Ashdown v. State of California Department of Employment

Nadene P. Ashdown, aged 8 years, by her guardian ad Utern (her mother) sought a writ of mandate in the superior court commanding the Department of Employment to grant unemployment benefits to her. She appeals from the judgment denying a peremptory writ of mandate.

On August 15, 1953, Nadene (the petitioner herein) filed a claim for unemployment benefits. On September 11 a claims interviewer representing the Department of Employment made a determination that the child was ineligible for such benefits for the period beginning August 15, on the ground that she was not available for work. Petitioner (child) appealed from that determination. At the hearing on appeal before a referee of the department, the mother of the child testified that: the child had been engaged for the past three years in entertainment work in motion pictures, television and radio; she had sung and danced in theaters; she had done modeling work; the work was obtained for her by her agent and the witness (mother); last year she had been free-lancing and obtained work from two or three agents; in 1951 she earned about $3,000; in 1952 she earned $2,089.60; in 1953, prior to filing her claim, she earned about $819.75; she earned more money in motion pictures than she earned in other kinds of entertainment; her work in pictures was “acting” and “All spoken parts”; “She had done no pictures unless there was spoken parts”; she did no “extra work”; the witness did not register the child with Central Casting Corporation (which places extra workers in motion pictures); she did not have to register the child there—Central Casting registers children “if they have done nothing else but extra work”; she would have permitted the child to do extra work “if they wanted to pay her price”; she (child) established a price at “three, fifty, and the first check was $75”; she probably would have taken $18.50, which is the standard daily price, “if there was no other work to be had, but they never

The referee affirmed the determination of the interviewer, deciding that the child was ineligible for benefits from August 15, 1953, on the ground that she was not available for work within the meaning of section 57, subdivision (e), of the Unemployment Insurance Act. The referee found that the child was not registered with Central Casting whose primary function is placing individuals in extra work in the motion picture industry; the facilities of Central Casting are available for child actors if the child is registered there; the child has always taken a part and has never worked as an extra; there is little prospect of her obtaining full time employment. The referee stated, as reasons for the decision, that under section 57, subdivision (c), the individual in order to be eligible for benefits must be able to work and available for work; that the appeals board (in certain other eases) had held that motion picture extra workers who would accept extra work only at the higher rate of pay were unavailable for work within the meaning of section 57, subdivision (e), of the act, and that where claimant excluded a segment of suitable work wherein she had prospects of securing employment she rendered herself unavailable for work; in the present ease, the claimant had confined her efforts to securing employment as an actress, and had not made any effort to secure work as an extra.

The mother, representing the child, appealed from the decision of the referee to the appeals board (of the department). The board affirmed the decision of the referee.

Thereafter the petition herein for a writ of mandamus was filed in the superior court, wherein the petitioner asked the court to direct the Department of Employment (1) to reverse the determination of the interviewer, the decision of the referee, and the decision of the appeals board; and (2) to direct the department to make a determination that the child was entitled to unemployment insurance benefits. The Director of Employment and the appeals board made a return to the petition by way of answer. Republic Productions, Inc., and Samuel Goldwyn Productions, Inc., as real parties in interest and as interveners, filed a demurrer, and filed a return by way of answer. The demurrer was overruled.

Under the designation of conclusions of law, the court stated that the evidence presented by petitioner at the claims interview and before the referee was not sufficient to sustain the burden of proving that petitioner was able to work, available for work, and seeking work; the determination of the claims interviewer and the decision of the referee were proper according to daw, and that determination or that decision did not constitute a prejudicial abuse of discretion; work as an extra in the motion picture industry is suitable

Appellant contends that she was not accorded her right to a limited trial de novo. She asserts that she should have been permitted to introduce additional evidence; that the court did not, in the exercise of its independent judgment, determine whether the findings of the administrative agency were supported by the weight of the evidence, but it merely determined that the decision of the agency was supported by substantial evidence. The position of appellant’s counsel with reference to a trial de novo is not clear. It seems that he is of the opinion that the court was required to hear all or part of the previous testimony and to receive additional evidence. Such a theory is not correct. Rules with respect to judicial review, by mandamus, of an administrative proceeding are stated in Dare v. Board of Medical Examiners, 21 Cal.2d 790 [ 136 P.2d 304 ]. It was said therein at page 798: “ [T]he court is not confined to the record of the proceedings before the board. . . . Since the record before the board is competent evidence it should be considered and weighed along with other evidence in the cause.” Also it was said at page 799: “Nor was it ever contemplated that the time of the court should be consumed in a reiteration of the competent evidence presented to the board and contained in the record of its proceedings.” Also it was said at page 799: “If it should appear from that record that incompetent evidence had been received by the board, the complaining party should not be foreclosed from objecting on the trial to its admissibility. Also if the board had improperly refused to entertain admissible evidence the litigant should not be foreclosed from offering it at the trial. If additional evidence not included in either category be sought to be introduced by a party, the court has the right to receive it upon a showing that, in the exercise of reasonable diligence, it could not have been introduced before the board. ” Also it was said at page 801: “Those findings and orders [of the agency] have not the finality of a court judgment if attacked in an appropriate court pro

Appellant also contends that the decision of the referee, that the child had not made any effort to secure extra work and was not available for work, is not supported by the weight of the evidence. In a mandamus proceeding in a trial court, wherein a decision of an administrative agency having statewide jurisdiction is reviewed, the trial court is authorized to exercise its independent judgment on the evidence (Moran v. Board of Medical Examiners, 32 Cal.2d 301 , 308 [ 196 P.2d 20 ]; but upon an appeal from the judgment of the trial court in such a proceeding the province of the appellate court, with respect to the sufficiency of the evidence, is whether there is any substantial evidence which will support the judgment. {Ibid.) Substantial evidence in support of the judgment was the testimony of the child’s mother to the effect that no attempt was made to secure work by registering the child with Central Casting Corporation, which places extra workers in motion pictures; the mother would have permitted the child to do extra work if the child would get her price, which was a minimum of $70 a day; the mother probably would have taken the standard daily price of $18.50 if there was no other work to be had, but they never called her about that; as to making an effort to get extra work, she would have taken any work that came her way. It is apparent that the attitude of the mother was that the child was entitled to get “her price” of at least $70 a day and if she did not get that amount she should have unemployment benefits. She did not seek extra work for which the child would be paid the standard price of $18.50 a day, or seek extra work at all, but her attitude was that if there was no $70-a-day work to be had and if someone were to call her about extra work and if such extra work should thereby come her way without any effort or seeking on her part, she might condescend to allow the 8-year-old child to work for the comparatively minor amount of $18.50 a day. It was alleged in the petition that extra work in motion pictures could be obtained only through Central Casting. By not registering the child with Central Casting, the mother practically assured herself that she would not be called regarding extra work and that such work would not come her way, and therefore she would not be required to refuse or to accept extra work. Apparently the mother did not respect the beneficent purposes of the unemployment

Appellant also contends that work as an extra is not suitable work for a featured actress and that the failure of the child to obtain extra work by registering with Central Casting did not render her unavailable for unemployment insurance benefits. She argues that work as an extra, at $18.50 a day, is not suitable work for an actress who has never worked as an extra in motion pictures and whose work has been confined to spoken parts for which she received a minimum of $70 a day. This contention is contrary to the allegations in the petition that extra work would not be refused, and is contrary to the testimony of the mother before the referee that she would not refuse extra work if it came her way. Section 13, subdivision (a), of the California Unemployment

Appellant also contends that 'the court, in overruling interveners’ demurrer to her petition, committed error in that the court considered the evidentiary matters set forth in respondents’ answer and in the administrative record. The record herein does not show that the court considered those matters in making the ruling on the demurrer. In any event, the demurrer was overruled and, of course, appellant was not aggrieved by such favorable ruling.

Appellant also contends that the referee abused his discretion in permitting the claims interviewer to testify at the hearing on appeal before him. At the hearing the referee asked the interviewer if there were any additional facts which she thought would be pertinent that had not been covered. The interviewer replied: “I don’t believe so. She is not registered with Central, but that has been brought out, and she got her first job through an agent, and her mother does not make the