The opinion
Filed 11/16/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
JUSTIN LAND,
Petitioner and Appellant,
A164994
v.
CALIFORNIA UNEMPLOYMENT (Alameda County
INSURANCE APPEALS BOARD et Super. Ct. No.
al, RG16825540)
Respondents.
ORDER DISMISSING APPEAL AS MOOT
Appellant Justin Land has been paid all the unemployment insurance
benefits and interest thereon he sought through this administrative
mandamus proceeding. Accordingly, respondents California Unemployment
Insurance Appeals Board (Board) and Employment Development Department
(Department) urge us to dismiss his appeal as moot. (See Parkfield Owners
for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714, 722
[“ ‘When events render a case moot, the court, whether trial or appellate,
should generally dismiss it.’ ”].) Land concedes his appeal is moot but asks
that we exercise our discretion to decide his appeal on the merits. (See St.
John of God Retirement & Care Center v. State Dept. of Health Care Services
(2016) 2 Cal.App.5th 638, 648–649 [“even ‘if an appeal is technically moot,
[when] “there may be a recurrence of the same controversy between the
parties and the parties have fully litigated the issues,” a reviewing court may
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in its discretion reach the merits of the appeal’ ”], quoting City of Hollister v.
Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 480].)
We agree the appeal is moot and shall dismiss it for the reasons
explained below. We are publishing our dismissal order to provide some
guidance should the unique procedural circumstances of this case ever arise
again. (See Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th
1174, 1176 [granting motion to dismiss appeal on ground settlement rendered
appeal moot].)
In Land v. California Unemployment Ins. Appeals Bd. (2020)
54 Cal.App.5th 127, 146 (Land I), we concluded the Board abused its
discretion in declining to consider new evidence Land proffered in support of
his administrative appeal of an administrative law judge’s (ALJ’s) decision
denying him unemployment insurance benefits. (Id. at pp. 144–146.) We
therefore reversed the trial court’s judgment denying Land’s petition for a
writ of administrative mandamus and remanded with instructions that the
Board reconsider Land’s claim taking into account the new evidence. (Id. at
p. 146.)
The superior court issued both a writ directing reconsideration of
Land’s claim and an order retaining jurisdiction to ensure full compliance
with the writ. At Land’s request, the trial court issued a further order
clarifying the full scope of its retained jurisdiction. In the course of
discussing the extent of its jurisdiction, the court rejected the Department’s
argument that since the matter had been remanded for reconsideration of
Land’s claim, any judicial challenge to a new decision by the Board would
need to be made by way of an entirely new administrative mandamus
proceeding.
2
On remand, the ALJ ruled Land was entitled to benefits, and the
Department promptly paid the benefits owing.
Land, in turn, partially appealed the new decision to the Board on the
ground the ALJ had failed to award interest. The Board ruled that under
American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996)
13 Cal.4th 1017 (AFL), neither it nor the ALJ had independent authority
under the governing statutory framework to award interest; rather interest
must be awarded by a trial or appellate court in connection with a successful
mandamus proceeding (such as the proceeding Land filed). 1
1 In AFL, the Supreme Court explained that Civil Code section 3287,
subdivision (a) empowers the courts to award prejudgment interest, but not
the Board. At the outset of its opinion, the court identified the specific issue
before it as “whether an administrative law judge may award interest on a
payment of retroactive unemployment insurance benefits.” (AFL, supra,
13 Cal.4th at pp. 1021–1022.) It then summarized its answer, stating
“[a]dministrative law judges, acting on behalf of the Unemployment Insur-
ance Appeals Board (the Board), sit by authority granted under Unemploy-
ment Insurance Code section 100 et seq. The code limits these judges to re-
viewing the action of the Employment Development Department (EDD) in its
ministerial determination of unemployment benefit eligibility. (Unemp. Ins.
Code, § 1334.) Nowhere does the Unemployment Insurance Code grant the
administrative law judges, or the Board, the express authority to award in-
terest on an administrative benefit award. By contrast, pursuant to Civil
Code section 3287, subdivision (a) (§ 3287(a)), courts have awarded prejudg-
ment interest on a trial court judgment following a successful administrative
mandamus action to recover wrongfully withheld benefits.” (AFL, at
pp. 1021–1022.)
Land points out two justices dissented. However, the high court has
never overruled, or even called into question, its holding in AFL. (See, e.g.,
Skidgel v. California Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 12
[quoting AFL in stating California’s unemployment insurance program “ ‘is
part of a national system of reserves designed to provide [benefits] for work-
ers “unemployed through no fault of their own, and to reduce involuntary un-
employment and the suffering caused thereby to a minimum” ’ ”]; see also
3
The Department then made a Code of Civil Procedure section 998 offer
in the instant, still pending writ proceeding to pay Land the interest he
sought, although it continued to take the position Land was required to
initiate a new administrative mandamus proceeding in order to challenge the
Board’s denial of his partial administrative appeal. The Department did not
dispute that Land was entitled to interest but asserted, under AFL, the
directive for interest had to come from the court. The Department now took
the position a “second writ” was “wholly unnecessary,” stating Land did not,
and could not, “explain why he sought interest from the ALJ and then the
Board, when this court [i.e., the trial court] clearly retained jurisdiction to
rule on the original writ petition, including on the question of interest.” The
trial court denied Land’s motion for a supplemental writ and awarded
interest directly, pursuant to AFL and Brown v. California Unemployment
Ins. Appeals Bd. (2018) 20 Cal.App.5th 1107 (Brown). 2 The Department
promptly paid the awarded interest. With this recitation of the pertinent
procedural history, we return to the issue of mootness and explain why we
decline to exercise our discretion to retain appellate jurisdiction.
First, the procedural posture of this case is highly unusual. In Land I,
we did not decide that Land was, in fact, entitled to benefits. (Compare, e.g.,
Currie v. Workers’ Comp. Appeals Bd. (2001) 24 Cal.4th 1109, 1117–1118 [dis-
tinguishing AFL and concluding “wrongful withholding” determination not a
predicate for interest on worker’s compensation award; “[b]ecause the WCAB
is expressly authorized to award ‘reimbursement for lost wages’ under Labor
Code section 132a, and because the inclusion of prejudgment interest in such
a backpay award is mandated by Civil Code section 3287, inclusion of interest
in the backpay award does not violate the principle that an administrative
agency cannot create a remedy the Legislature has withheld”].)
2 Brown addresses the calculation of interest owed under AFL and held
the applicable rate is that pertaining to contract cases (10 percent). (Brown,
supra, 20 Cal.App.5th at pp. 1117–1118.)
4
Brown, supra, 20 Cal.App.5th at p. 1112 [trial court found claimant was
entitled to benefits and “issued a peremptory writ of administrative mandate
commanding EDD and the Board to ‘immediately’ award [him] ‘the
unemployment insurance benefits that were withheld in the administrative
proceedings in this matter plus interest on those benefits’ (Writ)”].) Rather,
we concluded the Board abused its discretion in declining to consider new
evidence and directed administrative reconsideration of Land’s claim. Thus,
while we concluded the Board had “wrongfully” withheld benefits (the
threshold requirement under AFL for an award of interest to a successful
claimant), we did not conclude that Land was, in fact, entitled to benefits and
therefore entitled to interest under AFL and Brown. Thus, in their briefing
in the trial court, respondents noted “the unique [procedural] circumstances
of the case,” and in its order denying Land’s request for a supplemental writ,
the trial court similarly observed “[t]he situation here is undoubtedly
unusual in that the Court of Appeal reversal was procedural, putting Land in
front of the Board a second time.” Moreover, the “procedural” error arose
from an evidentiary ruling reviewed under the liberal abuse of discretion
standard. 3 (See Land I, supra, 54 Cal.App.5th at pp. 144–145.) Thus, we are
not persuaded this case presents an issue of widespread significance.
Second, the record discloses that once Land was awarded benefits, the
Department never disputed that he was entitled to interest under AFL and
Brown, and once Land invoked the retained jurisdiction of the trial court, the
Department did not dispute that the court could, and should, award interest,
3 In our opinion we specifically acknowledged “it is only in a very unu-
sual case that we will conclude the Appeals Board abused its discretion in
failing to consider new evidence” and we did so in the instant case because
the evidence “was pivotal to the ALJ’s decision and to the Appeals Board's
reasoning for upholding it.” (Land I, supra, 54 Cal.App.5th at p. 144.)
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and once the trial court awarded interest to Land, the Department promptly
paid it. In short, the record does not reflect any recalcitrance on the part of
respondents in acknowledging entitlement to, and making prompt payment
of, interest awarded in accordance with AFL and Brown.
Third, there was no need for this mandamus action to give rise to the
instant epilogue of litigation. On remand following our decision in Land I,
Land appropriately asked the trial court to both set a date for respondents to
file a return and retain jurisdiction to ensure full compliance with the writ by
respondents. As the Department acknowledged in opposing Land’s motion
for a supplemental writ compelling the Board to award interest, this
expansive reservation of jurisdiction empowered the trial court to order
interest in accordance with AFL and Brown if Land prevailed on
reconsideration of his claim. 4 Land complains that forcing claimants, like
himself, to return to the trial court to secure interest is unduly burdensome
and further prolongs the excessive delay endemic in the unemployment
insurance administrative arena. However, given that trial courts can readily
be asked to retain jurisdiction in administrative mandamus proceedings, as
Land did here, we do not consider the filing of a simple motion for interest to
be an undue burden. Indeed, given that the respondents may well
acknowledge a successful claimant’s entitlement to interest from the court, as
they did here, it could well be that all that would be required is a stipulation
and order.
4 The Department’s initial position in the trial court—that the court
should not retain jurisdiction to ensure full compliance with the writ—was
not well taken, and the Department wisely abandoned that position when it
ultimately acknowledged that the court, having retained jurisdiction, could
and should award interest to Land pursuant to AFL and Brown.
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ORDER
The appeal is DISMISSED as moot. Parties to bear their own costs.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Getty, J.*
*Judge of the Solano County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A164994, Land v. California Unemployment Ins. Appeals Bd
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Trial Court: Alameda County Superior Court
Trial Judge: Hon. Stephen D. Kaus
Counsel:
Garfinkle Law Office, Gary S. Garfinkle and Maria J. Garfinkle for Petitioner
and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown, Jennifer G. Perkell and Dane C. Barca, Deputy Attorneys
General, for Respondents.
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