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MISSED YOUR EDD HEARING? WHAT TO DO?

By Robert S. Schriebman

Materials from Mr. Schriebman's book entitled California Taxation Practice and Procedure, published by Commerce Clearing House - CCH.

It happens to the best of us. You are busy trying to make a living in this economy. You received a yellow form from the California Unemployment Insurance Appeals Board (CUIAB) giving you a specific hearing date at a specific time at an official hearing center. You put the wrong hearing date on your calendar. You failed to show up at the hearing. What to do?

The first thing you should do is call the EDD office where the case was scheduled and speak to the clerk on duty. Explain to the clerk that you made a calendaring error and ask the clerk's advice on what to do. Most clerks will tell you to send a letter to the Board office and explain what happened. After the receipt of your letter, the clerk may be able to re-calendar your matter for a hearing on the merits.

The Administrative Law Judge (ALJ) assigned to hear your case may not allow the clerk to re-calendar the matter. The EDD may not be available or have other hearing conflicts. Faced with this conflict, the ALJ may send you an official document entitled, "Decision Dismissing Petition for Nonappearance." This notice will inform you that your pending matter may be permanently dismissed to your prejudice if you do not file an Appeal to reopen your case. You have only 20 calendar days from the date of the mailing of this Decision to file your Appeal. If you miss the 20 day deadline, your matter will be permanently dismissed and you will automatically lose your right to a hearing on the merits, and you will lose your day in court.

No special form is necessary when you notify the CUIAB that you wish to appeal the dismissal. Your notice should clearly state that you wish to file an Appeal from the dismissal. In your notice you should clearly state why you failed to appear at the scheduled hearing. Most people fail to appear because they have made a simple calendaring error or have a valid stressful emergency. You should attach a copy of the Dismissal notice to your Appeal. The notice of appeal should be sent to the following address by registered or certified mail: Office of Tax Petitions, 2400 Venture Oaks Way, Suite 200, Sacramento, CA 95833. You may also send your appeal notice by fax at 916-263-6763.

When the Appeals Board receives your Notice of Appeal, your case will be assigned a new case number and you will receive a document entitled, "Reopening Request." You will now have a new title. Instead of being a Petitioner, you be referred to an Appellant and the EDD will be referred to as an Appellee.

Shortly after you file your Notice of Appeal, no more than 10 days, you should submit to the Appeals Board a written explanation of why you failed to appear. You may have made a calendaring error or had a medical emergency. You should attach to your presentation any supporting documentation that will be helpful to you. For example, if you have made a calendaring error, attach a copy of your calendar entry showing the mistake. If you have had a medical emergency, attach a copy of the hospital report or a letter from your physician. Remember, you have the burden to persuade the Appeals Board to see things your way.

California Government Code Sec. 911.6 as well as California Code of Civil Procedure Sec. 473 allows a party to reopen and re-calendar their case if there was a mistake, inadvertence, surprise or excusable neglect. The CUIAB must follow the California Code of Regulations. (Title 22) Sec. 5000(hh) allows matters to be reopened for "good cause."

"Good cause" means a substantial reason under the circumstances, considering the diligence of the proponent and any burden or prejudice to any person involved. "Good cause" includes, but is not limited to, mistake, surprise, inadvertence, or excusable neglect. "Inadvertence" is defined as lack of heedfulness or attentiveness. "A mistake of fact" occurs when a person understands the facts to be other than they are. "Excusable neglect" is neglect that might have been the act or omission of a reasonable prudent person under the same or similar circumstances.

The Appeals Division will review your argument and supporting documentation. If you win your argument, and the Appeals Board decides in your favor, you will receive a new yellow form from the CUIAB resetting your matter for a new hearing. Most rehearing requests based upon simple calendaring errors are granted. Good luck.

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Robert Schriebman has written over 20 books including the major manual used nationally by practitioners and the IRS, "IRS Tax Collection Procedures - A Manual for Practitioners" published by Commerce Clearing House in addition to the only 2 books ever published dealing with how California Employment Development Department (EDD) operates. See "California Tax Collection Practice and Procedures" and "California Taxation Practice and Procedure", both published by Commerce Clearing House.