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Reena Johar, a home improvement salesperson for Success Water Systems, left work to care for a terminally ill relative, and while she was away her employer decided she had quit. She was gone about a week.

Upon her return, the employer told her business was slow and gave her no new sales appointments. Johar eventually made a claim for unemployment benefits with the Employment Development Department (EDD), telling the EDD she lost her job due to a “temporary layoff.”

The employer denied laying Johar off. While conceding that she left with her supervisor’s approval, the employer advised the EDD that Johar’s failure to provide a return date or otherwise communicate with her supervisor while she was away amounted to a voluntary quit.

According to Johar, she was hired with the understanding that she might need to take leaves from time to time to care for her grandmother. She had two approved leaves of absences for this purpose before this controversy.

EDD conducted an interview with the employer who conceded they approved her leave to go to Chicago, but stated that the approved leave was not indefinite. They said that Johar failed to respond to repeated requests for a return date, and was eventually deemed absent without leave.

The EDD accepted the employer’s position, found Johar ineligible for unemployment benefits, ordered reimbursement of benefits improperly paid, and imposed a penalty for willful misrepresentation in seeking benefits. An administrative law judge sustained the EDD’s ruling, and the California Unemployment Insurance Appeals Board (CUIAB) affirmed, finding that “Basically, [Johar] abandoned her job.”

When she initiated her appeal at the CUIAB she was in pro per. After the hearing she secured representation from the Workers’ Rights Clinic, one of the Community Justice Clinics affiliated with the Hastings College of the Law. The Clinic proffered some new evidence that had not been available at the time of the ALJ hearing. CUIAB said that it did “not think that the additional evidence is relevant.”

The Court of Appeal reversed in the published case of Johar v. California Unemployment Insurance Appeals Board – A162563 (September 2022).

Three days after the CUIAB issued its decision denying Johar’s appeal and refusing to consider the new evidence she proffered, Division One of this court filed its opinion in Land v. California Unemployment Insurance Appeals Board (2020) 54 Cal.App.5th 127 (Land).

In that case, the CUIAB, just as it did here, refused to consider the new evidence, citing due process concerns. The Land court viewed the proffered new evidence there to be “pivotal” and vacated the CUIAB’s affirmance of the ALJ’s decisions. The court remanded with directions that the CUIAB either take the new evidence into account directly, or remand to the ALJ to “make new findings of fact” and issue “new reasons for decision.”

However, “in the case a remand to review the new evidence was not necessary, because “the CUIAB’s decision was incorrect on the administrative record before it.” Thus the Court of Appeal held ” it was an abuse of discretion to withhold mandamus relief pending further administrative proceedings.”

Here there “was no evidence that, when Johar left, SWS had an established leave of absence policy which Johar knew or should have known, and simply ignored. And to the extent there was an informal leave protocol established by the parties’ prior conduct, Johar followed it.”

The dispositive question in this case is whether, having voluntarily left work for good cause, Johar manifested an intention to abandon her job while she was gone. Johar claims she did not.

An anticipatory breach of contract occurs when one contracting party “positively repudiates the contract by acts or statements indicating that [she] will not or cannot substantially perform essential terms thereof . . . .” [Citation.] “Anticipatory breach must appear only with the clearest terms of repudiation of the obligation of the contract.”

In the eight days between Johar’s departure and the “quit” date SWS reported to the EDD) or for that matter in the 13 days between her departure and the day her supervisor sent out Johar’s “final check,” nothing on this record comes close to meeting this test.

SWS took the position in the proceedings before the ALJ that Johar’s intention to quit may be inferred by her silence in the face of Mari Lynn Johnson’s post-departure requests for a specific return date.

But that is not enough to show a repudiation of future contractual duties. The emails of record show that Johar did eventually respond, saying she would “get back to you when the emergency ceases.” But even if we assume arguendo she failed to respond at all, as Mari Lynn Johnson testified, the evidence is still insufficient to show a “positive” repudiation in “the clearest terms.”