Filed 5/11/16 Georgiev v. Calif. Unemployment Ins. Appeals Bd. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

RUMEN GEORGIEV                                                        B260922

                Plaintiff and Appellant,                              (Los Angeles County
                                                                      Super. Ct. No. BS145046)
         v.

CALIFORNIA UNEMPLOYMENT
INSURANCE APPEALS BOARD,

                Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Luis A.
Lavin, Judge. Affirmed.


         Rumen Georgiev, in pro. per., for Plaintiff and Appellant.


         Kamala D. Harris, Attorney General, Julie-Weng-Gutierrez, Assistant Attorney
General, Richard T. Waldow and Catherine Bidart, Deputy Attorneys General for
Defendant and Respondent.
       Appellant Rumen Georgiev (petitioner) appeals the denial of his petition for writ
of administrative mandamus challenging the decision of respondent California
Unemployment Insurance Appeals Board (CUAIB) that petitioner was an independent
contractor, not an employee, and therefore ineligible for unemployment compensation
benefits. Petitioner contends the trial court erred by (1) refusing to admit into evidence
16 documents petitioner claimed were missing from the administrative record and by
subsequently denying his request to continue the hearing on the writ petition to allow
augmentation of the allegedly defective administrative record; (2) denying the petition on
the ground that petitioner’s briefs failed to comply with applicable rules of court; and (3)
ignoring petitioner’s evidence showing that the CUIAB abused its discretion in a
prejudicial manner and failed to proceed as required by law.
       As we discuss, petitioner fails to establish any error by the trial court. We
therefore affirm the judgment.
                                     BACKGROUND
Petitioner’s claim for unemployment benefits
       Petitioner worked for Victor Taylor (Taylor)1 from 2004 to 2012, performing
services as a general handyman for a property managed by Taylor. Petitioner filed a
claim for unemployment compensation benefits effective February 26, 2012, and the
claim was approved by the California Employment Development Department (EDD)
over Taylor’s objection.
Administrative proceedings
       Taylor filed two separate appeals of the EDD’s determination in Office of Appeals
case Nos. 4544952 and 4544953, on the grounds that petitioner was an independent
contractor rather than an employee, and that petitioner had voluntarily left his
employment and submitted false documents in support of his application.



1     Taylor is also known as and is referred to in the administrative record as Vladimir
Terziyski.


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       A hearing on the two appeals was set for August 30, 2012, but the administrative
law judge (ALJ) continued the hearing at Taylor’s request because Taylor had not
received the required 10 days notice of the hearing. A rescheduled hearing was held on
October 4, 2012. Petitioner did not appear at that hearing, but Taylor was present and
gave testimony. Prior to the October 4, 2012 hearing, petitioner sent a letter to the ALJ
opposing the continuance, but that letter was not received until after the October 4
hearing had concluded. On November 27, 2012, the ALJ reopened the October 4, 2012
hearing for the sole purpose of admitting petitioner’s letter. At the same time, the ALJ,
unaware of the EDD’s written determination that petitioner was an employee of Taylor,
remanded to the EDD the issue of whether or not petitioner was an employee and
requested a written determination on that issue.
       On December 5, 2012, the EDD informed the ALJ of its prior determination that
petitioner was Taylor’s employee. The ALJ then set a January 9, 2013 hearing on
Taylor’s appeal from that determination. The ALJ assigned to that appeal, Office of
Appeals case No. 4696052. Case Nos. 4544952 and 4544953 were also assigned new
case numbers, Nos. 4696046 and 4696047, respectively.
       Taylor and his wife appeared and testified at the January 9, 2013 hearing on case
No. 4696052. Petitioner did not appear. On January 18, 2013, the ALJ issued a decision
in that case, ruling that petitioner was an independent contractor ineligible for
unemployment compensation benefits. On that same date, the ALJ issued decisions in
case Nos. 4696046 and 4696047, determining those cases to be moot.
       Petitioner appealed the ALJ’s January 18, 2013 decisions to the CUIAB. On April
15, 2013, the CUIAB affirmed those decisions in CUIAB case Nos. AO-323104, AO-
323102, and AO-3232013. The CUIAB declined to consider additional documentary
evidence presented by petitioner because those documents had not been introduced at the
underlying hearing before the ALJ and petitioner had been warned that failing to
introduce those documents at the hearing would result in their exclusion from future
hearings.



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Mandamus proceedings
       Petitioner filed a petition for writ of administrative mandate on October 10, 2013,
seeking to set aside the CUIAB’s decision in case No. AO-323104, affirming the ALJ’s
ruling that petitioner was an independent contractor and therefore ineligible for
unemployment insurance benefits. Petitioner argued that numerous procedural errors
denied him a fair hearing, and that the CUIAB failed to proceed according to the law and
made findings not supported by the evidence.
       Petitioner filed a motion on July 14, 2014, seeking an order compelling the
CUIAB “to restore and recover” 16 documents that were allegedly removed from the
administrative record and for sanctions against the CUIAB. According to petitioner, the
allegedly missing documents showed that the CUIAB proceeded in excess of its
jurisdiction, failed to grant a hearing, failed to meet the requirements for a fair trial, and
abused its discretion in a prejudicial manner. The trial court denied the motion on the
ground that it failed to state the legal basis for the relief sought and did not specify the
sanctions petitioner sought to impose. The trial court’s order stated that the motion was
denied without prejudice to allow petitioner the opportunity to file a new motion to
augment the record under Code of Civil Procedure sections 1010 and 1094.5, subdivision
(e), or to enter into a stipulation with the CUIAB to augment the record. The trial court
included the entirety of subsection (e) of Code of Civil Procedure section 1094.5 in the
text of its written order.
       On September 24, 2014, petitioner filed a peremptory challenge to disqualify the
trial judge, Luis A. Lavin, under Code of Civil Procedure section 170.6. The trial court
denied the challenge as untimely.
       At the October 14, 2014 hearing on the writ petition, the trial court denied
petitioner’s oral request to continue the hearing. The trial court noted in its written
decision that to the extent petitioner sought a continuance to file a motion to augment the
administrative record, the court had invited petitioner to do so on September 2, 2014,
when it denied without prejudice petitioner’s motion to compel the CUIAB to restore
documents allegedly missing from the record, but petitioner had never filed such a


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motion. The trial court then denied the petition on the grounds that petitioner failed to
cite any evidence, statutes, or case authority in support of his position, as required by
applicable court rules. The trial court also denied the petition on the merits, concluding
that the CUIAB’S findings were supported by the weight of the evidence, and that
petitioner failed to establish that he was denied a fair hearing or that the CUIAB did not
proceed according to law. Judgment was subsequently entered in the CUIAB’s favor,
and this appeal followed.
                                       DISCUSSION
I. Standard of review
       “The function of the superior court in reviewing decisions granting or denying
unemployment insurance benefits is to exercise its independent judgment on the evidence
and inquire whether the administrative agency’s findings are supported by the weight of
the evidence. [Citation.]” (Santa Cruz Transportation, Inc. v. Unemployment Ins.
Appeals Bd. (1991) 235 Cal.App.3d 1363, 1366.) An appellate court’s review of the
superior court’s determination is limited to whether the superior court’s findings are
supported by substantial evidence. (Ibid.)
II. Alleged evidentiary error
       Petitioner contends the trial court erred by denying his request to present new
evidence (16 documents that were allegedly missing from the administrative record), and
by denying his request to continue the hearing on his writ petition to allow him to file a
motion to augment the administrative record.
       Code of Civil Procedure section 1094.5, subdivision (e) accords the trial court
discretion to admit and consider evidence that could not have been produced at the
administrative hearing. The statute provides: “Where the court finds that there is
relevant evidence that, in the exercise of reasonable diligence, could not have been
produced or that was improperly excluded at the hearing before respondent, it may enter
judgment as provided in subdivision (f) remanding the case to be reconsidered in the light
of that evidence; or, in cases in which the court is authorized by law to exercise its



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independent judgment on the evidence, the court may admit the evidence at the hearing
on the writ without remanding the case.” (Code Civ. Proc., § 1094.5, subd. (e).)
         “Augmentation of the administrative record is permitted only within the strict
limits set forth in the statute. [Citations.] Before the court may properly consider
evidence that was not presented at the administrative hearing, the petitioner must show
the evidence could not have been produced below had reasonable diligence been
exercised. [Citation.] Determination of the question is within the discretion of the trial
court; we will not disturb the exercise of that discretion unless it is manifestly abused.
[Citation.]” (Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174,
1180.)
         The record discloses no abuse of discretion by the trial court. Rather, it shows that
after denying without prejudice petitioner’s July 14, 2014 motion to compel the CUIAB
“to restore/recover documents” from the record of administrative proceedings, the trial
court advised petitioner that he could either enter into a stipulation with opposing counsel
to augment the administrative record or file a new motion that complied with Code of
Civil Procedure sections 1010 and 1094.5, subdivision (e). Recognizing that petitioner
was self-represented, the trial court quoted the language of section 1094.5, subdivision
(e) in the text of its written order. Petitioner did not enter into a stipulation with the
CUIAB nor did he file a motion to augment the administrative record. The trial court did
not err by denying petitioner’s July 14, 2014 motion or by denying the oral request to
continue the writ hearing.
III. Whether the trial court erred by denying the petition as procedurally and
substantively deficient
         Petitioner challenges the trial court’s determination that he failed to comply with
rule 3.1113(b) of the California Rules of Court requiring him to file briefs that contain “a
concise statement of the law,” with rule 3.231(i)(2) of the Los Angeles County Local
Court Rules requiring his opening brief to contain “a statement of fact which fairly and
comprehensively sets forth the pertinent facts,” and with Local rule 3.231(i)(1) requiring
him to state whether he was seeking traditional or administrative mandamus, and the


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court’s denial of the writ petition on that basis. Our review of the writ petition and
petitioner’s opening and reply briefs in the mandamus proceedings below confirms the
procedural and substantive deficiencies identified by the trial court. Substantial evidence
accordingly supports the trial court’s determination that petitioner failed to comply with
applicable court rules.2
       The procedural and substantive deficiencies in petitioner’s briefs were not the sole
basis for the trial court’s denial of the writ petition. The trial court’s written decision and
order explains in detail why the petition was denied on the merits. As we discuss below,
substantial evidence supports that decision.
IV. Substantial evidence supports the trial court’s decision
       Substantial evidence supports the trial court’s findings that petitioner was not
denied a fair hearing in the administrative proceedings below, that the CUIAB did not
commit a prejudicial abuse of discretion, and that the weight of the evidence supported
the CUIAB’s finding that petitioner was an independent contractor, and therefore
ineligible for unemployment insurance benefits.
       A. No denial of a fair hearing
       Petitioner cites the following alleged procedural defects as the basis for his claim
that he was denied a fair administrative hearing: the ALJ improperly continued the
August 30, 2012 hearing to October 4, 2012, the ALJ improperly opened a new case (No.
4696052) on the issue of whether petitioner was an independent contractor or an
employee, and the ALJ ignored a written request for a telephonic hearing on case Nos.
4544952 and 4544953.
       As the trial court noted in its order denying the petition for writ of mandate, none
of these alleged procedural defects resulted in the denial of a fair hearing. The transcript
of the August 30, 2012 hearing shows that Taylor appeared and requested and received a


2      Petitioner also claims his peremptory challenge to Judge Lavin was “illegally
denied,” but offers no authority or argument to support that claim. We therefore
disregard it. (People v. Stanley (1995) 10 Cal.4th 764, 793; Kim v. Sumitomo Bank
(1993) 17 Cal.App.4th 974, 979.)

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continuance because he had not received the required 10 days notice of the hearing.
Petitioner has established no error with regard to the granting of the continuance, the
assignment of a new case number, or the denial of his request for a telephonic appearance
at the hearing. The record shows that petitioner was provided notice of every hearing
relating to his claim for unemployment insurance benefits, including the January 9, 2013
hearing at which the ALJ determined petitioner was an independent contractor rather than
an employee. Petitioner had the opportunity to present evidence and argue his position at
each of these hearings. His decision not to do so did not result in the denial of a fair
hearing. (See Lacy v. California Unemployment Ins. Appeals Bd. (1971) 17 Cal.App.3d
1128, 1137 [“A party desiring to present evidence in opposition to an applicant’s appeal
should be prepared to produce it on the scheduled hearing date”].)
       B. No prejudicial abuse of discretion
       Petitioner’s claim that the CUIAB failed to proceed according to law by opening
multiple case files for multiple appeals, refusing to review documents that were not
submitted to the ALJ in the underlying hearing, and denying his request to appear by
phone at the appeal is unsupported by citation to any authority that such actions were
improper. He has accordingly established no error in the trial court’s determination that
there was no prejudicial abuse of discretion by the CUIAB.
       C. Petitioner’s status as an independent contractor
       Employees, but not independent contractors, are eligible to receive unemployment
compensation benefits. (Unemp. Ins. Code., § 656.) For unemployment compensation
purposes, the term “employee” includes “[a]ny individual who, under the usual common
law rules applicable in determining the employer-employee relationship, has the status of
an employee.” (Unemp. Ins. Code, § 621, subd. (b).)
       The most significant test of whether an employment relationship exists is “whether
the person to whom service is rendered has the right to control the manner and means of
accomplishing the result desired. [Citation.]” (Tieberg v. Unemployment Ins. Appeals
Bd. (1970) 2 Cal.3d 943, 946.) “If control may be exercised only as to the result of the
work and not the means by which it is accomplished, an independent contractor


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relationship is established. [Citation.]” (Id. at pp. 946-947.) Other relevant factors to be
considered are “‘(a) whether or not the one performing services is engaged in a distinct
occupation or business; (b) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the principal or by a specialist
without supervision; (c) the skill required in the particular occupation; (d) whether the
principal or the workman supplies the instrumentalities, tools, and the place of work for
the person doing the work; (e) the length of time for which the services are to be
performed; (f) the method of payment, whether by the time or by the job; (g) whether or
not the work is a part of the regular business of the principal; and (h) whether or not the
parties believe they are creating the relationship of employer-employee. [Citation.]’”
(Id. at p. 949.)
       In the instant case, the ALJ found that petitioner was an independent contractor,
and the trial court determined that the weight of the evidence supported that finding.
There is substantial evidence in the record to support the trial court’s determination. The
record shows that petitioner performed plumbing work and other repairs at an apartment
building managed by Taylor, and that Taylor did not control or supervise petitioner’s
work. Petitioner possessed particular skills sufficient to obtain a handyman license
issued by the City of Los Angeles, used his own tools to perform his work, and set his
own work schedule. He submitted invoices for payment and was paid as an independent
contractor without withholding for taxes. Petitioner was allowed to and encouraged to
work for others.
       Substantial evidence supports the denial of the writ petition.




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



                                              ____________________________, J.
                                              CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
HOFFSTADT




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