Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVRS907616 David A. Williams, Judge.
Rod Williams, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Richard Waldow, Jennifer M. Kim, and Betty Chu-Fujita, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ramirez P.J.
Rod Williams, plaintiff, made a claim for State Disability Insurance benefits with the Employment Development Department (EDD). Plaintiff’s claim indicated he had received no pay from his employer, United Parcel Service (UPS). However, UPS informed EDD that plaintiff was receiving 75 percent of his wages in the form of a private disability benefit. EDD therefore determined that it had overpaid plaintiff, and it denied benefits for the period covered by the UPS provided benefits. Plaintiff initiated an administrative appeal to the California Unemployment Insurance Appeals Board (CUIAB), challenging EDD’s determination that plaintiff had been overpaid for disability benefits. Following CUIAB’s affirmance of EDD’s determination, plaintiff filed a petition seeking administrative mandamus. Defendants EDD and CUIAB demurred, and their demurrers were sustained without leave to amend.
Plaintiff appeals from the order sustaining the demurrers without leave to amend. On appeal, plaintiff challenges (1) the determination that the sums he received from UPS constituted “wages” or “pay” which should be offset against any state disability insurance benefits; (2) the finding that EDD was not a proper party to the administrative mandamus proceeding; and (3) the finding that the amended petition was untimely as against CUIAB. We affirm.
BACKGROUND
Plaintiff was employed as an aircraft mechanic by UPS until April 9, 2008, when he became disabled. Plaintiff made a claim for disability benefits under UPS’s private disability insurance policy issued by Aetna Life Insurance Company (Aetna) and was approved to receive benefits from April 10, 2008, through May 15, 2008. Benefits under the UPS plan were calculated at 75 percent of the employee’s regular pay. Plaintiff also filed a claim for benefits under the State Disability Insurance (SDI), through the EDD. The EDD claim form includes an item asking a claimant, “If your employer continued to pay you, indicate type of pay.” In the blank, plaintiff wrote, “N/A.” On April 16, 2008, plaintiff was notified of the computation of disability benefits by EDD.
EDD sent UPS a notification of the claim for disability benefits. Item No. 5 on the form asks the employer if the employee has received or will the employee receive wages in the form of paid sick leave, vacation, personal time off, holiday, bonus, commission, or other type of payment while disabled. On May 16, 2008, a UPS representative indicated plaintiff was receiving short-term disability benefits in the amount of $1,293.54 weekly, which represented 75 percent of plaintiff’s regular wages.
When the state disability payments are added to the private disability payments, they exceeded plaintiff’s regular wages of $1,720 per week, so it was considered an overpayment. (Unemp. Ins. Code, § 2656.) On May 23, 2008, EDD notified plaintiff it had overpaid benefits in the amount of $981.08. The notice advised plaintiff that if he disagreed with the decision, he could appeal to an administrative law judge.
On May 29, 2008, and again on June 6, 2008, plaintiff appealed the determination that he had been overpaid, claiming that the disability benefits paid by UPS did not constitute pay which could be offset against the SDI benefits. On August 15, 2008, EDD notified plaintiff that the combined benefits payable under the state disability insurance and the short-term disability benefits payable through Aetna exceeded his regular weekly wage, so his disability benefits would be reduced. On August 26, 2008, EDD notified plaintiff that his claim had been denied because he had willfully made a false statement or failed to report a material fact in order to obtain benefits. Plaintiff appealed this decision, and the appeal was forwarded to the CUIAB.
On October 8, 2008, the appeal was heard by an Administrative Law Judge (ALJ). On October 21, 2008, the CUIAB mailed the decision of the ALJ, affirming the EDD determination of overpayment, to plaintiff. The notice that accompanied the decision informed the parties that the decision is final unless appealed within 20 days. Plaintiff appealed that decision. On January 12, 2009, the CUIAB denied plaintiff’s request for reconsideration and issued a final decision affirming the decision of the ALJ.
On July 9, 2009, plaintiff filed a petition for writ of mandate naming EDD as the sole respondent. EDD demurred to the petition on the grounds that (1) there was a misjoinder of parties insofar as CUIAB was the proper respondent, and (2) the petition failed to state facts sufficient to constitute a cause of action against the proper respondent. On September 18, 2009, plaintiff attempted to amend the petition to add the CUIAB as a respondent, but did not amend the body of the petition. EDD demurred again, this time along with CUIAB, on the grounds that (1) the petition fails to state facts sufficient to constitute a cause of action against both respondents; and (2) the petition was untimely.
On January 26, 2010, the court sustained the demurrers without leave to amend because (a) EDD is not a proper party, and (b) the petition was not filed within six months of the final administrative decision issued by CUIAB. Plaintiff appealed.
DISCUSSION
Plaintiff challenges the lower court’s ruling on the demurrers of EDD and CUIAB. He claims that (1) EDD is a proper party; (2) the amendment naming CUIAB was timely. We disagree.
When reviewing a judgment dismissing a complaint (or petition) after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We examine the pleading’s factual allegations to determine whether they state a cause of action on any available legal theory. (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1554-1555.) The judgment must be affirmed if it is correct on any ground stated in the demurrer, regardless of the trial court’s stated reasons. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.)
When a demurrer is sustained without leave to amend, we must also decide whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the complaint can be cured, the trial court has abused its discretion in sustaining without leave to amend. (Ibid; see also Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 481-482.)
We examine each ground individually.
a. Failure to State Facts Sufficient to Constitute a Cause of Action Against Either EDD or CUIAB
The operative petition alleged that EDD improperly reduced plaintiff’s short-term disability insurance payments. However, the petition does not allege any legal basis for this conclusion other than plaintiff’s assertion that SDI benefits could not be offset by the private disability insurance payments.
Plaintiff claimed in the lower court and again here that the temporary benefits he received through his employer’s disability insurance were not properly classified as “wages.” From this, he asserts that he was not required to declare those benefits on his claim for SDI benefits and that EDD was not entitled to offset the employer’s benefits against the SDI benefits. He has cited no authority to support his contention.
EDD determined it had overpaid disability benefits to plaintiff based on section 2653 of the Unemployment Insurance Code. That section limits the maximum amount of benefits payable to no more than the total wages paid to the individual during his disability base period. Under section 2656 of the Unemployment Insurance Code, an individual eligible to receive disability benefits who receives wages or regular wages from his employer during the period of disability shall be paid benefits in an amount not exceed his weekly wage.
“Wages, ” as used in Unemployment Insurance Code section 2656, includes compensation paid by an employer to the employee during the period of the employee’s disability which was proportionate to the wages the employee would have earned if he had worked. (Cooper v. Unemployment Ins. Appeals Bd. (1981) 118 Cal.App.3d 166, 169.) “Regular wages” includes sick leave which is paid entirely by the employer directly to the employee. (Id. at pp. 168, 169.)
“When an individual is entitled to benefits from the Disability Fund during the same disability benefit period for which he or she received benefits from a voluntary plan, or plans, the amount of all benefits, at a daily rate not exceeding his or her daily benefit rate pursuant to Sections 2627 and 2655 of the [Unemployment Insurance Code] paid or to be paid to him or her under all approved voluntary plans during that disability benefit period, shall be deducted from the benefits payable from the Disability Fund during that benefit period. The remaining balance shall be paid to the claimant, if otherwise eligible.” (Cal. Code Reg., tit. 22, § 3253-1, subd. (a).)
Thus, an employee can receive SDI benefits along with wage loss replacement benefits from the employer as long as the two together do not exceed the employees weekly wage immediately before the commencement of his or her disability. (Sumuel v. ADVO, Inc. (2007) 155 Cal.App.4th 1099, 1112.) In other words, the statutory reference to “wages” was not intended to define eligibility for benefits, but rather to prescribe a limitation upon the amount of benefits payable in accordance with section 2656 of the Unemployment Insurance Code. (Sears, Roebuck & Co. v. Stewart (1958) 162 Cal.App.2d 793, 797.)
EDD’s decision was in conformity with the applicable statutes and regulations governing computation of disability benefits. In arguing the contrary, plaintiff’s petition for writ of mandate, pursuant to Code of Civil Procedure section 1094.5, does not provide a legal basis for overturning EDD’s determination that plaintiff was overpaid. The amount of disability benefits to which he was entitled was properly computed by including the amount of temporary benefits paid to him under his employer’s temporary disability insurance plan. No facts sufficient to constitute a cause of action were stated against EDD. Further, the amended petition did not allege how CUIAB erred in any way. Thus, there are no factual allegations establishing any grounds for a claim against CUIAB.
The petition failed to state facts sufficient to constitute a cause of action against either EDD or CUIAB, and the demurrer was properly sustained.
b. Timeliness of the Petition
Unemployment Insurance Code section 410 requires a party to seek judicial review of a decision by an administrative appeals board within six months of the date of the decision. The appeals board decision was issued in final form on January 9, 2009. The amendment to the petition for writ of mandate naming CUIAB was filed on September 18, 2009, more than nine months later.
The general rule is that an amended complaint that adds a new defendant does not relate back to the date of the filing of the original complaint and the timeliness is determined as of the date on which the amended complaint is filed. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) However, a recognized exception to the general rule is the substitution under Code of Civil Procedure section 474 of a new defendant for a fictitious Doe defendant named in the original complaint. (Woo, at p. 176.) In such circumstances, an amended complaint is not barred by the statute of limitations if it relates back to a timely original complaint. (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150-151.) The relation-back doctrine requires that the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury; and (3) refer to the same instrumentality, as the original one. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409 [italics in original].)
The relation-back doctrine is inapplicable here because no fictitious Doe defendants were named in the original petition with allegations regarding their liability. Additionally, CUIAB’s participation in the matter was factually distinguishable from the actions of EDD, yet no facts relating to CUIAB’s conduct were alleged in either the original petition or the amended petition. Therefore, the amendment to include CUIAB did not relate back to the original petition, and was untimely.
c. Whether the Defect Can Be Cured By Amendment
Having determined that the two grounds for the demurrers by EDD and CUIAB were properly sustained, the next question is whether the plaintiff should have been granted leave to amend. We think not. As we have explained, the EDD properly factored the amounts paid by the employer under the private disability benefit into the computation of benefits payable under SDI, and the statute of limitations had expired prior to the amendment naming CUIAB. There is no possibility that an amendment could cure the defect.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
We concur Richli J. King J.