2013-90054081-CL-OE

State of California, EDD vs. Bethaney L. Rose

Nature of Proceeding: Motion to Set Aside

Filed By: Bowman Jr., Robert C.

Defendant Bethany Rose’s motion “to set aside certificate of judgment, summary
judgment and notice of entry of judgment” is denied.

Defendant seeks to set aside a “Certificate of Judgment, Summary Judgment and
Notice of Entry of Judgment” filed on December 12, 2013, following an EDD
administrative hearing regarding unemployment insurance overpayments. Defendant
moves for relief pursuant to CCP § 473(b) arguing that the EDD judgment should be
set aside because it did not take into account that her alleged overpayments were
pursuant to a settlement agreement for a severance package, and because she was
denied due process when the Unemployment Appeals Board Judge inappropriately
dismissed her hearing.

The motion is unaccompanied by any declaration showing how the judgment sought to be set aside was the result of “mistake, inadvertence, surprise, or excusable
neglect.” (CCP § 473(b).) Instead the motion simply consists of Defendant’s counsel’s
arguments. However, argument of counsel is not evidence and therefore cannot
satisfy Defendant’s burden of showing that the judgment sought to be set aside was
the result of “mistake, inadvertence, surprise, or excusable neglect.” (Porterville
Citizens for Responsible Hillside Development v. City of Porterville (2007) 157
th
Cal.App.4 885, 895, fn. 9. [“It is axiomatic that arguments of counsel are not
evidence”].) On this basis alone the motion is denied.

In addition, as pointed out by Plaintiff EDD, overpayment determinations are subject to
an administrative appeals process. Decisions of the Appeals Board relating to the
unemployment or disability compensation benefits may be reviewed by the superior
court in an administrative mandate proceeding. (See Code Civ. Proc. § 1094.5; see,
e.g., Windigo Mills v. Unemployment Ins. Appeals Bd. (1979) 92 Cal. App. 3d 586, 591
-592.) In the instant case, judicial review of a decision of the appeals board must be
undertaken within six months after the date of the appeals board decision. (Unemp.
Ins. Code § 410.) Review of an appeals board decision is governed by CCP § 1094.5.
(Jacobs v. California Unemployment Ins. Appeals Board (1972) 25 Cal.App.3d 1035,
1040.) Defendant apparently had a administrative hearing before the appeals board in
June 2013 which was dismissed and never filed a petition for writ of mandate to
challenge the decision. Given that Plaintiff never sought judicial review of any appeals
board decision pursuant to Unemp. Inc. Code § 410, she cannot now seek relief from
the EDD judgment entered as a result of the appeals board decision pursuant to CCP
§ 473. That judgment is now final. The motion is denied on this additional basis.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.