Filed 2/24/14 Branden v. State of Ca. Unemployment Ins. Appeals Bd. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


JEFFREY BRANDEEN,                                                    B243677

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                      Super. Ct. No. BS131360)
         v.

STATE OF CALIFORNIA
UNEMPLOYMENT INSURANCE
APPEALS BOARD,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Ann I. Jones, Judge. Affirmed.
         Jeffrey Brandeen, in pro. per., for Plaintiff and Appellant.
         Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant
Attorney General, Leslie P. McElroy, Phillip J. Matsumoto and Carmen D. Snuggs,
Deputy Attorneys General, for Plaintiff and Respondent.


         Appellant Jeffrey Brandeen appeals from the judgment following the
sustaining of a demurrer without leave to amend to his petition for writ of mandate
challenging a decision of the California Unemployment Insurance Appeals Board
(the Board), which declared him ineligible for unemployment benefits and ordered
repayment. We affirm.


                                    BACKGROUND
       From July 6, 2008 through November 21, 2009, appellant received
unemployment insurance benefits for separate periods of 20 weeks, 12 weeks, 13
weeks, and 2 weeks.1 After the California Employment Development Department
issued notice that appellant was ineligible for those benefits and sought repayment,
appellant appealed the notice to the Board. An administrative law judge heard the
case, and ruled that appellant was overpaid benefits and was liable for repayment
because, inter alia, he made willfully false statements and withheld material facts
when claiming benefits, i.e., that he had accepted employment with the University
of Phoenix as an online teacher beginning August 30, 2008.
       Appellant appealed the administrative law judge’s decision. On September
21, 2010, the Board’s appellate panel issued a final decision affirming (with certain
modifications and a limited remand) the administrative law judge’s findings.
Included with the decision was a notice of “FURTHER APPEAL AND PARTIAL
REMAND INFORMATION” which stated in part: “If you wish to appeal the
enclosed decision, you may seek review in Superior Court by filing a Petition for
Writ of Mandate pursuant to section 1094.5 of the Code of Civil Procedure. You
must file such petition directly with the Superior Court not later than six (6)

1
       We granted the Board’s motion to augment the record to include copies of the
decisions of the administrative law judge and the Board in appellant’s appeals from
rulings finding him ineligible for benefits and liable for repayment. As did the trial court,
we take judicial notice of these documents (Evid. Code, § 459, subd. (a)(1)), from which
our background facts are drawn in part.

                                             2
months after the date of the decision of the Appeals Board. The Appeals Board
does not process petitions for court review.” (Underlining and boldface omitted.)
       This notice is based in part on the statute of limitations contained in
Unemployment Insurance Code section 410 (hereafter section 410), which
provides in relevant part: “A decision of the appeals board is final, except for such
action as may be taken by a judicial tribunal as permitted or required by law. . . .
[¶] Notwithstanding any other provision of law, the right . . . of any other party . . .
to seek judicial review from an appeals board decision shall be exercised not later
than six months after the date of the decision of the appeals board or the date on
which the decision is designated as a precedent decision, whichever is later.”
       On March 2, 2011, acting in pro. per., appellant attempted to file a petition
for writ of mandate challenging the Board’s decision in the trial court and
submitted a request to waive the filing fee. On March 3, 2011, the trial court
denied the fee waiver request because appellant’s income and expense declaration
did not meet the criteria for a fee waiver under Government Code section 68632,
and served appellant by mail. Because appellant neither paid the fee within 10
days of the denial nor requested a hearing on the fee waiver denial, the clerk of the
court issued a notice voiding the filing of the petition for writ of mandate on March
28, 2011, under Government Code section 68634, subdivision (g).2




2
        Government Code section 68634, subdivision (g) provides: “If an application is
denied in whole or in part, the applicant shall pay the court fees and costs that ordinarily
would be charged, or make the partial payment as ordered by the court, within 10 days
after the clerk gives notice of the denial, unless within that time the applicant submits a
new application or requests a hearing under subdivision (e). If the applicant does not pay
on time, the clerk shall void the papers that were filed without payment of the court fees
and costs.”

                                             3
      On April 1, 2011, appellant filed a second petition for writ of mandate and
paid the filing fee. However, on May 9, 2011, counsel for the Board made a
special appearance to inform the trial court that appellant had not properly served
the second petition. After appellant was able to effectuate proper service, the
Board demurred to the second petition on December 2, 2011, contending that the
six-month limitation period under section 410 for filing the petition expired March
21, 2011. Because appellant filed the second petition on April 1, 2011, it was
barred by section 410. Before the demurrer was heard, appellant filed an amended
petition. However, the amended petition alleged no facts that would take it outside
the six-month limitation period.3
      Appellant filed an opposition to the demurrer in which he contended that the
filing of his first petition on March 2, 2011 was timely. He stated: “Petitioner was
advised by the ‘Fee Waiver’ department that a final decision in regards to the . . .
fee waiver would be issued in ‘approximately two weeks.’ At that time, the
petitioner understood from the court that he would be notified on the result of his
fee waiver request and then the case would move forward. Petitioner was also
scheduled to be out of town for the following two weeks and would address the fee
waiver request and Petition for Writ of Mandate upon return. Upon Petitioner’s
return, Petitioner was notified via US mail that the request for fee waiver was
denied and that immediate payment was required to be paid within 10 calendar
days. The 10 calendar day deadline for payment of filing fees expired prior to
Petitioner’s return and receipt of fee waiver request decision. Subsequently,
Petitioner filed a 2nd Petition for Writ of Mandate and paid the necessary fees.”



3
       The amendment alleged facts relevant to challenging the merits of the Board’s
decision, and is not material to this appeal.

                                           4
Based on these purported facts, appellant contended that the demurrer should be
denied.
      The trial court deemed the Board’s demurrer to be to the amended petition
and sustained the demurrer without leave to amend on the ground that it violated
the section 410 statute of limitations. The court entered judgment on the dismissal,
and appellant timely appealed.


                                       DISCUSSION
      In reviewing the sustaining of a demurrer, we determine de novo whether the
complaint alleges facts sufficient to state a cause of action or discloses a complete
defense. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We
assume the truth of the properly pleaded factual allegations, facts that reasonably
can be inferred from those expressly pleaded, and matters of which judicial notice
has been taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
      Here, the face of the operative petition for writ of mandate – the second
petition as amended -- and facts which we have judicially noticed show that the
Board has a complete defense to the petition under section 410. The Board’s
decision affirming the administrative law judge’s decision was final on September
21, 2010. The six-month limitation period of section 410 expired on March 21,
2011. The second petition (later amended) was filed on April 1, 2011. The
petition as amended contains no allegations that might excuse the late filing.
Hence, it was barred by section 410.
      Appellant contends that because the attempted filing of his first petition on
March 2, 2011 was timely, the demurrer to the second petition (as amended)
should have been overruled. However, under Government Code section 68634,
subdivision (g), the filing of the first petition was void. Following the denial of his

                                           5
fee waiver request, appellant failed to pay the fees or request a hearing, and the
clerk of the court properly issued a notice of voiding. (Gov. Code, § 68634, subd.
(g).) Thus, the first petition has no legal effect – it is deemed never to have been
filed.
         On appeal, as he did in the trial court, appellant asserts facts not alleged in
the second petition (as amended) as the basis for arguing that the demurrer should
have been overruled. Assuming appellant could further amend the second petition
to allege such facts, they do not constitute a bar to application of section 410.
         Appellant states that when he filed the first petition he was “prompted” by a
named filing clerk to submit a fee waiver request in order to avoid or delay paying
the fee (even though he had funds to pay it), and was told that a decision on a fee
waiver was usually issued in two to three weeks. Based on the clerk’s comments,
appellant filed the fee waiver request and left California on preplanned business
which involved interstate commerce.4 By the time he returned and saw the notice
that the fee waiver request had been denied, he did not have sufficient time to
respond to the denial of the fee waiver or pay the fee.
         Appellant contends that on these facts his delay in filing the second petition
is equitably tolled and, in essence, the filing of the second petition should relate
back to the first. He is incorrect. Appellant failed to diligently and reasonably
pursue his first petition – it was voided because he tried to evade paying the filing

4
       On appeal, appellant filed a motion under Code of Civil Procedure section 909 and
California Rules of Court, rule 8.252, requesting that we admit documentary evidence to
show that he was traveling in South America on behalf of a Minnesota corporation from
March 3 to March 24, 2011, and to make factual findings to that effect. We deny the
motion. In reviewing the sustaining of a demurrer, the court makes no factual findings.
Further, the purported evidence is irrelevant to this appeal – we assume appellant could
amend to allege he was traveling out of state on business involving interstate commerce
and did not receive actual notice that his fee waiver had been denied until it was too late
for him to pay the fee.
                                               6
fee even though he had the funds to do so, apparently had not attempted to
determine whether his circumstances would entitle him to a fee waiver under the
law, and then left the state without investigating the potential consequences if the
request were denied in his absence or making any arrangements to pay the fee.
Thus, because his first petition was voided based on his own unreasonable neglect,
equitable tolling does not apply. (See Tannhauser v. Adams (1947) 31 Cal.2d 169,
177 [equitable tolling did not apply where the first action not diligently pursued
and was dismissed for want of prosecution; dismissal resulted not from court error,
but plaintiff’s and counsel’s neglect]; see also Bonifield v. County of Nevada
(2001) 94 Cal.App.4th 298, 305 [equitable tolling requires reasonable and good
faith conduct by plaintiff].)
      Appellant contends, in substance, that his conduct was reasonable or
excused because the fee filing clerk’s comments as he interpreted them led him to
believe that the fee waiver request was an advantageous tactic and that he could
travel out of state because a ruling would not be issued for two to three weeks.
Appellant seeks to characterize the clerk’s comments as error or misconduct
attributable to the court inducing his neglect. However, pro per litigants are held to
the same standards as attorneys. (Kobayashi v. Superior Court (2009) 175
Cal.App.4th 536, 543.) It would obviously be inexcusable for an attorney to
engage in the same conduct as appellant in trying to evade paying the filing fee he
was otherwise prepared to pay on behalf of a client, to be ignorant of the law, and
to leave the state without making arrangements for paying the filing fee should the
fee waiver request be denied in his absence. Appellant is entitled to no greater
consideration.
      To the extent appellant contends that the time for filing his second petition
was tolled while he was out of state for purpose of interstate commerce, he is

                                          7
incorrect. While California law contains a tolling provision applicable in certain
circumstances when the defendant is out of state (Code. Civ. Proc., § 351), there is
no similar tolling provision for a plaintiff’s absence from the state. Further, to the
extent appellant contends that failure to toll the period he was out of state violates
the commerce clause of the federal constitution, there is no authority to support
that proposition. In some circumstances, tolling the statute of limitations against
an out-of-state defendant violates the commerce clause. (See, e.g., Dan Clark
Family Limited Partnership v. Miramontes (2011) 193 Cal.App.4th 219, 222
[finding a commerce clause violation in applying Code of Civil Procedure section
351 to a nonresident defendant where “it would force a nonresident defendant to
choose between remaining in the state for several years, or returning to his or her
place of residence”].) However, no court has intimated that a failure to toll the
statute of limitations for a California resident plaintiff, like appellant, who chooses
to temporarily leave the state to engage in interstate commerce somehow violates
the commerce clause.
      Appellant contends that because he did not learn that his first petition had
been voided until after he returned to California, and he then promptly filed his
second petition and paid the filing fee, his second petition should be deemed timely
under the delayed discovery rule. Of course, that doctrine applies when “the
plaintiff pleads and proves that a reasonable investigation . . . would not have
revealed a factual basis for [a] particular cause of action.” (Fox v. Ethicon Endo-
Surgery, Inc. (2005) 35 Cal.4th 797, 803, italics added.) It does not apply to
appellant’s delayed discovery that the filing of his first petition challenging the
Board’s decision had been voided for failing to pay the filing fee.
      Because appellant cannot further amend his petition to plead a bar to the
limitation period of section 410, the trial court properly sustained the demurrer

                                           8
without leave to amend. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th
859, 865.)


                                    DISPOSITON
             The judgment is affirmed. The Board shall recover its costs on
appeal.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                            WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             MANELLA, J.




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