Sam Brotman, JD, LLM, MBA August 1, 2014 5 min read

Employment Development Department Appeals - Part 2

For appeal taxpayer should prepare and file a pre-trial brief or memorandum of points and authorities, in which he or she must describe relevant law and apply it to his or her case in support of appeal. Taxpayer may want to locate and interview helpful witnesses, including workers previously interviewed by EDD, principals of business and management employees.

Please note that an administrative law judge may order taking of interrogatories (a set of written questions to opposing party, answers to which later can be used as evidence) and depositions (formal detailed oral questioning by a opposing party or his or her attorney, recorded and transcribed, which later also can be used as evidence). Witness should be subpoenaed (called) by so called “subpoena duces tecum,” issued by administrative law upon request by either party to appeal. Subpoena comes with mandatory declaration under penalty of perjury on pre-printed form or your own. Taxpayer can request one from Office of Appeals of the EDD. Subpoena must be delivered to witness in person with enough time before hearing for witness to attend, and any adult individual can deliver subpoena. Generally, witness can not refuse a properly prepared and served subpoena, unless witness legally objects to it. Please note that law requires certain small amount to reimburse witness for his or her expenses and time.

Then parties to appeal (Taxpayer and EDD) can stipulate as to facts – to agree on certain facts that will not be disputed by either party. After that judge will conduct a hearing. At hearing either party can testify, review case file, introduce exhibits, question opposing witnesses or party on any relevant questions, to answer opposing evidence and to impeach any witness.

For those lacking English skills sufficient to understand or present their case EDD will provide interpreters free of charge. Evidence rules are more relaxed than in regular court proceeding. Basically, any relevant evidenced can be presented. Hearing can be attended by any member of the public. Judge can also allow to file a written argument after trial. 22 CCR Section 5064.

Administrative judge issues a decision and EDD must quickly serve it on taxpayer. In decision judge will explain reasons for decision.

The California Unemployment Insurance Appeals Board (the "Board")

Decision by the Administrative Law Judge can be appealed to the Board within 30 days of the decision. Appeal must be filed timely or taxpayer will loose appeal option. Board will review matter, can allow hearing on request and sometimes may allow new evidence upon request (but generally new evidence is not allowed). Parties may file legal briefs. If Appeals Board fails to serve notice of decision on taxpayer within 90 days after taxpayer filed appeal, then taxpayer can consider appeal petition as automatically denied.

The Superior Court

Employer-taxpayer can file a lawsuit in California Superior Court if certain pre-requisites are met. First, employer must have already paid tax, interest and penalties. Then employer must file with EDD a claim for refund in writing. Claim for refund must state grounds on which the claim is founded, period covered, amount claimed and the date of payment of the amount. EDD must deny claim, then taxpayer must have a hearing by Administrative Law Judge, and then Unemployment Insurance Appeal Board must deny the claim for refund. Only after that the taxpayer can go to Superior Court. Taxpayer must file a complaint within 90 days of the service of a notice of decision by Appeals Board.

The EDD may, in writing, extend for a period of not exceeding two years the time within which court action may be instituted if written request for such extension is filed with the director within the 90-day period. UIC Section 1241(a).

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Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law

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