167 Cal.App.3d 1207, 24121, Patane v. Kiddoo

Docket Nº:24121
Citation:167 Cal.App.3d 1207, 214 Cal.Rptr. 9
Opinion Judge:[10] Puglia
Party Name:Patane v. Kiddoo
Attorney:[7] Hofvendahl, Roessler, Hirsch & Sussman and Russell L. Hofvendahl for Plaintiff and Appellant. [8] John K. Van de Kamp, Attorney General, Edward P. Hollingshead, Robert D. Milam and Charles Kobayashi, Deputy Attorneys General, for Defendant and Respondent.
Case Date:April 11, 1985
Court:California Court of Appeals

Page 1207

167 Cal.App.3d 1207

214 Cal.Rptr. 9

Carmen PATANE, Plaintiff and Appellant,


Kaye R. KIDDOO, as Director, etc., Defendant and Respondent.

Civ. 24121.

California Court of Appeal, Third District

April 11, 1985.

As Modified May 9, 1985.

Page 1208

[Copyrighted Material Omitted]

Page 1209

Hofvendahl, Roessler, Hirsch & Sussman, and Russell L. Hofvendahl, San Jose, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Edward P. Hollingshead, Robert D. Milam and Charles Kobayashi, Deputy Attys. Gen., for defendant and respondent.

PUGLIA, Presiding Justice.

Plaintiff instituted an action for refund of taxes which he claimed were illegally assessed and collected by the Employment Development Department (department) as unemployment insurance contributions for 1976. Defendant moved for summary judgment on the ground that plaintiff's failure to exhaust administrative remedies deprived the trial court of jurisdiction over the action. 1 The trial court granted the motion and entered judgment accordingly. Plaintiff appeals. We shall affirm the judgment, holding that plaintiff's failure to exhaust administrative remedies is established beyond reasonable dispute and that such failure constitutes a fatal departure from the procedure governing an action for refund of taxes to which no extra statutory exceptions apply.

In 1976 plaintiff entered into written agreements with certain individuals called share farmers, whereby they would harvest plaintiff's cucumber crop in exchange for 50% of the gross proceeds of the harvest. Each contracting share farmer warranted that he was an independent contractor.

In 1977, the Department of Benefit Payments, the department's predecessor agency, audited plaintiff's operations to ascertain whether the share farmers were in fact employees of plaintiff or independent contractors. The

Page 1210

agency concluded that the share farmers were plaintiff's employees (see Unemp.Ins.Code, § 601) and assessed plaintiff $5,485.86 as employer contributions to unemployment insurance. (Unemp.Ins.Code, § 976; hereinafter all references to sections of a code are to the Unemployment Insurance Code.)

Plaintiff filed a petition for reassessment (former § 1133, see § 1222). An administrative law judge ruled the share farmers were independent contractors and overturned the assessment (former § 1134; see § 1223). 2 On appeal by the department, the Unemployment Insurance Appeals Board (board) reversed and reinstated the assessment.

Plaintiff paid the assessment, then filed a claim for refund ( § 1178) in which he realleged the share farmers were independent contractors. The department denied his claim. On October 19, 1981, plaintiff filed a "Petition from Denial of Claim for Refund" ( § 1222). Thereafter plaintiff's attorney received a letter from the board informing him that a hearing is not required on a petition if a prior hearing has been afforded the petitioner involving the same issues, but advising that if the petitioner were to file an affidavit setting forth new and additional evidence in support of his petition, an additional hearing might be granted. The letter concluded: "From a review of this file, it would appear that the issues raised by the petitioner in the petition from denial of claim for refund are identical to those in the prior [petition for reassessment] case ... in which a hearing was held. Accordingly ... unless an affidavit is filed setting forth new and additional evidence within twenty days of the date of this letter, the matter will be reviewed based on the prior record, and a decision issued." No new and additional evidence was submitted and on August 27, 1982, Administrative Law Judge Berwald denied plaintiff's petition in...

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