 28 pages long. Accordingly, the Court does not consider pages 11 through 28 of the reply brief. See CRC 3.1113(d), 3.1300(d).

The Court is mindful that Petitioner is self-represented. However, a reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for the purpose of discovering errors not pointed out in the briefs.” Fox v. Erickson, (1950) 99 Cal.App.2d 740, 742. It is not the Court’s duty to review the 178-page administrative record and consider the merits when, as here, Petitioner makes almost no effort to do so. Because of these deficiencies, the Court finds Petitioner has not met his burden of proof and the writ is denied on this basis. See Elizabeth D. v. Zolin, (1993) 21 Cal. App. 4th 347, 354; Foster v. Civil Service Comm’n, (1993) 142 Cal. App. 3d 444, 453. In any event, as discussed below, the petition for writ of mandate is denied on the merits.

Statement of the Case

Petitioner worked for LAUSD as an elementary school teacher for 14 years until he was discharged in September 2011. (AR 29-31). Before he was fired, Petitioner taught students in the fifth grade. (AR 32).

In November 2010 Petitioner was arrested and charged with a felony, possession of child pornography. (AR 32-33). On September 9, 2011, Petitioner pled no contest to the charge and was placed on probation. (AR 33-34, 69, 94). Thereafter, Petitioner’s license to teach was revoked. (AR 37-38). Petitioner’s conviction was upheld on appeal. (LAUSD RJN, Exhibit B).

As a result of Petitioner’s criminal conviction, the LAUSD notified Petitioner that he was being terminated from his employment. (AR 77).

After Petitioner was terminated by the LAUSD, he applied for unemployment benefits in October 2011. (AR 30). The LAUSD opposed Petitioner’s request. (See AR 77-85; First Amended Verified Petition (“FAVP”) ¶¶ 6-7). Petitioner’s claim was then reviewed by the Employment Development Department (“EDD”). EDD noted that Petitioner stated he was terminated because he was charged with possession of “child porno in his home computer.” (AR 84; see also FAVP ¶ 6—“Petitioner was terminated from his position of employment as a teacher because he was accused of violation of Penal Code Section 311.11.”).

EDD denied Petitioner’s request for unemployment benefits in written notices mailed in November and December 2011. (AR 2, 4, 6, 8). In a November 21, 2011 letter to EDD, Petitioner did not dispute that he was fired for possessing child pornography. (AR 12-13). Rather, Petitioner argued that this misconduct was not related to his job because it involved “off-the-job conduct,” he did not use the LAUSD’s personal property to view the child pornography, and his conduct did not involve school employees or clients or the use of drugs or alcohol. (AR 13). Notably, Petitioner did not “dispute that he possessed child pornography at his home.” (AR 98). Indeed, in his verified operative pleading, Petitioner concedes that he opened an email attachment on his computer that contained child pornography. FAVP ¶¶ 2-3.

Petitioner appealed the EDD’s determination to the California Unemployment Insurance Appeals Board. (AR 91). On January 18, 2012, an administrative hearing was conducted before an administrative law judge (“ALJ”). (AR 95). Petitioner was present at the hearing and represented by Samuel Reece. (AR 18). Although he had already been convicted of possession of child pornography, the ALJ admonished Petitioner that he had a right to refuse to answer questions that could be used against him in a criminal proceeding in light of his pending criminal appeal. (AR 36). While he testified at the hearing about certain background facts, Petitioner did not testify about the underlying facts that formed the basis of the criminal charges. (AR 36-39, 50).

On January 25, 2012, the ALJ issued his decision denying Petitioner’s appeal. (AR 95-98). After “carefully and independently” reviewing the record in the case, the CUIAB affirmed the ALJ’s decision on April 12, 2012. (AR 107-108). This lawsuit followed.

Standard of Review

When reviewing a decision of the CUIAB, the superior court exercises independent judgment on the evidentiary record of the administrative proceedings and asks whether the findings of the administrative agency are supported by the weight of the evidence. Sanchez v. Unemployment Ins. Appeals Bd., (1984) 36 Cal.3d 575, 585.

Analysis

Unemployment Insurance Code § 1256 states in part: “An individual is disqualified for unemployment compensation benefits if the director finds that he or she … has been discharged for misconduct connected with his or her most recent work.” The term “misconduct” as used in section 1256 is restricted to “conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” Amador v. Unemployment Ins. Appeals Bd., (1984) 35 Cal.3d 671, 678.

As further explained in Amador, fault is the underlying element to consider in interpreting and applying the unemployment compensation provisions. However, the determination of fault does not hinge on finding that the discharge was justified. Rather, the employee’s conduct must demonstrate culpability or bad faith. Amador, 35 Cal.3d at p. 678. In other words, the test for misconduct is volitional, the key factor pivoting on the true nature of the employee’s intent. Rowe v. Hansen, (1974) 41 Cal.App.3d 512, 520–521. “The Legislature has determined persons who are terminated as a direct result of their criminal behavior and incarceration are not ‘unemployed through no fault of their own’ and are therefore ineligible for benefits. The classification is reasonable and bears a rational relation to the objective of unemployment compensation law.” Jefferson v. Unemployment Ins. Appeals Bd., (1976) 59 Cal. App. 3d 72, 79.

Petitioner contends that the Board’s decision should be overturned because the LAUSD did not attend the hearing and submit evidence of misconduct. Petitioner is mistaken. First, only the appealing party—Petitioner—was required to attend the administrative proceeding. See 22 CCR 5066 (h). Second, LAUSD responded to EDD’s request for information concerning Petitioner’s eligibility for benefits. (AR 78, 83). Indeed, on November 8, 2011, LAUSD sent EDD additional information including the District’s September 21, 2011 letter informing Petitioner that he was being terminated because of his “recent conviction.” (AR 72-77). Third, the Board’s regulations explicitly allow the administrative law judge to question any party or witness and to introduce exhibits. 22 CCR 5062(l).

Petitioner also contends that LAUSD lacked standing to participate in the administrative proceeding and in this lawsuit because it failed to timely respond within ten days after being provided notice by EDD of Petitioner’s claim. In support of this contention, Petitioner relies on Unemployment Insurance Code § 1327. While Unemployment Insurance Code § 1327 provides that an employer must respond to EDD’s notice of claim within 10 days, it also provides that the 10-day period “may be extended for good cause.” Here, there is no evidence in the record that Petitioner ever raised the issue of LAUSD’s failure to comply with Unemployment Insurance Code § 1327, or whether or not LAUSD had good cause for an extension, at the administrative hearing. (AR 18-53). Accordingly, Petitioner is precluded from raising these issues for the first time in this litigation. See City of Walnut Creek v. County of Contra Costa, (1980) 101 Cal.App.3d 1012, 1019-1020 (a litigant must preserve issues and arguments at the administrative level before raising them in an administrative mandamus proceeding before a court); Niles Freeman Equip. v. Joseph, (2008) 161 Cal.App.4th 765, 787 (a party to an administrative proceeding must raise all issues it seeks to have judicially reviewed and a failure to raise such issues at the administrative level will preclude those issues from being raised for the first time on judicial review).

Petitioner’s additional contention that he did not commit “misconduct” within the meaning of Unemployment Insurance Code § 1256 is without merit. Education Code § 44836(a)(1) states that the governing board of a school district “shall not employ or retain in employment persons in public school service who have been convicted, or who have been convicted following a plea of nolo contendere to charges, of any sex offense as defined in Section 44010.” Possession of child pornography is a “sex offense” within the meaning of Section 44836(a)(1). See Education Code § 44010, Penal Code § 311.11. Given that LAUSD was required by law to fire Petitioner for committing the felony of possessing child pornography, the Court finds that Petitioner’s conduct showed “willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee.” Amador v. Unemployment Ins. Appeals Bd., (1984) 35 Cal.3d 671, 678. At a minimum, there was substantial evidence before the ALJ that Petitioner was terminated as a direct result of his criminal behavior.

Further, Petitioner argues he was compelled to testify in violation of his Fifth Amendment privilege against self-incrimination, and his admitted criminal conviction should have been given no weight by the ALJ. Neither argument has merit. As discussed above, the ALJ admonished Petitioner that he had a right to refuse to answer questions that could be used against him in a criminal proceeding in light of the pending criminal appeal. (AR 36). Although he testified at the hearing about certain background facts, Petitioner did not testify about the underlying facts that formed the basis of the criminal charges. (AR 36-39; see also AR 50). Indeed, Petitioner’s own representative called Petitioner as a witness after he was given the Fifth Amendment admonishment (AR 40). And in his decision, the ALJ explicitly stated that he “drew no inference as a result of the claimant’s exercise of his Fifth Amendment right.” (AR 96). In short, Petitioner was not compelled to testify by the ALJ and his Fifth Amendment privilege against self-incrimination was not violated.

The ALJ also properly considered Petitioner’s admitted criminal conviction for possession of child pornography. In Jefferson v. Unemployment Ins. Appeals Bd., (1976) 59 Cal. App. 3d 72, 77, the court held that Unemployment Insurance Code section 1256.1, “despite its appearance, establishes an independent ground of disqualification for unemployment compensation benefits.” That section explicitly states that a “plea or verdict of guilty, or a conviction following a plea of nolo contendere, is deemed to be a conviction within the meaning of this section irrespective of whether an order granting probation or other order is made suspending the imposition of the sentence or whether sentence is imposed but execution thereof is suspended.” Unemployment Insurance Code § 1256.1(a). And, as discussed above, Education Code § 44836(a)(1) provides that a “school district shall not employ or retain in employment persons in public school service who have been convicted, or who have been convicted following a plea of nolo contendere to charges, of any sex offense as defined in Section 44010.” (emphasis added).

Finally, Petitioner has not met his burden of showing that the ALJ erred by improperly admitting evidence at the hearing. First, it is worth noting that Petitioner, through his representative, only objected to the admission of four of the 17 exhibits. (AR 19, 26-28). Second, the ALJ properly admitted these documents. As the ALJ noted, hearsay is admissible at an administrative proceeding and there was a sufficient foundation for the admission of exhibit 13. (AR 28; see also 22 CCR 5062(e) (“any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions”).).

Disposition

For the reasons set forth above, Petitioner’s request for the issuance of a writ of mandate is denied. The Court does not reach Petitioner’s other arguments.

Counsel for the Board shall file and serve a proposed judgment within 10 days with a proof of service showing that it was served on all parties of record. The administrative record shall be returned to the party who lodged it, to be preserved without alteration until the judgment is final, and to be forwarded to the Court of Appeal in the event of an appeal.

IT IS SO ORDERED.