HINES v. EMPLOYMENT DEVELOPMENT DEPARTMENT (1993)

James Earl Hines appeals from the judgment dismissing his petition for a writ of mandate to review decisions of the California Unemployment Insurance Appeals Board.   His petition was dismissed on the basis that it was untimely under Unemployment Insurance Code section 410.   Hines contends he should be excused from the six-month filing requirement because he was incarcerated and he never received notice of his right to counsel.   He further contends he was denied his right to appointed counsel and the court abused its discretion in denying his request to appear by telephone.   Hines also requests this court to reach the merits of his underlying claims.   We find his petition was properly dismissed and affirm the judgment.

In February of 1988, Hines filed a claim for disability benefits due to a cataract in his left eye and received benefits.   A year later he filed another claim for disability benefits also due to cataracts.   The following June, Hines was sent notice his most recent claim was determined to be a continuation of his earlier claim and his disability benefits had been exhausted as he had already received the maximum benefit.   He also received notice of an overpayment of unemployment insurance of $2220.   The notice indicated Hines had received unemployment benefits during the summer of 1988 when he was not able to work and that he was liable for this overpayment and a 30 percent penalty.

Hines appealed both of these determinations and a hearing was held before an administrative law judge on March 13, 1990.   Hines appeared by telephone as he was incarcerated.   The administrative law judge found there was only one period of disability and Hines received the maximum benefit for that period of disability.   On the unemployment insurance overpayment, the judge found Hines made a false statement in his application for benefits, but it was not willfully false.   Hines was held liable for the overpayment, but not any penalty.

Hines appealed to the Unemployment Insurance Appeals Board (Board).   In decisions dated June 7, 1990, the Board affirmed the decisions of the administrative law judge as to both the disability benefits and the unemployment insurance overpayment.   These decisions included information about an appeal, which stated in part:  “Decisions of this Board are reviewable in the Superior Court by way of a Petition for Writ of Mandate pursuant to section 1094.5 of the Code of Civil Procedure.   Any action to obtain a court review of the decision must be initiated by you.   The Appeals Board does not process petitions for court review.   Such petitions must be filed with the court not later than six months after the date of the decision of the Appeals Board.”

About 16 months later, Hines petitioned for a writ of mandate in the superior court.   He asked the court to order the Employment Development Department to produce the records of the administrative appeal, to appoint him counsel, and to issue an order why relief should not be granted.

Hines was advised that the Attorney General was seeking a continuance to obtain the administrative record.   Hines was told that although he had named the Employment Development Department as the defendant rather than the Board, the Board would not raise as a defense the naming of the wrong party or the failure to serve the proper party.   It did reserve its right to raise other defenses, such as the statute of limitations set forth in Unemployment Insurance Code section 410.   The Board's return by way of answer did not raise any affirmative defenses.

Hines made an ex parte request for a telephone appearance because he was in prison.   The court denied the request.   At the hearing the court first addressed Hines's request for appointment of a lawyer under Payne v. Superior Court (1976) 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565.   The court denied the request;  it felt it was not appropriate since review was limited to the administrative record and the case could be adequately evaluated on the written arguments.   The court then noted that the Attorney General addressed the statute of limitations in his brief, but had failed to plead the statute in his answer.¹  The court believed it was probably jurisdictional and noted Hines argued it in his papers.²  The court took the position the lack of pleading was an oversight.   The Attorney General concurred and moved to amend the return by way of answer to include the affirmative defense of the statute of limitations of Unemployment Insurance Code section 410.   The court granted the motion and found the action barred by the statute of limitations.

The court reconvened on the matter to allow the Attorney General to put on the record the reason Hines did not receive a copy of the administrative record.   Hines failed to file the declaration that he was proceeding in forma pauperis to obtain a copy of the record.

Section 410 of the Unemployment Insurance Code provides in part:  “Notwithstanding any other provision of law, the right of the director, or of any other party ․ to seek judicial review from an appeals board decision shall be exercised not later than six months after the date of the decision of the appeals board or the date on which the decision is designated as a precedent decision, whichever is later.”   The Board's decisions in this matter were dated June 7, 1990.   Hines did not petition for a writ of mandate until October 10, 1991, well past the six-month period.

Hines raises several reasons why he should be excused from the six-month limitation of Unemployment Insurance Code section 410.   None of his contentions has merit;  most are based on provisions relating to review of administrative actions other than a decision of the Board.

 First, Hines contends he was excused from complying with the statute of limitations because he was incarcerated and due to the “exceptional circumstances” of his situation.   As Hines correctly notes, Code of Civil Procedure section 352, subdivision (a)(3) tolls certain statutes of limitations while a party is incarcerated.   This provision, however, only applies to one entitled to bring an action mentioned in Chapter 3 of title II (Code of Civ.Proc., §§ 335 to 349 3/4).   Hines's action is not mentioned therein, but is authorized under the provisions of the Unemployment Insurance Code permitting judicial review of a decision of the appeals board.   His citation to Government Code section 911.3, which provides the form of notice for return of a claim filed after more than six months, is no more availing because that section applies only to claims against certain public entities for death, personal injury or injury to personal property or growing crops.  (Gov.Code, § 911.2.)  Section 410 of the Unemployment Insurance Code, which sets the six-month limitation, provides no exception for “exceptional circumstances” as Hines asserts.  (Compare Unemp.Ins.Code, § 1328, which permits “good cause” extension of 20–day period for appealing decision to the Board.)

 Hines next contends he is excused from the six-month limitation because he was not given notice of his right to counsel.   Hines relies on Government Code section 11509, which requires certain agencies to provide notice of the right to an attorney at hearings upon charges made in an accusation.   Neither the Employment Development Department nor the Board is an agency to which that section applies.  (Gov.Code, § 11501, subd. (b).)  Hines also relies on the requirement of a notice in County of Tulare v. Boggs (1983) 146 Cal.App.3d 236, 194 Cal.Rptr. 80.   The court in that case held that if an indigent defendant facing a paternity suit is entitled to appointed counsel under Salas v. Cortez (1979) 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226, he must be given timely notice of that right.  (County of Tulare v. Boggs, supra, 146 Cal.App.3d at p. 245, 194 Cal.Rptr. 80.)   While an indigent defendant has a right to appointed counsel in paternity actions in which the state appears (Salas v. Cortez, supra, 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226), no such right has been established for an indigent person seeking unemployment or disability compensation, nor is the Board required to give notice of the right to counsel.  (Staley v. California Unemployment Ins. App. Bd. (1970) 6 Cal.App.3d 675, 678–679, 86 Cal.Rptr. 294.)   Hines's attempts to excuse himself from the six-month requirement of Unemployment Insurance Code section 410 fail.

Hines asserts the court erred in denying his request for counsel.   The trial court found he had cited no authority to support his request.   Hines contends he had cited ample authority, a line of cases beginning with Payne v. Superior Court, supra, 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565, to permit the court to exercise its discretion to appoint counsel.   In Payne v. Superior Court, supra, the California Supreme Court held due process and equal protection require that a prisoner threatened with the judicially sanctioned deprivation of property be afforded a meaningful opportunity to be heard.   (Id. at p. 927, 132 Cal.Rptr. 405, 553 P.2d 565.)   The court refused to mandate a particular remedy;  the prisoner's access to the courts could be protected by appointing counsel, deferring the case until he was released, or permitting personal appearance.  (Id. at p. 923, 132 Cal.Rptr. 405, 553 P.2d 565.)   Before selecting the remedy of appointment of counsel, the court should first determine whether the prisoner is indigent.   It must also determine whether a continuance is feasible, and ascertain whether the prisoner's interests are actually at stake and whether an attorney would be helpful in the circumstances.  (Id. at p. 924, 132 Cal.Rptr. 405, 553 P.2d 565.)   The court expressly limited its holding to indigent prisoners who were defendants in civil actions.  (Id. at p. 926, 132 Cal.Rptr. 405, 553 P.2d 565.)   This limitation makes Payne inapplicable to Hines.   He has not provided any case which has expanded Payne to the situation here, where the indigent prisoner brought suit.

 Hines contends the trial court abused its discretion in denying his request for a telephone appearance.   He argues the court's refusal to permit an appearance by telephone denied him access to the courts.   The local rules of the Sacramento County Superior Court provide for an appearance by telephone by any party in matters before the civil law and motion departments.  (Sac.Co.Superior Court, rule 1412(a)(2).)   A party may give notice of its intent to appear by telephone by any of three methods.   (Sac.Co.Superior Court, rule 1412(b).)   The court may require the parties to appear in person.  (Sac.Co.Superior Court, rule 1412(g).)   The record does not include Hines's ex parte request for an appearance by telephone, so we cannot determine whether he failed to abide by the local rules in providing notice of his intent or whether he sought a special accommodation.³  In any event, the local rules give the court discretion not to permit an appearance by telephone.   Here the court resolved the case on the statute of limitations, noting that both parties had briefed the issue.   On this record we cannot say the court abused its discretion.

Since we have found the petition for a writ of mandate was properly dismissed as untimely, we need not address Hines's contentions going to the merits of his petition.

The judgment is affirmed.

FOOTNOTES

1.   The court indicated the Attorney General's brief was filed the same day as the answer.   The record does not contain the brief.

2.   In his Supplemental Facts Hines addressed the issue of whether service was properly made, but did not address the statute of limitations.   The record does not reveal any response to a statute of limitations defense;  however, Hines requested the clerk's transcript include his Points and Authorities in Opposition, which may have included the response to this issue.   The clerk did not include this document because it was not filed or lodged with the court and Hines did not provide it.

3.   Hines requested that the clerk's transcript include his ex parte request for telephone appearance.   It was not one of the items the clerk indicated were not filed or lodged with the court.   Nonetheless, it is the appellant's burden to provide an adequate record on appeal.  (Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036, 243 Cal.Rptr. 298.)

PUGLIA, Presiding Justice.

SIMS and DAVIS, JJ., concur.