Goldstein v. Cal. Unemployment Ins. Appeals Bd., 246 Cal. Rptr. 3d 720, 34 Cal. App. 5th 1006 (2019)

April 30, 2019 · Court of Appeal, Fifth District, California · H043742
246 Cal. Rptr. 3d 720, 34 Cal. App. 5th 1006

Steven M. GOLDSTEIN, Plaintiff and Appellant,
v.
CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent.

H043742

Court of Appeal, Sixth District, California.

Filed April 30, 2019

STEVEN M. GOLDSTEIN, Pro Per.

Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Susan M. Carson, Deputy Attorney General, Jennifer Celeste Addams, Deputy Attorney General, for Defendants and Respondents.

ELIA, J.

*1011Steven M. Goldstein appeals following the denial of his petition for writ of administrative mandate to compel the California Unemployment Insurance Appeals Board (the Board) to set aside its decision denying unemployment insurance benefits. We agree with Goldstein that the Board misapplied the governing law, thereby committing an abuse of discretion. However, because Goldstein fails to show that the error was prejudicial, we nevertheless affirm.

*722I. FACTUAL AND PROCEDURAL BACKGROUND

Goldstein worked as an IT analyst until March 6, 2013. He filed a claim for unemployment insurance benefits (the First Claim) with the Employment Development Department (EDD) the following week.1 The First Claim was *1012granted, and he received unemployment insurance benefits beginning the week ending on March 23, 2013 through the week ending on August 10, 2013.

Goldstein stopped receiving unemployment insurance benefits because, in August 2013, he successfully applied for disability benefits. He received disability benefits until he exhausted his maximum benefit amount in early September 2014.

Goldstein filed a second claim for unemployment insurance benefits (the Second Claim), which had an effective date of March 23, 2014. On February 3, 2015, the EDD determined that Goldstein's Second Claim was invalid under Unemployment Insurance Code section 12772 because, during the benefit year of his First Claim (i.e., March 10, 2013 through March 8, 2014), he neither was paid sufficient wages nor performed any work.

Goldstein filed an administrative appeal. Following a hearing, an Administrative Law Judge (ALJ) issued a written decision affirming the EDD's determination of invalidity. The ALJ reasoned that Goldstein's claim was invalid under section 1277 because he had not earned sufficient wages during the benefit year of his First Claim. The ALJ noted that disability benefits qualify as wages under section 1277.5, but concluded that Goldstein's prior "receipt of unemployment insurance benefits preclude[d] the application of" section 1277.5 to the Second Claim.

Goldstein appealed the ALJ's decision to the Board. In a May 1, 2015 decision, the Board adopted the ALJ's findings of fact and reasons for the decision as its own and affirmed.

On July 1, 2015, Goldstein filed a complaint against the Board in superior court and petitioned for a writ of mandate compelling the Board to reverse its denial of the Second Claim. Following a hearing, the superior court denied the petition in an order dated March 15, 2016, writing: "Petitioner's claim was not valid under Unemployment Insurance Code Section 1277 because he did receive unemployment insurance benefits during the prior valid claim period. ( Unemp. Ins. Code Sections 1277, 1277.1 ). Unemployment Insurance Code Section 1277.5 does not apply to the facts underlying Petitioner's claim." The trial court did not address whether Goldstein performed work during the relevant period.

Goldstein, proceeding in propria persona as he has throughout, timely appealed.

*1013II. DISCUSSION

A. Legal Principles

1. Standard of Review

"Judicial review of benefit decisions of the ... Board is governed by *723Code of Civil Procedure section 1094.5." ( Jacobs v . California Unemployment Ins . Appeals Bd . (1972) 25 Cal.App.3d 1035, 1040, 102 Cal.Rptr. 364.) Code of Civil Procedure section 1094.5, subdivision (b) limits the trial court's inquiry into the propriety of an administrative decision to three grounds: "[ (1) ] whether the respondent has proceeded without, or in excess of, jurisdiction; [ (2) ] whether there was a fair trial; and [ (3) ] whether there was any prejudicial abuse of discretion." "Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." ( Code Civ. Proc., § 1094.5, subd. (b).) "A writ of administrative mandamus will not be issued unless the court is persuaded that an abuse of discretion was prejudicial. [Citation.] In other words, the reviewing court will deny the writ, despite abuse of discretion, if the agency's error did not prejudicially affect the petitioner's substantial rights." (1 Cal. Admin. Mandamus (Cont.Ed.Bar 3d ed. 2018) Court's Scope of Review [Under Code. Civ. Proc. § 1094.5 ] § 6.47.)

In mandate proceedings, courts of appeal review legal questions, including questions of statutory interpretation, de novo. ( Santa Clara Valley Transportation Authority v . Rea (2006) 140 Cal.App.4th 1303, 1313, 45 Cal.Rptr.3d 511 ; Fireman's Fund Ins . Companies v . Quackenbush (1997) 52 Cal.App.4th 599, 604, 60 Cal.Rptr.2d 732 [on appeal from grant of mandate petition, applying de novo standard of review to "purely legal question" of statutory interpretation].)

2. Principles of Statutory Construction

When interpreting a statute, "our primary task is to 'ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] The Legislature's language is the best indicator of its intent. [Citation.]" ( 926 North Ardmore Ave ., LLC v . County of Los Angeles (2017) 3 Cal.5th 319, 328, 219 Cal.Rptr.3d 695, 396 P.3d 1036.) Where a "statute is unambiguous on its face ..., courts may always test their construction of disputed statutory language against extrinsic aids bearing on the drafters' intent." ( Kulshrestha v . First Union Commercial Corp . (2004) 33 Cal.4th 601, 613 fn. 7, 15 Cal.Rptr.3d 793, 93 P.3d 386.) Such extrinsic aids include " ' "the legislative history of the statute and the wider historical circumstances of its enactment ...." [Citation.]' [Citation.]" ( *1014State Comp . Ins . Fund v . Workers' Comp . Appeals Bd . (2018) 20 Cal.App.5th 796, 805, 229 Cal.Rptr.3d 506 ; Hughes v . Pair (2009) 46 Cal.4th 1035, 1046, 95 Cal.Rptr.3d 636, 209 P.3d 963 ["we [may] look to legislative history to confirm our plain-meaning construction of statutory language"].)

3. The Statutory Scheme

a. Section 1276 and the Benefit Year

Unemployment insurance "[b]enefits are paid during the benefit year" ( Monroe v . Oakland Unified School Dist . (1981) 114 Cal.App.3d 804, 812, 170 Cal.Rptr. 867 ), which is statutorily defined as "the 52-week period beginning with the first day of the week with respect to which the individual first files a valid claim for benefits ...." ( § 1276.) The benefit year for Goldstein's first claim was the 52-week period beginning on March 10, 2013 and ending on March 8, 2014.

b. Section 1275 and the Base Period

The amount of unemployment benefits to which a claimant is entitled is "based on wages paid in the base period." (§ 1275, subd. (a).) Section 1275 defines the "base period" by reference to when a claimant's *724benefit year began. Generally, "for benefit years beginning in January, February, or March," the "base period" is "the four calendar quarters ended in the next preceding month of September." (§ 1275, subd. (a).) The base period set forth in section 1275, subdivision (a) excludes earnings in the last three to six months of employment. (Sen. Rules Com., Off. of *1015Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 29 (2009-2010 3rd Ex. Sess.) as amended Mar. 25, 2009 at p. 5.)

In 2009, the Legislature enacted section 1275, subdivision (b), which sets forth an alternative base period. (Stats. 2009-2010, 3rd Ex. Sess., ch. 23, § 2.) The section 1275, subdivision (b) alternative base period applies where a claimant "cannot establish a claim under [section 1275] subdivision (a) ...." (§ 1275, subd. (b).) In that circumstance, " 'base period' means: ... for benefit years beginning in January, February, or March, the four calendar quarters ended in the next preceding month of December ...." (§ 1275, subd. (b).) The alternative base period set forth in section 1275, subdivision (b) includes "earnings as recent as 1 to 3 months" prior to the filing of a claim, thus enabling more workers, including seasonal workers, to establish eligibility for unemployment insurance benefits.3 (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 29 (2009-2010 3rd Ex. Sess.) as amended Mar. 25, 2009 at p. 5.)

c. Section 1277 and the Lag Period

The time period between the end of the base period and the beginning of the benefit year is commonly referred to as the " 'lag period.' " (Sen. Com. on Industrial Relations, Analysis of Sen. Bill No. 1981 (1989-1990 Reg. Sess.) as amended Apr. 18, 1990 at p. 1.) "Workers who are still unemployed at the end of their 52[-]week benefit year may file a new unemployment insurance claim based on wages paid in the lag period." (Ibid .) Such lag period claims are governed by section 1277, which applies where "the base period of a new claim includes wages which were paid prior to the effective date of, and not used in the computation of the award for, a previous valid claim." ( § 1277.)

Section 1277 provides that a lag period claim is "valid if, during the 52-week period beginning with the effective date of the previous valid *1016claim, either of the following applies: [¶] (a) The individual earned or was paid sufficient wages to meet the eligibility requirements of subdivision (a) of Section 1281 and performed some work. [¶] (b) The individual did not receive benefits under this part, and was disabled and was entitled to receive, wage loss benefits under Part 2 (commencing with Section 2601) of this division [ (i.e., disability benefits) ] or under Division 4 (commencing with Section 3201) of the Labor Code [ (i.e., workers' compensation benefits) ], or under any workers' compensation law, employer's liability law, or disability insurance law of any other state or of the federal government." That is, a lag period claim is valid if, during the benefit year of the claimant's first claim, he or she (a) satisfied earnings and work requirements or (b) received no unemployment benefits due to disability or injury. *725d. Section 1277.1

Section 1277.1 was enacted at the same time that section 1275, subdivision (b) was added to create the alternative base period. (Stats. 2009, 3rd Ex. Sess., ch. 23, § 3.) It applies, "[n]otwithstanding Section 1277," to "a subsequent new claim" when the claimant's "previous valid claim was filed under subdivision (b) of Section 1275...." ( § 1277.1, subd. (a).) Section 1277.1, subdivision (a) provides that such a "new claim shall only be valid if, during the 52-week period beginning with the effective date of the previous claim, either of the following applies: [¶] (1) The individual earned or was paid sufficient wages to meet eligibility requirements of subdivision (a) of Section 1281 and performed some work. [¶] (2) The individual did not receive benefits under this part and was disabled and was entitled to receive wage loss benefits under Part 2 (commencing with Section 2601) or under Division 4 (commencing with Section 3200) of the Labor Code, under any workers' compensation law, under employer's liability law, or under any disability insurance law of any other state or the federal government." These validity requirements are identical to those set forth in section 1277.

e. Section 1277.5 and the Use of Disability Benefits as Wages

Section 1277.5 provides, in relevant part, that "[i]n determining, under Sections 1277 and 1277.1, whether a new claim is valid, twice the amount that an individual was entitled to receive [in Disability Compensation]..., during [the benefit year of the claimant's first claim], shall be considered as wages earned or paid to the individual during that 52-week period for purposes of meeting the eligibility requirements of subdivision (a) of Section 1281."

B. The Parties' Positions

Goldstein maintains that his Second Claim was valid under section 1277, subdivision (a) because, during the benefit year of his First Claim, he received sufficient disability benefits (which, according to section 1277.5, constitute wages) to satisfy the earnings requirement and he performed some work.

The Board responds that Goldstein's receipt of unemployment benefits during the benefit year of his First Claim rendered his Second Claim invalid. In the Board's view, a section 1277 claim is valid only if the claimant did not receive any unemployment benefits during the benefit year of his or her first claim. The Board also takes the position that "disability benefits ... count toward the earned wages necessary to bring a valid claim only if the individual did not receive unemployment insurance benefits during the 52-week qualifying period" (i.e., the benefit year of the claimant's first claim). The Board does not address whether Goldstein satisfied the section 1277, subdivision (a) work requirement in its respondent's brief. The Board also cites section 1277.1 as invalidating Goldstein's second claim.

*1017As discussed further below, our research turned up published guidance from the EDD-the agency charged with administering the State's unemployment insurance compensation program4 -directly contradicting the Board's position that disability benefits are not considered wages if the claimant was paid unemployment insurance benefits on the prior claim. We requested supplemental briefing from the parties addressing both the propriety of this court's taking judicial notice of the *726published guidance and the substance of the EDD's position that disability insurance payments may be used to satisfy the section 1277, subdivision (a) earnings requirement where the claimant was paid benefits on a prior claim.

In its response to that request, the Board acknowledges that "Goldstein's disability insurance payments could potentially be used to satisfy the [ section 1277, subdivision (a) ] sufficient 'wages' requirement" and asserts a new ground for affirmance-Goldstein's inability to satisfy the section 1277, subdivision (a) work requirement. The Board's concession that Goldstein's disability benefits constitute wages for purposes of the earnings requirement is diametrically opposed to the position it took in its respondent's brief that "disability benefits ... count toward the earned wages necessary to bring a valid claim only if the individual did not receive unemployment insurance benefits during" the benefit year of the claimant's first claim. Yet the Board fails to recognize any inconsistency in its positions, instead reaffirming the arguments set forth in its respondent's brief and claiming that the "EDD's interpretation of ... section 1277 is identical to [the Board's] position throughout this case ...."

C. Section 1277 Governs the Validity of the Second Claim

The validity of a second claim for unemployment benefits is governed by either section 1277 or section 1277.1, depending on the base period of the first claim for unemployment benefits. Section 1277.1 applies where the first "claim was filed under subdivision (b) of Section 1275," meaning the alternative base period was used for purposes of calculating unemployment benefits. Otherwise, section 1277 applies.

We begin by considering which of these provisions governs the validity of the Second Claim. Goldstein assumes that section 1277 governs without any factual or legal analysis. The Board cites both section 1277 and section 1277.1 in its respondent's brief, treating them as interchangeable. They are not. In its supplemental brief, the Board says that section 1277 applies and asserts that the base period for Goldstein's First Claim was October 1, 2011 through *1018September 30, 2012. But the record pages it cites for that assertion show only that the effective date of the First Claim was March 10, 2013, without indicating the base period.

In fact, the record appears to be silent as to the base period of Goldstein's First Claim. Given that the EDD determined that Goldstein's Second Claim was invalid under section 1277, the ALJ and the Board relied exclusively on section 1277, and the parties agree that section 1277 applies, we shall assume that the base period of Goldstein's First Claim was October 2011 through September 2012. In that case, the lag period (the time between the base period and the start of the benefit year of the First Claim) was October 2012 through February 2013. The base period of the Second Claim was either October 2012 through September 2013 (§ 1275, subd. (a)) or January 2013 through December 2013 (§ 1275, subd. (b)). Either way, the base period of the Second Claim included wages paid in January and February 2013, "which were paid prior to the [March 10, 2013] effective date of, and not used in the computation of the award for, [his] previous valid claim." ( § 1277.) Thus, based on our assumption regarding the base period of the First Claim, the Second Claim was a lag period claim governed by section 1277 and we analyze it as such. (The same analysis would apply under section 1277.1, as the provisions contain identical validity requirements.)

*727D. Receipt of Unemployment Benefits During the Prior Benefit Year Does Not Invalidate a Claim Under Section 1277 , Subdivision (a )

The Board claims that any section 1277 claim is invalid if the claimant received unemployment benefits during the benefit year of his or her first claim. We reject that reading of section 1277, which is contradicted by the plain statutory language, the provision's legislative history, and the wider historical circumstances of its enactment and amendment over time.

1. Statutory Language

We begin with section 1277 's preamble. It provides: "Notwithstanding Section 1281, if the base period of a new claim includes wages which were paid prior to the effective date of, and not used in the computation of the award for, a previous valid claim, the new claim shall only be valid if, during the 52-week period beginning with the effective date of the previous valid claim, either [subdivision (a) or subdivision (b) ] applies: ...." ( § 1277.) The term "either" means "one or the other." (Oxford English Dict. (2018) < http://www.oed.com/view/Entry/60027?redirectedFrom=either#eid> [as of Apr. 30, 2019], archived at: https://perma.cc/2JVN-9F7G [defining "either" as "one or other of the two"]; The American Heritage Dict. (2018) < https://www.ahdictionary.com/word/search.html?q=either> [as of Apr. 30, *10192019], archived at: https://perma.cc/EF2Q-ZA2Q [defining "either" as "Any one of two; one or the other"]; Heritage Residential Care , Inc . v . Division of Labor Standards Enforcement (2011) 192 Cal.App.4th 75, 83, 120 Cal.Rptr.3d 363 [" 'When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word' "].) Accordingly, subdivisions (a) and (b) are mutually exclusive; a claim need not satisfy both to be valid.

Next, we turn to subdivision (a) of section 1277, which states, "The individual earned or was paid sufficient wages to meet the eligibility requirements of subdivision (a) of Section 1281 and performed some work." In conjunction with the preamble, section 1277, subdivision (a) provides that a claim is valid if the claimant satisfies an earnings requirement and a work requirement. By its terms, it does not condition claim validity on the claimant's not having received unemployment insurance benefits during the benefit year of his or her first claim.

By contrast, subdivision (b) of section 1277 provides that a claim is valid if the claimant "did not receive [unemployment insurance] benefits ..., and was disabled and was entitled to receive" disability of workers' compensation benefits. Section 1277, subdivision (b) demonstrates that when the Legislature intends to condition claim validity on the claimant's not having received unemployment insurance benefits during the prior benefit year, it does so expressly. That the Legislature chose not to include any such express condition in section 1277, subdivision (a) indicates that the Legislature intended that section 1277, subdivision (a) claims be valid where the earnings and work requirements are met, regardless of prior receipt of unemployment benefits. (See In re Jennings (2004) 34 Cal.4th 254, 273, 17 Cal.Rptr.3d 645, 95 P.3d 906 [" 'It is a settled rule of statutory construction that where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes' "].)

In sum, the plain language of section 1277 is unambiguous and compels the *728conclusion that a claimant can establish a valid claim under section 1277, subdivision (a) even if he or she received unemployment insurance benefits during the benefit year of the prior valid claim.

2. Statutory and Legislative History5

The history of section 1277 confirms our construction of section 1277, subdivision (a).

*1020When it was first enacted in 1953, section 1277"conditioned second claim benefits upon only a satisfaction of a wage prerequisite." ( Molnar v . Unemployment Ins . Appeals Bd . (1997) 57 Cal.App.4th 1448, 1451, 67 Cal.Rptr.2d 771 ( Molnar ).) That is, in 1953, a lag period claim was valid if the claimant earned a certain amount of wages during the benefit year of the first claim. (Stats. 1953, ch. 308, § 1277, p. 1504.)6

Section 1277 has since been amended a number of times, including in 1971. (Stats. 1971, ch. 1107, § 61, p. 2117, eff. Oct. 18, 1971, operative Jan. 1, 1972.) At that time, a requirement that the claimant "had some work" during the benefit year of the first claim was added to conform with federal law, namely Public Law No. 91-373 (1970). (Stats. 1971, ch. 1107, § 61, p. 2117; Finance, Analysis of Assem. Bill No. 1503 (1971 Reg. Sess.) as amended June 10, 1971; Molnar , supra , 57 Cal.App.4th at p. 1451, 67 Cal.Rptr.2d 771"[To avoid the loss of several $ 100 millions in federal funding, the Legislature amended the statute in 1971 to conform to federal law [citations] which prefaced eligibility upon a wage and a work requirement"].) Among other things, Public Law No. 91-373 added section 3304(a)(7) to the Federal Unemployment Tax Act. ( Pub.L. No. 91-373, Title I, § 121(a) ; 84 Stat. 695 (1970).) That provision mandates that states require "an individual who has received [unemployment] compensation during his benefit year ... to have had work since the beginning of such year in order to qualify for [unemployment] compensation in his next benefit year." ( 26 U.S.C. § 3304(a)(7), italics added; 26 U.S.C. § 3306(h) [defining "compensation" as "cash benefits payable to individuals with respect to their unemployment"].)

If, prior to the 1971 amendment, a section 1277 claim was invalid if the claimant had received unemployment benefits during the prior benefit year, then no amendment would have been required to bring it into compliance with 26 U.S.C. § 3304(a)(7). The State Legislature's conclusion that amendment was necessary means that receipt of unemployment benefits during the prior benefit year did not render a section 1277 claim invalid prior to the 1971 amendment.

*1021Nor did the 1971 amendment prevent claimants who had received unemployment *729benefits during the prior benefit year from establishing a valid section 1277 claim. Instead, the Legislature opted to bring section 1277 into compliance with federal law by adding a work requirement. That approach indicates that the Legislature's intent was to allow an individual to receive unemployment insurance benefits two years in a row, so long as he or she met the existing earnings requirement and the newly enacted work requirement during the first benefit year.

The Legislature amended section 1277 most recently in 1990, at which time current subdivision (b) was added. (Stats. 1990, ch. 787, § 1.) Section 1277, subdivision (b) sets forth an exception to the earnings and work requirements for a narrow group of claimants-those who filed a valid unemployment insurance claim, but received no unemployment insurance benefits because they became injured or disabled and were unable to work during the entire benefit year. (Legis. Analyst, Analysis of Sen. Bill No. 1981 (1989-1990 Reg. Sess.) as amended Apr. 18, 1990, May 10, 1990.)

Legislative analyses prepared during the legislative process indicate that the Legislature's intent in enacting section 1277, subdivision (b) was to "remove[ ] a rarely exposed flaw in the law: individuals who have filed an unemployment insurance claim, but do not receive benefits because they are unable to work during the entire 52 week period of the claim, cannot receive [unemployment insurance] benefits on a new claim when they recover and are able to work, solely because they filed the first [unemployment insurance] claim. If they had not filed the expired [unemployment insurance] claim, they would be eligible based on qualifying wages remaining in the base period." (Sen. Com. on Industrial Relations, Analysis of Sen. Bill No. 1981 (1989-1990 Reg. Sess.) as amended Apr. 18, 1990; see also Assem. Finance and Insurance Com., Republican Analysis of Sen. Bill No. 1981 (1989-1990 Reg. Sess.) as amended June 14, 1990 [describing the amendment as "[f]ix[ing]a small quirk in the law"].) Legislative analyses also noted that, despite its lack of a work requirement, subdivision (b) would not run afoul of the federal requirement "that 'an individual who has received compensation during his benefit year is required to have had work[ ] since the beginning of such year in order to qualify for compensation in his next benefit year,' " because subdivision (b) called for "paying benefits on a subsequent claim when no benefits were paid on the prior claim ...." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1981 (1989-1990 Reg. Sess.) as amended Apr. 18, 1990; Sen. Com. on Industrial Relations, Analysis of Sen. Bill No. 1981 (1989-1990 Reg. Sess.) as amended Apr. 18, 1990.)

The foregoing legislative history demonstrates that the Legislature did not intend section 1277, subdivision (b) to prevent all claimants who *1022received unemployment benefits during the benefit year of a prior valid claim from establishing a valid subsequent claim under section 1277. Instead, the Legislature plainly intended to exempt from the earnings and work requirements those claimants who received no unemployment benefits on their prior valid claim because they were disabled for the entire benefit year. The enactment of section 1277, subdivision (b) had no impact on claimants who did receive unemployment benefits during the benefit year of a prior valid claim; they remain eligible for the additional unemployment benefits so long as they satisfy the section 1277, subdivision (a) earnings and work requirements.

In sum, statutory language and statutory and legislative history convince us that receipt of unemployment benefits in the *730prior benefit year renders a claim invalid under section 1277, subdivision (b) but not under section 1277, subdivision (a).

E. Receipt of Unemployment Benefits During the Prior Benefit Year Does Not Preclude the Application of Section 1277.5

The parties dispute whether section 1277.5 applies where the claimant received unemployment insurance benefits during the benefit year of the prior valid claim. Goldstein argues that the receipt of unemployment benefits does not impact the applicability of section 1277.5. The Board contends that "disability benefits ... count toward the earned wages necessary to bring a valid claim only if the individual did not receive unemployment insurance benefits during the 52-week qualifying period."7 For that position, the Board merely cites sections 1277, subdivision (b) and 1277.1, subdivision (a)(2) without any legal analysis. The Board is mistaken.

1. Statutory Language

Section 1277.5 states, in relevant part: "In determining, under Sections 1277 and 1277.1, whether a new claim is valid, twice the amount that an individual was entitled to receive under Part 2 (commencing with Section 2601) of this division [ (i.e., in disability benefits) ] or under Division 4 (commencing with Section 3200) of the Labor Code [ (i.e., in workers' compensation benefits) ], or under any workers' compensation law, employer's liability law, or disability insurance law of any other state or of the federal government, during the 52-week period beginning with the effective date of the previous valid claim, shall be considered as wages earned or paid to the individual during that *102352-week period for purposes of meeting the eligibility requirements of subdivision (a) of Section 1281."

Section 1277.5 contains no language limiting its application to circumstances in which the claimant did not receive unemployment insurance benefits during the benefit year of the prior valid claim. By its terms, it applies, without limitation , to any determination as to whether a new claim is valid under section 1277. The language of section 1277.5 is unambiguous and squarely refutes the Board's argument that disability benefits are not treated as wages for purposes of section 1277, subdivision (a) 's earnings requirement if the claimant received unemployment benefits during the prior benefit year.

The Board's reliance on sections 1277, subdivision (b) and 1277.1, subdivision (a)(2) for its position is misplaced. As the Board effectively concedes in its supplemental brief, section 1277.1 has no application here. And section 1277, subdivision (b) exempts a narrow subset of claimants-those who received no unemployment benefits on their prior valid claim because they were disabled for the entire benefit year-from the earnings and work requirements. It does not limit the applicability of section 1277.5 to circumstances in which the claimant did not receive unemployment benefits during the prior benefit year.

2. Agency Interpretation

Our construction of section 1277.5, under which disability benefits constitute wages for purposes of section 1277 regardless of whether the claimant received unemployment benefits during the prior benefit *731year, is consistent with the EDD's own statutory interpretation. ( Yamaha Corp . of America v . State Bd . of Equalization (1998) 19 Cal.4th 1, 7, 78 Cal.Rptr.2d 1, 960 P.2d 1031 ["An agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts ...."]; Skidgel , supra , 24 Cal.App.5th at p. 584, fn. 10, 234 Cal.Rptr.3d 528 [the EDD is the state agency charged with administering unemployment insurance compensation program].) The EDD's interpretation of the Unemployment Insurance Code appears in its "Benefit Determination Guide," a publication the department uses in making eligibility determinations and has made publicly available on-line.8 (< https://www.edd.ca.gov/UIBDG/> [as of Apr. 29, 2019], archived at: < https://perma.cc/BC6F-973Z *1024>.) The Benefit Determination Guide provides that disability insurance payments "may be used to satisfy the requirements of Section 1277 under either of the following conditions: [¶] [ (1) ] If the claimant was not paid any benefits on the prior claim, and was disabled and entitled to receive either [Disability Insurance or Workers' Compensation] to compensate for wage loss, the claimant may use the amount of [Disability Insurance or Workers' Compensation] paid to satisfy the earnings requirement; or [¶] [ (2) ] If the claimant was paid benefits on the prior claim and has satisfied the 'some work' requirement, the claimant may use twice the dollar amount of the [Disability Insurance or Workers ' Compensation ] payments to meet the earnings requirement ."9 (Ibid ., italics added.) *732F. Goldstein Fails to Show Prejudicial Error

The Board denied Goldstein's Second Claim for failure to satisfy the section 1277, subdivision (a) earnings requirement. For the reasons set forth below, that was error, but Goldstein fails to show that the error was prejudicial.

The earnings requirement is satisfied where the claimant "earned or was paid sufficient wages to meet the eligibility requirements of subdivision (a) of Section 1281 ...." ( § 1277, subd. (a).) One of the ways a claimant can satisfy the section 1281, subdivision (a) eligibility requirement is by showing *1025that he or she was paid at least $1,300 in wages during his or her highest paid quarter in the base period. (§ 1281, subd. (a)(1).)

The benefit year of Goldstein's First Claim, and thus the relevant period here, was March 10, 2013 to March 8, 2014. It is undisputed that, during that period, Goldstein received disability benefits. The record shows that the third quarter of 2013 was the quarter in which he received the most disability benefits-$ 13,001.42 in total. That sum is more than enough to satisfy section 1281, subdivision (a), even without being doubled under section 1277.5. Thus, Goldstein satisfied the earnings requirement and the Board erred in ruling otherwise.

The Board's error is prejudicial, and thus reversible, only if it affected the outcome of Goldstein's appeal. (See Code Civ. Proc., § 1094.5, subd. (b) [requiring a "prejudicial abuse of discretion"]; Quintanar v . County of Riverside (2014) 230 Cal.App.4th 1226, 1228, 1236, 179 Cal.Rptr.3d 82 [reversing judgment granting writ of administrative mandate where the hearing officer's use of the wrong standard of review was an abuse of discretion but was not prejudicial because use of the correct standard "would not have changed the outcome"].) It did not.

A claim is valid under section 1277, subdivision (a) only if both the earnings and work requirements are satisfied. The EDD denied the Second Claim for failure to satisfy either of these requirements. The Board's error as to the earnings requirement affected the outcome of Goldstein's appeal only if he also established that the EDD erred in concluding he did not satisfy the work requirement. But the record indicates that Goldstein did not challenge the EDD's work requirement finding in his appeals to the ALJ and the Board. Nor did he raise the issue in his operative amended petition for writ of mandate.

And even assuming Goldstein raised the issue during the agency proceedings and below, he points us to no record evidence establishing that he satisfied the work requirement. Title 22 of the California Code of Regulations, section 1277-2, subdivision (a) defines "work" for purposes of section 1277 as "services performed by a person for remuneration ... [,] includ[ing] services performed for income or earnings in self-employment ...."10 "Remuneration" means "pay" or "payment." (See Oxford English Dict. (2018) < http://www.oed.com/view/Entry/162337?redirectedFrom=remuneration#eid> [as of Apr. 29, 2019], archived at: https://perma.cc/4SE3-M76Q [defining remuneration as "money paid for work or a service; payment, pay"].) The record contains no evidence that Goldstein performed services for pay between March *73310, 2013 and March 8, 2014.11 In his opening brief, Goldstein asserts that he engaged in "self-employment activities" during that time. Specifically, he claims-without citation to the record-that he "practic[ed] information security practices" as required to remain certified as a Certified Information Systems Security Professional by the International Information Systems Security Certification Consortium. That bald assertion is insufficient to warrant our consideration. (See Mueller v . County of Los Angeles (2009) 176 Cal.App.4th 809, 816, f. 5, 98 Cal.Rptr.3d 281 *1026["The claimed existence of facts that are not supported by citations to pages in the appellate record, or not appropriately supported by citations, cannot be considered by this court"].) Moreover, Goldstein does not contend, let alone show, that he was paid for any efforts he undertook to maintain his certification. And while maintaining the certification might enable him to obtain paid employment in the future, that does not render it a service performed for pay, which the statute requires to satisfy the work requirement.

On reply, Goldstein raises a new theory as to how he satisfied the "performed some work" requirement. Invoking section 1275, he contends that the relevant 52-week period is October 2012 to September 2013, not March 10, 2013 to March 8, 2014. (It is undisputed that Goldstein was employed for a portion of this newly proposed 52-week period-October 2012 to March 2013.) Goldstein's new argument fails for two reasons. First, he improperly raises it for the first time on reply. "Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant." ( Varjabedian v . City of Madera (1977) 20 Cal.3d 285, 295, fn. 11, 142 Cal.Rptr. 429, 572 P.2d 43.) Accordingly, "[p]oints raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." ( Campos v . Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3, 67 Cal.Rptr.2d 350.) Because Goldstein has not shown good cause for raising the issue belatedly, we will not consider it. Second, the argument is meritless. As discussed above, section 1275 defines the base period, which is relevant to the computation of unemployment *1027benefits. But for purposes of determining the validity of Goldstein's claim under section 1277, the relevant time period is "the 52-week period beginning with the effective date of the previous valid claim ...." ( § 1277.) Here, that 52-week period ran from March 10, 2013 to March 8, 2014. As discussed above, there is no evidence Goldstein performed services for pay during that time.

Because Goldstein shows neither that he challenged the EDD's work requirement finding nor that any such challenge would have been meritorious, he fails to show that the Board's error as to the earnings requirement was prejudicial. Accordingly, the trial court did not err in denying his petition for writ of mandamus. ( *734Code Civ. Proc., § 1094.5, subd. (b) [requiring a "prejudicial abuse of discretion"].)

G. Goldstein's Complaints Regarding the Superior Court's Record-Keeping Practices

Goldstein spends a significant portion of his opening brief complaining about the superior court's record-keeping practices. But he does not contend that those alleged inadequacies prejudiced his case in any way. Nor does he raise any claim of error based on his complaints. Accordingly, we decline to address his grievances. ( In re S .C . (2006) 138 Cal.App.4th 396, 409, 41 Cal.Rptr.3d 453 [declining to address appellant's complaints regarding respondent's discovery responses where appellant merely was "vent[ing]" and raised no claim of error].)

III. DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

WE CONCUR:

GREENWOOD, P. J.

GROVER, J.