DAVID FERRER v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party may send an email to the Court at SMCDEPT834@lacourt.ca.gov with the Subject line "SUBMIT" followed by the case number. The body of the email must include the hearing date and time, counsel's contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the matter off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the matter without leave.

Evidence Code sections 1043-1047 and Penal Code sections 832.7-832.8 are commonly referred to as the Pitchess statutes, after Pitchess v. Superior Court (1974) 11 Cal.3d 531. Likewise, motions under the Pitchess statutes are commonly called Pitchess motions. (See e.g. Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 67-68.)

County of Los Angeles Department 834 ¿ DAVID FERRER, Petitioner(s), vs. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, Respondent(s). | Case No.: |

| | Hearing Date:

| September 3, 2026 | | | | | | | | [TENTATIVE] RULING ON PETITION FOR WRIT OF MANDATE | | Petitioner David Ferrer ("Petitioner") petitions for a writ of administrative mandate against respondents California Unemployment Insurance Appeals Board ("Respondent"), directing it to set aside the decision to deny him unemployment insurance benefits. The petition for writ of mandate is denied. I.

Factual Background

Petitioner was a teacher at Downey Unified School District ("Employer") for approximately four years. (AR 3.) On December 12, 2023, Employer placed Petitioner on unpaid suspension for investigation into allegations of harassing comments about a former student's sexual activity. (AR 3, 16.) In June 2024, Petitioner resigned from Employer. (AR 3.) On April 25, 2024, the California Employment Development Department ("EDD") issued a Notice of Determination ("NOD") informing Petitioner he was eligible for unemployment benefits. (AR 26.)

On April 26, 2024, Employer appealed the NOD. (AR 11.) On October 22, 2024, Administrative Law Judge Randall Zorick ("ALJ") held an administrative hearing on Employer's appeal, and Petitioner did not appear. (AR 9.) The ALJ reversed the NOD, but, at Petitioner's request, reopened the case. (AR 3-4, 73-75.) On February 19, 2025, the ALJ held a new hearing, found good cause for Petitioner's failure to appear, but still ultimately ruled for Employer and reversed EDD's NOD on February 27, 2025. (AR 77-79, 87.)

On March 10, 2025, Petitioner appealed the ALJ's decision to Respondent. (AR 392-93.) On May 8, 2025, Respondent adopted the ALJ's issue statement, most of its findings of fact, and reasons for decision, and affirmed the decision. (AR 738.) II.

Procedural History

On October 1, 2025, Petitioner filed his petition for administrative mandamus. A proof of service filed October 1, 2025 shows Petitioner served Respondent by mail on October 1, 2025.

On February 2, 2026, Petitioner filed his petition again with no material difference. A proof of service filed February 11, 2026 shows Petitioner served the petition on Respondent by personal service on February 3, 2026.

On April 23, 2026, Respondent filed its answer to the Petition. On May 5, 2026, Petitioner filed his opening brief. On July 23, 2026, Respondent filed its opposition. On July 28, 2026, Petitioner filed his reply.

On August 5, 2026, after the writ was fully briefed, Petitioner apparently filed "Petitioner's Notice of Motion and Motion to Remand for Consideration of Newly Obtained Evidence Pursuant to Code of Civil Procedure Section 1094.5(e); Alternatively to Admit Extra-Record Evidence" ("Motion"), and other supporting documents. The Motion does not notice a specific time and date for hearing. Indeed, the Motion is not properly calendared for hearing, as it appears that Petitioner failed to reserve a date and time to have it heard by the Court.

Despite this, Respondents filed an opposition on August 31, 2026, and Petitioner filed a reply and supplemental declaration the same day. III. Standard of Review

Code of Civil Procedure ("CCP") section 1094.5 is the administrative mandamus provision that structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. (Topanga Ass'n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-15 [" Topanga "]).) Section 1094.5 does not specify which cases are subject to independent review, leaving that issue to the courts. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811 [" Fukuda "]).

In cases reviewing decisions that affect a vested, fundamental right, the trial court exercises independent judgment on the evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143 [" Bixby "]; see CCP Sec. 1094.5(c).) The court exercises its independent judgment on actions by an employer or an employee challenging a decision granting or denying unemployment insurance benefits. (Interstate Brands v. Unemployment Insurance Appeals Board (1980) 26 Cal.3d 770, 775-76, 780.)

"In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda, supra, 20 Cal.4th at 817.)

Unless it can be demonstrated by petitioner that the agency's actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency's discretion or substitute their wisdom for that of the agency. (Bixby, supra, 4 Cal.3d at 150-151; Bank of America v. State Water Resources Control Board (1974) 42 Cal. App.3d 198, 208 [" Bank of America "].)

An agency is presumed to have regularly performed its official duties (Evid. Code Sec. 664), and the petitioner therefore has the burden of proof on mandamus. (Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal.App.2d 129, 137.)

"[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion." (Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691 [" Alford "].) IV.

Analysis

Petitioner seeks an order directing Respondent to set aside its decision to deny him unemployment insurance benefits. He argues that the hearing was unfair and that the evidence does not support the conclusion. He also raises, for the first time in his reply, a request that the Court remand the matter to the CUIAB for consideration of "new" evidence, and cross-refers to his un-calendared standalone motion.

1. The Hearing Was Not Unfair

Where the issue is whether a fair administrative hearing was conducted, a petitioner is entitled to an independent judicial determination of that question. (Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1141; Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) Therefore, the court must independently review the fairness of the administrative proceedings as a legal issue. (Rosenblit v. Superior Court, (1991) 231 Cal.App.3d 1434, 1438.) "[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion." (Alford, supra, 27 Cal.App.3d at 691.)

a. Petitioner Has Not Shown Procedural Irregularities

First, Petitioner argues that his non-appearance at the October 22, 2024 hearing resulted from a last-minute change from a telephonic to an in-person format. (AR 401, 405.) Although the ALJ later found good cause for Petitioner's absence and reopened the hearing, Petitioner asserts that "the initial imbalance influenced the record" and that the employer's narrative "was established early and carried forward." (Pet. Op. Br. at 8-9.) Petitioner provides no authority supporting the proposition that the initial hearing, standing alone, constitutes a procedural irregularity requiring a finding of unfairness, nor does he cite any authority suggesting that the second hearing could not cure any notice issues arising from the first.

He also identifies no evidence in the record showing that the initial hearing biased the ALJ or otherwise prejudiced him. The record reflects only that the ALJ conducted the first hearing in Petitioner's absence (AR 9), found good cause for the absence (AR 78), and then held a new hearing with Petitioner present. (AR 84.)

Second, Petitioner argues that the reopened hearing involved "communication challenges, including interpreter and audio issues," which impaired his ability to present his case. (Pet. Opp. Br. at 9.) Petitioner again provides no authority showing that such issues rendered the hearing unfair, nor any record evidence demonstrating prejudice. The ALJ, Petitioner, and the interpreter were physically present in the hearing room, and only the Employer's representative and witnesses appeared telephonically. (AR 84.)

Any audio problems therefore would not have interfered with Petitioner's ability to present his case to the ALJ, and if anything would have hindered Employer's participation. As to the interpreter, Petitioner points to no specific deficiencies (see Pet. Op. Br. at 8-9, citing AR 88-89), and the record shows he expressly approved the interpreter at the outset. (AR 88.) Accordingly, Petitioner has not shown that his hearing before the ALJ was procedurally unfair.

b. Respondent Did Not Improperly Exclude Material Evidence

Petitioner also asserts that Respondent failed to consider extensive additional evidence he submitted, characterizing Respondent's assessment as an incorrect determination that the evidence was irrelevant or duplicative. Petitioner misstates Respondent's reasoning. As explained in Respondent's decision evaluating Petitioner's appeal of the ALJ's decision, Petitioner submitted "over 400 pages" of additional materials with his administrative appeal. Respondent noted that "[Petitioner] did not explain in his request why the documents were not previously included with documents he provided for the hearing, nor did he explain what he believed to be the materiality of the evidence." (AR 737.)

Respondent further explained that, in its independent review, the evidence was not "pivotal or material" to the ALJ's decision or Respondent's decision, and thus Respondent could exercise its discretion to exclude this new evidence. (AR 737, citing Land v. CUIAB (2020) 54 Cal.App.5th 127, 144.)

Under the governing regulation, Petitioner was required to identify both the nature and the materiality of any newly offered evidence, as well as the reasons for not presenting it at hearing before the ALJ. (22 Cal. Code Regs. ["CCR"] Sec. 5102; see AR 737.) Petitioner does not dispute Respondent's conclusion that he failed to satisfy section 5102, nor does he provide any meaningful explanation of the materiality of the evidence except the conclusory assertion that "[t]he excluded evidence bore directly on credibility, context, and the employer's shifting explanations." (Pet.

Op. Br. at 9.) As discussed, Petitioner bears the burden of demonstrating how the proceedings were unfair. (Alford, supra, 27 Cal.App.3d at 691.) Petitioner has not shown compliance with CCR, title 22, section 5102, or shown any justification for non-compliance. Significantly, even assuming section 5102 did not justify exclusion, Petitioner has not shown how Respondent erred in excluding the evidence for lack of materiality. Accordingly, Petitioner has not met his burden to show that Respondent improperly excluded evidence. [1]

2. The Weight of the Evidence Supports Respondent's Decision

Petitioner makes several arguments that ultimately assert the Board lacked sufficient evidence to find that he committed misconduct connected with his employment. [2] Under the independent judgment test, "the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo." (Bixby, supra, 4 Cal.3d at 143.)

The Court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal.App.4th 860, 868.) In short, the Court substitutes its judgment for the agency's regarding the basic facts of what happened, when and why, and the credibility of witnesses. (Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1013-16.)

Nevertheless, the administrative findings come with "a strong presumption of correctness," and the party challenging them "bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda, supra, 20 Cal.4th at 817.) Unless Petitioner demonstrates that the agency's actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the Court should not interfere with the agency's discretion or substitute its wisdom for that of the agency. (Bixby, supra, 4 Cal.3d at 150-151; Bank of America, supra, 42 Cal. App.3d at 208.)

Unemployment Insurance Code section 1256 ("section 1256") provides in 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." (Sec. 1256.) Misconduct under section 1256 is limited to "conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer." (Agnone v.

Hansen (1974) 41 Cal.App.3d 524, 528 [" Agnone "]; Irving v. California Unemployment Ins. Appeals Bd. (2014) 229 Cal.App.4th 946, 960 [" Irving "]; Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719, 724 [" Maywood Glass "].)

Petitioner first argues that because Employer had no specific policy forbidding his conduct, he did not breach a known duty and did not commit misconduct related to his employment under section 1256. Section 1256, however, contains no requirement that the misconduct violate a specific written rule. Petitioner cites no authority to support such a requirement, and Respondent correctly relied on, inter alia, Agnone, Irving, and Maywood Glass in its decision and again in its opposition. (AR 736, Opp. at 9-10.) Petitioner's opposing assertion that the misconduct standard applies only to conduct that is "inherently wrongful, obvious, and clearly inconsistent with the employment relationship" is unsupported. (Pet. Op. Br. at 6.) [3]

Additionally, Respondent specifically found that it "[did] not believe the employer needed a specific rule" forbidding "pursuing students after graduation or posting information about a student's sexual activity after graduation." (AR 738.) While expressed differently, Respondent's conclusion reflects a finding that the conduct fell squarely within the category of behavior that is inherently inconsistent with the employment relationship. Petitioner identifies no basis for rejecting that determination beyond his disagreement. (See Pet. Op. Br. at 6.) Therefore, Employer was not required to identify a specific policy violation to establish misconduct under section 1256.

Turning to the sufficiency of the evidence, Petitioner simply asserts that he "disputed the employer's allegations, challenged the characterization of communications, and provided supporting documentation." (Pet. Op. Br. at 6-7, citing AR 392-93 [a letter from Petitioner to the ALJ and Respondent].) He further argues that Employer's investigation was incomplete, relied on unverified allegations, and deprived him of a meaningful opportunity to respond. (Pet. Op. Br. at 7.) Petitioner contends Respondent failed to resolve disputed facts and instead accepted Employer's allegations as established. (Ibid.) These arguments are misdirected. The question before the Court is whether the weight of the evidence support's Respondent's conclusion of misconduct, not whether Employer's investigation was thorough enough to justify termination.

More significantly, Petitioner identifies no specific evidence in the administrative record undermining Respondent's findings. Instead, he relies on abstract assertions of insufficient investigation, failure to resolve disputed issues, and treatment of Employer's allegations as proven. In effect, Petitioner asks the Court to assume that Respondent's findings lack support unless Respondent proves otherwise. This improperly shifts the burden of proof. Petitioner must demonstrate that Respondent abused its discretion. (Alford, supra, 27 Cal.App.3d at 691.)

Nevertheless, the Court addresses Petitioner's chief evidentiary argument, namely, whether substantial evidence shows that he authored or sent the relevant electronic communications. The record demonstrates that Petitioner was questioned about these communications at the February 19, 2025 hearing. (AR 111-14.) Under oath, Petitioner did not deny making the communications; he repeatedly responded that any communication with a former student was "private" and not for Employer. (AR 111-14.) Employer's witness testified to the existence of the communications. (E.g., AR 118-19.)

Employer also submitted exhibits documenting the communications, and Petitioner did not object to their admission. (AR 92-94.) Given Petitioner's failure to deny authorship, the testimony supporting the existence of the messages, and the documentary exhibits, the weight of the evidence supports the finding that Petitioner authored the disputed communications. (See also Estate of Jones (2004) 122 Cal.App.4th 326, 337 [party with superior knowledge bears burden of producing evidence on matters uniquely within that party's knowledge]; Evid.

Code, Sec. 412 ["If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust."].) Accordingly, Petitioner has not shown Respondent's decision is contrary to the weight of the evidence.

3. Petitioner's Uncalendared Motion for Remand or Augmentation

As previously noted, on August 5, 2026 (after the petition was fully briefed), Petitioner filed a document titled "Petitioner's Notice of Motion and Motion to Remand for Consideration of Newly Obtained Evidence Pursuant to Code of Civil Procedure Section 1094.5(e); Alternatively to Admit Extra-Record Evidence," along with supporting papers. Petitioner did not reserve a hearing date or time, and his moving papers do not identify one. The Motion is therefore not properly calendared for hearing. The Court could deny the Motion on this basis alone, as a noticed motion that is not properly set on the Court's calendar is procedurally improper and not before the Court for adjudication.

However, because Respondent elected to file an opposition and Petitioner filed a reply and supplemental declaration, the Court exercises its discretion to review the documents and briefly addresses the matter on the merits. First, even overlooking Petitioner's failure to calendar the Motion, it is improper for Petitioner to raise new substantive relief in a reply brief (and then cross-refer to a newly-filed motion in a writ reply brief). In any event, request for remand to an administrative agency is a form of writ relief and does not require a separate noticed motion.

Petitioner's choice to file a standalone motion only after briefing had closed, and then to cross-reference that motion in his reply, is improper. This approach essentially presumes that the Court will entertain and respond to untimely and unnoticed filings without regard to established procedure, a presumption the Court declines to adopt. Moreover, as outlined in the analysis above, Petitioner has not demonstrated a basis for issuance of the writ; accordingly, there is likewise no basis to order a remand.

Second, even if the Court treats the Motion as a very late request to augment the administrative record under Code of Civil Procedure section 1094.5(e), the governing standard is narrow. "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...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 independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case." (CCP Sec. 1094.5 (e).) "The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency." (Toyota of Visalia v.

New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) The Court may consider additional evidence only where the party shows that the evidence either (1) could not, through reasonable diligence, have been produced at the administrative hearing, or (2) was improperly excluded. (CCP Sec. 1094.5(e); Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 578; Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366.) Absent a proper preliminary showing, augmentation is error. (Toyota of Visalia, supra, at p. 881.)

Petitioner has not made that showing. As Respondent notes, Petitioner identifies no evidence that the 19-page interview transcript was improperly excluded at the administrative stage, and the record does not reflect that Petitioner attempted to obtain investigative materials during the administrative proceedings. Although Petitioner declares he did not possess the transcript and later obtained it via a Public Records Act request, the reasonable diligence requirement concerns diligence during the administrative process, not after it.

Moreover, having reviewed the transcript itself, the Court is not persuaded that the proffered material is relevant within the meaning of section 1094.5(e). The transcript consists of a conversational interview with the former student that reiterates the same core facts already presented to the ALJ and the Board: Petitioner's repeated contact with her; her requests that he stop contacting her; her blocking of his communications; his communications about her personal and sexual life; his efforts to reach her through other former students; and her report to her mother and ultimately to the District.

These details were already reflected in testimony, exhibits, and, critically, Petitioner's own statements during the administrative hearing, where he did not deny authorship of the communications and repeatedly characterized them as "private." The transcript therefore does not contradict any administrative finding, undermine the credibility of any witness, or supply new exculpatory or impeaching information as to the relatively narrow questions before Respondent, or the Court, in this matter. [4] It merely expands upon matters already known to the ALJ and the Board and does not meet the narrow standard for augmentation under section 1094.5(e).

Accordingly, even if the Court were to treat Petitioner's filing as a motion to augment under section 1094.5(e), the Motion fails on the merits. The request to remand or augment the record is therefore denied. V.

Conclusion

The petition for administrative mandamus is DENIED. The Motion to Remand/Augment is DENIED. Pursuant to Local Rule 3.231(n), respondent California Unemployment Insurance Appeals Board shall prepare, serve, and ultimately file a proposed judgment. Date: September 3, 2026 | | | HON. TIANA J. MURILLO | PLEASE TAKE NOTICE:

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party may send an email to the court at SMCDEPT834@lacourt.ca.gov with the Subject line "SUBMIT" followed by the case number. The body of the email must include the hearing date and time, counsel's contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the court may take the matter off calendar or adopt the tentative ruling as the order of the court. After the court has issued a tentative ruling, the court may prohibit the withdrawal of the matter without leave.

Petitioner asserts that the exclusion of evidence made the hearing unfair, but he does not explain why this would constitute a procedural unfairness rather than, at most, an abuse of discretion by Respondent under a different standard of review. In any event, the Court need not resolve that distinction. As noted, Petitioner has not shown any legal grounds on which the exclusion was improper under any standard.

Petitioner argues that Respondent's decision was not supported by substantial evidence. (Pet. Op. Br. at 7-8.) The applicable standard is less deferential. The Court must exercise its independent judgment on the evidence and determine whether weight of the evidence supports the decision. (Interstate Brands v. Unemployment Insurance Appeals Board (1980) 26 Cal.3d 770, 775-76, 780 [the court exercises its independent judgment on actions challenging a decision denying unemployment insurance benefits].) Respondent correctly identifies this standard. (Opp. at 12.)

Even if Petitioner's un-cited and unsupported "inherently wrongful" standard applied, the record does not suggest that application of that standard would alter the analysis. The record reflects that Petitioner consistently framed his conduct as merely "private" communication with the former student, that the school district "didn't need to know because it was off school grounds," and "[t]here was no reason for the former student to be fearful of" him. (AR 100-101, 110.) When asked about a text in which he acknowledged "crossing the line," Petitioner responded that it was "a private conversation" and "wasn't for you guys to read." (AR 112.)

He acknowledged contacting the former student at college via Instagram (AR 112), declined to answer whether she blocked him or whether he used other routes to reach her ("it was a private conversation") (AR 114), and refused to comment when asked about social media posts that upset the student and her mother. (Id.) The record further shows the student had only just graduated, was in her first year of college, and that Petitioner's communications involved her personal life, including sexual matters. (AR 100-101, 118-19, 92-94.)

Conduct of this nature, by a public school teacher toward a very recent former student in her first year of higher education, could well support the Board's decision even under Petitioner's standard.

For example, the former student's statements in the interview that her reasons for leaving her undergraduate university after the first year included discomfort with being alone, how she was being perceived, and financial concerns are irrelevant to resolving the question of whether the weight of the evidence supports the Board's conclusion that Petitioner engaged in misconduct disqualifying him from receiving unemployment insurance benefits. Those personal circumstances are collateral to the misconduct inquiry and do not affect the weight or nature of the evidence considered by the ALJ or the Board. | Home -->)" -->