Filing a Petition for Writ of Mandate for Unemployment in California? Read This First!
Has Cal EDD denied your application unemployment? Then you may consider filing a Petition for Writ of Mandate at your local county courthouse. This petition require a sophisticated analysis, are a measure of last resort. Worse, courts rarely grant them. Continue reading for more information!
What is a Petition for Writ of Mandate?A Petition for Writ of Mandate is a superior court request to review and reverse a state agency’s final decision or order. Petitioners bring Petitions for Writ of Mandate under California Code of Civil Procedure section 1094.5. After the EDD & the CUIAB deny or dismiss petitions contesting unemployment benefit denials, notices of overpayments, and other unemployment insurance program related final orders, the petitioner’s last option is to file a Petition for Writ of Mandate in the Superior Court.
When is the Latest a Petitioner May Bring Petition for Writ of Mandate?To contest EDD & CUIAB decisions, a petitioner must file their petition for writ of mandate within six months from the date of mailing of the CUIAB’S final order. California Unemployment Insurance Code § 410.
Are Petitioners Done with EDD & CUIAB Upon Filing a Petition for Writ of Mandate?No, petitioners must serve a copy of their filed petition for writ of mandate on EDD & CUIAB. Since failure to properly serve the agencies may cause dismissal, it is imperative that petitioners retain a professional process server to handle service.
How do Courts Decide a Petition for Writ of Mandate Regarding EDD Denials?If EDD denies your request for unemployment insurance, you have a right to appeal. If you exhaust your right to appeal at EDD and CUIAB, your measure of last resort is to file a petition for writ of mandate in your local superior court. Du Four v. Unemployment Insurance Appeals Bd., 49 Cal. App. 3d 863 (1975).
The superior court will only review the prior administrative record for an abuse of discretion and whether the petitioner had a fair hearing. Here, the court is looking for a clear error during the prior proceedings. This means that a petitioner is most likely to succeed when they either:
Challenge the Administrative Law Judge’s (“ALJ”) application of law, facts, or procedure;
Attack procedural defects during the administrative process;
Challenge the ALJ’s mistakes in applying the law to the petitioner’s case; or,
Challenge the ALJ’s factual findings.
Ordinarily, the court will not consider new evidence, except where the evidence could not have been reasonably produced before or evidence that was improperly excluded during the administrative process.
How do Courts Decide a Petition for Writ of Mandate Regarding Notice of OverpaymentsWhere the Petition for Writ of Mandate challenges a notice of overpayment, the court uses the following factors in determining whether to waive or reduce the alleged overpayment:
The Petitioner’s acts related to overpayment were not due to fraud, misrepresentation, or willful nondisclosure;
The Petitioner received the unemployment benefit without fault; and,
Recovery of the alleged overpayment would be against equity and good conscience. California Unemployment Insurance Code § 1256.
Fraud requires an intent to deceive.
In determining fault, the court assesses whether the Petitioner acted with negligence, an error in judgment, or without care.
When deciding whether recovery would be against equity and good conscience, the court considers several factors:
The cause of the overpayment;
Whether the petitioner received duplicative benefits;
Whether the petitioner relied on the benefit; and,
Whether recovery imposes an extraordinary hardship on the petitioner. Giles v. Department of Human Resources Development, 11 Cal. 3d 313 (1974).
Essentially, the presiding judge must perform a credibility analysis and determine whether the petitioner acted with fraud, and/or obtained unemployment insurance by mistake. Then, the judge must ascertain if recovery of the alleged overpayments is unjust, which is a fairness determination. If the petitioner meets all of the requirements, then the court is more likely to grant the petition for writ of mandate.
Please be advised that obtaining a successful outcome upon filing a petition for writ of mandate is difficult. Judges often force strict adherence to the prerequisites outlined above. This means many petitioners are unsuccessful. To maximize your chances for a successful recovery, contact Astanehe Law today for your free consultation. Let our experience assist you in obtaining a successful outcome.
Initial Request Administrative Record from EDD & CUIABUnless approaching the six-month deadline to file a petition for writ of mandate, petitioners should request their complete administrative record from the EDD and CUIAB ahead of drafting and filing their petitions. The complete administrative record is not only instrumental in drafting a compelling petition, but the superior court obligates petitioners to include the record with their filing. Therefore, the exigencies of the court requirements and writing a successful petition for writ of mandate necessitate petitioners obtain their administrative records early.
If you are considering filing a petition for writ of mandate due to an adverse EDD & CUIAB order, contact Astanehe Law today for your free consultation. Let our experience assist you in filing your petition for writ of mandate. Although prevailing is difficult, it is not impossible. Astanehe Law can help you mount a stronger petition. Contact us today!
What if CUIAB Dismissed my Late Appeal?CUIAB dismisses late appeals unless a petitioner can show good cause for missing the deadline. Courts define good cause as unanticipated or unpreventable circumstances beyond the petitioner’s control that prevent the petitioner from filing on time. Good cause includes mistake, inadvertent action, surprise, or excusable neglect.
An appeal dismissed for being untimely must overcome an additional hurdle during the Petition for Writ of Mandate. The petitioner must set out good cause for being untimely during the administrative appeal. An untimely appeal makes it less likely that the petitioner will be successful in the superior court, and the petitioner is susceptible to an outright denial of the petition. Although extremely difficult, prevailing on a petition for writ of mandate for an untimely dismissal is not impossible. However, you must speak to an attorney at once. Contact Astanehe Law for your free consultation today!