Opinion
B230792
11-22-2011
LINDA A. SQUILLACOTE, Plaintiff and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Defendants and Respondents.
Brian F. Drazich for Plaintiff and Appellant. Kamala D. Harris, Attorney General and Karen L. Fried, Deputy Attorney General, for Defendant and Respondent California Unemployment Insurance Appeals Board.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS127160)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. Jones, Judge. Affirmed.
Brian F. Drazich for Plaintiff and Appellant.
Kamala D. Harris, Attorney General and Karen L. Fried, Deputy Attorney General, for Defendant and Respondent California Unemployment Insurance Appeals Board.
I. INTRODUCTION
Plaintiff, Linda A. Squillacote, appeals from a judgment denying her mandate petition. Plaintiff sought to compel defendants, the California Unemployment Insurance and Appeals Board, to set aside its decision finding her ineligible for unemployment benefits pursuant to Unemployment Insurance Code section 1256. We affirm the judgment denying the mandate petition.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. FACTS AND PROCEDURAL HISTORY
Plaintiff was employed as an eighth grade teacher by Ridgecrest Charter School in that city for the school year 2008 through 2009. On April 1, 2009, plaintiff had 12 students in her classroom. A little before 2:15 p.m., one of the students, A.W., fell out of her chair. A.W. lay on the floor and was non-responsive for the remainder of the school day. Plaintiff did not see A.W. fall. But, plaintiff saw A.W. lying on the floor. According to plaintiff, she did not see A.W. lying on the floor until about 2:30 or 2:35 p.m. Plaintiff dismissed the children at around 2:50 p.m.
Plaintiff thought A.W. was playing an April Fool's joke. Two other students had played jokes earlier in the day and plaintiff had too. One student had pretended to be unconscious earlier in the day.
Plaintiff went over to check A.W. Plaintiff checked A.W.'s pulse. Plaintiff looked at A.W.'s eyes. A.W.'s eyes were a little teary. Plaintiff checked A.W.'s breathing. Plaintiff did not see any bleeding. Plaintiff did not try to rouse A.W. Plaintiff called A.W. by name. A.W. was not responsive at all. A.W.'s eyes were open but not blinking. A.W.'s eyes were wide open. A.W. looked at plaintiff. A.W. is very quiet and did not always respond. According to plaintiff, A.W. tended to ignore people.
Plaintiff decided to finish a science review with the other students. Plaintiff wanted to get the rest of the children out of the classroom. Plaintiff kept going over and checking A.W. Plaintiff was "getting the feeling" that A.W. was "not goofing" around.
After dismissing the rest of the children at 2:50 p.m., plaintiff went and examined A.W. again. Plaintiff then attempted to call the front office. Plaintiff tried to call Tina Ellingsworth, who is the director of Ridgecrest Charter School. Plaintiff could not reach anyone. Plaintiff then called A.W.'s grandfather. Plaintiff did not call an emergency operator.
Ms. Ellingsworth testified that the bell rings at about 3:00 p.m. The students are dismissed about 3:05 or 3:06 p.m. Ms. Ellingsworth knew classes had been dismissed. She was meeting with a student and parent between 3:05 and 3:10 p.m. At that time, three students ran into her office. The students told Ms. Ellingsworth that A.W. "was dying" and plaintiff was not doing anything about it. Ms. Ellingsworth ran to plaintiff's classroom. Ms. Ellingsworth entered plaintiff's classroom at 3:15 p.m. Ms. Ellingsworth observed A.W. on the floor. Plaintiff was on the other side of the room talking on a cellular phone to A.W.'s grandfather. Ms. Ellingsworth described what she did next: "I got down in [A.W.'s] face and told her that if this was a joke that it was no longer funny, to get up immediately or I was dialing 911. She didn't move. I went straight to the phone. I tried to dial 911. I couldn't get it on the line." According to Ms. Ellingsworth, A.W. just laid there without moving. A.W.'s eyes were open but she was just staring and not blinking.
Ms. Ellingsworth told plaintiff to call the emergency operator. The emergency telephone call was placed at 3:19 p.m. A.W. left the school in an ambulance. According to A.W.'s mother, the child had a concussion. She had fainted because her sodium levels were too low. A.W. was scheduled for an electroencephalogram to determine if she had a full seizure.
School policies require a teacher to immediately call the front office if a student needs medical attention. The teacher is required to call an emergency operator in the case of an imminent danger. Depending on the circumstances, they should do one or the other. If the teacher is uncertain, he or she should call an emergency operator. But, it would be sufficient to call the administrative office. Ms. Ellingsworth testified plaintiff knew of the policy which was discussed during a week long staff development and training August 11 through 17, 2008. A.W. had a history of lightheadedness and a family history of seizures. This medical information was in her cumulative file. Plaintiff was required to review A.W.'s cumulative file. Plaintiff denied knowing about A.W.'s medical history or having access to the information.
Plaintiff denied that her employer told her anything about what to do in the event of medical emergency. There were no written instructions in the materials she received. Plaintiff did not attend the training. Plaintiff described her understanding about what to do if a child was not breathing: "If I feel there like there is an urgent care and right now, bleeding, no breathing, that kind of thing, that's where we get our CPR, right. So I would call 911. Okay, If [its] a matter of well, there's breathing. There is - they seem like they're responding at least to some degree as I know this child - [¶] . . . then I [would] call the front office first." Plaintiff had received cardiopulmonary resuscitation training.
In this situation, plaintiff tried to call the front office and could not reach anybody. According to plaintiff, she then called the grandfather. The grandfather lived with A.W.'s mother. According to plaintiff, Ms. Ellingsworth came into the classroom shortly after the other students were dismissed at 2:50 p.m. After Ms. Ellingsworth entered plaintiff's classroom, the two began evaluating A.W. together. The decision was made to call the emergency operator. A.W.'s grandparents were there at that time.
Plaintiff was discharged from her employment for failure to assist a student in need of medical attention. After plaintiff was discharged, she applied for unemployment insurance benefits provided by defendant. Defendant determined plaintiff was not qualified for benefits under section 1256. Plaintiff appealed that determination.
After a hearing, Administrative Law Judge Samuel L. Farina found: plaintiff was teaching when a student A.W., fell to the floor; plaintiff saw the student lying motionless on the floor; plaintiff thought the student was playing an April Fool's joke; plaintiff went over to the student; plaintiff spoke to A.W.; the student did not respond to plaintiff; A.W.'s eyes were open but were teary; plaintiff left the child lying the classroom floor for at least 15 minutes without alerting the school's administrative office or calling an emergency operator; after 15 minutes, plaintiff tried to call the administrative office but could not reach anyone; plaintiff then called a relative of A.W.; at about the same, some other students alerted the school's director; and after the director was notified, a call to an emergency operator was made. Medical sources indicated the student had fainted, fallen to the floor and hit her head. The student suffered a concussion when she hit her head.
The administrative law judge further found: the student's school file showed a history of seizure problems; but, plaintiff was unaware of them; the employer's rule required the teachers to become familiar with their student's school files; plaintiff did not read enough of the file to learn of the student's medical problems; the employer's handbook also required teachers to notify the administrative office immediately when an emergency arose in the classroom; plaintiff received a copy of the handbook; and a teacher's failure to follow the rules regarding classroom emergency created a risk of harm or potential loss of life to a student in need of medical attention and exposed the employer to liability. The administrative law judge found plaintiff's conduct constituted misconduct, which disqualified her for benefits under section 1256.
Plaintiff appealed the administrative law judge's decision to defendant. As modified, defendant upheld the decision finding plaintiff's conduct constituted misconduct: "[Plaintiff] failed to assist the child, failed to immediately call for help by either contacting the administrative office or 911 for emergency assistance, and left the child on the floor for a fairly lengthy period of time. [Plaintiff's] lack of action under these circumstances is unreasonable and evinces a wanton disregard of the child's and the employer's interests and constitutes misconduct as defined under section 1256 of the code."
On June 30, 2010, plaintiff filed a verified mandate petition challenging defendant's determination she was ineligible for unemployment insurance benefits under section 1256. The petition alleges: plaintiff received a letter dated April 17, 2009 stating she was discharged on April 17, 2009, for "serious misconduct"; plaintiff filed a claim for unemployment insurance benefits with defendant; the employer allegedly filed opposition to the application of benefits falsely asserting plaintiff had committed "serious misconduct"; and defendant denied plaintiff's application on that basis.
The petition further alleges that plaintiff was discharged without facts to support that her conduct in initially evaluating the situation was inconsistent with the training she received in the course of her employment. It is alleged that A.W. gave inconsistent statements as to what caused her to be lying on the floor. The student allegedly told emergency responders she was pretended to fall out of her seat, felt lightheaded and then fell hitting her head. The petition also contains a number of factual allegations concerning: whether the student lost consciousness, fainted or had a seizure; the student's medical history; and subsequent medical test results conducted on the student including the electroencephalograph. But, the petition alleges that the student had a "facial contusion" and a "closed head injury" but no concussion. According to plaintiff, the student's ultimate diagnosis was not a circumstance which required a telephone call for emergency services.
The petition also alleges that the administrative law judge based his decision on hearsay testimony from the employer that the student suffered a concussion and had a family history of seizures. However, the student's medical records show the contrary is true. And, the student suffered no medical condition or injury which actually required an emergency medical response. The decision denying her benefits failed to comply with California Code of Regulations, title 22, section 1256-30, subdivision (b) which requires a four factor analysis before the legal conclusion of misconduct is reached.
At the hearing, the trial court noted that there was no appearance by the Attorney General on behalf of the board. The trial court announced its tentative ruling as follows: "[G]iven the weight of the evidence in this record, the [plaintiff's] conduct in this situation reached the level as required to constitute misconduct. I think the evidence in the case really supports the board's findings. I think the action in a singular instance such as this, of such gross negligence and such complete disregard for the safety and health of one of her students in such a degree as to manifest culpability under the definition of misconduct." The trial court then denied plaintiff's mandate petition. This timely appeal followed.
III. DISCUSSION
A. Unemployment Insurance Benefits And Review Standards
Section 1256 provides in part: "An individual is disqualified for unemployment compensation benefits if the director finds that . . . he or she has been discharged for misconduct connected with his or her most recent work. [¶] An individual is presumed to have been discharged for reasons other than misconduct in connection with his or her work . . . ." The presumption in section 1256 is a rebuttable presumption which affects the burden of proof. (O'Connell v. Unemployment Ins. Appeals Bd. (1983) 149 Cal.App.3d 54, 58-59; Perales v. Department of Human Resources Dev. (1973) 32 Cal.App.3d 332, 340-341; see also Lozano v. Unemployment Ins. Appeals Bd. (1982) 130 Cal.App.3d 749, 757.) The employer has the burden of establishing misconduct under section 1256 by a preponderance of the evidence. (Cerbronics, Inc. v. Unemployment Ins. Appeals Bd. (1984) 152 Cal.App.3d 172, 176; Maywood Glass Company v. Stewart (1959) 170 Cal.App.2d 719, 725.) The burden of proof as to each material fact remains the same through all stages of the proceedings including: the department's eligibility determination; the hearing before the administrative law judge; the appeal to the board; and an administrative mandate proceeding in the superior court. (O'Connell v. Unemployment Ins. Appeals Bd., supra, 149 Cal.App.3d at pp. 58-59; Perales v. Department of Human Resources Dev., supra, 32 Cal.App.3d at pp. 340-341.)
In a case challenging eligibility for unemployment benefits, a trial court exercises independent review of the evidence to decide the administrative mandamus petition. (Code Civ. Proc., § 1094.5, subd. (c); Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 108; Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 775-776; Bixby v. Pierno (1971) 4 Cal.3d 130, 144.) Our review is confined to whether the trial court's judgment that plaintiff engaged in misconduct is supported by substantial, credible and competent evidence. (Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671, 679; see also Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824; Rowe v. Hansen (1974) 41 Cal.App.3d 512, 515.)
B. The Burden of Proof
Plaintiff contends the trial court committed reversible error in asserting she had the burden of proof that she was discharged for reasons other than misconduct. As previously noted at all stages of the proceedings, the burden of proof was on the employer and department to show plaintiff was discharged for misconduct in connection with her work. (O'Connell v. Unemployment Ins. Appeals Bd., supra, 149 Cal.App.3d at pp. 58-59; Perales v. Department of Human Resources Dev., supra, 32 Cal.App.3d at pp. 340-341.)
The burden of proof issue arose during the hearing on the mandate petition. Plaintiff contended the evidence did not support the finding the student had actually suffered a concussion. And, plaintiff argued the administrative law judge's finding, which was adopted by the board, was based on hearsay. However, the trial court noted that the records plaintiff used to support the finding the student did not have actually suffer a concussion were not given to the administrative law judge. Rather, the records had apparently been provided in a separate civil action. And, the trial court refused to consider the papers in the absence of a satisfactory explanation as to why the records were not presented at the hearing before the administrative law judge. At which point, plaintiff asserted that the employer had the burden to prove misconduct. The trial court replied: "Well, no, at this stage of the game the burden is on [plaintiff] to show a basis for relief from the Board's decision under the Code of Civil Procedure. At this point, where we are today, the burden is on [plaintiff] to show that your relief sought is justified." The trial court continued, "So I go back under the independent judgment rule and I examine the evidence and I conclude whether or not the weight of the evidence supports the board's decision."
Contrary to plaintiff's assertions otherwise, the trial court did not improperly shift the burden of proof to her to prove the absence of misconduct. Rather, the trial court merely reminded plaintiff that she had to show a basis for relief under the Code of Civil Procedure. Code of Civil Procedure section 1094.5, subdivision (b) required plaintiff to show a prejudicial abuse of discretion by a showing an error of law or the decision was not supported by the findings or the findings were not supported by evidence. Our Supreme Court has explained the applicable rule for administrative mandamus under Code of Civil Procedure section 1094.5 as follows: "[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 817; Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1205.) A proceeding determining the unemployment benefits is adjudicatory. (§§ 410, 1326, 1328, 2707.2; Du Four v. Unemployment Ins. Appeals Bd. (1975) 49 Cal.App.3d 863, 866.) The trial court correctly noted that plaintiff had the burden of showing the administrative findings were contrary to the weight of evidence. Thus, there is no merit to the contention that the burden of proof was improperly shifted to plaintiff regarding whether her actions constituted misconduct.
C. The Sufficiency Of The Evidence
Plaintiff claims the judgment denying the mandate petition should be reversed on a number of theories. The main contention appears to be that her conduct cannot be construed as misconduct. Rather, it amounted to something akin to mere negligence or an exercise of her judgment based on all the circumstances. The circumstances included: the incident occurred on April Fool's Day; the students had played a number of jokes during the day; A.W. had a history of not responding; A.W. gave conflicting accounts about what really happened; and there were conflicting accounts about how long A.W. was on the floor.
While plaintiff has pointed to some discrepancies in the evidence, they do not control the outcome of this appeal. The substantial evidence rule requires we resolve all evidentiary conflicts and indulge all presumptions in favor of the judgment. (Valenzuela v. California State Personnel Bd. (2007) 153 Cal.App.4th 1179, 1184-1185; Young v. Gannon (2002) 97 Cal.App.4th 209, 224-225.) Moreover, in reviewing a judgment for substantial evidence, the focus is not on whether a particular finding or some other finding is supported by the evidence. (People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553; Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1215; see also Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1330.) Rather, the only pertinent question is whether substantial evidence supports the finding that was made; i.e., plaintiff's conduct amounted to misconduct. (Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868; Robertson v. Zolin (1996) 44 Cal.App.4th 147, 152.)
Title 22 of the California Code of Regulations, section 1256-30, subdivision (b) identifies four factors for determining whether misconduct has occurred: "(1) The claimant owes a material duty to the employer under the contract of employment. [¶] (2) There is a substantial breach of that duty. [¶] (3) The breach is a willful or wanton disregard of that duty. [¶] (4) The breach disregards the employer's interests and injures or tends to injure the employer's interests." The court in Maywood Glass Co. v. Stewart, supra, 170 Cal.App.2d at page 724 explained: "'[T]he term "misconduct" . . . . is limited to conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.' [Citation.]" (See also Amador v. Unemployment Ins. Appeals Bd., supra, 35 Cal.3d at p. 678; Agnone v. Hansen (1974) 41 Cal.App.3d 524, 528.) The interpretation of misconduct is so limited because the policy is to provide benefits to "'persons unemployed through no fault'" of their own. (§ 100; American Federation of Labor v. Unemployment Ins. Appeals Bd. (1994) 23 Cal.App.4th 51, 59; Rowe v. Hansen, supra, 41 Cal.App.3d at pp. 520-521.)
At the mandate petition hearing, the trial court summarized the evidence as follows: plaintiff estimated that the student was on the floor for at least five minutes; the student remained on the floor of the room unattended and no assistance was obtained; the principal was not called; the parents were not called; the emergency operator was not called; and other students went to get help from the principal without any direction from plaintiff. The trial court also indicated that plaintiff's version of the facts was not credible regarding the timing of the events as well as the actions she took regarding the student. The trial court further noted that plaintiff continued to refuse to acknowledge a lapse of judgment. She also continued to shift the responsibility to the students. The trial court stated, in its independent judgment, the weight of the evidence supported the board's decision. When plaintiff continued to argue the facts, the trial court responded: "I don't think that I can fairly be characterized as finding this morally offensive. I find it to [be] such profoundly gross negligence that rises to the level of culpability required to establish this conduct." Under the circumstances, the trial court's finding that plaintiff's conduct amounted to misconduct is supported by substantial evidence and must be upheld. (Drysdale v. Department of Human Resources Development (1978) 77 Cal.App.3d 345, 351-352; Rowe v. Hansen, supra, 41 Cal.App.3d at p. 523.)
D. The Evidentiary Issues
Plaintiff also claims there was insufficient admissible evidence to support the misconduct finding. She argues that the finding was predicated on the employer's hearsay statement the student had a concussion, which ultimately proved to be untrue. Plaintiff also raises a number of evidentiary issues claiming the administrative law judge relied on unsworn statements and documentary evidence in rendering his decision. The claimed objectionable material is contained in the employer's investigative report. According to plaintiff the material is objectionable because it contains: students' handwritten and unsworn statements; an undated and unsigned summary of facts; and unsworn employee statements who were not present at applicable times. Although conceding that she did not object to other portions of the employer's testimony as inadmissible hearsay, plaintiff claims her objections should be sustained in this appeal. We decline plaintiff's request and conclude the evidentiary issues were waived. (Flatley v. Mauro (2006) 39 Cal.4th 299, 328-329; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291, & fn. 17.)
But, neither defendant nor an administrative law judge is bound by common law or statutory rules of evidence. Defendant may conduct the hearings and appeals in such a manner as to ascertain the parties' substantial rights. (§ 1952; see also Gov. Code, § 11513, subd. (c); Stout v. Department of Employment (1959) 172 Cal.App.2d 666, 672-673.) However, uncorroborated hearsay alone is insufficient to satisfy due process requirements nor is it substantial evidence. (Gov. Code, § 11513 subd. (d); In re Lucero L. (2000) 22 Cal.4th 1227, 1244-1245; Furman v. Department of Motor Vehicles (2002) 100 Cal.App.4th 416, 420.) Rather, hearsay evidence is admissible in an administrative proceeding to supplement other evidence and support the findings. (Gov. Code, § 11513 subd. (d); Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1569.)
Plaintiff is incorrect that Ms. Ellingsworth's under oath statement that the student had a concussion requires reversal. Even if the statement was untrue and was used to support the misconduct finding, reversal is not required. This is because defendant's decision was not based solely on whether A.W. was diagnosed with a concussion. Rather, the issue was whether plaintiff's actions in regard to A.W. lying on the floor in a classroom amounted to misconduct. At the administrative hearing, Ms. Ellingsworth testified a teacher was required to contact the administrative offices or call the emergency operator under these circumstances. Plaintiff testified: she observed the student lying on the floor sometime on or around 2:30 p.m.; the student was not responsive but stared and was teary eyed; nothing was done to assist the student; in fact, plaintiff continued a science review; at some point between 2:30 and 3:00, plaintiff became concerned; however, plaintiff did not contact the administrative offices or call the emergency operator. Rather, plaintiff called the student's grandfather. It is undisputed that: the student had a laceration; emergency assistance was only rendered to the student after other alarmed students ran to the principal's office; the students notified the principal on their own initiative at least 20 minutes after plaintiff initially observed A.W. on the floor; A.W. remained nonresponsive when the principal arrived; and A.W. was taken to hospital by emergency services personnel. This is sufficient to show satisfy culpability for misconduct. (§ 1256; Drysdale v. Department of Human Resources Development, supra, 77 Cal.App.3d at pp. 351-352; Rowe v. Hansen, supra, 41 Cal.Ap.3d at p. 523.)
In addition, with respect to each of the evidentiary claims, plaintiff is required to show that the trial court would have reached a more favorable ruling had statements about A.W.'s concussion or other oral and documentary evidence had been excluded. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; People v. Watson (1956) 46 Cal.2d 818, 836.) Our own review of the administrative record shows no prejudicial abuse of discretion because the misconduct finding is supported by substantial evidence in light of the whole record including plaintiff's own statements. (§ 1094.5, subd. (c); Bixby v. Pierno, supra 4 Cal.3d at p. 149, fn. 22.) Given the extreme nature of plaintiff's conduct we are unable to conclude that any evidentiary issues raised by plaintiff would require a different result.
IV. DISPOSITION
The judgment is affirmed. All parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
MOSK, J.