Johar v. California Unemployment Insurance Appeals Board

Filed 9/13/22

                      CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        FIRST APPELLATE DISTRICT

                                  DIVISION FOUR



 REENA JOHAR,
       Plaintiff and Appellant,             A162563
                 v.                         (Alameda County Super. Ct.
 CALIFORNIA UNEMPLOYMENT                    No. HG20073074)
 INSURANCE APPEALS BOARD
 et al.,
       Defendants and Respondents.


       This appeal requires us to address the circumstances when an
employee who leaves work to care for a sick family member may be deemed to
have “left . . . her most recent work voluntarily without good cause,” thus
disqualifying her from unemployment benefits under section 1256 of the
Unemployment Insurance Code.1
       Briefly stated, the facts are these. With the agreement of her
supervisor, Reena Johar, a home improvement salesperson, left work to care
for a terminally ill relative, and while she was away her employer decided
she had quit. She was gone about a week. Upon her return, the employer
told her business was slow and gave her no new sales appointments. Johar
eventually made a claim for unemployment benefits with the Employment


       All undesignated statutory references are to the Unemployment
       1

Insurance Code.


                                        1
Development Department (EDD), telling the EDD she lost her job due to a
“temporary layoff.”
      The employer denied laying Johar off. While conceding that she left
with her supervisor’s approval, the employer advised the EDD that Johar’s
failure to provide a return date or otherwise communicate with her
supervisor while she was away amounted to a voluntary quit. The EDD
accepted the employer’s position, found Johar ineligible for unemployment
benefits, ordered reimbursement of benefits improperly paid, and imposed a
penalty for willful misrepresentation in seeking benefits. An administrative
law judge (ALJ) sustained the EDD’s ruling, and the California
Unemployment Insurance Appeals Board (CUIAB) affirmed, finding that
“Basically, [Johar] abandoned her job.”
      Johar sought review in superior court by administrative mandamus
petition. In response to the petition, the CUIAB confessed error for failing to
consider new evidence discovered by Johar while the administrative appeal
was pending. It requested a remand so the case could be reconsidered, and it
acknowledged that Johar’s new evidence may lead to a decision in her favor.
At the CUIAB’s invitation, the court dismissed the case without reaching the
merits and remanded for further administrative proceedings. This appeal
followed.
      We will reverse. We conclude Johar was entitled to mandate relief on
the existing administrative record. It is undisputed that she left her job in
emergency circumstances with the employer’s approval, and thus for good
cause. The question is what to make of the circumstances after her
departure. In assessing that question, we ask who the moving party was in
terminating the employment relationship, bearing in mind that an employee
who leaves work for good cause is entitled to a presumption that she has not



                                       2
voluntarily quit. The presumption may be overcome, but only upon evidence
showing the employee positively repudiated her obligation to return in clear
terms. The evidence here does not meet that standard.
                             I. BACKGROUND
   A. Factual Backdrop, Submission of Claim to EDD, and EDD’s
      Ineligibility, Reimbursement, and Penalty Determinations
      Success Water Systems (SWS) sells water filtration equipment to
residential customers under the brand name “EcoWater.” Its sales referrals
come from Costco and are for Costco members. Johar worked for SWS as a
sales representative beginning in April 2019. Her job was to visit the homes
of prospective customers, demonstrate the use of SWS’s products using a
“company test kit” and solicit sales on-site. After these visits, she fielded
follow-up questions from sales prospects, and helped with preparation of the
necessary order forms and related documentation once they decided to buy.
      Johar’s base pay was approximately $1,200 per month, paid twice
monthly and calculated at a per diem rate, but the bulk of her compensation
was in the form of commissions for completed sales, so she needed a
continuing stream of work assignments in order to earn her full pay. Work
assignments came from SWS schedulers, who dispatched her to sales
appointments. Johar reported to Mari Lynn Johnson, an SWS Sales
Manager. Carol Johnson was in charge of issuing checks for commissions
and semi-monthly per diem payments.2
      Shortly after Johar began working for SWS, in May of 2019, she took
an approved leave of absence to go to Chicago to assist her grandmother, who
was terminally ill. She was gone “about a week and a half.” According to
Johar, she was hired with the understanding that she might need to take


      2   Mari Lynn Johnson is Carol Johnson’s daughter.


                                        3
leaves from time to time to care for her grandmother. With Mari Lynn
Johnson’s “full support,” on October 23, 2019, Johar went out on another
leave of absence to care for her grandmother. Upon returning in early
November, she received no further sales appointments for many weeks and
was told business was “slow.”
      Johar believed her employment with SWS was “ongoing,” since
considerable time sometimes passed between sales appointments. But she
was not sure. SWS had taken some steps that suggested her employment
was over—such as sending her a “final check” and asking for her test kit
back—but had not followed through by telling her to stop communicating
with prospective SWS customers she solicited before going to Chicago, paying
her everything she was owed in commissions, or giving her directions about
where to return her test kit.
      Eventually, on February 2, 2020, having received no further sales
appointments by the end of January, Johar filed a claim for unemployment
benefits with the EDD. She listed the reason for her loss of employment with
SWS as a “temporary layoff.” EDD initially paid unemployment benefits for
three weeks at $450, and notified SWS of Johar’s claim. Carol Johnson
replied to EDD’s notice of claim for SWS under section 1327 by checking a
“Voluntary Quit” box on the form for employer reply.
      A brief investigation by EDD followed. An EDD investigator
interviewed Johar and Carol Johnson. Johar told the EDD interviewer that
she “requested family emergency leave on 102019” from Mari Lynn Johnson,
expected to be gone three weeks, and was advised by Mari Lynn Johnson that
“she can return at any time she is able and will still have her job.”
      The version of events given to the EDD interviewer by Carol Johnson
differed, but not as to whether Johar left with SWS’s approval. She



                                        4
acknowledged that Johar “had an agreement with” Mari Lynn Johnson to go
to Chicago, but stated that the approved leave was not indefinite. According
to Carol Johnson, Johar failed to respond to repeated requests for a return
date, and was eventually deemed absent without leave. As shown on the
summary of interview form, Johar’s “date of separation” was October 31,
2019—which marked the end of her employment, from SWS’s perspective—
and the reason for her separation was “v[oluntary] q[uit].”
      After completing its interviews, the EDD ruled against Johar and
relieved SWS of any charges to its unemployment reserve account under
section 1032. In its notice of determination, the EDD viewed Johar’s
departure for Chicago as an approved absence, but accepted SWS’s position
that she overstayed her leave, failed to communicate with her supervisor
while gone, and failed to take steps to preserve her employment upon her
return.
      Under section 1256, the EDD ruled that Johar was disqualified from
receiving unemployment benefits for her loss of employment with SWS, and
under section 1257, subdivision (a), she was docked $2,250 from any future
unemployment insurance claims made within three years. In a separate
ruling, the EDD found that Johar willfully gave false information or withheld
information to explain her job loss. Under sections 1375 and 1375.1,
respectively, the EDD ordered Johar to reimburse overpaid benefits of $1,350
and to pay a 30 percent penalty ($405), for a total of $1,755.
   B. Proceedings Before the CUIAB
      Johar filed a handwritten pro se appeal of these adverse EDD decisions
with the CUIAB, and the CUIAB assigned the appeal for initial consideration
to an ALJ, who held a brief evidentiary hearing by telephone. Johar
appeared and testified for herself. Mari Lynn Johnson, Carol Johnson, and
Lloyd Stack, SWS’s general manager, appeared for SWS; and the two

                                       5
Johnsons gave substantive testimony. Each side tendered packages of
documentary exhibits, mostly copies of electronic communications between
Johar and her managers and coworkers at SWS in the timeframe September
2019 to early February 2020. Except for a few of SWS’s proffered exhibits
that Johar had no opportunity to review before the hearing, these exhibits
were admitted into evidence without objection.
      1. Witness Testimony in the ALJ Hearing
      The witness testimony in the ALJ hearing aligned with the positions
taken before the EDD.
      Mari Lynn Johnson admitted she was “in full support of [Johar] going
and taking care of her grandmother.” There was no evidence that Mari Lynn
Johnson conditioned Johar’s leave on a specific return date; she testified, “I
just had figured she’d be coming back.” Mari Lynn Johnson acknowledged
that there was never any formal “separation” of Johar from SWS. She
maintained, however, that after leaving, Johar failed to reply to repeated
requests from her for a specific return date. Carol Johnson testified to the
same series of events, and added that she sent a “final check” on November 5.
      In her testimony, Mari Lynn Johnson supplied a new detail that had
not been provided to the EDD. She explained to the ALJ that, as a Costco
vendor, SWS is a licensed home improvement contractor, that SWS’s sales
representatives, too, must be “licensed,”3 and that, in the Fall of 2019,



      3 A “home improvement contractor” must be licensed by the Contractors
State License Board (CSLB) (Bus. & Prof. Code, § 7150.1) and a “salesperson”
employed by a “home improvement contractor[]” must be registered with the
CSLB (id., § 7153.1). Both the contractor and the salesperson are subject to
discipline for noncompliance with these regulatory requirements. (Bus. &
Prof. Code, § 7154, subds. (c), (d) [contractor]; id., § 7155 [salesperson].) An
applicant for a home improvement salesperson registration must submit a set


                                        6
“Reena’s application was pending,” “we only had so many more days to . . . get
her license,”4 and eventually the application “was declined because they
didn’t get the information by a certain time.” “So even if ” Johar had come
back from Chicago and notified SWS of her readiness to work, Mari Lynn
Johnson testified, “she’s not licensed . . .” and was ineligible to work.
      Johar denied quitting. She testified that she was dealing with a
“family emergency,” that Mari Lynn Johnson and Carol Johnson were “well
aware” of her reason for needing time off , that she was back from Chicago
“within a week,” and that, while she was away, she continued to field
customer inquiries and was “in touch with” Mari Lynn Johnson and others at
SWS. She also testified to her understanding SWS had “employed another
person,” which is what Mari Lynn Johnson told her in a text on October 23,
2019, though she did not know what that meant for her own status.
      Johar testified that while in Chicago, and indeed until early February
2020 after her return, she was still fielding follow-up inquiries from
prospective SWS customers and was never given directions about returning
her test kit. She also testified that SWS still owed her a considerable amount
of commission money. When pressed by the ALJ why she did not contact


of fingerprints to the CSLB so that it may conduct a criminal history record
check. (Id., § 7153.1, subd. (c).)
      4 Among the documentary exhibits proffered by SWS, and made part of
the administrative record, is Johar’s application for registration as a home
improvement salesperson. The testimony concerning this application, both
from Mari Lynn Johnson and from Johar, describes it as a “license”
application. SWS paid the $83 fee for the application on October 4, 2019. Six
days later, the CSLB sent a notice to SWS acknowledging receipt of the
application and indicating that a set of fingerprints from Johar must be
provided within 90 days. There is no evidence in the record that SWS passed
on to Johar the CSLB’s request for fingerprints or otherwise advised her that
the application was incomplete.


                                        7
Mari Lynn Johnson to clarify her status following Carol Johnson’s email
telling her to expect a “final check,” Johar testified that, upon returning from
Chicago, Mari Lynn Johnson “blocked” her incoming calls and emails. Johar
also testified that she called Carol Johnson twice, once in mid-November,
once in December, and tried to email her as well. But no one would give her
a clear explanation of her status. Essentially, Johar testified to being left in
a state of limbo. “They’re not telling me anything . . . . I kept telling them,
when do I come and work.” “Got no reply.”
      As for the matter of a pending “license” application and Mari Lynn
Johnson’s suggestion that Johar failed to provide necessary information to
complete it, Johar testified that she submitted the application “through”
SWS, that SWS was handling it, that she was never told the application was
incomplete, and that she had no idea it had been denied until she saw in
SWS’s proposed exhibits prior to the ALJ hearing an official notice of denial,
dated February 7, 2020, five days after she applied for unemployment
benefits.
      2. Documentary Evidence in the ALJ Hearing
      The trail of electronic communications revealed by the documentary
exhibits added some additional contextual detail. None of this was disputed.
      The immediate lead-up to Johar’s departure for Chicago began with an
exchange of texts between Johar and Mari Lynn Johnson on October 22,
2019. Before leaving, Johar confirmed by text to Mari Lynn Johnson that she
made arrangements to drop off a customer contract at SWS’s office on
“Tue[sday].”5 In this text, she also commented that “thurs is granny time at
the hospital.” Then, on the morning of October 22, in a text exchange with


      5We take judicial notice on our own motion that October 22, 2019, was
a Tuesday. (Evid. Code, § 452, subds. (g), (h).)


                                        8
Mari Lynn Johnson at 10:14 a.m., Johar confirmed she was still intending to
meet customers that afternoon. Later that day, Johar told Mari Lynn she
needed to reschedule two afternoon customer appointments, explaining that
“I am worked up with my grandmother’s health right now.”
      According to Johar, one of the customers was very accommodating of
her need to reschedule, but the SWS scheduler “had an attitude” about
Johar’s failure to advise the second customer ahead of time she would not be
showing up that day. A complaint in connection with one of these cancelled
appointments, made by a couple named “Shah,” apparently followed. Johar
and Mari Lynn Johnson exchanged texts about this complaint on the evening
of October 22: “[Mari Lynn Johnson, 8:18 p.m. October 22]: I spoke to mr
and mrs shah after they called Costco tonight. We need to talk tomorrow.
[Johar, 12:02 a.m. October 23]: [F]or now I want to concentrate on my
grandmother so I am going to take a mini break i don’t want any controversy
[¶] I have worked sincerely till now [¶] We will talk about this episode.”
      On the day Johar left, October 23, Mari Lynn Johnson texted Johar as
follows: “Please bring in your test kit and book. [¶] I hired don a new
salesman started yesterday. [¶] The kit is $500 so to keep from being charged
back for it I’ll need it [¶] I will stop payroll for you as of yesterday. Best
wishes to your Grandmother. I’m not mad at you so no controversy at all. . . .
No episode to talk about[,] they’re all smoothed over.” And on the evening of
October 23, she sent another text, “Are you getting my voicemails? I need to
hear from you by tomorrow with some sort of plan to return. When will you
be back? We need to make schedules. What does mini-vacation mean?”
Johar did not reply to either of these texts, at least not right away.
      Over the following week, while Johar was in Chicago, Mari Lynn
Johnson sent Johar several emails complaining about Johar not replying to



                                         9
texts and phone messages and raising questions about problems with
“paperwork” for customer orders solicited by Johar before she left. Johar
responded that she could not reply to work communications while in the
hospital with her grandmother. She said, “I am in chicago as you know and
am on a family emergency. Surely you have had some in your life. IT IS
NOT A VACATION. You were duly informed not only on day one but
consistently. I will do what needs to be done for my family. Will get back to
you when the emergency ceases.”
      Although Johar did not provide a specific return date, while in Chicago
she did engage in extensive email communication with Mari Lynn Johnson
and others at SWS in response to the questions raised about customer
“paperwork.” And the emails grew increasingly testy. Johar took the
position the “paperwork” problems were not her fault and accused Mari Lynn
Johnson of making misstatements. Mari Lynn Johnson and another
manager at SWS disagreed. The email debate over who was to blame for
customer “paperwork” problems ended on October 29, with Mari Lynn
Johnson saying that neither she nor anyone else at SWS would respond to
any more emails from Johar. She wrote, “Until you and I speak with Lloyd
present there will be no more dialogue. Many of your statements are not fact
. . . . [¶] . . . [¶] No other emails will be replied to from me or Success-water
team members until we meet.”
      Johar persisted, attempting to engage further by email on October 30.
Mari Lynn Johnson sent a final response the same day, October 30,
escalating the confrontational tone of the dialogue. Claiming at first that she
did not know who Johar’s October 30 email came from, Mari Lynn Johnson
wrote, “If it’s you [R]eena, I will file a harassment claim against you. I’ve
already contacted our attorney. [¶] Please cease and desist your badgering of



                                         10
me. [¶] . . . Costco requires all consultants to be finger printed and licensed to
be on any members property. Feel free to tell them who you are. Especially
as we had the shah family file a complaint against you. That was the second
one. [¶] As of now, you do not qualify. [¶] Please stop. We’re done here. It’s
not productive.”6
      Five days later, on November 4, Carol Johnson wrote an email to Johar
stating as follows: “I understand you are presently in Chicago caring for your
Grandmother. . . . [¶] With that being the case[,] you are unable to work. . . .
To be considerate of your position, we are paying you for the full pay period
as paid sick time which is much over your earned time. I am also paying you
vacation earned to date. [¶] . . . [¶] We are paying you [commissions] for
everything installed to date and also those scheduled to be installed.”




      6  This was not the first time Mari Lynn Johnson had ended an email
dialogue with Johar in a tone of angry exasperation. Weeks before Johar left
for Chicago, on September 25, she wrote an email to Mari Lynn Johnson
accusing Lloyd Stack and someone named “Joseph,” Mari Lynn Johnson’s
assistant, of yelling at her and criticizing her English-speaking abilities.
Johar, who is of Indian descent, accused these two of racial discrimination.
She also levelled this accusation at Mari Lynn Johnson. Evincing a tone of
irritation, Mari Lynn Johnson’s email reply to Johar, also dated
September 25, raised a question about Johar’s “future” on the sales team.
She wrote: “Its time to stop! Joseph is my assistant and he is there to help
when I’m not available. . . . I’m done with arguing about your lack of
understanding of this job. [¶] . . . If I hear one more thing from you about
people treating you wrong (which is not true) then we’re all done here! [¶]
First it’s Lloyd you complain about as well as everyone in the company who
tries to help you. [¶] I resent this email and [t]omorrow I’ll speak with Lloyd
and make a decision on the future with you on the team. [¶] I will not be lead
[sic] into saying something that you can use against me and my company. [¶]
I’m done with this!!!!”


                                        11
      3. The ALJ’s Decisions
      The ALJ upheld the EDD’s prior determinations that Johar was
ineligible for unemployment benefits, that she owed reimbursement for
improperly paid benefits, that she was liable for penalties, and that SWS’s
reserve account would not be charged. But on the key issue of
disqualification for benefits under section 1256, the ALJ’s rationale varied
slightly from the reasoning employed by the EDD.
      The EDD found that Johar left on an approved leave of absence and
thereafter failed to take steps to preserve the employment relationship by
communicating a date for her return, but the ALJ found “there is no evidence
to show [Johar] requested a leave of absence or took steps to preserve the
employment relationship” by notifying her employer of a specific return date
and advising it of her availability for work. Thus, while the EDD found that
Johar left with Mari Lynn Johnson’s blessing—which was admitted in the
section 1327 response Carol Johnson provided to the EDD—and abandoned
her job thereafter, the ALJ instead found that Johar never sought approval
for her leave in the first place.
      4. The CUIAB Appeal
      Johar appealed the ALJ’s merits, reimbursement and penalty decisions
to the CUIAB, initially still in pro per. To assist her in the pursuit of her
appeal, she secured representation from the Workers’ Rights Clinic, one of
the Community Justice Clinics affiliated with the University of California
Hastings College of the Law (the Clinic, or the Hastings Clinic). Along with a
challenge to the ALJ’s determination that Johar voluntarily quit, the Clinic
proffered some new evidence that had not been available at the time of the
ALJ hearing.
      According to the Clinic, this new evidence showed that SWS had
altered Johar’s application for registration with the CSLB by, allegedly,


                                       12
changing the address she listed for herself from her home address in Fremont
to SWS’s business address in Brentwood. Because of the change of address
on the application, the Clinic argued, Johar was prevented from finding out
that the CSLB had given notice that her home improvement salesperson
registration application was incomplete. The theory advanced by the Clinic
was this: If Johar was “unlicensed,” SWS had arranged to ensure that was
the case, which made SWS, not Johar, the moving party in ending the
employer-employee relationship.
      The CUIAB rejected Johar’s appeal, reasoning as follows: “The
claimant [Johar] left for Chicago to take care of a sick family member on
October 23, 2019. The claimant had made such trips in the past but had
reported back to work after a week or so. When the claimant left for the final
time, the claimant did not give a definite return date nor did the claimant
ask for a leave of absence. . . . [¶] The evidence is such that the claimant left
indicating she would be on a mini vacation taking care of a sick relative, and
then never returned to work nor made any attempt to contact the employer.
Basically, the claimant abandoned her job.”
      In essence, the CUIAB adopted the reasoning of the ALJ, but it went
further. “There is no evidence,” the CUIAB found, that “the claimant made
any attempts to contact the employer in the period between her last day of
work and her applying for benefits.” The CUIAB was also unmoved by the
newly discovered evidence proffered by the Hastings Clinic. It explained,
“We do not think that the additional evidence is relevant. More importantly,
we have not considered the information because the parties would not be able
to exercise their due process right to review and rebut the evidence, and the
administrative law judge would not have the opportunity to hear and weigh
all the evidence and assess credibility.” Without any explanation specific to



                                        13
whether Johar willfully made false statements or withheld information to
obtain benefits, the CUIAB determined that “[t]he decisions of the
administrative law judge are affirmed.”
      Three days after the CUIAB issued its decision denying Johar’s appeal
and refusing to consider the new evidence she proffered, Division One of this
court filed its opinion in Land v. California Unemployment Insurance Appeals
Board (2020) 54 Cal.App.5th 127 (Land).7 In that case, an unemployment
insurance claimant appealed an adverse ALJ determination and submitted
new evidence that he contended fundamentally undermined the ALJ’s
decision (id. at p. 143), just as Johar did here. And the CUIAB, just as it did
here, refused to consider the new evidence, citing due process concerns.
(Ibid.) The Land court viewed the proffered new evidence there to be
“pivotal” (id. at p. 144) and vacated the CUIAB’s affirmance of the ALJ’s
decisions. The court remanded with directions that the CUIAB either take
the new evidence into account directly, or remand to the ALJ to “make new
findings of fact” and issue “new reasons for decision” “in light of such
evidence.” (Id. at p. 146.)
      In September 2020, Johar filed this administrative mandamus
proceeding seeking writ review of the CUIAB’s affirmance of the ALJ. In
response, the Board agreed that the new evidence Johar presented to the
CUIAB was “arguably relevant” in light of Land and took the position that
the court should vacate the CUIAB’s affirmance and remand for further
administrative proceedings so that the new evidence could be considered.
That was the best resolution of the matter, the CUIAB argued, because
further factfinding may result in a decision favoring Johar.


      7Land was initially filed as an unpublished opinion, but was later
ordered published.


                                       14
      The superior court agreed. Without ruling on the merits, the court
entered judgment for Johar, vacated the CUIAB’s affirmance of the ALJ, and
remanded for further proceedings in light of Land. Johar then moved to set
aside the judgment in her favor. She contended, among other things, that the
court incorrectly concluded a remand for further administrative proceedings
was the “only appropriate remedy” for the CUIAB’s error and that, on the
undisputed evidence already of record, mandamus was warranted. The trial
court rejected these arguments, entered a judgment of dismissal, and denied
a later motion to vacate the judgment.
      This timely appeal is from both the judgment and the denial of the
postjudgment motion to set aside the judgment.
                               II. DISCUSSION
   A. Standards of Review
      In administrative mandamus proceedings under Code of Civil
Procedure section 1094.5, the governing standards of review are well
established. “Using independent review, the trial court examines the record
of the administrative proceedings to determine whether the administrative
agency’s findings are supported by substantial evidence.” (Kelley v.
California Unemployment Ins. Appeals Bd. (2014) 223 Cal.App.4th 1067,
1073–1074 (Kelley); see Natkin v. California Unemployment Ins. Appeals Bd.
(2013) 219 Cal.App.4th 997, 1002.) On appeal, we review the trial court’s
determinations for substantial evidence, while conducting de novo review
where the evidence is undisputed. “We will affirm the trial court’s findings if
they are supported by substantial evidence. . . . If facts are undisputed and
are subject to reasonable conflicting inferences, we adopt the inferences found
by the trial court.” (Kelley, at p. 1074, italics omitted.)
      Because the trial court resolved the writ proceedings in this case on
procedural grounds, without making any factual assessments, we will review


                                         15
that decision for abuse of discretion. When reviewing for abuse of discretion,
we always conduct independent review of any determinations of law or of the
legal premises on which an exercise of discretion is founded. Here, the
“evidence taken at the administrative hearing . . . was sparse, incomplete,
[and] vulnerable to incompatible interpretations, but not in conflict” (Lacy v.
California Unemployment Ins. Appeals Bd. (1971) 17 Cal.App.3d 1128, 1133),
at least not in any material respect. Because the ultimate issue that we find
to be dispositive is one of law—whether Johar was disqualified from
entitlement to unemployment benefits under section 1256—our review will be
de novo. (Perales v. Department of Human Resources Dev. (1973)
32 Cal.App.3d 332, 336 [“Whether an employee has quit his employment
without good cause is a question of law.”].)
   B. Analysis
      Had the new evidence proffered by Johar during the pendency of the
CUIAB appeal been pivotal to a correct decision, as it was in Land, the trial
court would have been right to vacate CUIAB’s decision and remand these
proceedings for further administrative factfinding, given the distinct
possibility, acknowledged by the CUIAB, that the decision on remand might
be in Johar’s favor. We conclude, however, that further administrative
proceedings are unnecessary here. Because the CUIAB’s decision was
incorrect on the administrative record before it, we hold it was an abuse of
discretion to withhold mandamus relief pending further administrative
proceedings.
      In so holding we are mindful of three guiding principles. First, “[t]he
fundamental purpose of California’s Unemployment Insurance Code is to
reduce the hardship of unemployment . . . .” (Paratransit, Inc. v.
Unemployment Ins. Appeals Bd. (2014) 59 Cal.4th 551, 558 (Paratransit).)
Toward this end, our Legislature created an “[u]nemployment . . . insurance

                                       16
program . . . [designed to] ‘provid[e] benefits for persons unemployed through
no fault of their own’ . . . [(§ 100)]” (Gilles v. Department of Human Resources
Development (1974) 11 Cal.3d 313, 316), recognizing that “ ‘[u]nemployment
benefits provide cash to a newly unemployed worker’ ” at a time of great
privation, which helps “ ‘maintain the recipient at subsistence levels without
the necessity of his turning to welfare or private charity’ ” (id. at p. 325,
quoting California Human Resources Dept. v. Java (1971) 402 U.S. 121,
131–132).
      Second, remedial statutes involving welfare benefits are to be
interpreted in a manner that minimizes the hardship of unemployment.
Because unemployment insurance benefits are a property right (Interstate
Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 775–776),
and because the unemployment insurance laws are remedial in nature
(Messenger Courier Assn. of Americas v. California Unemployment Ins.
Appeals Bd. (2009) 175 Cal.App.4th 1074, 1094), the Unemployment
Insurance Code must be “liberally construed to further the legislative
objective of reducing the hardship of unemployment” (Gibson v.
Unemployment Ins. Appeals Bd. (1973) 9 Cal.3d 494, 499; see Sanchez v.
Unemployment Ins. Appeals Bd. (1984) 36 Cal.3d 575, 584). Third, in the
implementation of this humanitarian objective, avoiding needless delay is
crucial. That has implications not only for how we interpret section 1256, but
for the nature and scope of the remedies we order should we conclude benefits
were erroneously denied. “ ‘[T]he prompt payment of benefits is the “ ‘very
essence’ ” of the unemployment compensation insurance program,’ ” we held
in Brown v. California Unemployment Ins. Appeals Bd. (2018) 20 Cal.App.5th
1107, 1114 (Brown), and we so hold again here.




                                        17
      1. Applicable Principles Under Unemployment Insurance Code
         Section 1256
      A person is disqualified for unemployment benefits under section 1256
if “he or she left his or her most recent work voluntarily without good cause
or . . . has been discharged for misconduct connected with his or her most
recent work.” (§ 1256.) Under implementing regulations promulgated by the
EDD (Cal. Code Regs., tit. 22, § 1256-1, subds. (b), (c) (EDD Regulations)), the
basic framework of analysis is well established. The threshold issue is
whether the employee claimant left work voluntarily or involuntarily. (Ibid.)
To resolve that issue, section 1256-1 of the EDD Regulations focuses on which
party—employer or employee—initiated [the] termination, suspension or
cessation of employment. (Id., § 1256-1, subd. (d).)8
      “An involuntary leaving of work occurs when the employer is the
moving party in causing the [employee’s] unemployment . . . at a time when
the employee is able and willing to continue working.” (EDD Regulations,
§ 1256-1, subd. (c).) “A voluntary leaving of work occurs,” on the other hand,
“when an employee is the moving party causing his or her unemployment” at
a time when “when work is available and the employee leaves work of his or
her own free will.” (Id., § 1256-1, subds. (b), (d).) The analysis pivots from
there, depending on whether the employee left work involuntarily or
voluntarily. In an involuntary leaving scenario, the focus is on whether there



      8 “Although we extend some deference to administrative regulations
adopted to interpret or implement a statute, the ultimate responsibility for
interpreting a statute lies with us.” (Kelley, supra, 223 Cal.App.4th at
pp. 1076–1077.) Because we have not found or been provided with any
pertinent administrative interpretations of EDD Regulations sections 1256-1,
1256-3, and 1256-10—the specific regulatory provisions we apply in this
case—we interpret them under the ordinary rules of statutory construction.
(Kelley, at p. 1077.)


                                       18
was a discharge for misconduct (id., §§ 1256-30–1256-43), while in a
voluntary leaving scenario the focus is on whether the employee left for “good
cause” (id., §§ 1256-3–1256-23).
      “A claimant is not disqualified under Section 1256 of the code if his or
her employment is terminated either as the result of a voluntary leaving with
good cause or as the result of a discharge or suspension by the employer for
reasons other than work-connected misconduct of the claimant.” (EDD
Regulations, § 1256-1, subd. (a).) No one in this case contends that SWS fired
Johar for “work-connected misconduct,” so we proceed down the “voluntary
leave” branch of section 1256 analysis. “Good cause” exists for voluntarily
leaving work, “when a substantial motivating factor in causing the claimant
to leave work, at the time of leaving, whether or not work connected, is real,
substantial, and compelling and would cause a reasonable person genuinely
desirous of retaining employment to leave work under the same
circumstances.” (EDD Regulations, § 1256-3, subd. (b).)9 “Generally good



      9  “Good cause may exist for reasons which are personal and not
connected to the employment situation [citation], but those reasons must be
imperative and compelling in nature.” (Macgregor v. Unemployment Ins.
Appeals Bd. (1984) 37 Cal.3d 205, 209.) The EDD Regulations delineate 21
sets of circumstances constituting “good cause.” (See EDD Regulations,
§§ 1256.2-1 [deprivation of equal employment opportunities], 1256-4
[apprenticeship training],1256-5 [attendance at school or training course],
1256-6 [conscientious objection], 1256-7 [disciplinary action by employer],
1256-8 [transportation to work], 1256-9 [domestic circumstances, generally],
1256-10 [domestic circumstances involving health, care or welfare of family],
1256-11 [domestic circumstances, minor], 1256-12 [domestic circumstances
involving marriage], 1256-13 [equipment], 1256-14 [experience or training],
1256-15 [health, safety or morals], 1256-16 [leave of absence], 1256-17
[pensions and retirement], 1256-18 [personal affairs], 1256-19 [prospects of
other work], 1256-20 [time], 1256-21 [union relations], 1256-22 [wages],
1256-23 [working conditions].)


                                      19
cause for leaving work is decided on the facts at the time the claimant left
work.” (EDD Regulations, § 1256-3, subd. (b).)
      An employer has the right to protest a section 1256 eligibility
determination, as SWS did here. (§§ 1327, 1331; EDD Regulations, § 1326-1,
subd. (b)(1)(A).) Should such a dispute arise, there is a rebuttable
presumption in favor of the employee. “An individual is presumed . . . not to
have voluntarily left his or her work without good cause unless his or her
employer has given written notice [making a factual showing] to the contrary
. . . as provided in Section 1327.” (§ 1256.) Under this procedure, within 10
days of mailed notice that a former employee has filed claim with the EDD
for unemployment, section 1327 requires the employer to submit “any facts
then known that may affect the claimant’s eligibility for benefits, including,
but not limited to, facts pertaining to eligibility under Section 1256.”
(§ 1327.) At all stages of the administrative proceedings that follow, as well
as on mandamus review, the employer bears the burden of showing by a
preponderance of the evidence that these facts overcome the presumption
against a voluntary quit. (O’Connell v. Unemployment Ins. Appeals Bd.
(1983) 149 Cal.App.3d 54, 58; Perales v. Department of Human Resources
Dev., supra, 32 Cal.App.3d at p. 340.)
      2. On the Undisputed Evidence of Record There Was a
         Voluntary Departure from Work for Good Cause
      It is undisputed on this record that we have a voluntary departure at a
time when work was available. Johar left work in late October 2019 of her
own volition and, at least for some period of time after her departure, both
parties expected the employment relationship to continue after her return.
Discussions about scheduling customer appointments were ongoing just
before her departure, and it made no sense for Mari Lynn Johnson to press
Johar for a return-to-work date if SWS did not have the expectation she


                                         20
would return, at least initially. Indeed, she testified that was what she
expected. And we know that Johar shared the same expectation, given her
belief that there was an ongoing employment relationship when she came
back from Chicago.
      Johar’s departure was also indisputably for good cause. If an employee
leaves work due to domestic “circumstances relating to the health, care, or
welfare of the claimant’s family of such a compelling nature as to require the
claimant’s presence,” she has left with “good cause.” (EDD Regulations,
§ 1256-10, subd. (b).) Johar left for Chicago in the belief that “a member of
[her] family [was] seriously ill or disabled . . . or . . . in danger of death” (id.,
subd. (c)(1)), a concern the text communications show Mari Lynn Johnson
was aware of and that she acknowledged by stating her full support for
Johar’s announced intent to depart.
      “Prior to leaving work,” to be sure, an employee “has a duty to attempt
to preserve the employment relationship” and her failure to discharge that
duty may “negate[] what would otherwise constitute good cause” for leaving
work. (EDD Regulations, § 1256-3, subd. (c) [Duty to Preserve the
Employment Relationship].) The ALJ found there was no evidence Johar
“requested a leave of absence or took reasonable steps to preserve the
employment relationship such as [by] providing the employer with
notification of her status and availability for employment after departure on
October 23, 2019,” but to the extent the ALJ relied on post-departure facts
here he misconceived the nature of the “good cause” inquiry. Because the
issue of “good cause” for a voluntary leave generally turns on the facts at the




                                          21
time the employee departs, the focus of this issue should be on whether the
employee took steps to preserve employment prior to leaving.10
      The duty to take steps to preserve employment was discharged here.
There was no evidence that, when Johar left, SWS had an established leave
of absence policy which Johar knew or should have known, and simply
ignored. And to the extent there was an informal leave protocol established
by the parties’ prior conduct, Johar followed it. It is undisputed that she had
previously notified SWS of the prospect she may need to leave work to attend
to her grandmother’s health, that SWS had allowed her to take a break for
that reason in May 2019—without strings attached—and, having advised
Mari Lynn Johnson she was facing the same circumstances again in October
2019, that she secured permission to leave.
      Rather than rely on failure to discharge the duty to preserve
employment, the CUIAB embraced the ALJ’s finding that Johar failed to seek
approval of her trip to Chicago, embellishing that finding with plainly
inaccurate factual statements about the evidence (“When the claimant left
. . . [, she] merely described her leave as a ‘mini vacation’ ”; “There is no
evidence the claimant made any attempts to contact the employer in the
period between her last day of work and her applying for benefits”). But this
approach to analyzing Johar’s entitlement to benefits under section 1256
raised another problem: The determination that Johar failed to seek
approval for a leave of absence before departing is contrary to the facts SWS
admitted. Carol Johnson’s section 1327 submission on behalf of SWS, sent by
way of response to EDD’s notice of Johar’s claim, stated that Johar left for



      10There was no evidence postdating Johar’s departure that called into
question whether, at the time she left, she was not in fact facing exigent
circumstances.


                                        22
Chicago with Mari Lynn Johnson’s “agreement,” which necessarily means
Johar left with her supervisor’s knowledge and approval. The presumption
against a voluntary quit without cause cannot be overcome based on a finding
that contradicts the employer’s section 1327 showing of ineligibility.
      3. Kelley v. California Unemployment Insurance Appeals Board
      The dispositive question in this case is whether, having voluntarily left
work for good cause, Johar manifested an intention to abandon her job while
she was gone. Johar claims she did not, citing Kelley v. California
Unemployment Insurance Appeals Board, supra, 223 Cal.App.4th 1067, a
case where an employee who filed an administrative charge of sexual
harassment took a stress-related leave of absence for six months. When she
was medically cleared to return, she requested some workplace
accommodations to mitigate her stress. (Id. at pp. 1070–1071.) In the midst
of a series of lawyer-to-lawyer communications over possible settlement of the
employee’s harassment claim, the employer took the position that the
employee’s requests were unreasonable demands, and terminated her. (Id. at
p. 1071.)
      At issue in Kelley was whether the employee’s requested
accommodations transformed the termination, in legal effect, into what the
court called “a constructive voluntary quit” (Kelley, supra, 223 Cal.App.4th at
p. 1079), thus rendering her ineligible for benefits under section 1256. (EDD
Regulations, § 1256-1, subd. (f ) [“In some cases, the employee is deemed to
have left work voluntarily even though the apparent cause of termination is
the employee’s discharge by the employer.”].) Reversing the CUIAB in
administrative mandamus proceedings, the superior court found there was no
constructive voluntary quit, and a Second District panel affirmed. While the
analogy to Kelley is imperfect—here, the CUIAB found an actual quit, not a
constructive voluntary quit, and in Kelley, unlike this case, the starting point

                                       23
of analysis was an acknowledged termination by the employer—we agree the
case is broadly instructive.
      The Kelley court considered the evidence offered by the employer to
rebut the presumption against a voluntary quit in that case, and found it
wanting. The illustrative examples used in the EDD Regulations to show
situations amounting to a constructive voluntary quit, the court pointed out,
all involve situations where the employer had no reasonable alternative but
to terminate the employment relationship because the employee either
engaged in conduct that made a return to work impossible or outright refused
a directive to return. (Kelley, supra, 223 Cal.App.4th at pp. 1076–1077; EDD
Regulations, § 1256-1, subd. (f ), examples 2–4.) The “common thread” in
these examples, the court explained, is “clarity of meaning and certainty of
effect.” (Kelley, at p. 1077.) On the evidentiary record presented, the facts
did not meet this standard because the emails containing what the employer
saw as unreasonable demands were “rife with ambiguity” as to the
employee’s actual intent. (Ibid.)
      4. During a Voluntary Leave for Good Cause, the Employee’s
         Intent To Abandon Her Job May Be Shown Only by Evidence
         of Positive Repudiation of Her Duty To Return in the
         Clearest Terms
      We arrive at the same result here, but on a slightly different analysis.
We begin with the recognition that the relationship between employer and
employee is fundamentally contractual in nature. (Foley v. Interactive Data
Corp. (1988) 47 Cal.3d 654, 677.) During any voluntary absence from work
for good cause, the employee’s ongoing contractual duty to show up for work
and the employer’s counterpart duty to pay wages are temporarily
suspended, with the mutual expectation that those duties will resume upon
the employee’s return. (Lewis v. Unemployment Ins. Appeals Bd. (1976)
56 Cal.App.3d 729, 739.) As we have observed, that was the status of the

                                       24
parties’ relationship when Johar left. At the time of Johar’s departure, both
parties expected a future resumption of work, though what they intended
from that point on—individually and mutually—is, as the Kelley court
described the record in that case, “rife with ambiguity.” (Kelley, supra,
223 Cal.App.4th at p. 1077.)
      In resolving questions of ineligibility for benefits under section 1256,
any assessment of the “employee’s intent ‘ “must take account of ‘ “real
circumstances, substantial reasons, objective conditions, palpable forces that
operate to produce correlative results, adequate excuses that will bear the
test of reason, just grounds for action, and always the element of good
faith.” ’ ” ’ ” (Paratransit, supra, 59 Cal.4th at p. 559.) Within the framework
established by Paratransit—which requires an assessment of the employee’s
subjective intent evaluated in the context of the objective circumstances
known to her and in which she was operating—what we have here is
essentially a question of anticipatory breach of contract. An anticipatory
breach of contract occurs when one contracting party “ ‘positively repudiates
the contract by acts or statements indicating that [she] will not or cannot
substantially perform essential terms thereof . . . .’ [Citation.] ‘Anticipatory
breach must appear only with the clearest terms of repudiation of the
obligation of the contract.’ ” (Guerrieri v. Severini (1958) 51 Cal.2d 12, 18;
Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2019)
42 Cal.App.5th 918, 940.)
      In the eight days between Johar’s departure and October 31 (the “quit”
date SWS reported to the EDD) or for that matter in the 13 days between her
departure and the day Carol Johnson sent out Johar’s “final check,” nothing
on this record comes close to meeting this test. SWS took the position in the
proceedings before the ALJ that Johar’s intention to quit may be inferred by



                                       25
her silence in the face of Mari Lynn Johnson’s post-departure requests for a
specific return date. But that is not enough to show a repudiation of future
contractual duties. The emails of record show that Johar did eventually
respond, saying she would “get back to you when the emergency ceases.” But
even if we assume arguendo she failed to respond at all, as Mari Lynn
Johnson testified, the evidence is still insufficient to show a “positive[]”
repudiation in “the clearest terms.” (Guerrieri v. Severini, supra, 51 Cal.2d at
p. 18.)
       If Mari Lynn Johnson had set a date certain in advance of Johar’s
departure—which, as Johar’s supervisor, she had the prerogative to do—and
if Johar had then failed to report for duty in defiance of that directive or
failed to request extended leave when the expected return date arrived, we
might have seen things differently. But those are not the facts. SWS never
tested Johar’s willingness to return by ordering her to appear on a specified
date, just as in Kelley, the employer never tested whether what appeared to
be “demands” amounted to posturing during a settlement stand-off between
lawyers. (Kelley, supra, 223 Cal.App.4th at p. 1077.) Although the trial court
found “the circumstances of [Johar’s] separation from her employer were
confusing,” the responsibility for the murkiness of the record must fall on
SWS.
       What Paratransit and Kelley teach is that, in a situation where
section 1256 eligibility turns on the employee’s intent, we must assess the
employee’s conduct from her perspective in light of objective circumstances
known to her, especially in high conflict situations in the workplace where
misunderstandings are common. (Paratransit, supra, 59 Cal.4th at p. 559
[“ ‘ “one cannot determine whether an employee’s action is misconduct within
the humanitarian purpose of the unemployment compensation statutes



                                        26
without judging the reasonableness of his act from his standpoint in the light
of the circumstances facing him and the knowledge possessed by him at the
time” ’ ”; italics in original]; Kelley, supra, 223 Cal.App.4th at p. 1079
[constructive voluntary quit doctrine “does not apply to those situations in
which the employee makes requests or inquiries about employment matters,
even though the employer may consider such speech irritating or
ungracious”].) Here, by failing to make its expectations clear ahead of Johar’s
trip, SWS created the conditions that made Johar’s conduct in the period
after her departure difficult to evaluate.
      After Johar left, the only affirmative evidence of an intention to end the
employment relationship prior to November 4 came from SWS, first in a text
on October 23 where Mari Lynn Johnson said she would stop “payroll” for
Johar as of October 22 and had hired another salesperson, and then on
October 30, when Mari Lynn Johnson told Johar in an email, “Costco
requires all consultants to be finger printed and licensed . . .”; “As of now, you
do not qualify”; and, “We’re done here.” There is also plenty of evidence that
SWS was motivated to fire Johar over what it clearly perceived to be ongoing
performance-related issues, but that it also wanted to avoid openly
discharging her because of the evident risk of a retaliation claim following
Johar’s allegations of workplace discrimination.11
      By contrast, during the critical period at the end of October and the
beginning of November, there is no affirmative evidence of anything said or
done by Johar that points to her as the moving party wishing to end the
employer-employee relationship. There is only what the Johnsons
characterized in their testimony as Johar’s failure to respond to her
supervisor’s requests for a specific return date after she left. But during a

      11   See ante, page 11, footnote 6.


                                            27
period when Johar was in the midst of domestic circumstances serious
enough to qualify as good cause under section 1256-10 of the EDD
Regulations, no reasonable fact finder could infer an intention to quit from a
failure or inability to respond, even accepting the Johnsons’ testimony on this
point as true. All in all, in the absence of anything more than this record
shows, the presumption against a voluntary quit must dictate the outcome.
      5. The Evidence of Johar’s “Unlicensed” Status Does Not
         Overcome the Presumption Against a Voluntary Quit
      The only aspect of the record that might save the EDD’s ineligibility
determination is the evidence bearing upon Johar’s “unlicensed” status.
      Arguably, if Johar were at fault for failing to secure a credential that
was necessary for her to visit customers’ homes, thus making her return to
work impossible, that could support a determination she voluntarily quit
when work was available. (EDD Regulations, § 1253(c)-1, subd. (f ) [“To be
considered available [for work] under Section 1253(c) of the Code,” which is a
threshold requirement of eligibility for unemployment insurance benefits, “a
Claimant must keep current all licenses, certificates, and memberships
necessary for him or her to be legally employed in his or her usual occupation
or profession”]; cf. EDD Regulations, § 1256-1, subd. (f ), example 3
[employee’s refusal to join union and pay union dues as required by terms of
collective bargaining agreement is a constructive voluntary quit because, by
forcing the employer to terminate the employment relationship, it set in
motion the events leading to the employee’s job loss].) Mari Lynn Johnson
attempted to invite such a finding with her testimony raising the issue of
“licensing” at the ALJ hearing. There, she testified that Johar had failed to
provide complete information in support of a pending CSLB “license”
application and that, as a result, Johar would have been ineligible to work




                                       28
even if she had announced her readiness to resume her sales duties after
returning from Chicago.
      Neither the ALJ nor the CUIAB found any significance to this
testimony. Nor did they find significance to Mari Lynn Johnson’s reference
in her October 30 email to a Costco policy requiring “all consultants to be
finger printed and licensed,” or to the ambiguous remark at the end of that
email, “You do not qualify.” And they were correct not to rely upon any of it.
The allusions Mari Lynn Johnson made to “licens[ing]” and “finger print[ing]”
in her October 30 email, as vaguely stated in that email, and as clarified in
her later testimony, were untethered to Johar’s knowledge and
understanding of those matters. Because nothing in the administrative
record shows or can be read to support a reasonable inference that Johar had
knowledge her CSLB application was incomplete, this evidence lacked any
evidentiary foundation that might have made it relevant to the issue of
Johar’s eligibility under section 1256 for unemployment benefits.12
      To prove volitional conduct by Johar that made her return to work
impossible, thus warranting an inference of a voluntary quit because she set
in motion a series of events that blocked her from resuming her duties, SWS

      12The new evidence Johar proffered to the CUIAB included proof that
(1) SWS submitted Johar’s home improvement salesperson registration
application to the CSLB for her in early October 2019, and (2) after receipt of
such applications, the CSLB typically sends an acknowledgement notice
informing the applicant a set of fingerprints must be provided to the CSLB
within 90 days. To lay a foundation that would have made Mari Lynn
Johnson’s suggestion that Johar failed to provide information necessary to
complete her CSLB “license” application relevant, SWS would have had to
prove that it passed on to Johar the CSLB’s acknowledgment notice or that it
advised her of the pending need for more information. The only evidence
bearing on this issue, which may be found in Johar’s testimony, was that
SWS did not tell her there was any deficiency in her CSLB “licensing”
application.


                                      29
had to demonstrate some degree of fault on her part prior to November 4.
That was the crucial timeframe during which Johar’s intent was in issue.
The eventual voiding of the CSLB application months later—confirmed by a
notice dated February 7, 2020, after Johar had applied for unemployment
benefits—was irrelevant unless SWS could prove Johar knew or should have
known prior to November 4, 2019, that the CSLB was bound to reject her
application if she did not take corrective steps to cure defects in it. Having
raised the “licensing” issue in the ALJ hearing, SWS had a full opportunity
and every incentive to present such evidence, but it failed to do so.
      6. The New Evidence Proffered by the Hastings Clinic Was
         Not Pivotal
      Even though, on the existing administrative record, the “licensing”
evidence was irrelevant to the question whether Johar voluntarily quit when
work was available, the Hastings Clinic, spotting an opportunity to turn the
issue in Johar’s favor, tried to make it relevant. Following the ALJ’s adverse
decision against Johar, the Clinic investigated the “license” issue and
discovered some new evidence, which it proffered in support of Johar’s
CUIAB appeal. If the new evidence were credited, it would certainly cast
fresh doubt on the credibility of both Johnsons. According to the Clinic, the
new evidence suggests that SWS sabotaged Johar’s CSLB “license”
application by altering the address listed on it so that any requests for follow-
up information from the CSLB would never reach Johar. In effect, the Clinic
argued, SWS set Johar up for the inevitable voiding of her “license”
application by CSLB, and thus manufactured a reason to claim she was
“disqualified” from working even if she did wish to return to work.
      This issue drove the result in the trial court. The court focused
exclusively on the CUIAB’s refusal to consider the Clinic’s new evidence and
resolved Johar’s mandamus petition by vacating the CUIAB’s decisions and


                                       30
remanding the case for further factfinding under Land v. California
Unemployment Insurance Appeals Board, supra, 54 Cal.App.5th 127. That
gave Johar a narrow procedural victory—vacatur of the CUIAB’s merits,
reimbursement and penalty decisions, entry of a judgment of dismissal, and
remand for reconsideration—but one that left her eligibility for
unemployment benefits unaddressed. Here on appeal, in defense of the trial
court’s judgment of dismissal, the CUIAB and the EDD argue solely that the
trial court had broad discretion to handle the matter in this way, and that
since vacatur was within the range of reasonable choices a trial court was
empowered to make, we should affirm and allow the matter to play out in
further administrative proceedings. The CUIAB and the EDD do not address
Johar’s argument that she was entitled to mandamus relief on the merits as
a matter of law.
      With Johar, we see no need for further administrative proceedings.
The additional evidence that the CUIAB has been directed to consider raises
a host of credibility and other issues relating to her CSLB credentialing
status, but we resolve this appeal on grounds that do not require
consideration of those questions. The Clinic’s new evidence is not pivotal in
the same way the newly developed evidence in Land was to the benefits claim
there. (Land, supra, 54 Cal.App.5th at p. 144.) In Land, the new evidence
showed that the chronology of events underlying the section 1256 ineligibility
determination could not have happened. (Land, pp. 143–145.) What we have
here, while certainly relevant—is not so singularly dispositive.13 To resolve
this appeal on the merits, we need not decide whether, contrary to the
testimony from Mari Lynn and Carol Johnson, Johar’s departure from SWS


      13 Johar’s February 28, 2022 request that we take judicial notice of a
trial court order on remand in the Land proceedings is denied.


                                      31
was a de facto termination. We simply hold that, on the existing
administrative record, the evidence is insufficient to overcome the
presumption against a voluntary quit. In the end, the murkiness of the
record calls for a reversal, not a remand for more factfinding when SWS
failed to bear its burden of overcoming the section 1256 presumption favoring
Johar the first time around. The governing statutory scheme places a
priority on expedition, and that priority is no less important in mandate
proceedings at the end of the administrative process.14
      7. Johar Is Entitled to 10 Percent Prejudgment Interest on
         the Unemployment Compensation Benefits That Were
         Erroneously Denied to Her
      When a court holds that unemployment benefits were erroneously
denied, the appropriate remedy generally is a writ of mandate compelling the
EDD to award the wrongfully withheld benefits, plus 10 percent interest
calculated from dates the payments were due. (Robles v. Employment
Development Dept. (2012) 207 Cal.App.4th 1029, 1036; Robles v. Employment
Development Dept. (2015) 236 Cal.App.4th 530, 547, 549; Brown, supra,
20 Cal.App.5th at pp. 1114–1115.) That is the remedy we will order in this
case. As we explained in Brown, “Prejudgment interest is awardable in a
mandamus action involving the improper denial of unemployment benefits
‘because the requirements for the additional award of interest are met once
the court determines the [CUIAB] wrongfully denied benefits.’ ” (Brown, at



      14Having concluded the CUIAB’s affirmance of the EDD’s ineligibility
determination was in error, we need not address any of the remaining
grounds for reversal of the judgment that Johar advances. Nor is there any
need to address whether the CUIAB erred in upholding the EDD’s
reimbursement or penalty orders, since those orders depend on and thus
must fall with the CUIAB’s erroneous ruling that Johar is not eligible for
unemployment benefits under section 1256.


                                      32
p. 1115; see Civ. Code § 3287, subd. (a).) Under the Robles and Brown line of
cases, Johar is entitled to an award of 10 percent prejudgment interest on the
benefits which she would have received had the EDD correctly overruled
SWS’s protest of her unemployment insurance claim.
                           III. DISPOSITION
      We reverse the judgment. On remand, the trial court shall calculate
the amount of the benefits Johar would have been entitled to receive had the
EDD not erroneously ruled that she is disqualified from receiving benefits
under section 1256 (Robles v. Employment Development Dept., supra,
236 Cal.App.4th at pp. 547, 549), plus prejudgment interest on that amount
(Brown, supra, 20 Cal.App.5th at pp. 1114–1115). A new judgment shall then
be entered granting the requested writ relief. The writ shall (1) direct the
CUIAB to vacate its decisions in case Nos. AO-442067, AO-442068 and
AO-442069, and (2) direct the EDD to pay Johar the amount of benefits she
was erroneously denied, plus prejudgment interest thereon. Costs on appeal
are awarded to Johar.

                                                    STREETER, J.

WE CONCUR:

POLLAK, P. J.
BROWN, J.




                                      33
Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Michael M. Markman

Counsel:     Garfinkle Law Office, Gary S. Garfinkle and Maria J. Garfinkle,
               for Plaintiff and Appellant.

             Rob Bonta, Attorney General, Cheryl L. Feiner, Senior
               Assistant Attorney General, Gregory D. Brown,
               Jennifer G. Perkell, Supervising Deputy Attorneys General,
               Julia A. Clayton, Ricardo Enriquez, Deputy Attorneys
               General, for Respondents.