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Natkin v. California Unemployment Insurance Appeals Board

California Court of Appeals, Second District, Second Division

September 18, 2013

BENJAMIN NATKIN, Plaintiff and Appellant,

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS131831, Ann I. Jones, Judge.

Benjamin Natkin, in pro. per., for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Richard Waldo, Leslie P. McElroy, and Eric D. Bates, Deputy Attorneys General for Defendant and Respondent.


Benjamin Natkin (appellant) appeals from the denial of his petition for writ of mandate and administrative mandate filed in the superior court. Through the writ, appellant sought issuance of an order directing the Unemployment Insurance Appeals Board (UIAB) to vacate its decision denying him benefits for the week ending May 8, 2010, and ordering the Employment Development Department (EDD) to pay appellant benefits for the week in question. We find no error in the trial court’s decision denying the petition, therefore we affirm.


Appellant contends that the UIAB and the superior court erred in determining that appellant earned wages for the week ending May 8, 2010, as that term is defined in Unemployment Insurance Code sections 1252 and 1279, and thus was not eligible to receive unemployment benefits for that week.[1]

Appellant also argues that the superior court erred in reaching the merits of his petition because the UIAB’s answer was not verified and was filed late.


Appellant is an attorney who left private practice in 2007 to work as a law clerk at the superior court. Appellant lost his job at the superior court due to the economic recession. He was unable to find employment either in the public or private sector.

Appellant filed a claim for unemployment benefits. His benefits commenced on April 4, 2010, with a weekly benefit amount of $450. Appellant believed that as long as his net earnings from any self-employment, less $25 or 25 percent of his wages, did not equal or exceed his weekly benefit amount, he would receive full or partial benefits. (Unemp. Ins. Code, § 1252, subd. (a)(2).)[2] Appellant disclosed to EDD that he intended to seek work as an independent contractor while receiving benefits.

Starting in March 2010, through the week ending May 8, 2010, appellant expended money setting up his business as an independent contractor. Specifically, appellant spent “$7, 691.45 for business equipment and supplies (including computer, printer, software, business cards, telephone and other miscellaneous equipment and supplies), $444.24 for the business use of his home, $743 for bar association dues and other professional dues, $84.50 for business entertainment, $14.43 for business gifts, $1, 800 for professional fees he paid for services that the [appellant] declined to describe due to confidentiality grounds, $71.46 in telephone charges, $26.15 for miscellaneous sales tax, and $50 for miscellaneous other expenses.” These expenses totaled $10, 925.23.[3]

When appellant certified his claim for benefits for the week ending May 8, 2010, he reported he had worked 22 hours that week.[4] However, appellant did not report any wages. Instead, he took the position that his business expenses had exceeded his earnings.

On May 26, 2010, appellant was informed by EDD that he was not eligible for unemployment benefits for the week ending May 8, 2010, based on his earnings of $2, 750 as an independent contractor during that week. On June 12, 2010, appellant appealed EDD’s decision to the UIAB. On July 19, 2010, UIAB sent appellant notice of a hearing scheduled for July 28, 2010.

After the July 28, 2010 hearing, Administrative Law Judge (ALJ) Howard Wein issued a decision affirming the denial of appellant’s unemployment benefits for the week ending May 8, 2010. On September 15, 2010 appellant appealed the ALJ’s decision to the UIAB. UIAB affirmed the ALJ’s decision that appellant did not qualify for unemployment insurance benefits for the week ending on May 8, 2010.

Appellant filed his petition for writ of mandate and writ of administrative mandate on April 26, 2011. The UIAB filed an unverified answer on July 13, 2011. A briefing schedule was set for January and February 2012, with a hearing date of March 2, 2012. In his reply brief, appellant objected to the trial court’s consideration of the joint opposition brief filed by UIAB and EDD, which was filed five days after it was due.

On the day of the hearing, the trial court issued a tentative decision denying appellant’s petition. The court was not persuaded by appellant’s arguments that, due to business expenses, he had no wages for the week ending May 8, 2012, within the meaning of section 1252.

At the hearing, appellant reiterated his objection to any consideration of respondent’s late brief unless the court made a finding of mistake, inadvertence or excusable neglect. The court offered to continue the matter to allow appellant more time to respond. Appellant declined the offer.

At the hearing appellant raised for the first time the issue that respondent’s responsive pleading was not verified. Appellant stated: “The last thing is that briefly, the answer isn’t verified like it’s supposed to be. We didn’t have the opportunity, for whatever reason, the service copy was late, I’m pointing it out for the record.” After inquiring of counsel for UIAB whether he had a verified copy, the court stated: “I can’t take default. In any event, it’s sloppy.” The issue was not raised again during the hearing.

The court issued its ruling later the same day, denying appellant’s petition. Judgment was entered on April 9, 2012.

On June 8, 2012, appellant filed his notice of appeal.


I. Standard of review

“In reviewing a decision of the [UIAB], the superior court exercises its independent judgment on the evidentiary record of the administrative proceedings and inquires whether the findings of the administrative agency are supported by the weight of the evidence. [Citations.]” (Lozano v. Unemployment Ins. Appeals Bd. (1982) 130 Cal.App.3d 749, 754 (Lozano), citing Code Civ. Proc., § 1094.5, subds. (b) & (c).) In reviewing the trial court’s ruling on a writ of mandate, the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial, credible and competent evidence. (Lozano, at p. 754.) However, where the probative facts are not in dispute, the determination of the trial court may be reviewed as a matter of law. (Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36 Cal.3d 575, 585.)

Evidentiary and discovery rulings are reviewed for abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900; Johnson v. Superior ...

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