Ansari v. Haris CA1/3 ( 2013 )

Filed 6/28/13 Ansari v. Haris CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MUSTAFA ANSARI,
Plaintiff and Appellant,
A136932
v.
PAMELA HARRIS, as Director, etc., (Alameda County
Super. Ct. No. RG11599408)
Defendant and Respondent.
Plaintiff Mustafa Ansari appeals from an order denying his petition for writ of
mandate in which he sought to compel the Employment Development Department
(department) to restore unemployment insurance benefits he claims were wrongfully
withheld. Ansari also challenges an order denying his motion for reconsideration and an
order denying a motion to sanction the department‟s attorneys. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ansari began receiving unemployment insurance benefits in 2008. In 2010, the
department determined that Ansari was disqualified from receiving benefits for 15 weeks
as a result of his willful failure to report earnings he had received in 2009. The
department issued a notice of overpayment that required Ansari to pay statutory penalties
as well as to pay back benefits totaling $4,286.
Ansari filed administrative appeals of the department‟s disqualification and
overpayment decisions with the California Unemployment Insurance Appeals Board.
The focus of these appeals was on whether Ansari had willfully made a false statement or
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withheld a material fact in order to obtain benefits. On the basis of Ansari‟s sworn
testimony, an administrative law judge (ALJ) concluded that Ansari had knowingly failed
to report earnings received while he was accepting benefits. The ALJ modified the
department‟s notice to provide that Ansari was disqualified from receiving benefits for 10
weeks. The ALJ also concluded that Ansari had received more benefits than he was due
as a result of his willful misrepresentation and willful nondisclosure, thus requiring
Ansari to repay benefits and pay a 30 percent statutory penalty. The ALJ set aside the
department‟s notice of overpayment and remanded the matter for a redetermination of the
repayment obligation and penalty assessment in light of information found in companion
cases concerning Ansari‟s earnings during the period in question.
Following the remand by the ALJ, the department issued a redetermination of
Ansari‟s earnings during the relevant period in 2009. Ansari filed an administrative
appeal of that redetermination. Among other things, Ansari claimed his testimony
established that he earned less than the department had calculated. On his notice of
appeal, he wrote, “2nd Appeal—Same Issue.” Ansari corresponded with the department
via email over the succeeding months. In his correspondence, he disagreed with the
department‟s redetermination and expressed his view that an additional period of
disqualification had been imposed against him for which benefits should be reinstated.
At one point, Ansari stated he was informed his appeal had been “miscoded as a False
Claim appeal,” presumably reflecting that he was appealing a determination that he had
willfully made a false statement or omission of material fact in order to obtain benefits.
He clarified that he was appealing the department‟s redetermination of his wages and
benefits.
While Ansari‟s administrative appeal was pending, he filed a petition for writ of
administrative mandate in the trial court. According to Ansari, this first writ petition
sought to prohibit the California Unemployment Insurance Appeals Board from retrying
matters previously decided. He asserted that the department fraudulently changed his
administrative appeal from a challenge to the department‟s wage determination to another
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appeal of the previously litigated “ „false statement‟ ” claim. The action was dismissed
with prejudice.
Ansari filed the petition at issue in this appeal on October 12, 2011. Ansari sought
a petition for writ of mandate or prohibition pursuant to Code of Civil Procedure
section 1085 et seq. against Pamela Harris, as director of the department. According to
Ansari, the petition was “based on nearly the same operative facts” as his previous
petition for administrative mandate. He sought to compel the department to “[d]isgorge
10 weeks of wrongfully disqualified benefits” and to “[d]isgorge benefits withheld that
violate [his] due process right to the benefits or a hearing.”
The trial court denied Ansari‟s petition following a hearing on April 26, 2012.
Ansari attempted to file a motion for reconsideration of the order denying his petition on
May 1, but the clerk rejected the filing for failure to comply with the applicable rules of
court. The court accepted a reconsideration motion for filing on May 18.
On June 5, 2012, Ansari filed a motion for sanctions against two attorneys who
had represented the department. The motions for reconsideration and for sanctions were
argued and submitted on July 19, 2012. On July 25, 2012, the court entered separate
orders denying Ansari‟s motion for reconsideration and his motion for sanctions.
Ansari filed a notice of appeal on October 23, 2012. In his notice of appeal,
Ansari claims judgment was “[n]ever entered.” In fact, the trial court register of actions
supplied to this court reflects that a dismissal order was entered on October 23, 2012.
Because Ansari failed to provide this court with a copy of the judgment, and because the
judgment is a document that must be included in the clerk‟s transcript, the record on
appeal is augmented on the court‟s own motion to include a copy of the lower court‟s
judgment. As set forth in the judgment, the court denied the petition for three reasons:
“1) petitioner failed to exhaust his administrative remedies [citation]; 2) the petition is
barred by res judicata [citations]; and 3) petitioner failed to comply with the applicable
statute of limitations.” The judgment further reflects that the court denied Ansari‟s
motion for reconsideration as untimely.
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DISCUSSION
It is a fundamental rule of “appellate review that a judgment or order of the trial
court is presumed correct and prejudicial error must be affirmatively shown.” (Foust v.
San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) “ „A necessary
corollary to this rule is that if the record is inadequate for meaningful review, the
appellant defaults and the decision of the trial court should be affirmed.‟ ” (Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) It is the
appellant‟s burden to provide an adequate record. (Hernandez v. California Hospital
Medical Center (2000) 78 Cal.App.4th 498, 502.) “Failure to provide an adequate record
on an issue requires that the issue be resolved against [the appellant].” (Ibid.) Parties
that choose to represent themselves, such as Ansari, are subject to the same rules as
litigants represented by counsel and are not excused from the requirement that an
appellant must provide the court with a sufficient record. (See Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246-1247.)
In this case, the record on appeal is patently inadequate to allow meaningful
appellate review of the challenged decisions of the trial court and the department. The
record on appeal is limited to a copy of Ansari‟s writ petition, his motion for sanctions, a
request for a continuance of the sanctions hearing combined with a reply to the
department‟s opposition papers, a reply brief addressing the motions for reconsideration
and sanctions, the orders denying reconsideration and sanctions, and Ansari‟s notice of
appeal. As noted previously, we have augmented the record on our own motion to
include a copy of the judgment, in part to satisfy ourselves that the appeal is properly
taken from a final judgment of the trial court. (See Quiroz v. Seventh Ave. Center (2006)
140 Cal.App.4th 1256, 1275, fn. 24.) Still missing from the record are documents
essential to our review of the judgment, such as the department‟s answer and opposition
to Ansari‟s writ petition, Ansari‟s own motion for reconsideration, the department‟s
opposition to that motion, and the department‟s opposition to the motion for sanctions.
Further, because Ansari chose to proceed without a record of oral proceedings in the trial
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court, the record does not include a reporter‟s transcript of the trial court‟s hearings on his
petition or on his motions for reconsideration and sanctions.
Ansari also failed to provide this court with the administrative record of the
challenged decisions or actions of the department. This omission is critical. If an
appellant‟s arguments require reference to the administrative record, the appellant must
designate the administrative record for inclusion in the record on appeal and must ensure
that it is transmitted to the Court of Appeal. (Advanced Choices, Inc. v. State Dept. of
Health Services (2010) 182 Cal.App.4th 1661, 1670.) Because Ansari‟s basic claim is
that the department failed to comply with the law, thereby justifying issuance of a writ of
traditional mandate, his claims on appeal necessarily require reference to the
administrative record of the department‟s actions. In traditional mandate actions, our
review is limited to considering whether the challenged action of a public agency
constitutes an abuse of discretion. (O.W.L. Foundation v. City of Rohnert Park (2008)
168 Cal.App.4th 568, 585.) Without a record of the department‟s actions, we are not in a
position to assess whether the department abused its discretion.1
The lack of an adequate record is fatal to Ansari‟s claims on appeal. It is
unnecessary to address the substance of his arguments in the absence of a record
sufficient for meaningful appellate review.
DISPOSITION
The judgment and order denying sanctions are affirmed.
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We observe that the record on appeal contains limited portions of the administrative
record included as exhibits to the writ petition Ansari filed in the trial court. This very
limited and selective record of the department‟s actions does not substitute for a proper
and complete administrative record.
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_________________________
McGuiness, P. J.
We concur:
_________________________
Pollak, J.
_________________________
Jenkins, J.
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