Filed 4/22/14 Rucker v. California Unemployment Ins. Appeals Bd. CA3
                                           NOT TO BE PUBLISHED
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)



XENIA RUCKER,                                                                                C072303

                   Plaintiff and Appellant,                                       (Super. Ct. No. 39-2012-
                                                                                  00280238-CU-WM-STK)
         v.

CALIFORNIA UNEMPLOYMENT INSURANCE
APPEALS BOARD,

                   Defendant and Respondent.




         Xenia Rucker, appearing pro se, filed a petition for writ of administrative
mandamus in the superior court to overturn a decision of the California Unemployment
Insurance Appeals Board (the Board) denying her claim for unemployment compensation
benefits. The superior court denied the petition; Rucker appeals from the superior court’s
judgment denying the requested relief.1 We affirm.




1   The Board declined to file a respondent’s brief.

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                                     BACKGROUND
        Rucker worked as a communications operator for AT&T for 10 years. In
December 2008, she accepted a separation package from AT&T and stopped working.
        In January 2010, Rucker applied for unemployment insurance benefits. The
Employment Development Department (EDD) concluded that Rucker was ineligible for
unemployment benefits. Rucker challenged EDD’s findings, and an administrative law
judge (ALJ) conducted a hearing at which Rucker appeared. The ALJ determined that
EDD correctly concluded that Rucker was disqualified from receiving benefits because
she voluntarily left her most recent employment without good cause within the meaning
of Unemployment Insurance Code section 1256.2 3 The ALJ reasoned that neither
quitting a job to attend school, nor accepting an employer’s financial incentives to retire,
absent an immediate threat of layoff, constituted good cause for voluntarily leaving one’s
employment within the meaning of the statute. A copy of the ALJ’s decision was mailed
to Rucker on May 17, 2010, stating that the decision would be final unless appealed
within 20 days.
        Rucker appealed the ALJ’s decision to the Board on September 17, 2011, more
than a year after the decision had been rendered. She stated she wished “to submit new
and additional evidence” to demonstrate her eligibility for unemployment insurance
benefits. Good cause exists for her prior failure to produce the “ ‘Untimely



2 Unemployment Insurance Code section 1256 states in pertinent part: “An individual is
disqualified for unemployment compensation benefits if the director finds that he or she
left his or her most recent work voluntarily without good cause or that he or she has been
discharged for misconduct connected with his or her most recent work.”


3   Further undesignated statutory references are to the Unemployment Insurance Code.



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Documents,’ ” Rucker stated, because “. . . I was in court proceedings of an Unlawful
Detainer action from January 2010 through April 2010, to try and prevent from becoming
homeless. [Exhibits.] I began storing my personal belongings in March when I received
the initial summons to appear. Subsequently, hardship became the factor. Therefore, at
the time I was unable to research, I was unorganized and unprepared with the
documentary evidence to appeal from the departmental determination. . . . On April 30,
2010, my son and I became homeless. From this point as a single parent, I was helping
him to cope with something he was not use[d] to. The hardship and transition of not
having our own place to live, I encouraged him to stay focused on his academics,
athletics and to maintain his B Grade Point Average. In August, his Fall term he became
a Senior in high school, at which time we were still homeless up until his graduation and
currently until he went off to college. To this day I am currently homeless and have no
income; however, I am diligently placing applications online and looking for work.”
Rucker also disputed the ALJ’s determination that she voluntarily left her most recent
employment without good cause. She concluded: “When I filed for Unemployment
Compensation Benefits and to Appeal the department[’]s determination, I was in crisis
amid hardship, and forthcoming homelessness. I ask the Board to take a look at my
situation in the past and presently, to allow for this information to be admitted to
determine benefits that were initially claimed for and determine eligibility beginning with
Benefit Year January 17, 2010.”
       The Board concluded Rucker’s appeal was untimely because she filed it after the
20-day limitation period had expired (§§ 1328, 1334); consequently, it lacked jurisdiction
to determine the merits of the appeal. “[Rucker] provided the following reason for not
filing a board appeal within 20 calendar days from the issuance of the decision. [¶]
[Rucker] asserts that she has been homeless since May 2010, to at least the day of her
board appeal in September 2011. During this period [she] assisted her son in completing
his high school education and getting off to college.” However, Rucker’s “reason for

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delay in filing the board appeal does not constitute good cause based on the following.
[¶] [Her] success in assisting her son in completing his high school education and getting
off to college while homeless is certainly laudable. However, this also demonstrates that
[Rucker] has not been completely helpless during the one-year and three-month period
that [she] required to belatedly file her appeal to the board. In addition, [Rucker’s]
extensive appeal further demonstrates that [she] is well educated and that she possesses
research skills and resources necessary to prepare a lengthy appeal. Other than [her]
alleged homelessness, [Rucker] provides no grounds for her delay in filing her appeal to
the board. In all, we find that [Rucker] did not establish good cause for her delay of more
than one year to file her appeal to the board. Consequently, the deadline to file [her]
appeal is not extended and [Rucker’s] board appeal is dismissed as untimely.”
       Rucker then filed a petition for writ of administrative mandamus in the superior
court. The court denied her petition, concluding that Rucker had been afforded a fair
hearing and her appeal is untimely.
                                       DISCUSSION
       We review de novo the trial court’s determination, on undisputed facts, of the
propriety of the Board’s ruling that Rucker failed to show good cause for filing her
administrative appeal to the Board more than a year late. (See Stermer v. Board of
Dental Examiners (2002) 95 Cal.App.4th 128, 132; cf. MacGregor v. Unemployment Ins.
Appeals Bd. (1984) 37 Cal.3d 205, 211-212.)
       The time limitation for filing an administrative appeal to the Board from the ALJ’s
determination that unemployment insurance benefits have been properly denied is
contained in section 1334. That section states that the ALJ’s decision, rendered “after
affording a reasonable opportunity for fair hearing,” shall be final “unless, within 20 days
after mailing of such decision, further appeal is initiated to the appeals board.” (§ 1334.)
The 20-day limitation may be extended for good cause, which “shall include, but not be
limited to, mistake, inadvertence, surprise, or excusable neglect.” (§ 1334; accord,

                                              4
§ 1328 [appeal to ALJ]; cf. Cal. Code Regs., tit. 22, § 5000, subd. (hh).)
       Rucker asserts her failure to file a timely appeal with the Board was attributable to
excusable neglect, and “there is an indefinite extension of time allowed for good cause.”
We disagree.
       Although section 1334 does not set an outer limit on allowable extension of the
20-day limitation period that would otherwise apply, that does not mean courts have
interpreted it to create an “indefinite” potential limitations period, as Rucker urges.
       The concept of good cause “should not be enshrined in legal formalism” but it
requires the sharing of a good reason for a party’s failure to perform that specific
requirement from which she seeks to be excused. (County of Santa Clara v. Myers
(1983) 148 Cal.App.3d 684, 690.)
       What constitutes “good cause” for filing a late appeal was the issue in Gibson v.
Unemployment Ins. Appeals Bd. (1973) 9 Cal.3d 494 (Gibson), where a three-day delay
in filing an appeal had occurred because of the heavy workload in a legal office. The
California Supreme Court found “no justification for an administrative construction of
[the applicable appeals limitation statute] to preclude relief in cases of brief, non-
prejudicial delay arising from excusable error of counsel.” (Id. at p. 496.) Other
decisions that have considered “good cause” for filing a late appeal have tended to fall
either into the Gibson category of de minimis delay (often caused by counsel), in which
the delay was found to have been justified (e.g., Flores v. Unemployment Ins. Appeals
Bd. (1973) 30 Cal.App.3d 681 [one day]; United States Postal Service v. Unemployment
Ins. Appeals Bd. (1976) 63 Cal.App.3d 506 [three days]), or into the category of
substantial delay without much justification, resulting in denial of the late appeal. (E.g.,
Amaro v. Unemployment Ins. Appeals Bd. (1977) 65 Cal.App.3d 715, 719 [one month];
Fermin v. Department of Employment (1963) 214 Cal.App.2d 586, 588 (Fermin) [three
months]; Perez v. Unemployment Ins. Appeals Bd. (1970) 4 Cal.App.3d 62, 64-65 (Perez)
[five months].)

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       This case falls into the latter category of a substantial delay after expiration of the
limitations period, without much proffered justification. Rucker was properly notified of
the 20-day limitations period, yet delayed more than a year before filing her appeal with
the Board. She, not counsel (cf. Gibson, supra, 9 Cal.3d at p. 496), was responsible for
the delay. (See Perez, supra, 4 Cal.App.3d at p. 65 [claimant failed to timely appeal
because he initially believed the decision was correct]; Fermin, supra, 214 Cal.App.2d at
p. 588.) And although Rucker explains she was homeless for some or all of the 15
months between the expiration of limitations period and her filing of an appeal with the
Board, she does not contend she lost access to the documents relevant to her claim for
benefits, or was otherwise prevented from filing a notice of appeal, and she never sought
an extension of time within which to appeal to the Board. Where the excuse for delay
involved illness and housing problems, the Board’s determination of lack of good cause
has been upheld by the courts. In Martinez v. Unemployment Ins. Appeals Bd. (1976)
63 Cal.App.3d 500, the petitioner filed his appeal 20 days late, and his excuses were
illness in his family and the need to find another place to live. In affirming the superior
court’s denial of petitioner’s writ of mandate, the court focused on the fact that the
petitioner caused the delay himself, noting: “All he had to do was sign the notice of
appeal form and mail it.” (Id. at p. 505.)
       We would prefer to have matters such as these determined on their merits; but on
the undisputed facts of this case, it cannot be said that Rucker has shown good cause, as a
matter of law, to justify her delay of more than a year in filing her appeal with the Board.
(See Martinez v. Unemployment Ins. Appeals Bd. (1976) 63 Cal.App.3d 500, 505.)




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                                    DISPOSITION
     The judgment is affirmed.



                                        BLEASE    , Acting P. J.

We concur:


        HULL                     , J.


        DUARTE                   , J.




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