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Irving v. California Unemployment Insurance Appeals Board

California Court of Appeals, Second District, First Division

September 12, 2014

JIM L. IRVING, Plaintiff and Respondent,

Page 947

APPEAL from an order of the Superior Court of Los Angeles County, No. BS131983 Ann I. Jones, Judge.

Page 948


No appearance for Plaintiff and Respondent.

No appearance for Defendant and Respondent.

Richard Ettensohn for Real Party in Interest and Appellant.

Page 949




The real party in interest, the Los Angeles Unified School District (the district), appeals from an order granting a mandate petition filed by plaintiff, Jim L. Irving. Defendant, the California Unemployment Appeals Board (the board), after an administrative hearing, refused to grant plaintiff unemployment compensation benefits pursuant to Unemployment Insurance Code section 1256.[1] The trial court issued a writ of mandate directing that plaintiff receive unemployment compensation benefits.

We conclude plaintiff’s actions in exceeding his break times on four separate occasions and then falsifying his time sheets constitutes misconduct within the meaning of section 1256. Because he committed misconduct within the meaning of section 1256, he may not receive unemployment compensation benefits. Thus, the judgment issuing the writ of mandate must be reversed.


On May 11, 2011, plaintiff, in propria persona, filed a mandate petition challenging the board’s decision denying his request for unemployment compensation benefits. The petition alleges: on August 21, 2010, an accusation was filed with the board alleging plaintiff had violated Code of Civil Procedure section 1094.5; a hearing was held before an “administrative judge” who rendered a proposed decision; on September 27, 2010, the board adopted the decision as its own, effective October 18, 2010; plaintiff appealed on October 19, 2010 to the board; and on December 13, 2010, the board mailed its decision to plaintiff. According to the mandate petition, a copy of the board’s decision is attached. However, no such decision is attached to the mandate petition.

Plaintiff alleges the December 13, 2010 decision was invalid because: he was not granted a fair trial; no union steward was permitted to attend the hearing; the board committed a prejudicial abuse of discretion; the board abused its discretion by denying “his unemployment” compensation benefits; the board is a state agency whose authority is derived from the Legislature; he has exhausted all available administrative remedies; he does not have a

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plain, speedy and adequate remedy in the ordinary course of law; he intends at the hearing on the mandate petition to present evidence of selective enforcement; the board refused to allow him to present evidence; and the newly discovered evidence was attached as exhibits B and C to the mandate petition. No exhibits are attached to the mandate petition.

Plaintiff alleges he has been damaged because of “storage” losses and his state income tax check was “intercepted” by the Employment Development Department. Further, plaintiff alleges: he has no permanent income due to the economy; the board was liable for these damages because he did not receive any type of warning letter or supervisor acknowledgment; the district acted upon personal and racist motives; and he had filed a government claim. The prayer for relief seeks to have the board set aside its December 13, 2010 order which denied him unemployment compensation benefits. Further, plaintiff seeks to recover his costs including vacation pay, unemployment compensation benefits, items that were sold “from his storage” and wages loss.

On December 9, 2011, the district filed its answer. The district entered a general denial. In addition, the district alleges as affirmative defenses: the mandate petition fails to state facts sufficient to constitute a cause of action; plaintiff has failed to exhaust his administrative remedies; and any recovery is barred by the applicable statutes of limitations.


On May 13, 2010, plaintiff received a notice of unsatisfactory service from the district. The unsatisfactory service notice alleges plaintiff: willfully or persistently violated written rules; engaged in work related dishonesty; made false or misleading statements in an official document; and participated in the unauthorized use of district property. The unsatisfactory service notice alleges plaintiff: exceeded his allowable 20-minute break periods; took his rest period during the last hour of his assignment; and falsified his Daily Truck and Time Report slip (time records). The unsatisfactory service notice identifies 10 days where plaintiff’s break periods exceeded 20 minutes between March 9 and April 7, 2010, and occurred during the last hour of his shift. Plaintiff had been instructed he was not to take a break during the last hour of his shift nor outside district boundaries. The notice concludes: “[Plaintiff] knows the department rules and regulations regarding the limitations upon lunch and rest periods; that such lunch and rest periods shall not be taken outside of [district] boundaries; that he must accurately document his activities for the day on the Daily Truck and Time Report slip; and he must wear a seat belt at all times while operating a [district] vehicle. For the foregoing reasons it is recommended that he should be immediately suspended pending dismissal from his probationary position.”

Page 951

On July 26, 2010, the Employment Development Department issued a notice of determination concerning plaintiff’s unemployment compensation benefits claim. Directed at the district, the notice of determination states: “You discharged the claimant for not performing the work to your satisfaction. After considering the available information, the department finds the reasons for discharge do not meet the definition of misconduct connected with the work.” The district was advised of its right to appeal.

On August 16, 2010, Alfred Sixtos, a district assistant truck operations manager, appealed from the department’s unemployment benefits award to plaintiff. The appeal paperwork states: plaintiff was hired as a probationary heavy truck driver on December 7, 2009; on May 3, 2010, plaintiff attended a pre-disciplinary conference to discuss 10 instances of misconduct including loitering and time record falsification between March 9 and April 7, 2010; on May 13, 2010, plaintiff was issued an unsatisfactory service notice; on May 14, 2010, plaintiff was suspended pending dismissal from his probationary position; and effective June 23, 2010, plaintiff was dismissed from his probationary position because he failed to comply with department policy, falsified time reports and neglected to accurately document his activities.

On September 14, 2010, the department issued an administrative hearing notice. The administrative hearing was scheduled for September 27, 2010. The hearing notice identifies the following issue to be considered at the hearing: “Did [plaintiff] voluntarily leave his... most recent employment without good cause. Was [plaintiff] discharged for misconduct connected with his... recent work.”


Two witnesses, Mr. Sixtos and plaintiff, testified at the September 27, 2010 hearing before the administrative law judge. At the administrative hearing, Mr. Sixtos, the district’s assistant truck operations manager, testified plaintiff’s shift ran from 2:30 to 11:00 p.m. Mr. Sixtos testified plaintiff was dismissed for policy violations after an investigation. Mr. Sixtos described the policy violations. To begin with, plaintiff violated district rules regarding breaks and lunch. When plaintiff was hired, he was advised of the district policy concerning the duration of breaks and where they may be taken. On February 4, 2009, plaintiff signed a written acknowledgment which explained the limitations on breaks and where they could be taken. Mr. Sixtos testified, “A driver gets two [10]-minute breaks or one 20-minute break and not in the first or ...

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