Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Los Angeles County Super. Ct. No. BS111015
John Arthur Renshaw, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Ismail Castro, Supervising Deputy Attorney General, and Roy S. Liebman, Deputy Attorney General, for Defendants and Respondents California Unemployment Insurance Appeals Board and Employment Development Department.
WILLHITE, J.
INTRODUCTION
Appellant Charles Arthur Renshaw, who appears in pro. per., appeals from the denial of his petition for writ of mandate requesting that a decision of the California Unemployment Insurance Appeals Board (CUIAB) be set aside. The CUIAB had dismissed his appeal seeking to prevent the Employment Development Department (EDD) from recovering $8,580 from appellant for an overpayment of unemployment benefits. The trial court denied the petition for writ of mandate on several independent grounds. It held that the petition was barred (1) under res judicata principles by a substantially identical petition for writ of mandate that previously had been dismissed; (2) by the six-month statute of limitations for challenging CUIAB decisions; and (3) by appellant’s failure to exhaust administrative procedures. We affirm on the ground that the petition for writ of mandate is barred by the statute of limitations, and thus we need not address the correctness of the trial court’s rulings on the alternative grounds.
FACTUAL AND PROCEDURAL BACKGROUND
Alleged EDD Overpayment to Appellant
After being laid off from his position with his employer in 2001, appellant received unemployment benefits for a period of time. On May 1, 2003, the EDD notified appellant that his claim for continuing benefits was invalid because he had not earned sufficient wages in the relevant base period to qualify for benefits. The EDD also sent him a letter noting a “possible overpayment” of $8,580, and requesting that he “submit a detailed personal financial statement as a condition for his receiving full or partial waiver of liability for the overpayment.” Appellant did not submit the form and instead filed an appeal with the CUIAB.
The EDD is entitled to recover overpayments of unemployment benefits unless “[t]he overpayment was not due to fraud, misrepresentation or willful nondisclosure on the part of the recipient, and... the overpayment was received without fault on the part of the recipient, and its recovery would be against equity and good conscience.” (Unemp. Ins. Code, § 1375, subd. (a)(1).)
CUIAB Proceedings
In appellant’s written submission to the CUIAB, he challenged the fairness of any attempt to collect the amount that had been overpaid to him, given his financial condition and inability to find work and because he had already spent the benefits under the good faith belief that the benefits had been correctly paid to him. The CUIAB construed appellant’s appeal as challenging whether the EDD had correctly paid him the benefits in question, and notified appellant that his appeal would be heard on June 4, 2003.
Appellant failed to appear at the hearing. The presiding administrative law judge dismissed his appeal, citing regulations which permit the dismissal of an appeal concerning unemployment benefits when “the appellant or petitioner fails to appear in the hearing on the appeal or petition.” (Cal. Code Regs., tit. 22, § 5066, subd. (h).) Appellant moved to re-open the proceeding, explaining that he had not appeared at the hearing because he had already presented his arguments in writing, and thus believed it was unnecessary for him to appear in person. The administrative law judge denied the motion to re-open, finding that appellant’s stated reason for his non-appearance – that he did not realize he had to make an appearance at the hearing – did not establish good cause for reopening the proceeding.
Appellant further appealed the denial of his application to reopen the appeal to the Board Panel Members of the CUIAB. The Board Panel affirmed the administrative law judge’s decision on September 16, 2003.
Appellant then timely filed a petition for writ of mandate on March 5, 2004 pursuant to Code of Civil Procedure section 1094.5, seeking to set aside the CUIAB’s dismissal of his appeal. The transcript of the May 13, 2004 hearing in that proceeding reflects the court’s determination that it would “deny the writ of mandate at this point” because (1) appellant had sued the wrong agency (naming the EDD when he should have sued the CUIAB) and (2) appellant had not submitted a record of the proceedings before the CUIAB. The court advised appellant that he “obviously can refile” in order to sue the correct agency. The court then issued a judgment on June 21, 2004 denying the petition for writ of mandate and entering judgment in favor of the respondent EDD. Appellant did not appeal that decision.
On September 17, 2007, appellant filed another petition for writ of mandate, the basis for the instant appeal. This petition named both the CUIAB and the EDD as respondents, but challenged the same 2003 dismissal by the CUIAB of appellant’s appeal relating to the overpayment of unemployment benefits. The petition also describes appellant’s series of significant health issues that first arose in June 2004 and that have rendered him disabled, and further recounts that appellant continues to receive monthly statements from the EDD pressing for reimbursement of the $8,580 overpayment.
Respondents filed a motion for judgment on the pleadings noticed for a hearing on October 21, 2008. They contended that the new petition for writ of mandate was barred by the six-month statute of limitations which ran from the September 16, 2003 Board Panel decision denying appellant’s appeal of the denial of his motion to re-open the proceedings before the CUIAB. They also contended that the doctrine of res judicata barred the petition, that appellants had failed to exhaust the appropriate administrative remedy, and that the petition did not state facts sufficient to constitute a cause of action. Upon respondents’ motion, the trial court took judicial notice of the administrative record from appellant’s proceedings before the CUIAB, his earlier petition for writ of mandate, and the trial court’s judgment dismissing that petition.
On October 21, 2008, the trial court issued a tentative decision on respondents’ motion for judgment on the pleadings, noting that appellant had filed no opposition, and dismissing the petition for writ of mandate without leave to amend. The court held a hearing on respondents’ motion on October 21, 2008; however, because on appeal appellant has elected to proceed without a record of the oral proceeding in the trial court, we do not know what arguments in opposition to that motion, if any, appellant presented at the hearing.
Appellant apparently served and filed an opposition to the motion for judgment on the pleadings and additional papers on October 20, 2008, well past the deadline for filing an opposition.
The court ultimately adopted its tentative ruling as its final decision, and in the judgment further summarized the grounds for dismissing the petition for writ of mandate as follows: (1) the final judgment entered on June 21, 2004 on appellant’s previous writ petition precluded the instant action; (2) the action was barred by the six-month statute of limitations in section 410 of the Unemployment Insurance Code; and (3) appellant failed to exhaust the applicable administrative remedy. This timely appeal followed.
DISCUSSION
Standard of Review
“A defendant’s motion for judgment on the pleadings is equivalent to a belated general demurrer to a plaintiff’s complaint and is governed by the same standard of appellate review that applies to such a demurrer.” (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127 (Sprague).) We treat the pleadings as admitting all of the material facts properly pleaded, and may also consider matters subject to judicial notice. (Reddell v. California Coastal Com. (2009) 180 Cal.App.4th 956, 971-972.) An order granting a defendant’s motion for judgment on the pleadings “resolves a mixed question of law and fact that is predominantly one of law, viz., whether or not the factual allegations that the plaintiff makes are sufficient to constitute a cause of action. [Citation.]” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) Accordingly, we review de novo the grant of a judgment on the pleadings. (Sprague, supra, 106 Cal.App.4th at p. 127.)
“‘It is a fundamental rule of appellate review that the judgment appealed from is presumed correct.... An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. “Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are]... waived.” [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]’ [Citation.]” (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799 (Dietz).)
Appellant’s Petition for Writ of Mandate Was Time-Barred
CUIAB’s decisions must be appealed to the superior court “not later than six months after the date of the decision of the appeals board.” (Unemp. Ins. Code, § 410; see Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1502-1503.) In appellant’s case, that six-month period began to run on September 16, 2003, the date the Board Panel affirmed the administrative law judge’s denial of appellant’s motion to reopen his appeal. Appellant’s petition for writ of mandate, filed on September 17, 2007, was filed well after this period had expired and is barred by the statute of limitations.
Appellant contends on appeal that the statute of limitations should be waived in “light of the circumstances,” including his serious health problems and because he contends that the petition he filed in September 2007 is essentially a continuation of the proceedings initiated by appellant’s original 2004 petition for writ of mandate. Appellant failed to raise these arguments in a timely fashion in opposition to respondents’ motion for judgment, however, and thus forfeited them. (Junkin v. Golden West Foreclosure Service, Inc. (2010) 180 Cal.App.4th 1150, 1158.) We note that, in any event, the fact that appellant’s original petition was dismissed in 2004 forecloses any argument that the statute of limitations was tolled by the filing of that petition. (See Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83, 89 [“Plaintiff’s unsuccessful attempt to amend the complaint in a nonexisting suit, without trying to restore the action by moving to set aside his prior dismissal, was a nonevent that did not toll the statute [of limitations]”].) We agree with the trial court that the petition filed in September 2007 was barred by the statute of limitations and properly dismissed on that ground.
Appellant also raises a number of ancillary requests and complaints, many related to the alleged misconduct of the Attorney General’s Office. Because these issues were raised for the first time on appeal, we do not address them. (Dietz, supra, 177 Cal.App.4th at p. 799 [appellate court generally cannot consider issues raised for the first time on appeal].)
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
We concur: EPSTEIN, P. J. SUZUKAWA, J.