Douglas v. Unemployment Ins. Appeals Bd.

• Decision Date: 27 October 1976
• Citation: 63 Cal.App.3d 110,133 Cal.Rptr. 604
• Court: California Court of Appeals Court of Appeals
• Parties: Joyanne DOUGLAS, Plaintiff and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Defendants and Respondents. Civ. 38772.

Page 604

133 Cal.Rptr. 604

63 Cal.App.3d 110

Joyanne DOUGLAS, Plaintiff and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Defendants and Respondents.

Civ. 38772.

Court of Appeal, First District, Division 2, California.

Oct. 27, 1976.

Hearing Denied Dec. 22, 1976.

Atchison, Haile & Haight, Santa Cruz, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., Harold W. Teasdale, Eleanor Nisperos, Deputy Atty. Gen., San Francisco, for defendants and respondents.

TAYLOR, Presiding Justice.

Plaintiff, Joyanne Douglas (Douglas), sought an administrative writ of mandate (Code Civ.Proc., § 1094.5) directing the California Unemployment Insurance Appeals Board (Board) to set aside its decision denying her unemployment benefits. On this appeal from the judgment denying the writ, she contends that: 1) the court erred and exceeded its jurisdiction in making findings that differed from those of the Board, and in failing to make findings on all of the material issues; 2) the court's findings do not support its judgment; and 3) the court erred on the merits as she left her employment not 'voluntarily,' but for 'good cause,' as required by Unemployment Insurance Code section 1256, ¹ since she was deprived by her employer of the opportunity to make a voluntary choice between the leave of absence she had requested and the permanent termination with a conditional rehire that occurred. We note that the instant matter was determined below prior to Lawis v. Unemployment Ins. Appeals Bd., 56 Cal.App.3d 729, 128 Cal.Rptr. 795 (decided Mar. 30, 1976; no petition for hearing filed), in which this court (Division Four) for the first time clarified the law of this state as to section 1256, and distinguished between leaves of absence and voluntary terminations. We have concluded that all of Douglas' contentions are substantially without merit, and that pursuant to Lewis, supra, the judgment must be affirmed.

Douglas appealed to a Board referee pursuant to section 1328; after a hearing, the referee filed a written decision denying her application on the ground that she had been the 'moving party' by the initial request for a leave of absence. Upon her further appeal to the Board, as permitted by section 1336, the Board entered a decision, adopting the referee's statement of facts, and his reasons, and affirmed his decision. After thus exhausting her administrative remedy, Douglas commenced the instant proceedings in the superior court.

The administrative record reveals the following pertinent facts:

Douglas was last employed by the Community Hospital of Santa Cruz as a director of its Department of Social Services for two years, terminating June 11, 1974.

On May 24, 1974, she submitted a request for a leave of absence commencing June 15, for the purpose of accompanying her husband to the State of Washington, where he was assigned for three months. When she received no response to her proposal, she requested a conference with the hospital administrator. The conference was not arranged before she left work on June 11. If the administrator had refused to grant her request, she would not have gone to Washington with her family.

Prior to leaving work on June 11, Douglas was given a photostatic copy of a note written by the administrator which stated that he did not wish to risk part-time leadership during her absence. The note also instructed the personnel officer to hire the new applicant and if the applicant did not work out and Douglas was available for work on her return from Washington, her position would still be available to her.

Although Douglas was not granted a conference with her administrator or given the opportunity to withdraw her request for a leave of absence, the evidence establishes that her leave of absence was granted subject to the condition that she would be reinstated only if her replacement was not satisfactory. Douglas correctly assumed that the leave of absence was granted subject to this condition. Since the employer was willing to permit her to work after June 11, 1974, but she desired to accompany her husband to Washington, she is the moving party, and the issue is whether she left work voluntarily with good cause.

Douglas filed her claim for unemployment insurance benefits immediately upon arriving in Washington, about June 16, 1974. After receiving an unfavorable determination, she wrote to her former employer and was informed that her replacement was working out satisfactorily and that the employer did not intend to make any changes at that time.

In making his determination, the referee relied on prior Board decisions, which held that in determining whether there has been a voluntary leaving or discharge under section 1256, it must first be determined who was the moving party in the termination. If the claimant leaves the employment while continued work is available, then the claimant is the moving party. On the other hand, if the employer refuses to permit an individual to continue working, although the individual is ready, willing and able to do so, then the employer is the moving party. On this basis, the referee concluded that Douglas was the moving party, and that she was under no compulsion to accompany her husband to Washington, an indicated by the fact that she would not have gone with her husband if her request for a leave of absence had been denied.

The referee concluded that, therefore, Douglas had left her most recent work voluntarily without good cause, within the meaning of section 1256 and was, therefore, disqualified pursuant to section 1256. The referee expressly did not decide the issue of Douglas' eligibility for benefits pursuant to sections 1264 ² and 1253, subdivision (c).

We turn first to the issues concerning the findings made by the court below, as one of Douglas' major contentions on appeal is that the court exceeded its jurisdiction and failed to make findings on all of the material issues. As a vested right for unemployment benefits is affected by the trial judge's judgment, the independent judgment test has long been applicable (Thomas v. California Emp. State Com., 39 Cal.2d 501, 247 P.2d 561; cf. Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29; Bixby v. Pierno, 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242). The subsequent proceedings before the superior court are a limited trial de novo; thereafter, any party may request findings of fact and conclusions of law, pursuant to Code of Civil Procedure section 632 and California Rules of Court, rule 232 (Hadley v. Superior Court, 29 Cal.App.3d 389, 105 Cal.Rptr. 500).

The record indicates that Douglas objected to the findings and conclusions prepared by the Board and submitted her proposed counter-findings and corrections to the conclusions. Subsequently, on its own motion, the court ordered a hearing on her objections pursuant to California Rules of Court, rule 232(f) and then entered its findings and conclusions that were substantially identical to those made by the referee as to the basic facts set forth above.

In addition, the court found that: ³

Douglas requested the leave of absence for her own personal pleasure, to accompany her husband and her children to Washington, where her husband was to be temporarily assigned for three months.

Neither her husband nor his employer required that she or the children accompany him to his temporary job assignment in Washington, although her husband's company was willing to pay the family's round trip fares should they decide to do so.

Douglas knew that her services were indispensable to her employer and that replacements would have to be hired to take her place. She, therefore, submitted with her request for leave of absence a proposal designating persons and methods that would adequately furnish the services the would have rendered had she not been on leave. When she did not receive a response to her proposal, she requested a conference with the hospital administrator. The conference was not arranged until the morning of June 11, 1974, when the administrator stated that he had not yet decided to approve or disapprove her request. Prior to leaving work on June 11, Douglas was given a photostatic copy of a note written by the administrator which indicated that he did not wish to risk part-time leadership during her absence and instructed the personnel officer to hire a new applicant; if the applicant later proved to be unsatisfactory and Douglas was available for work after her return from Washington, then she would be offered her former position and rehired.

After being informed of the administrator's decision regarding her request and proposal, Douglas did not rescind her request, but followed through with her plans and accompanied her family to Washington.

Douglas' employer did not give the Employment Development Department notice that Douglas had voluntarily left her work without good cause within five days after the termination of her service, as provided for by section 1256.

The court then entered the following conclusions of law:

In exercising its independent judgment upon the evidence presented in the administrative record, the court is not bound by the findings and determination of the referee or of the Board;

An employee who voluntarily leaves her job without good cause is ineligible to receive unemployment insurance benefits, pursuant to section 1256;

An employee is presumed not to have voluntarily left his or her work without good cause unless his employer has given written notice to the contrary to the Employment Development Department within five days after the termination of the employee's service and has set forth in the notice facts sufficient to overcome the presumption. This presumption is a rebuttable presumption which imposes on the employer or the department the burden of proving by a preponderance of the evidence that the claimant quit work voluntarily...