Robles v. Employment Development Department

Filed 5/4/15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

JOSE ROBLES,
Plaintiff and Respondent,
A139774
v.
EMPLOYMENT DEVELOPMENT (Alameda County
DEPARTMENT, Super. Ct. No. RG10553752)
Defendant and Appellant.

This controversy—which involves the wrongful denial of unemployment
compensation benefits—began in January 2010 because of a pair of shoes. More than
five years later, appellant Employment Development Department (EDD or the
Department) continues to refuse to award Jose Robles (Robles) the benefits to which he
would have been entitled absent the Department’s error, this despite being ordered to do
so twice by the trial court and once by this court. (See Robles v. Employment
Development Dept. (2012) 207 Cal.App.4th 1029 (Robles I).) Most recently, in response
to Robles’s motion to enforce writ of administrative mandate, the trial court in August
2013 ordered EDD “to pay withheld federal extension benefits, costs and interest in the
amount of $45,560.39, within 30 days.” Instead, the Department appeals, arguing that
Robles is not entitled to benefits for weeks in which he did not certify that he was able,
available, and actively looking for work in accordance with EDD’s current regulatory
scheme. Thus, EDD asserts, the trial court’s order is at odds with both federal and state
law. The Department, unfortunately, has shown itself repeatedly unable to see the forest
in this matter, instead focusing doggedly on the bureaucratic trees. Having reviewed in

1
some detail EDD’s response to the directives of both courts involved in this matter, we
see no error in the trial court’s order and therefore affirm.
I. BACKGROUND
We take the following preliminary factual background from our previous decision
in Robles I, supra, 207 Cal.App.4th at pp. 1032-1034:
A. Underlying Facts Pertaining to This Case
Jose Robles testified without contradiction to the following at the hearing before
an administrative law judge (ALJ) of [] California Unemployment Insurance Appeals
Board (Board): He worked as a service technician for Liquid Environmental Solutions
for four years until his termination on January 5, 2010. His job was to collect food grease
from restaurants and other food outlets. His pay was $20.75 an hour.
Robles’s supervisor called him on that last day for a meeting and told him he was
suspended because of “the incident.” The incident related to Robles’s attempt to buy
shoes for a friend in need at the Red Wing Shoes store, where company employees buy
workshoes for the job every year with a $150 shoe allowance. Robles asked the clerk if
she would measure his friend’s foot because he “intended to give it to my friend” who
needed shoes. Robles reasoned that he had a good pair of shoes and his friend needed
them more than he did. The clerk told Robles “that was not possible.”
Robles explained that he did not have any “malintention [sic] of anything.” He
knew the allowance was for him, but he could afford to give it to a friend in need and the
company would not be jeopardized because he had other shoes. His intent was to
perform a noble gesture for a friend. In his view there was a misunderstanding of
company policy but no misconduct. He “attempted to do it and then I was told I cannot
do it, . . . let it go.”
B. EDD Denial of Benefits
Robles applied to [EDD] for unemployment benefits. The EDD’s “Record of
Claim Status Interview Misconduct” reflects no employer information about the incident;
indeed, the EDD investigator did not speak with the employer and indicated a message
was left for the employer to call within a certain timeframe, but the employer did not

2
return the call. The document reflects that Robles was terminated for violating a
company policy. It relates that Robles attempted to buy safety shoes for a friend at
company expense. Robles said he did not get the shoes, and the company did not know
the shoes were for a friend. According to the document, Robles was aware of the
company policy and that the purchase was for employees only. There were no prior
warnings. The record concludes that Robles willfully disregarded his employer’s
interests.
The EDD’s notice of determination states that Robles’s claim for unemployment
benefits was denied because he “broke a reasonable employer rule.” After considering
the available information, the EDD concluded Robles did not meet the qualifications for
benefits.
C. Appeals
Robles appealed the EDD’s determination, denying that he broke a reasonable
employer rule and stating his employer did not cite any specific rule that was broken and
he was not aware of any such rule. Further, Robles protested that he was not provided
with the unspecified “available information” mentioned in the EDD’s decision, and such
information had not been disclosed to him. Finally, Robles attested that he did not obtain
an improper benefit or cause any harm to his employer.
Robles was permitted to view the file, for the first time, just prior to the hearing
before the ALJ. Over Robles’s1 objection, the ALJ admitted the record of claim from the
EDD file. Thereafter, Robles testified as summarized above. Robles also submitted a
copy of his handwritten statement which his supervisor requested. Robles explained the
following: “I asked the lady to have my friend’s foot be measured for I had intended to
give to him. He had a recent home accident and needed safety shoes. I honestly believed
I can do the noble gesture and not jeopardize my own safety. I had a reserve pair of
shoes at home and fully confident I would be wearing one in good condition for another

1
Robles started to explain his objection to the characterization in the investigator’s report
to the effect that claimant stated he was aware “that the purchase had to be for employees
only.” The ALJ said he would have a chance later to “tell me more about it.”

3
year or more. [¶] After understanding the limits of what I can do with my entitlement of
annual shoe allowance or privilege, I deeply regret what I attempted to undertake and
firmly swear would not do it again.”
Nonetheless, the supervisor suspended Robles on January 5, 2010. He received a
final paycheck with no further explanation, effectively terminating him as of that date.
The ALJ found that Robles was discharged for misconduct connected with work.
In particular, Robles understood that the employer intended that its employees use the
annual shoe allowance to purchase shoes. Robles breached “a duty of good faith and fair
dealing when he attempted to obtain shoes for a friend who was not an employee rather
than using the allowance for himself. [¶] The claimant may have had good intentions
toward his friend, but in his actions he breached a serious obligation he had to the
employer.”
Robles appealed to a panel of the Board, which reviewed the record and issued a
decision adopting as its own the ALJ’s issue statement, findings of fact and reasons for
decision. The decision also noted that an employee’s misappropriation of employer
property is conclusive evidence of misconduct and that here, the claimant was not
allowed to use the shoe allowance for his friend because the clerk did not permit the sale.
D. Mandate Proceeding
Finally, Robles petitioned for a writ of administrative mandate [(Petition)].
Counsel requested a statement of decision which the court denied. The trial court denied
the [P]etition, concluding that the administrative findings were supported by the weight
of the evidence. [An] appeal followed entry of judgment.”
[We end our quotation from Robles I.]
E. Our Decision in Robles I
On June 22, 2012, we issued our opinion in Robles I, holding that Robles’s
conduct in this case—which evinced at most a good faith error in judgment—was
insufficient as a matter of law to support a finding of misconduct within the meaning of
section 1256 of the Unemployment Insurance Code (section 1256). (Robles I, supra, 207
Cal.App.4th at pp. 1031, 1034-1036.) Pursuant to that statute, “[a]n individual is

4
disqualified for unemployment compensation benefits if the director finds that he or she
. . . has been discharged for misconduct connected with his or her most recent work.”
(Unemp. Ins. Code, § 1256.)2 After reviewing relevant precedent, we concluded that
employee behavior constitutes misconduct for purposes of section 1256 only if it
somehow demonstrates culpability or bad faith—i.e., a willful or wanton disregard of an
employer’s interests. (Robles I, supra, 207 Cal.App.4th at pp. 1034-1035.) Here, in
contrast: “Robles knew that the employer intended its employees to use the shoe
allowance to purchase safety shoes for work, but the element of culpable intent has not
been established. First, Robles did not try to hide anything when he went to the
shoestore. Next, it is undisputed that he wanted to help his friend who had a recent home
accident. Further, Robles had decent safety shoes and did not feel he would jeopardize
the safety purpose of the allowance or otherwise injure his employer’s interests. When
his supervisor indicated the employer did not approve of the intended use, Robles
registered his regret and assured the supervisor he would comply. And finally, Robles
did not use the shoe allowance for his friend. At most Robles was guilty of a good faith
error in judgment. At the least Robles misunderstood the limits of what he could do with
the safety shoe allowance, which he was entitled to as a benefit of employment.” (Id. at
p. 1036.) Thus, his behavior did not qualify as misconduct for purposes of section 1256.
(Id. at p. 1031.)
Moreover, we noted that section 1256 provides that “[a]n individual is presumed
to have been discharged for reasons other than misconduct in connection with his or her
work . . . unless his or her employer has given written notice to the contrary to the
[Department] . . . , setting forth facts sufficient to overcome the presumption” (italics
added). In this case, no evidence was submitted by Robles’s employer to rebut the
statutory presumption. Thus, the Department’s finding of misconduct was erroneous on
this additional ground as well. (Robles I, supra, 207 Cal.App.4th at p. 1036.) Because
misconduct under section 1256 could not be established, we concluded that Robles had

2
All statutory references are to the Unemployment Insurance Code unless otherwise
specified.

5
been improperly disqualified from receiving unemployment insurance benefits. We
therefore reversed the trial court’s judgment and directed it to issue a writ of mandate
ordering EDD and the Board “to award Robles the unemployment insurance benefits
withheld plus interest on those benefits under Civil Code section 3287, subdivision (a).”
(Ibid.)
Shortly after we issued our unpublished opinion, we received several requests for
publication, including one from Robles’s attorney, Gary S. Garfinkle (Garfinkle) and one
from the Legal Aid Society-Employment Law Center (Legal Aid).3 As EDD admits,
Garfinkle’s request for publication referenced a July 1, 2012, newspaper article from the
San Francisco Chronicle which discussed our decision. Further, the article was reprinted
in full as an exhibit to Legal Aid’s publication request. Among other things, the article
indicates that Robles ran out of money after losing his job and “has returned to the
Philippines, where he lives with his 95-year-old father.” On July 16, 2012, we issued an
order granting publication of Robles I.
F. Further Proceedings in the Trial Court and Before the Board
After our remittitur issued, the trial court, on September 25, 2012, vacated its
previous order and judgment denying Robles’s Petition and issued a peremptory writ of
administrative mandamus (Writ) and related order granting the writ (Order). In
accordance with our decision in Robles I, the Writ commanded both EDD and the Board
to: (1) set aside their previous administrative decisions with respect to Robles’s claim for
unemployment insurance benefits; (2) comply with the standards set forth in Robles I “for
determining whether ‘misconduct’ within the meaning of Unemployment Insurance Code
section 1256 has occurred which warrants denial of the fundamental vested right to
unemployment insurance benefits;” (3) award to Robles “the unemployment insurance
benefits that were withheld beginning January 5, 2010 and including extensions under
state and federal law, plus interest on those benefits under Civil Code section 3287,
subdivision (a)”; and (4) file a return before November 15, 2012, stating what they had

3
On our own motion, we take judicial notice of this court’s record in Robles I. (Evid.
Code, §§ 452, subd. (d) & 459.)

6
done to comply with the Writ. Moreover, in its related Order, the trial court expressly
retained jurisdiction “to fully resolve this matter, including but not limited to review of
[EDD and the Board’s] award of benefits and interest and return to the writ; enforcement
of the writ; and consideration of [Robles’s] applications for attorney fees and other
costs.” The Writ and the Order—which were drafted by Garfinkle—were approved by
Deputy Attorney General Cheryl Feiner (DAG Feiner) on behalf of EDD and the Board
prior to their uncontested issuance by the trial court.
Several days later, the Board issued a new decision, setting aside its prior
determination in accordance with the terms of the Writ. Specifically, the Board
concluded that “[t]he claimant is not disqualified from receiving unemployment
insurance benefits under section 1256 of the Unemployment Insurance Code.
Unemployment insurance benefits that were withheld are payable, plus interest on those
benefits pursuant to California Civil Code section 3287.”
G. EDD’s Efforts to Comply with the Writ of Mandate
While our remittitur was pending, Garfinkle had contacted DAG Feiner to discuss
how to handle payment of the unemployment benefits owed to Robles. Specifically,
Garfinkle inquired: “So we may proceed expeditiously on remand, please advise what
the full amount of unemployment benefits are that would have been available to a person
who was terminated January 5, 2010. Please include all extensions of unemployment
benefits by acts of Congress or the Legislature.” DAG Feiner responded that “[t]his is
not how the reimbursement process will be handled.” Rather, she stated: “Upon issuance
of the Board’s amended decision, EDD will calculate the benefits due and proceed with
payment. At this point, neither my client or I can provide you with a response as to the
full amount of unemployment benefits since that is through EDD . . . you will have to
work directly with EDD, as EDD is the entity responsible for those calculations.”
Thereafter, Garfinkle requested the benefit information from EDD staff attorney
Glenn Jones (Jones), the agency contact provided to him by DAG Feiner. According to
Garfinkle, Jones initially “appeared to indicate that he would arrange for the
calculations.” However, Garfinkle received nothing and—after a second follow up on

7
September 19, 2012, in which Garfinkle indicated that the remittitur had issued and
requested the status of the benefit information—Jones suggested that Garfinkle contact
DAG Feiner “since she represents EDD and [the Board] in this matter.”
Garfinkle immediately informed DAG Feiner that Jones had referred him back to
her, and again requested the unemployment benefit calculations for Robles. DAG Feiner
responded the next day, September 20, as follows: “[A]fter discussion with both EDD
and [Board] staff counsel, you are not entitled to the calculations until they have been
completed in the course of standard processing. EDD cannot calculate the amount owed
to your client until the Superior Court remands it back to [the Board], and then it is
forwarded to EDD” (italics added). As described above, the trial court executed its Writ
and Order a few days later on September 25, 2012. And, the Board almost immediately
issued its new decision on September 27, indicating that the “[u]nemployment insurance
benefits that were withheld are payable, plus interest . . . .”
At this point, DAG Feiner could easily have contacted Garfinkle to work out a
process for expeditiously obtaining any information EDD still needed in order to
promptly pay the benefits that the Department had erroneously withheld from Robles for
over two years. (See Los Angeles Unified School Dist. v. Livingston (1981) 125
Cal.App.3d 942, 947 (Livingston) [noting that the “ ‘very essence’ ” of the
unemployment compensation insurance program “ ‘is its provision for the prompt
payment of benefits to the unemployed’ ” and that “ ‘[a]ny substantial delay would defeat
this purpose and would bring back the very evil sought to be avoided’ ”], quoting
Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 298.) However, she failed to
do so. Instead, this is what happened.
Despite EDD’s counsel arguably having actual notice that Robles no longer lived
there—through the newspaper article described above that was attached to court
documents and which indicated that, after running out of money, Robles had relocated to
the Philippines to live with his father—EDD sent a form notice to Robles at the address
he had provided to the agency while his case was pending before the Board over two
years earlier. This notice, dated October 5, 2012, stated that an EDD debit card was

8
being separately mailed to Robles within five business days so that he could access his
“first electronic benefit payment.” The notice further stated: “You will continue to
certify for your benefits in the same manner as you have been doing.” The address on
file with EDD happened to be that of Robles’s brother, where Robles had lived
temporarily after he became unable to afford his own housing. Thus, Robles received the
October 5 notice from his brother in late October. The referenced debit card never
arrived, however, so Robles contacted EDD, and they forwarded the card to him on
November 2, 2012. Through this process, Robles received a payment of $12,240 from
EDD.
Also in late October, Robles received through his brother an additional notice
from EDD dated October 11, 2012. This notice—denominated “Notice of Determination
for Emergency Unemployment Compensation (EUC)”—indicated that Robles had
qualified for the first federal extension of his unemployment benefits related to his
January 2010 claim. The notice went on to state: “You will be mailed claim forms
which you will have to return to EDD if you would like to collect these benefits. In
order to receive UI benefits on your first federal extension you must continue to
meet all UI eligibility requirements each week. [¶] Benefits are payable only if you
qualify each week and you are able and available to accept work.” The notice further
specified that Robles was entitled to a maximum of $9000 under the first-tier extension
(20 weeks at $450 per week), but also stated that the last date that any first-, second-,
third- or fourth-tier extension could begin was December 23, 2012, and that the last date
benefits could potentially be payable was December 29, 2012, less than three months
from the date of the notice. In short, the October 11 notice was internally inconsistent
and confusing. Although it referenced his January 2010 claim, it seemed to indicate that
Robles would be required to provide current certifications of his eligibility and that he
had an impossibly short timeframe in which to do so.
The October 11 notice also set forth a series of “new” work search and
reemployment eligibility assessment (REA) requirements that must be met in order to

9
obtain federal extension benefits.4 Specifically, with respect to work search efforts, a
claimant was required to: (1) register for work by completing or updating a resume on
EDD’s CALJOBS Web site; (2) continue to look for work each week as instructed by
EDD; (3) contact at least three employers each week; and (4) maintain a detailed report
of these work search contacts, including date applied, company name, company address,
person contacted, type of work sought, and the result of the contact. With respect to the
new REA requirements, the October 11 notice stated that any REA appointment
scheduled by EDD is mandatory and that failure to participate “may result in delay and
potential denial” of benefits. The notice finally declared that the “decision” it detailed
was final unless appealed within 20 days from the date of the notice.
Robles contacted Garfinkle on October 30, 2012, asking for advice regarding the
two notices. The next day, Garfinkle emailed copies of the October 5 and October 11
notices to DAG Feiner, stating: “I learned yesterday that EDD sent the attached notices
to Mr. Robles. Please remind your client that I am the attorney of record and should
receive copies of all communications regarding this matter. [¶] Please explain the
purpose and intent of the attached notices. They appear to treat Mr. Robles as if he must
establish continued eligibility on a weekly basis. Please advise whether this is indeed the
intent. More to the point, please advise how these notices comply with the mandate ‘to
award to Jose Robles the unemployment insurance benefits that were withheld beginning
January 5, 2010 and including extensions under state or federal law, plus interest on those
benefits under Civil Code section 3287, subdivision (a).[’]” DAG Feiner did not reply.
After the trial court’s mandated November 15, 2012, deadline for filing a return to the
Writ had passed, Garfinkle contacted her again, asking about the status of the return and
requesting a response to his October 31 email. DAG Feiner replied that she had
forwarded his requests to her client and that the return would be filed soon.
Garfinkle finally received a substantive response from DAG Feiner on
December 4, 2012. First, despite the fact that Garfinkle represented Robles before the

4
As discussed in detail below, these new obligations were adopted in response to federal
legislation enacted in 2012. (See section II(B), post.)

10
Board and throughout the related judicial proceedings, DAG Feiner explained: “The
reason that you were not sent any notification is because the certifications, eligibility
decisions, and all official correspondence for Mr. Robles are system generated and sent to
the mailing address on record for Mr. Robles. There is no process for forms to be sent
directly to you. However, if Mr. Robles designates in writing that you are his authorized
representative, the EDD can communicate directly with you to respond to questions and
provide information. The written designation is good for 30 days at a time” (italics
added). With respect to the award of benefits to Robles, DAG Feiner stated that Robles
had been paid unemployment benefits at a weekly rate of $450 for the 26 weeks of his
regular unemployment claim and for one week of his first-tier federal extension. These
payments were made because Robles had been submitting timely certifications while his
appeal was pending before the Board that he was able, available, and actively looking for
work.
According to DAG Feiner, certification forms were mailed to Robles for the
remaining 19 weeks of his first-tier federal extension on October 11, 2012, and he was
required to return those forms within 14 days. Since Robles never returned them (a fact
which she found “surprising”), his federal extension claim was deactivated. DAG Feiner
further explained: “If he submits these forms now they will be considered untimely and
he will be scheduled for an eligibility interview to determine if he had good cause for not
returning them within the required 14 days. If the Department disqualifies payment for
the affected 19 weeks, Mr. Robles will need to file another appeal and have the decision
reversed in order to receive payment.” No mention was made regarding benefits under
any additional federal extensions or stimulus augmentations. Rather, DAG Feiner
indicated that if Robles “is still unemployed and wants to start claiming benefits for
current weeks he should contact EDD . . . .”
On December 7, 2012 (over three weeks late), EDD and the Board filed a return
with the trial court, essentially stating that they had complied with the Writ based on the
sequence of events outlined by DAG Feiner in her December 4 email to Garfinkle.
Specifically, they asserted that state and federal law require claimants to “prove

11
continued, timely, weekly eligibility for benefits” and that Robles had received “all of the
unemployment benefits for which he certified he was eligible.” On this basis, they
argued that they had fully complied with the Writ.
According to Robles, however, neither he, his brother, nor Garfinkle had ever
received the certification forms that EDD claimed to have mailed to him in October 2012
and thus they were unaware of the 14-day deadline. Moreover, Garfinkle’s repeated
attempts to obtain copies of all of EDD’s post-appeal communications with Robles went
unanswered. In addition, Garfinkle’s efforts to obtain an explanation as to why EDD had
failed to pay federal stimulus augmentations, interest, and costs with respect to Robles’s
case were equally unsuccessful.
H. Robles’s Motion to Enforce Writ of Administrative Mandate
Given these circumstances, Robles moved to enforce the trial court’s Writ on
May 3, 2013. Robles claimed that not only had EDD and the Board failed to comply
with the mandate of the trial court to “award” the “benefits that were withheld beginning
January 5, 2010,” they had also violated his due process rights by refusing to cooperate
with his attorney, sending complex and internally inconsistent notices to his former
address, and paying him only a fraction of the benefits to which he was entitled. He
sought an order from the trial court “designed to ensure full compliance without further
undue delay and hardship to Robles.”
In connection with this enforcement motion, Robles submitted several declarations
which set forth his continued unemployment and job search efforts as follows: “I have
been unemployed since January 5, 2010, due to the termination that is the subject of this
case. I diligently attempted to obtain employment, but was unsuccessful. My inability to
obtain employment appears to be due to the record of having been fired, my advanced
age, and the harsh economy.”5 He further stated: “I am still available to work and desire
to work.” In addition, Robles declared that, after the Board denied his appeal, he had no
further contact with EDD until it sent the two October notices described above to his

5
Robles was 64 years old in July 2012 when we issued our published opinion in Robles I.

12
former address. Specifically, after the Board’s decision, Robles no longer received any
certification forms from EDD or the Board on which to certify that he remained
unemployed despite his diligent search for work. Thus, Robles explained: “Although I
diligently attempted to find work, I stopped keeping records of my efforts after [EDD and
the Board] informed me that they terminated the certification process in 2010. I no
longer recall specific details of those efforts.”
Robles additionally submitted information regarding the amount of unemployment
benefits that would have been available to a person who was terminated on January 5,
2010. According to Garfinkle, because EDD and the Board refused to provide him with
the relevant calculations, he “consulted specialists in unemployment insurance matters
who provided documents found on EDD’s website and other online sources which show
that applicants in 2010 were eligible to receive 26 weeks of ‘regular’ unemployment
benefits plus 73 weeks under five federal extensions (a total of 99 weeks), with $25 per
week in federal stimulus augmentations added through December 11, 2010.” Detailed
calculations—including state and federal benefits, court costs, interest, and a credit for
benefits previously paid—were attached to Robles’s motion and indicated that the total
due to Robles as of June 1, 2013, was $45,560.39.
Based on the situation outlined in his motion, Robles requested an order from the
trial court requiring EDD and the Board to: (1) pay the withheld benefits, interest, and
costs in accordance with Robles’s calculations as set forth in the motion;
(2) communicate directly with Garfinkle in all matters involving compliance with the
Writ or any enforcement order; (3) make all payments under the Writ or any enforcement
order to Garfinkle’s attorney-client trust account; (4) revise their regulations and internal
guidelines, or otherwise demonstrate efforts made to ensure future compliance with the
standards articulated by Robles I; and (5) pay fines of $1000 each pursuant to Code of

13
Civil Procedure section 1097 based on their “extraordinary disobedience” with the terms
of the Writ.6
In response, EDD and the Board defended their compliance with the Writ,
reiterating that Robles was not eligible for benefits for weeks when he did not complete
“the necessary paperwork to certify that he was available for work but remained
unemployed despite diligently searching for work.” Although they conceded that Robles
was entitled to receive interest on the 27 weeks of benefits that were paid as well as his
costs on appeal, EDD and the Board blamed their lack of compliance with these Writ
requirements on Robles’s failure to update his address of record with EDD. EDD never
attempted to defend its chosen process for effecting the “award” of “benefits that were
withheld beginning January 5, 2010”; nor did it contest the specifics of Robles’s benefit
calculations as set forth in the motion. Rather, as made clear in a declaration submitted
by Deputy Attorney General Charles Antonen in opposition to Robles’s enforcement
motion, EDD continued to maintain that in order for Robles’s to receive any further
benefits he would either need to file certifications attesting to current work search efforts
or file certifications backdated to 2010 and participate in a determination interview (and
possibly a further appeal process) to explain his “failure to timely return the original
claim forms mailed in October 2012.”
In reply, Robles reported that EDD had been unable to provide copies of the
certification forms purportedly mailed to him in October 2012. In addition, EDD
represented that it was unaware of any accompanying cover letter or notice. EDD
blamed its automated process for initially being unable to provide even a sample of the

6
Section 1097 of the Code of Civil Procedure provides: “When a peremptory mandate
has been issued and directed to any inferior tribunal, corporation, board, or person, if it
appear to the Court that any member of such tribunal, corporation, or board, or such
person upon whom the writ has been personally served, has, without just excuse, refused
or neglected to obey the same, the Court may, upon motion, impose a fine not exceeding
one thousand dollars. In case of persistence in a refusal of obedience, the Court may
order the party to be imprisoned until the writ is obeyed, and may make any orders
necessary and proper for the complete enforcement of the writ.”

14
certification forms sent to Robles. Eventually, EDD did provide a sample certification
form which did not indicate any deadline for return.
At the July 18, 2013, hearing on Robles’s motion to enforce the Writ, the trial
court agreed to limit any enforcement order and fine to EDD, as the Board had fully
complied with its duties under the Writ. The trial court further stated its intention to
grant Robles’s motion, but agreed to allow supplemental briefing on “the issue of the
federal extensions and the paperwork.” In addition, indicating that there would be “an
order with a monetary amount,” the trial court instructed the parties to submit briefing
showing “what you each think the calculation of the benefits are.”7
On August 15, 2013, the trial court issued its order granting Robles’s motion to
enforce the Writ (Enforcement Order). The trial court indicated that it was “not
persuaded” that this Court merely found Robles eligible for benefits in Robles I, such that
his receipt of benefits could be “conditioned upon meeting the current eligibility
requirements.” In addition, it concluded that requiring Robles “to retroactively certify he
satisfied ‘work search requirements’ during the time he was being denied such benefits,
violates due process.” Thus, the court ordered EDD to “pay withheld federal extension
benefits, costs and interest in the amount of $45,560.39, within 30 days of service of this
order.” The court based the amount on the calculations supplied by Robles after “EDD
failed to provide a calculation of benefits as requested.” In doing so, the court noted that
EDD had provided no evidence contesting those calculations. It found EDD’s assertion
that it could not determine the amount owed without completion of the certification forms
“not a convincing argument.”
The trial court further provided that EDD communicate directly with Garfinkle
regarding all matters involving the Writ and the Enforcement Order, and that any monies
disbursed by EDD pursuant to the Writ or the Enforcement Order be paid into Garfinkle’s

7
With respect to the specific calculations, DAG Feiner indicated: “We’re not even
disputing the calculation, because we can’t tell what the calculation’s going to be,
because it’s done in this, like, off-site, far far away.” She further argued that, without the
necessary claim forms, it is “impossible” to calculate what Robles is owed.

15
attorney-client trust account. Finally, finding EDD’s failure to pay interest to Robles as
commanded by the Writ to be “without just excuse,” the trial court ordered EDD to pay a
$1000 fine pursuant to section 1097 of the Code of Civil Procedure. Judgment was
entered on September 20, 2013, and timely notice of appeal by EDD brought the matter
before this court for a second time.
II. DISCUSSION
A. Statutory Background and Standard of Review
“The 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; see § 100 [unemployment insurance system created to
provide benefits “for persons unemployed through no fault of their own” and to reduce
“the suffering caused thereby”].) Specifically, “ ‘[u]nemployment benefits provide cash
to a newly unemployed worker “at a time when otherwise he would have nothing to
spend,” serving to maintain the recipient at subsistence levels without the necessity of his
turning to welfare or private charity.’ ” (Gilles v. Dept. of Human Res. Dev. (1974) 11
Cal.3d 313, 325 (Gilles), quoting California Dept. of Human Res. Dev. v. Java (1971)
402 U.S. 121 at pp. 131-132.) Thus, as stated above, the prompt payment of benefits is
the “ ‘very essence’ ” of the unemployment compensation insurance program.
(Livingston, supra, 125 Cal.App.3d at p. 947.) And, on appeal, we liberally construe the
Unemployment Insurance Code to advance the legislative objective of reducing the
hardship of unemployment. (Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36
Cal.3d 575, 584 (Sanchez).)
In the present case, EDD and the Board chose to attempt to comply with the trial
Court’s September 2012 Writ, which ordered payment of withheld unemployment
benefits to Robles. They therefore waived their right to appeal from the Writ’s directives,
and the validity of the Writ is not before us. (Los Angeles Internat. Charter High School
v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1354-1355 (LAICHS);
City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 970
(Carmel-by-the-Sea).) Rather, in these proceedings, we review the trial court’s

16
Enforcement Order entered pursuant to section 1097 of the Code of Civil Procedure.
That statute provides that if a writ is issued and persistently disobeyed, the court “may
make any orders necessary and proper for the complete enforcement of the writ.” (Code
Civ. Proc., § 1097; see Carmel-by-the-Sea, supra, 137 Cal.App.3d at p. 971.) Under such
circumstances, at issue is whether the trial court erred either in concluding that EDD had
failed to comply with the Writ or in fashioning the specifics of its Enforcement Order.
Thus, our focus is on EDD’s response to the Writ and the trial court’s assessment of that
response. (LAICHS, supra, 209 Cal.App.4th at p. 1355.) Throughout this analysis, we
will, of course, consider issues of statutory interpretation de novo. (Norasingh v.
Lightbourne (2014) 229 Cal.App.4th 740, 753.)
B. Compliance with Federal Law
We address first EDD’s assertion that the trial court’s enforcement order is in
“direct violation” of federal law. In support of this contention, EDD cites the federal
requirement that state unemployment laws must include a provision that “as a condition
of eligibility for regular compensation for any week, a claimant [for unemployment
benefits] must be able to work, available to work, and actively seeking work” (italics
added).8 (42 U.S.C. § 503(a)(12) (section 503(a)(12)).) Since, generally speaking, the
“terms and conditions of the State law which apply to claims for regular compensation
and to the payment thereof shall apply to claims for emergency unemployment
compensation and the payment thereof,” a claimant for federal extension benefits
(sometimes referred to as emergency unemployment compensation or EUC) must meet

8
For purposes of this federal statute, “actively seeking work” is defined to mean that the
individual at issue: “(A) is registered for employment services in such a manner and to
such extent as prescribed by the State agency; [¶] (B) has engaged in an active search
for employment that is appropriate in light of the employment available in the labor
market, the individual’s skills and capabilities, and includes a number of employer
contacts that is consistent with the standards communicated to the individual by the State;
[¶] (C) has maintained a record of such work search, including employers contacted,
method of contact, and date contacted; and [¶] (D) when requested, has provided such
work search record to the State agency.” (Pub.L. No. 112-96 (Feb. 22, 2012), § 2141(b),
126 Stat. 168.)

17
the same work search requirements as a claimant for regular compensation. (Pub.L. No.
110-252 (June 30, 2008), § 4001(d)(2) , 122 Stat. 2354.)
EDD argues that by exempting Robles from any further continuing certification
requirements regarding his work search efforts, the trial court violated federal law and put
“EDD’s unemployment compensation program in potential jeopardy.” Specifically, the
Department contends that its failure to comply with federal law in this instance—by
paying benefits without the necessary certifications—could lead the federal government
to stop making payments to the state under its unemployment compensation program.
We are not persuaded.
First, we believe that the only reasonable interpretation of this court’s mandate in
Robles I to “award Robles the unemployment insurance benefits withheld” is that Robles
must receive the benefits to which he would have been entitled had the Department
properly found him eligible for unemployment compensation in 2010. (Robles I, supra,
207 Cal.App.4th at p. 1036.) The trial court’s subsequent Writ commanding EDD and
the Board to award to Robles “the unemployment insurance benefits that were withheld
beginning January 5, 2010 and including extensions under state or federal law” is in
accord with our Robles I holding and must be similarly construed. However, as Robles
correctly points out, the federal work search requirements set forth in section 503(a)(12)
were adopted in 2012 and have been expressly held to apply only “to weeks beginning
after the end of the first session of the State [L]egislature which begins after the date of
enactment” [of Public Law 112-96 on February 22, 2012]. (Pub.L. No. 112-96 (Feb. 22,
2012), § 2101(b), 126 Stat. 159.) Thus, by their express terms, these federal requirements
are inapplicable to the benefits that—absent EDD error—should have been paid to
Robles by the Department in 2010 and 2011.
Moreover, although California’s unemployment insurance program is part of a
national system established under federal law, the federal government has given the states
“considerable liberality” in defining the specifics of their own benefit structures.
(Aguilar v. Unemployment Ins. Appeals Bd. (1990) 223 Cal.App.3d 239, 245 (Aguilar);
Acosta v. Brown (2013) 213 Cal.App.4th 234, 238 (Acosta); see American Federation of

18
Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1024 (AFL) [noting
that the federal unemployment plan “ ‘ “contemplates that the States shall have broad
freedom to set up the type of unemployment compensation they wish” ’ ”].) In fact, prior
to the adoption of the 2012 legislation referenced above, the federal government made
clear that state law provisions with respect to work search and availability governed
claims for federal extension benefits. (U.S. Dept. of Labor, Unemp. Ins. Program Letter
No. 23-08, Change 1 (Aug. 15, 2008) Emergency Unemployment Compensation 2008,
Questions and Answers at p. 8 [all such program letters are hereafter referenced as
“UIPL”]; see UIPL 04-10, Change 4 (Aug. 13, 2010) Questions and Answers at p. 1.)9
Thus, individual compliance with work search requirements was a matter left in the hands
of the state for determination in accordance with state law.
Finally, we find specious EDD’s argument that it risks being defunded by the
federal government should Robles be awarded unemployment benefits by the trial court
in this case without properly certifying to his continuing availability and search for work.
It is true that the federal statute provides that “a failure to comply substantially with any
provision specified in subsection (a) [of section 503],” may result in notification from the
Secretary of Labor that “further payments will not be made to the State” until the
Secretary of Labor is satisfied that there is “no longer any such . . . failure” to comply.
(42 U.S.C. § 503(b)(2).) However, we doubt the trial court’s enforcement order would be
construed as a failure to substantially comply with section 503(a)(12), even assuming the
provision was applicable to this case. Indeed, the Department of Labor has declined to
pursue defunding in the face of much more egregious and systemic noncompliance by
EDD with federal law in the processing of unemployment benefit claims, viewing such a
sanction as inimical to the beneficiaries of the state’s unemployment compensation
program. (See Acosta, supra, 213 Cal.App.4th at p. 242.)

9
The UIPL’s referenced above are before this court as part of EDD’s request for judicial
notice dated March 14, 2014. We hereby grant EDD’s judicial notice request, and—
having reviewed these voluminous materials—conclude that they support our analysis.
(Evid. Code, §§ 452, subd. (c) & 459.)

19
 At most, EDD may be concerned that failure to comply with the specific
certification requirements of its state-mandated process may negatively impact its ability
to successfully seek reimbursement from the federal government for some or all of the
federal extension benefits payable to Robles pursuant to the terms of the Writ and the
Enforcement Order. However, EDD’s obligation to pay Robles the liquidated sum set
forth in the Enforcement Order is not contingent on the success of any reimbursement
efforts. Moreover, it is hard to see how the court-mandated payment of what is, in
essence, a damages award would somehow constitute a violation of federal law, whether
or not reimbursement is available. (See Aguilar, supra, 223 Cal.App.3d at pp. 243-246
[actions to recover wrongfully withheld benefits such as unemployment insurance
benefits constitute actions for damages].) Instead, if no reimbursement from the
unemployment benefits fund is possible, the award would appear to be a cost of EDD’s
administration of its unemployment benefit system. (Cf. AFL, supra, 13 Cal.4th at
pp. 1026, 1033 [citing UIPL No. 11-92 (Dec. 30, 1991) for proposition that because
interest is not paid as part of unemployment benefits, but only to compensate for the
delay in payment of compensation, it may not be paid from the state unemployment fund,
but must be paid as a separate administrative expense].)
In sum, we see nothing in federal law that would preclude the trial court’s issuance
of its Enforcement Order in this case. Indeed, with respect to federal law compliance,
EDD might more usefully focus on 42 United States Code section 503(a)(1). That
federal statute mandates that a state’s method of administering its unemployment
insurance program must reasonably insure full payment of unemployment compensation
“when due,” language which has been construed to mean that compensation payments
“are required at the earliest administratively feasible stage of unemployment.” (42
U.S.C. § 503(a)(1); AFL, supra, 13 Cal.4th at p. 1026.)
C. Appropriateness of Enforcement Order under State Law
Citing section 1253 and related regulations, however, EDD also avers that the trial
court’s Enforcement Order runs afoul of state law. Section 1253 provides that “[a]n
unemployed individual is eligible to receive unemployment compensation benefits with

20
respect to any week only if the director finds” that the individual has met a number of
specified continuing eligibility requirements. (§ 1253, subds. (a)-(f), italics added.) As is
relevant here, subdivision (c) of section 1253 requires that a claimant be “able to work
and available for work for that week.” In addition, pursuant to subdivision (e) of section
1253, a claimant must have conducted “a search for suitable work in accordance with
specific and reasonable instructions of a public employment office.” Finally, subdivision
(a) of section 1253 provides that a “claim for benefits with respect to that week” must
have been made “in accordance with authorized regulations.” (See § 1326 [“[c]laims for
unemployment compensation benefits shall be made in accordance with authorized
regulations of the director”].)
As is relevant here, EDD regulations applicable to continuing claims for benefits
state that, for each week, a claimant must certify the following with respect to availability
and search for work: (1) “[t]hat he or she was unemployed . . . ”; (2) “[w]hether he or she
was physically able to work full time each of the seven days of the week”; (3) “[w]hether
there was any other reason he or she could not have worked full-time each workday”;
(4) “[w]hether he or she did try to find work”; (5) “[i]f requested by the [Department], the
date applied for work, the company name and address, the person contacted, the type of
work applied for, and the results of the contact”; and (6) “[w]hether he or she refused any
work.” (Cal. Code Regs., tit. 22, § 1326-6(b).) The regulations do not expressly require
that this certification be made on the Department’s system-generated forms. (See
generally Cal. Code Regs., tit. 22, §§ 1326-1 through 1326-12.)
Moreover, pursuant to EDD regulation, “[t]he claimant shall, to maintain his or
her eligibility to file continued claims during a continuous period of unemployment, file
continued claims at intervals of not more than two weeks, or such other interval as the
[Department] shall require, unless he or she shows good cause for his or her delay in
filing his or her continued claim.” (Cal. Code Regs., tit. 22, § 1326-6(c).) “Good cause”
is nonexclusively defined in the regulations to include things such as (1) reasonable
reliance on erroneous advice given by the Department; (2) excusable neglect; (3) failure
by the Department to promptly discharge its responsibilities; and (4) “[c]ompelling

21
reasons” which would prevent a reasonable person from filing the claim, such as illness,
natural disaster, lack of transportation, or “compelling personal affairs . . . such as an
appearance in court.” (Cal. Code Regs., tit. 22, § 1326-10; see Cal. Code Regs., tit. 22,
§ 1326-6(e).) Interpreting an unrelated reference to “good cause” in connection with
eligibility for unemployment compensation benefits, our Supreme Court has defined
“good cause” as “an adequate cause, a cause that comports with the purposes of the
Unemployment Insurance Code and with other laws.” (Sanchez, supra, 36 Cal.3d at
p. 584.)
EDD argues strenuously that the trial court improperly found Robles eligible for
continuing benefits without requiring him to complete the weekly certification forms
mandated by section 1253 and EDD regulations. It is undisputed that—at the time the
trial court was considering EDD’s response to the Writ’s command that EDD award
Robles “the unemployment insurance benefits that were withheld”—Robles had not
completed the Department’s standard continued claim certification forms for all but one
week of the federal extension benefits that would otherwise have been available to him in
2010 and 2011. On the other hand, EDD consistently maintained (and continues to assert
on appeal) that it stood ready and willing to pay unemployment benefits to Robles for the
weeks that he was eligible upon completion of the required continued claim
certifications. Indeed, EDD contends that it was willing to accept the requisite claim
forms even though, in its estimation, the deadline to submit them has expired.
The trial court also had before it undisputed evidence that Robles met the
substantive eligibility requirements for receipt of unemployment benefits throughout
2010 and 2011 because he was unemployed during that time and yet was able, available,
and actively seeking work. Specifically, as stated above, Robles submitted declarations
in the trial court stating: “I have been unemployed since January 5, 2010, due to the
termination that is the subject of this case. I diligently attempted to obtain employment
but was unsuccessful. My inability to obtain employment appears to be due to the record
of having been fired, my advanced age, and the harsh economy.” He further stated: “I
still am available to work and desire to work.” Finally, he reported that, “[a]lthough I

22
diligently attempted to find work, I stopped keeping records of my effort after [EDD and
the Board] informed me that they terminated the certification process in 2010. I no
longer recall specific details of those efforts.” In addition, the trial court had evidence
before it, also uncontested, regarding the amount of unemployment benefits that would
have been available to a person, like Robles, who was terminated on January 5, 2010.
Finally, the record before the trial court revealed an alarming failure by EDD in
the wake of the Writ to promptly award Robles the benefits to which he was entitled due
to a complete breakdown in their “standard processing” when applied to the unique
circumstances of his case. First, EDD refused to work with Robles’s attorney to effect
the prompt payment of benefits to Robles, despite Garfinkle’s repeated attempts to gain
the Department’s cooperation. In fact, EDD refused to even communicate with Garfinkle
absent a cumbersome designation process that was required to be repeated every 30 days.
Next, although EDD’s attorney arguably had actual notice—based on the newspaper
article described above—that Robles had relocated to the Philippines after running out of
money, the Department sent certification forms with an extremely short 14-day deadline
for completion to a two-year-old address of record that Robles had used before EDD
terminated his previous certification process in July 2010. Moreover, although EDD
could never produce a copy of the certification forms it allegedly sent to Robles, the
notices that Robles did receive describing the certification forms were internally
inconsistent and confusing. Specifically, they were unclear as to whether Robles would
be required to provide current certifications or certifications covering his work search
efforts in 2010 and 2011. In addition, the notices seemed to indicate that Robles would
be required to comply with “new” work search requirements based on the 2012 federal
legislation described above, despite the fact that these new requirements were not
applicable to claims made in 2010 and 2011.10

10
As stated above, the trial court in this case determined that requiring Robles “to
retroactively certify he satisfied ‘work search requirements’ during the time he was being
denied such benefits, violates due process.” EDD disputes this conclusion. We note,
however, that EDD’s opening brief on appeal contains not a single citation to any

23
 Under such circumstances, we have no difficulty determining that there was a
persistent failure on EDD’s part to obey the commands of the Writ and that the trial
court’s Enforcement Order was “necessary and proper” to effect that enforcement. (Code
Civ. Proc., § 1097.) EDD’s chosen process in response to the Writ had utterly failed to
result in the timely payment of all of the benefits to which Robles was entitled. Further,
Robles had shown himself substantively eligible for the identified benefits by attesting to
his availability, and diligent search, for work. Indeed, assuming good cause excused
Robles’s failure to return the certification forms EDD asserts it mailed to him in October
2012 and also allowed for the aggregating of the usual bi-weekly claims, the declarations
submitted by Robles in the trial court arguably fully complied with the certification
requirements mandated by state law and EDD regulation. (See § 1253; Cal. Code Regs.,
tit. 22, §§ 1326-6, 1326-10.) Whether they did or not, however, we believe that, under
the circumstances presented to it, the trial court had the authority to order the immediate
payment of benefits without requiring Robles to jump any additional procedural hurdles.
This is especially true where, as here, any procedural requirements must be liberally
construed to “further the legislative objective of reducing the hardship of
unemployment.” (Sanchez, supra, 36 Cal.3d at p. 584.)
We are not unsympathetic to the plight of EDD during the timeframe relevant to
this appeal, when the worsening economy led to a flood of newly unemployed persons
seeking benefits while at the same time contracting the resources available to the
Department to process those claims. (See Acosta, supra, 213 Cal.App.4th at p. 240-241.)
Certainly, automation was one important tool in the Department’s arsenal to help it

authority in support of its argument that the trial court erred in finding a violation of due
process in this case. Instead, EDD simply reiterates that its usual process was available
to Robles and that he was not eligible for federal extension benefits without completion
of the necessary certifications. Under such circumstances, we could easily consider the
argument forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Okasaki v. City of Elk
Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1; Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784-785.) In any event, we do not reach the due process issue because
we conclude that the trial court’s Enforcement Order was appropriate under the particular
facts of this case whether or not a violation of due process occurred.

24
handle this large influx of cases. However, automation is not an excuse for
incompetence. The Department’s repeated error in this matter was its stubborn refusal to
acknowledge that the exigencies of Robles’s extremely atypical situation could not be
adequately addressed through recourse to “standard processing” pursuant to its usual
regulatory scheme. As a result, the trial court in this matter was confronted with a
situation in which an individual who, though clearly substantively entitled to
unemployment benefits under state law, had been denied those benefits for over three
years. It has now been over five years since Robles, albeit misguidedly, offered to buy a
pair of shoes for a friend. Enough is enough.
III. DISPOSITION
The judgment is affirmed, and this matter is remanded to the trial court for
implementation of its Enforcement Order. Robles is entitled to his costs on appeal.

25
 _________________________
REARDON, J.

We concur:

_________________________
RUVOLO, P.J.

_________________________
STREETER, J.

26
Trial Court: Alameda Superior Court

Trial Judge: Hon. Evelio M. Grillo

Counsel for Plaintiff and Gary S. Garfinkle
Respondent: Maria J. Garfinkle

Counsel for Defendant and Kamala D. Harris
Appellant: Attorney General of California
Julie Weng-Gutierrez
Senior Assistant Attorney General
Susan M. Carson
Supervising Deputy Attorney General
Cheryl L. Feiner
Deputy Attorney General

27