1

Filed 11/16/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JUSTIN LAND,

Petitioner and Appellant,

v.

CALIFORNIA UNEMPLOYMENT 

INSURANCE APPEALS BOARD et 

al,

Respondents.

 A164994

 (Alameda County

 Super. Ct. No. 

RG16825540)

ORDER DISMISSING APPEAL AS MOOT

Appellant Justin Land has been paid all the unemployment insurance 

benefits and interest thereon he sought through this administrative 

mandamus proceeding. Accordingly, respondents California Unemployment 

Insurance Appeals Board (Board) and Employment Development Department 

(Department) urge us to dismiss his appeal as moot. (See Parkfield Owners 

for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714, 722 

[“ ‘When events render a case moot, the court, whether trial or appellate, 

should generally dismiss it.’ ”].) Land concedes his appeal is moot but asks 

that we exercise our discretion to decide his appeal on the merits. (See St.

John of God Retirement & Care Center v. State Dept. of Health Care Services

(2016) 2 Cal.App.5th 638, 648–649 [“even ‘if an appeal is technically moot, 

[when] “there may be a recurrence of the same controversy between the 

parties and the parties have fully litigated the issues,” a reviewing court may 
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in its discretion reach the merits of the appeal’ ”], quoting City of Hollister v.

Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 480].)

We agree the appeal is moot and shall dismiss it for the reasons 

explained below. We are publishing our dismissal order to provide some 

guidance should the unique procedural circumstances of this case ever arise 

again. (See Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 

1174, 1176 [granting motion to dismiss appeal on ground settlement rendered 

appeal moot].)

In Land v. California Unemployment Ins. Appeals Bd. (2020) 

54 Cal.App.5th 127, 146 (Land I), we concluded the Board abused its 

discretion in declining to consider new evidence Land proffered in support of 

his administrative appeal of an administrative law judge’s (ALJ’s) decision 

denying him unemployment insurance benefits. (Id. at pp. 144–146.) We

therefore reversed the trial court’s judgment denying Land’s petition for a 

writ of administrative mandamus and remanded with instructions that the 

Board reconsider Land’s claim taking into account the new evidence. (Id. at 

p. 146.) 

The superior court issued both a writ directing reconsideration of 

Land’s claim and an order retaining jurisdiction to ensure full compliance 

with the writ. At Land’s request, the trial court issued a further order 

clarifying the full scope of its retained jurisdiction. In the course of 

discussing the extent of its jurisdiction, the court rejected the Department’s 

argument that since the matter had been remanded for reconsideration of 

Land’s claim, any judicial challenge to a new decision by the Board would 

need to be made by way of an entirely new administrative mandamus 

proceeding. 
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On remand, the ALJ ruled Land was entitled to benefits, and the 

Department promptly paid the benefits owing. 

Land, in turn, partially appealed the new decision to the Board on the 

ground the ALJ had failed to award interest. The Board ruled that under 

American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 

13 Cal.4th 1017 (AFL), neither it nor the ALJ had independent authority 

under the governing statutory framework to award interest; rather interest 

must be awarded by a trial or appellate court in connection with a successful 

mandamus proceeding (such as the proceeding Land filed).1

1 In AFL, the Supreme Court explained that Civil Code section 3287, 

subdivision (a) empowers the courts to award prejudgment interest, but not 

the Board. At the outset of its opinion, the court identified the specific issue 

before it as “whether an administrative law judge may award interest on a 

payment of retroactive unemployment insurance benefits.” (AFL, supra, 

13 Cal.4th at pp. 1021–1022.) It then summarized its answer, stating 

“[a]dministrative law judges, acting on behalf of the Unemployment Insurance Appeals Board (the Board), sit by authority granted under Unemployment Insurance Code section 100 et seq. The code limits these judges to reviewing the action of the Employment Development Department (EDD) in its 

ministerial determination of unemployment benefit eligibility. (Unemp. Ins. 

Code, § 1334.) Nowhere does the Unemployment Insurance Code grant the 

administrative law judges, or the Board, the express authority to award interest on an administrative benefit award. By contrast, pursuant to Civil 

Code section 3287, subdivision (a) (§ 3287(a)), courts have awarded prejudgment interest on a trial court judgment following a successful administrative 

mandamus action to recover wrongfully withheld benefits.” (AFL, at 

pp. 1021–1022.)

Land points out two justices dissented. However, the high court has 

never overruled, or even called into question, its holding in AFL. (See, e.g., 

Skidgel v. California Unemployment Ins. Appeals Bd. (2021) 12 Cal.5th 1, 12 

[quoting AFL in stating California’s unemployment insurance program “ ‘is

part of a national system of reserves designed to provide [benefits] for workers “unemployed through no fault of their own, and to reduce involuntary unemployment and the suffering caused thereby to a minimum” ’ ”]; see also 
4

The Department then made a Code of Civil Procedure section 998 offer 

in the instant, still pending writ proceeding to pay Land the interest he 

sought, although it continued to take the position Land was required to 

initiate a new administrative mandamus proceeding in order to challenge the 

Board’s denial of his partial administrative appeal. The Department did not 

dispute that Land was entitled to interest but asserted, under AFL, the 

directive for interest had to come from the court. The Department now took 

the position a “second writ” was “wholly unnecessary,” stating Land did not, 

and could not, “explain why he sought interest from the ALJ and then the 

Board, when this court [i.e., the trial court] clearly retained jurisdiction to 

rule on the original writ petition, including on the question of interest.” The 

trial court denied Land’s motion for a supplemental writ and awarded 

interest directly, pursuant to AFL and Brown v. California Unemployment

Ins. Appeals Bd. (2018) 20 Cal.App.5th 1107 (Brown).2 The Department 

promptly paid the awarded interest. With this recitation of the pertinent 

procedural history, we return to the issue of mootness and explain why we 

decline to exercise our discretion to retain appellate jurisdiction.

First, the procedural posture of this case is highly unusual. In Land I, 

we did not decide that Land was, in fact, entitled to benefits. (Compare, e.g., 

Currie v. Workers’ Comp. Appeals Bd. (2001) 24 Cal.4th 1109, 1117–1118 [distinguishing AFL and concluding “wrongful withholding” determination not a 

predicate for interest on worker’s compensation award; “[b]ecause the WCAB 

is expressly authorized to award ‘reimbursement for lost wages’ under Labor 

Code section 132a, and because the inclusion of prejudgment interest in such 

a backpay award is mandated by Civil Code section 3287, inclusion of interest 

in the backpay award does not violate the principle that an administrative 

agency cannot create a remedy the Legislature has withheld”].) 

2 Brown addresses the calculation of interest owed under AFL and held

the applicable rate is that pertaining to contract cases (10 percent). (Brown, 

supra, 20 Cal.App.5th at pp. 1117–1118.) 
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Brown, supra, 20 Cal.App.5th at p. 1112 [trial court found claimant was 

entitled to benefits and “issued a peremptory writ of administrative mandate 

commanding EDD and the Board to ‘immediately’ award [him] ‘the 

unemployment insurance benefits that were withheld in the administrative 

proceedings in this matter plus interest on those benefits’ (Writ)”].) Rather, 

we concluded the Board abused its discretion in declining to consider new 

evidence and directed administrative reconsideration of Land’s claim. Thus, 

while we concluded the Board had “wrongfully” withheld benefits (the 

threshold requirement under AFL for an award of interest to a successful 

claimant), we did not conclude that Land was, in fact, entitled to benefits and 

therefore entitled to interest under AFL and Brown. Thus, in their briefing

in the trial court, respondents noted “the unique [procedural] circumstances 

of the case,” and in its order denying Land’s request for a supplemental writ, 

the trial court similarly observed “[t]he situation here is undoubtedly 

unusual in that the Court of Appeal reversal was procedural, putting Land in 

front of the Board a second time.” Moreover, the “procedural” error arose 

from an evidentiary ruling reviewed under the liberal abuse of discretion 

standard.3 (See Land I, supra, 54 Cal.App.5th at pp. 144–145.) Thus, we are 

not persuaded this case presents an issue of widespread significance.

Second, the record discloses that once Land was awarded benefits, the 

Department never disputed that he was entitled to interest under AFL and 

Brown, and once Land invoked the retained jurisdiction of the trial court, the 

Department did not dispute that the court could, and should, award interest, 

3 In our opinion we specifically acknowledged “it is only in a very unusual case that we will conclude the Appeals Board abused its discretion in 

failing to consider new evidence” and we did so in the instant case because 

the evidence “was pivotal to the ALJ’s decision and to the Appeals Board's 

reasoning for upholding it.” (Land I, supra, 54 Cal.App.5th at p. 144.)
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and once the trial court awarded interest to Land, the Department promptly 

paid it. In short, the record does not reflect any recalcitrance on the part of 

respondents in acknowledging entitlement to, and making prompt payment 

of, interest awarded in accordance with AFL and Brown.

Third, there was no need for this mandamus action to give rise to the 

instant epilogue of litigation. On remand following our decision in Land I, 

Land appropriately asked the trial court to both set a date for respondents to 

file a return and retain jurisdiction to ensure full compliance with the writ by 

respondents. As the Department acknowledged in opposing Land’s motion 

for a supplemental writ compelling the Board to award interest, this 

expansive reservation of jurisdiction empowered the trial court to order 

interest in accordance with AFL and Brown if Land prevailed on 

reconsideration of his claim.4 Land complains that forcing claimants, like 

himself, to return to the trial court to secure interest is unduly burdensome 

and further prolongs the excessive delay endemic in the unemployment 

insurance administrative arena. However, given that trial courts can readily 

be asked to retain jurisdiction in administrative mandamus proceedings, as 

Land did here, we do not consider the filing of a simple motion for interest to 

be an undue burden. Indeed, given that the respondents may well 

acknowledge a successful claimant’s entitlement to interest from the court, as 

they did here, it could well be that all that would be required is a stipulation 

and order.

4 The Department’s initial position in the trial court—that the court 

should not retain jurisdiction to ensure full compliance with the writ—was 

not well taken, and the Department wisely abandoned that position when it 

ultimately acknowledged that the court, having retained jurisdiction, could 

and should award interest to Land pursuant to AFL and Brown. 
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ORDER

The appeal is DISMISSED as moot. Parties to bear their own costs.
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_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Getty, J.*

*Judge of the Solano County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.

A164994, Land v. California Unemployment Ins. Appeals Bd
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Trial Court: Alameda County Superior Court

Trial Judge: Hon. Stephen D. Kaus

Counsel: 

Garfinkle Law Office, Gary S. Garfinkle and Maria J. Garfinkle for Petitioner 

and Appellant.

Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General, 

Gregory D. Brown, Jennifer G. Perkell and Dane C. Barca, Deputy Attorneys 

General, for Respondents.