Richard Morse vs Nancy Farias, Director California Employment Development
Richard Morse vs Nancy Farias, Director California Employment Development
Case Number
23CV02363
Case Type
Hearing Date / Time
Mon, 10/02/2023 - 10:00
Nature of Proceedings
Writ of Mandate
Tentative Ruling
Richard Morse vs. Nancy Farias, Director, California Employment Development Department
Case No. 23CV02363
Hearing Date: October 2, 2023
HEARING: Writ Of Mandate To Review State Decision
ATTORNEYS: For Petitioner Richard Morse: Self Represented
Specially Appearing for the State of California Employment Development: Rob Bonta, Richard T. Waldow, Attorney General of California
TENTATIVE RULING:
The parties are ordered to appear at the hearing and be prepared to discuss the matters described herein.
Background:
On June 2, 2023, petitioner Richard Morse filed a verified petition for writ of mandate directed to respondent Nancy Farias who is alleged to be the Director of the California Employment Development Department, State Disability Insurance Division (respondent), and a notice of hearing for the petition (the notice of hearing). As alleged in the petition, petitioner was employed as a delivery driver by Farmacy SB from July 17, 2019, to March 9, 2022. (Petition, ¶ 3.) On March 9, 2022, petitioner was diagnosed with a ““Work Related Cumulative Trauma Injury” and received temporary workers compensation benefits until July 15, 2022. (Id. at ¶ 4 & Exh. 1.) Petitioner was advised by the disability insurance division of the Employment Development Department (EDD) that petitioner could not apply for state disability until he exhausted all vacation and sick paid time off. (Ibid.) Between July 15, 2022, and September 14, 2022, petitioner used 120 hours of vacation time and 42 hours of sick time from his employer. (Ibid.)
On September l4, 2022, petitioner contacted his primary care provider for the purpose of applying for state disability insurance because petitioner suffers memory loss, confusion, and chronic back pain. (Petition, ¶ 5.) Petitioner was examined by his provider on October 12, 2022. (Id. at ¶ 6.) On October 13, 2022, petitioner hand-delivered an application for disability benefits to EDD. (Id. at ¶ 6 & Exh. 2.)
On December 8, 2022, petitioner contacted Sylvia at EDD who indicated additional documents were needed to evaluate the case. (Petition, ¶ 9.) Petitioner asked for written notice indicating what was required but Sylvia hung up. (Ibid.) On December 8, 2022, petitioner hand delivered a request for appeal to EDD and to date, has not received any written notification that the appeal was ever submitted. (Id. at ¶ 9 & Exh. 3.)
Between March 17 and 29, 2023, Morse received a “Notice of Benefit Determination” (the benefit determination). (Petition, ¶ 11.) On March 29, 2023, petitioner hand delivered a request for appeal to EDD because the benefit determination fails to indicate the calculation amounts utilized to determine whether this action is appropriate and is vague. (Id. at ¶ 12 & Exh. 4.) Petitioner has not received any written notification that his appeal of the benefit determination was ever submitted. (Ibid)
Between March 18, 2023, and March 29, 2023, petitioner received a “Notice of Final Payment” (the final payment notice). (Petition, ¶ 13.) On March 29, 2023, petitioner hand delivered a request for appeal to EDD because the final payment notice fails to state what “information” indicates that petitioner is no longer disabled and is vague. (Id. at ¶ 14 & Exh. 5.) Petitioner has not received any written notification that the appeal of the final payment notice was ever submitted. (Ibid.)
Between May 6 and May 15, 2023, petitioner received a notification stating petitioner’s weekly rate and benefit payment period (the payment notification). (Petition, ¶ 15.) The payment notification is confusing. (Id. at ¶ 16.)
On May 15, 2023, petitioner spoke to Marisol Perez-Cuevas at EDD’s office and hand delivered an appeal of the payment notification. (Petition, ¶ 17 & Exh. 6.) Petitioner was told his appeals were on the computer and that hearings had not yet been scheduled. (Id. at ¶ 17.) Celeste Brill who is the EDD Appeals Manager told petitioner that EDD was not required to explain calculations and that she could not schedule a hearing. (Id. at ¶ 18.) Brill refused to accept plaintiff’s May 15, 2023, appeal form. (Ibid.)
Petitioner has received nothing in writing regarding the status of the four appeals described above. (Petition, ¶ 20.) Petitioner hasn’t received any notices relating to his benefits from February 12, 2023, through the date of the petition.(Id. at ¶ 21.) Petitioner alleges that if this matter were remanded for further hearing at the administrative level, scheduling a hearing and submitting an appealable decision would take an additional six months during which plaintiff would be unable to pay rent and purchase necessities. (Id. at ¶ 20.)
Petitioner requests a writ of mandate directing respondent to: (1) set aside the December 8, 2022, decision to require petitioner to provide additional information without a written request; (2) to set aside the benefit determination, the final payment notice, and the payment notification; (3) pay petitioner the remaining balance of benefits from January 29, 2023, through February 11, 2023, in the amount of $1,176.52; (4) promptly calculate and pay to petitioner benefits from February 12, 2023, to the date of filing the petition; and (5) properly train all personnel. (Petition, pp. 7-8, ¶¶ 1-8.) Petitioner also seeks interest, fees, and costs.
The petition was set for hearing on July 24, 2023. (See Petitioner’s Notice of Hearing filed on June 2, 2023.)
On July 19, 2023, respondent filed a “Notice of Special Appearance” (the notice) asserting that petitioner’s attempted service of the petition on EDD by mail was defective. Petitioner filed an objection to respondent’s notice. Because there did not exist any information or evidence demonstrating that respondent was effectively served with the petition in accordance with Code of Civil Procedure section 1096, the Court ordered the hearing on the petition off-calendar.
On August 25, 2023, petitioner filed a proof of service of the petition, a notice of hearing, a proposed alternative writ of mandate, two notices and acknowledgment of receipt, and an envelope. The proof of service is signed by Brandon Morse who declares that the petition and other documents described above and in the proof of service were served on respondent by mail and acknowledgment of receipt of service. (Proof of Service filed Aug. 25, 2023, ¶¶ 1, 3, 5.c(3) & Attachment p. 1.) Attached to the proof of service filed by petitioner on August 25, 2023, is a notice and acknowledgment of receipt (the acknowledgment) stating the petition and other documents were mailed to respondent by Brandon Morse on August 3, 2023. The acknowledgment is purportedly signed by Victor Lao, who is identified as a staff attorney at EDD, on August 10, 2023.
Analysis:
The proof of service filed by petitioner on August 25, 2023, which is purportedly signed by an EDD staff attorney, on its face appears to demonstrate effective service of the petition and other supporting documents on respondent. Court records reflect that no motion to quash service of the petition has been filed by respondent. Though it appears that the petition has been effectively served, the Court cannot presently proceed because the record of the administrative proceedings has not been filed. (Code Civ. Proc., § 1094.5, subd. (a); Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1107 [it is the petitioner’s responsibility to produce the administrative record].)
As the status of production of the administrative record in this matter is presently unclear, and as the Court cannot proceed for reasons discussed herein, the Court will order the parties to appear at the hearing on the petition. The parties shall be prepared to discuss the status of production of the administrative record including the date by which the administrative record will be filed. The parties shall also be prepared to discuss a further hearing date and briefing schedule.