Opinion
A146977
10-20-2017
TROY SILVA, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG14744083)
After his fifth day of work at Bay City Chevrolet, Troy Silva quit his job as a car salesman. The Employment Development Department (EDD) determined Silva voluntarily quit his job without good cause (Unemp. Ins. Code, § 1256) and denied his application for unemployment benefits. An administrative law judge (ALJ) and the California Unemployment Insurance Appeals Board (the Board) upheld the denial. Silva then petitioned for writ of administrative mandate, requesting the superior court set aside the denial of unemployment benefits (Code Civ. Proc., § 1094.5). The superior court denied the petition, concluding the presumption of good cause had been rebutted, and that Silva did not have good cause to terminate his employment. The court entered judgment for EDD and the Board (collectively, respondents).
Undesignated statutory references are to the Unemployment Insurance Code. Under section 1256, a claimant "is disqualified for unemployment compensation benefits if . . . he or she left his or her most recent work voluntarily without good cause . . . ." "There is a rebuttable presumption that the claimant left work with good cause." (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 485, p. 582, citing § 1256; see also Kelley v. California Unemployment Ins. Appeals Bd. (2014) 223 Cal.App.4th 1067, 1075, fn. omitted (Kelley).)
Silva appeals. He contends the superior court's ruling was "legally untenable" because the statutory presumption and the "uncontested evidence" established he had good cause to leave his employment. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Bay City Chevrolet (Bay City or dealership) advertised openings for sales positions "[d]ue to increased business." The advertisement offered a "$4000.00 Guarantee" based "on a 12 car qualifier." Silva saw the ad and applied for the job, noting his experience as a car salesman. During an interview, the dealership's owners told Silva they needed someone to follow up on internet leads and sell from the dealer floor. They also told Silva there was a $4,000 guarantee based on 12 sales a month. Silva needed "the promised income level" to support his family and was "enthusiastic about getting [the] job." Bay City hired Silva and he began work on Friday, October 18, 2013.
Over that weekend, the dealership sold three cars, including one by Silva. Silva thought the foot traffic at the dealership was too "sparse" to have "eight salespersons sell 12 [cars] each" per month. On Tuesday, October 22, 2013, Silva emailed one of the owners to ask whether the "internet leads received by the dealership [were] sufficient to comprise a full-time job." He explained: "I'm trying to find some way to generate my own customer traffic, because I've noticed that the amount of foot traffic into the dealership has been extremely sparse. When I read the job ad, which featured a $4,000/month guarantee, I assumed there was foot traffic to support such a 12-car goal. In reality, there is definitely not such sufficient foot traffic. [¶] . . . I relied on the $4,000 figure in the job ad because this is the income range I need to be in order to support my household. . . . At the present walk-in foot traffic rate, there is no way to reach the 12-car range mentioned in the ad as conditional to the $4,000 figure. . . . Based on the dealership's walk-in traffic considered by itself, this is unfortunately not the viable/suitable job that I had envisioned when reading the job ad. However, my hope is that something like internet sales leads could make the decisive difference in making the job into what I had envisioned it to be in terms of income. [¶] I have a lot of telemarketing experience, which will help with the internet leads. I want to try to make this job work." In response, the dealership gave Silva a list of telephone leads. Silva thought the leads were "stale contacts that other salespersons had already failed to sell."
Silva had the next day, October 23, off. On October 24—what would have been his sixth day of work—Silva sent an email to one of the owners (resignation email) that he would "not be returning to my job at the dealership—simply because it turned out not to be the suitable job that, prior to beginning, I had earnestly come to believe it would be." Over the few days Silva worked at the dealership, he earned $458. During that same time frame, two salespeople and the sales manager left. Silva believed the dealership could not retain salespeople on "staff due to low sales." In late 2013, the dealership closed.
Application for Unemployment Benefits
Silva applied for unemployment benefits. The EDD interviewed Silva, who said he "quit his job due [to] the misrepresentation of the type of work he would be doing . . . [H]e was told at time of hire that he would be doing Internet sales. . . . The job turned out to be something that paid him minimum wage. . . . he did not have time to look for other work while working there." The EDD also interviewed the dealership's controller, who reported that Silva told the owner's wife "the job was not for him." The dealership faxed Silva's resignation email to the EDD.
Silva recites facts related to another application for unemployment benefits, from a job at USF Reddaway. We have omitted these facts, which are not relevant to the issue on appeal.
According to the EDD, Silva's "[d]istaste" for the job was "not compelling" and was "not for good cause." The EDD denied Silva's application for unemployment benefits, concluding he quit his job at the dealership because he "did not like or enjoy the job." The EDD determined Silva did "not meet the legal requirements for payment of benefits. Section 1256 provides - an individual is disqualified if the department finds he voluntarily quit his most recent work without good cause . . . ."
Silva appealed to the Board and submitted a declaration describing the circumstances of his employment at the dealership, and his reason for leaving. He believed he "had good cause to leave, because the ad and [a dealership owner] promised compensation that they could not have thought possible given the condition of the dealership." Silva's declaration attached several documents, including the sales position advertisement, his October 22, 2013 email, his pay stub, and a printout of the Bureau of Labor Statistics (BLS) prevailing wage data for automotive retail salespeople.
Following a hearing, the ALJ affirmed the denial of unemployment benefits. It determined Silva voluntarily left his employment at the dealership without good cause. As the ALJ explained, Silva "voluntarily quit his job after working five days because he determined that [Bay City] did not have enough business to support 12 sales per month. [¶] . . . [¶] Where an employee accepts work knowing the conditions of employment, a subsequent dissatisfaction with those conditions, standing alone, will not support a finding of good cause to leave work. [Citation.] [¶] In this case, [Silva], a seasoned salesperson, accepted the job knowing that the $4,000 per month figure was based upon his ability to sell 12 cars per month. Here, [Silva's] subsequent dissatisfaction with the wages agreed upon will not support a finding of good cause to leave work. [¶] Under these circumstances, the facts of this case do not disclose a real, substantial, and compelling reason of such nature as would cause a reasonable person genuinely desirous of retaining employment to take similar action. Accordingly, it is found [Silva] voluntarily left his most recent employment without good cause" and is therefore "disqualified for benefits under code section 1256."
Silva could not appear in person at the evidentiary hearing because he had started a new job and could not "get off work."
Silva appealed to a panel of the Board, and submitted a supporting brief. The Board reviewed the record and affirmed the ALJ's decision denying Silva benefits under section 1256. It issued a decision adopting the ALJ's issue statement, findings of fact, and reasons for decision as its own and observed Silva "voluntarily quit after working only five days. [Silva] may have believed that the employer was dishonest in his job interview at the time he was hired. However, without more information, and without [Silva]'s live testimony, it is not possible to determine the accuracy of the allegations."
Petition for Writ of Mandate
Silva petitioned for writ of administrative mandate in the superior court to set aside the denial of unemployment benefits. As relevant here, Silva argued: (1) respondents failed to rebut the presumption that he had good cause to terminate his employment; and (2) the "uncontradicted evidence" established he left his employment with good cause, because Bay City "misrepresented its condition and his pay, which was below the prevailing rate and would not sustain his family." Respondents opposed the petition.
The court denied the petition. In a thorough written order, the court first determined Silva was not entitled to the section 1256 presumption that he had good cause to terminate his employment because the dealership "submitted the resignation email [Silva] wrote stating that he was not returning to his job because it was not the suitable job he believed it would be." According to the court, Silva's "email provides evidence that he terminated his employment without good cause because it shows a voluntary resignation without any substantial basis for the conclusion that the conditions of employment would reasonably motivate an able-bodied qualified worker to give up his or her employment with its certain wage regards in order to enter the ranks of the unemployed." In addition, the court determined the "preponderance of the evidence" Silva submitted in support of his petition rebutted "the presumption of good cause."
Next, the court rejected Silva's argument that Bay City misrepresented the conditions of employment. The court determined the advertisement did not promise wages of $4,000 per month, but instead represented "it was possible for a salesperson . . . to sell 12 cars and make $4,000." The court was not persuaded by Silva's reliance on evidence that Bay City went out of business by the end of 2013, explaining: "evidence of events after [Silva]s termination is not relevant to whether he had good cause to terminate his employment at the time of termination."
Finally, the court determined Silva did not have good cause to terminate his employment because: (1) he worked at the dealership for only five days, and made minimal efforts to obtain internet sales leads before deciding they would not be provided; (2) he acknowledged salespersons left during his employment, but did not explain why "this would not increase his ability to make sales"; (3) he had not demonstrated "he was promised monthly income of $4,000 or that he would be able to sell 12 cars a month, and his short period of employment does not support the conclusion that he could have reached that level of sales if he had not quit after one week"; and (4) other than the "relatively low pay," he had not shown "intolerable or unpleasant working conditions" or any "other facts that would induce a reasonable person to find that the employment was not suitable."
DISCUSSION
I.
Standard of Review
"When reviewing a decision of the Board, the superior court exercises independent judgment on the evidentiary record of the administrative proceedings and asks whether the findings of the administrative agency are supported by the weight of the evidence." (Robles v. Employment Development Dept. (2012) 207 Cal.App.4th 1029, 1034; Code Civ. Proc., § 1094.5, subds. (b) & (c).) Appellate review of the superior court's "ruling on a writ of mandate . . . is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial, credible and competent evidence." (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1002.) " '[A]ll conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences made to uphold the superior court's findings; moreover, when two or more inferences can be reasonably deduced from the facts, the appellate court may not substitute its deductions for those of the superior court.' " (Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (2014) 59 Cal.4th 551, 562.) "Issues of law, of course, are reviewed de novo." (Robles, at p. 1035.)
II.
Silva Did Not Have Good Cause to Leave His Employment at the Dealership
California's unemployment insurance scheme provides " 'benefits for persons unemployed through no fault of their own [in order to] reduce involuntary unemployment and the suffering caused thereby to a minimum.' [Citation.] . . . The unemployment insurance laws are remedial and therefore must be liberally construed where benefits determinations are concerned." (Kelley, supra, 223 Cal.App.4th at pp. 1074-1075, fn. omitted.) As relevant here, a "person is disqualified for unemployment benefits if 'he or she left his or her most recent work voluntarily without good cause . . . [¶] An individual is presumed . . . not to have voluntarily left his or her work without good cause unless his or her employer has given written notice to the contrary to the [EDD] as provided in Section 1327. . . .' " (Kelley, supra, 223 Cal.App.4th at p. 1075, fn. omitted.) The "presumption applies at each stage of the proceedings, from the EDD's initial eligibility determination through a superior court administrative mandate action. [Citation.] In order to overcome this presumption, the employer must prove by a preponderance of the evidence that the claimant quit without good cause . . . ." (Ibid.)
Silva contends the statutory presumption establishes he had good cause to leave his employment because the dealership did not "comply with section 1327." That statute requires the employer to provide the EDD with "facts then known that may affect the claimant's eligibility for benefits, including, but not limited to, facts pertaining to eligibility under Section 1256." (§ 1327; see Kelley, supra, 223 Cal.App.4th at p. 1075, fn. 4.) Bay City faxed Silva's resignation email to the EDD and, in the the course of the EDD's investigation, the dealership's controller spoke to the EDD on the telephone. The information Bay City provided to the EDD was derived from Silva's resignation email, and was highly relevant to his "eligibility for [unemployment] benefits." (§ 1327.) The dealership satisfied section 1327. This case is not—as Silva suggests—like Robles v. Employment Development Dept. (2015) 236 Cal.App.4th 530, where the employer submitted no information to the EDD concerning the claimant's eligibility for unemployment benefits, as required by section 1327. (Id. at p. 537.)
Silva notes the "EDD's decision is based on multiple hearsay in a report of telephone interviews" but he does not develop this argument or support it with citations to authority. " 'Appellate briefs must provide argument and legal authority for the positions taken. "When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived." ' [Citation.] 'We are not bound to develop appellants' arguments for them.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
As stated above, the presumption that the claimant left work with good cause is rebuttable. (Perales v. Department of Human Resources Dev. (1973) 32 Cal.App.3d 332, 340.) An employer overcomes the presumption by proving "by a preponderance of the evidence that the claimant quit without good cause . . . ." (Kelley, supra, 223 Cal.App.4th at p. 1075, fn. omitted.) "The presumption . . . may be rebutted by facts disclosed by the claimant himself" (Zorrero v. Unemployment Ins. Appeals Bd. (1975) 47 Cal.App.3d 434, 438 (Zorrero)) or with facts "disclosed after independent investigation by the department, or by the employer pursuant to sections 1327 and 1328." (Perales, at p. 340; see 37 Ops.Cal.Atty.Gen. 18, 20 (1961) [finding of disqualification may be based on information furnished by the claimant].)
"The term 'good cause' is not susceptible of precise definition. In fact, its definition varies with the context in which it is used. Very broadly, it means a legally sufficient ground or reason for a certain action." (Zorrero, supra, 47 Cal.App.3d at p. 439.) Good cause requires "voluntary termination of employment be based on serious and exigent circumstances." (Ibid.) "[T]he quitting must be for such a cause as would, in a similar situation, reasonably motivate the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the unemployed. [Citation.]" (Evenson v. Unemployment Ins. Appeals Bd. (1976) 62 Cal.App.3d 1005, 1016.) At the same time, and in " 'view of the statutory objectives . . . the concept of "good cause" cannot be arbitrarily limited; [it] must take account of "real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results, adequate excuses that will bear the test of reason, just grounds for action, and always the element of good faith." ' " (Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36 Cal.3d 575, 584; see Rabago v. Unemployment Ins. Appeals Bd. (1978) 84 Cal.App.3d 200, 208-209.)
Here, Silva sold a car shortly after starting the job at the dealership. On his fifth day of work, he complained about the lack of foot traffic at the dealership, and requested internet leads. Before his next shift, however, Silva quit. He left the job because it was not "the viable/suitable job" he had envisioned. According to the dealership's controller, Silva told the owner's wife "the job was not for him." Together, this evidence rebutted the presumption that Silva had good cause to terminate his employment with Bay City. Silva's reason for quitting was not based on "serious and exigent circumstances." (Zorrero, supra, 47 Cal.App.3d at pp. 439-440 [commute to work was "distasteful but it is no excuse for quitting one's job"].)
Silva's claims to the contrary are not persuasive. For example, Silva argues Bay City "materially mispresented the wages" and that he had good cause to quit when he realized the "representations were untrue." Title 22 of the California Code of Regulations, section 1256-22, subdivision (b)(5) provides that an individual has good cause to leave where the employer "makes substantial misrepresentations to the employee as to the . . . wages for the job." (Cal. Code Regs., tit. 22, § 1256-22, subds. (a) & (b)(5).) An individual does not have good cause to leave work, however, if the "individual knew the wages at the time of hire but later leaves work because such wages . . . are less than wages paid in prior employment, or are less than prevailing wages paid for similar work in the locality." (Id., subd. (c)(1).)
Here, there was no misrepresentation regarding the wages. The advertisement states the "$4,000.00 guarantee is based on a 12 car qualifier." It does not promise $4,000 per month—it merely suggests it is possible to earn $4,000. Before hiring Silva, the dealership's owner reiterated that the "$4,000 guarantee [was] based on 12 sales a month." Silva had previously worked as a car salesman. This evidence creates an inference Silva knew the wages at the time of hire but became dissatisfied with them. Silva's claim that Bay City misrepresented the wages fails for the additional reason that he worked at the dealership for only five days, rendering him unable to demonstrate the wages he would have earned would not have reached $4,000, or that his wages were below the prevailing rate of pay in the area. (See Cal. Code Regs., tit. 22, § 1256-22, subd. (c); see also § 1259 subd. (b).)
Silva's next contention—that he had good cause to quit after he discovered Bay City had misrepresented the "state of its business"—fares no better. According to Silva, Bay City "suppressed significant facts, including that sales were decreasing, the business was failing, and staff were quitting." This argument is unsupported by the record. Hearsay statements from Silva's former colleagues regarding the dealership's sales do not demonstrate Bay City misrepresented the state of its business, and the amount of foot traffic Silva observed in his few days of employment does not establish the statement in the dealership's advertisement was a misrepresentation. That the dealership closed after Silva quit does not alter our conclusion. "Generally good cause for leaving work is decided on the facts at the time the claimant left work." (Cal. Code Regs., tit. 22, § 1256-3, subd. (b).)
Before leaving, the employee must take affirmative steps to "preserve the employment relationship" by, among other things, "[s]eeking an adjustment of the problem by allowing the employer an opportunity to remedy the situation if the employer can reasonably do so." (Cal. Code Regs., tit. 22, § 1256-3, subd. (c)(1).) Silva was dissatisfied with the amount of foot traffic at the dealership, and wanted to pursue internet leads to generate sales. On October 22, 2013, Silva asked for internet leads, but he quit before his next shift began, depriving the dealership of an opportunity to remedy Silva's supposed grievances. (Cal. Code Regs., tit. 22, § 1256-3, subd. (c)(1); cf. Morrison v. Unemployment Ins. Appeals Bd. (1976) 65 Cal.App.3d 245, 250 [claimant has good cause to leave employment where he makes a "communicated protest" and his employer refuses to remedy the situation "after reasonable time" and opportunity to eliminate the problem].)
The evidence does not, as Silva claims, "establish good cause as a matter of law." To the contrary, it demonstrates Silva's excuse for leaving his job does not " ' "bear the test of reason." ' " (Sanchez v. Unemployment Ins. Appeals Bd., supra, 36 Cal.3d at p. 584.)
III.
Silva's Due Process Claim Fails
Silva claims his due process rights were violated because his "uncontested" declaration was "discredited" by the Board, which "insiste[d] on 'live testimony.' " We are not convinced. The ALJ admitted Silva's declaration and the attached exhibits into evidence, and the Board adopted the ALJ's decision. The Board stated Silva "voluntarily quit after working only five days" and observed: "[Silva] may have believed that the employer was dishonest in his job interview at the time he was hired. However, without more information, and without [Silva]'s live testimony, it is not possible to determine the accuracy of the allegations." Silva mischaracterizes the ALJ and the Board's decision. Nowhere does the ALJ or the Board reject Silva's evidence because it was not presented by live testimony. The Board simply commented on the persuasiveness of the evidence Silva offered.
We have considered—and rejected—Silva's remaining arguments. (Southern California Edison Co. v. Public Utilities Com. (2014) 227 Cal.App.4th 172, 203, fn. 23.)
DISPOSITION
The judgment is affirmed. In the interests of justice, each side is to bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.