Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS109389, James C. Chalfant, Judge.
Roger M. Grace for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Senior Assistant Attorney General, Leslie P. McElroy and Carmen D. Snuggs, Deputy Attorneys General, for Defendant and Respondent.
No appearance for Real Party in Interest.
JACKSON, J.
INTRODUCTION
Plaintiff Metropolitan News Company appeals from the judgment denying its petition for a writ of administrative mandate (Code. Civ. Proc., § 1094.5) and for a writ of traditional mandate (id., § 1085). In its petition, plaintiff sought relief from a decision of the California Unemployment Insurance Appeals Board, upholding the Employment Development Department’s determination that real party in interest, Steve Cischke, was not terminated by plaintiff for “misconduct connected to work” within the meaning of Unemployment Insurance Code section 1256 and that plaintiff’s reserve account, therefore, was subject to unemployment benefit charges. We affirm.
FACTUAL BACKGROUND
Plaintiff publishes a legal newspaper known as the Metropolitan News-Enterprise (newspaper). Roger M. Grace (Grace) is the editor of the newspaper. Grace assigned real party in interest, Steven M. Cischke (Cischke), a staff writer for the newspaper, to write an in-depth biographical profile about an appellate court justice whom the newspaper had named as one of three “Persons of the Year.” The justice’s profile was to appear, along with the profiles of the two other designees, in a special section of the newspaper.
On the morning of January 2, 2007, Grace proofread a draft of the article Cischke had written. The following notation appeared on the top of the draft: “STEVE: need something about the quality of the justice’s opinions.” The word “quality” was circled. The article had to be completed that day so that it could go to press that night.
Cischke thereafter undertook to comply with Grace’s directive, by calling and leaving messages for the justice’s current and former associates. Two of the justice’s current associates returned Cischke’s calls but were uncomfortable with Cischke’s request for comments on the quality of the justice’s opinions. One associate said only that all justices write good opinions. The other stated that the opinions of the justice involved were “okay.” One associate discouraged Cischke from following up on the quality angle. Both provided information regarding the justice’s personal attributes, however.
Cischke did not thereafter pursue further comments from other individuals. Applying journalistic judgment and principles of fairness, he believed that if he found someone who said the justice’s opinions were great, he also would have “to say something to the effect that, however, two... Justices who work with [him] indicated there was nothing special about his opinions. And of course that would have defeated the whole purpose.”
Later in the evening, after Grace reviewed Cischke’s final draft, Grace mentioned the absence of comments regarding the quality of the appellate justice’s opinions. Cischke related that in light of the specific responses he had received, he made no further efforts to secure comments. Cischke also explained that he had attempted without success to contact two of the justice’s former colleagues. Grace remarked to Cischke, “You got these two comments and then you just shrugged your shoulders.” Cischke responded, “I didn’t see it that way.” In a raised voice, Grace stated that he did. Unsure how to respond, Cischke turned and started to walk away. Grace then fired Cischke for insubordination.
In 2006, Cischke acknowledged in writing that he had received a copy of plaintiff’s office manual. Among the causes for termination listed in the manual were “failing to finish your assigned task before leaving for the day” and “[i]nsubordination, including but not limited to failure or refusal to obey the orders or instructions of a supervisor or member of management.”
At the time he was fired, Cischke had worked approximately eight months for plaintiff. Prior to the incident for which he was fired, Cischke received no warnings regarding his reporting.
PROCEDURAL HISTORY
A. Administrative Proceedings
On February 7, 2007, the Employment Development Department (EDD) mailed plaintiff a notice of determination. Therein, EDD stated that it had considered information plaintiff had provided regarding Cischke’s eligibility for unemployment compensation but concluded that plaintiff’s reason for Cischke’s discharge—i.e., not following directions—“[did] not meet the definition of misconduct connected with the work.” Accordingly, plaintiff’s “reserve account [would] be subject to charges.”
Plaintiff appealed EDD’s determination, alleging that Cischke “knowingly and intentionally refused to follow the directive of the editor, to the prejudice of the employer,” and that “[t]here was a deliberate violation and disregard of the standards the employer had a right to expect Mr. Cischke to meet.” A hearing on the appeal was held March 23, 2007 before an administrative law judge (ALJ). In a written decision issued on March 28, the ALJ found that Cischke’s “failure to carry out the instructions was at most an isolated incident of error in judgment” and did not rise to the level of misconduct. Finding that Cischke was discharged for reasons other than misconduct connected with Cischke’s work for plaintiff and that he was not disqualified for benefits under Unemployment Insurance Code section 1256 (section 1256), the ALJ affirmed the EDD’s ruling.
Plaintiff thereafter appealed to the California Unemployment Appeals Board (Appeals Board), claiming that the ALJ misapplied the law, in particular, the California Supreme Court’s decision in Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671, to the facts. On June 1, 2007, the Appeals Board affirmed the ALJ’s decision. The Appeals Board “[found] no material errors in the statement of facts,” opined that the “reasons for decision properly apply the law to the facts,” and stated that “[t]herefore, we adopt the issue statement, the statement of facts and the reasons for decision as our own.” The Appeals Board noted that new matter presented in connection with the appeal was not considered. Neither of the two Appeals Board members who rendered the decision were attorneys.
B. Superior Court Proceedings
Plaintiff filed a petition for writ of mandate in the superior court. In the first amended petition for writ of mandate filed on November 19, 2007, plaintiff sought two writs. The first was a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 mandating the Appeals Board to re-hear the appeal, with an opinion rendered by two members who are licensed to practice law in the State of California, or in the alternative, a writ ordering the Appeals Board to restore the funds paid as unemployment benefits to Cischke to plaintiff’s reserve account. The second was a writ of mandate under Code of Civil Procedure section 1085, mandating the Appeals Board to establish procedures “whereby cases presenting issues requiring legal interpretations, as opposed to jury-like application of law to facts, are routed to attorney members.”
After a hearing on May 5, 2008, the trial court denied plaintiff’s first amended petition. The trial court found that Cischke’s actions constituted “a good faith error in judgment that is unsatisfactory conduct, but not misconduct,” and that “[t]he weight of the evidence and the law support the [Appeals Board’s] finding that Cischke’s actions did not rise to the level of misconduct.” The court further found that its “misconduct” ruling rendered plaintiff’s second claim moot, the second claim being that due process required the Appeals Board to assign attorney members only to appeals involving issues of law. The court continued that, even assuming arguendo that it was not moot, “the current system [of the Appeals Board for assigning cases to its members] does not violate due process.” The court entered judgment denying the petition on May 27, 2008.
DISCUSSION
A. Standard of Review
When reviewing the denial of a petition for a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5, we must presume the trial court’s decision is correct and affirm it if it is supported by substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824; County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 910.) A trial court’s determination that challenged administrative procedures comply with due process, resulting in the denial of a writ of mandate pursuant to Code of Civil Procedure section 1085, presents a question of law, and we review the trial court’s determination of the question de novo. (Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 618-619; Menge v. Reed (2000) 84 Cal.App.4th 1134, 1139.)
B. Review of Determination on “Misconduct”
Plaintiff contends the trial court erred in denying its petition for a writ of administrative mandate (Code Civ. Proc., § 1094.5), in that its finding that Cischke’s actions did not rise to the level of “misconduct” under section 1256 is not supported by the evidence and is contrary to law. We disagree.
Section 1256 provides that “[a]n 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.” Intent is paramount when determining whether action constitutes “misconduct.” (Rowe v. Hansen (1974) 41 Cal.App.3d 512, 522.) For purposes of section 1256, “misconduct” is “‘“‘limited to conduct evincing such wilful 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.’”’” (Delgado v. Unemployment Ins. Appeals Bd. (1974) 41 Cal.App.3d 788, 791; accord, Davis v. Unemployment Ins. Appeals Bd. (1974) 43 Cal.App.3d 71, 75.) By contrast, “misconduct” is not “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.” (Delgado, supra, at p. 791.) The Rowe court explained that “[a] determination of the true character of [the employee’s] act, i.e., whether deliberate and willful or rash and precipitate, requires resort to circumstantial evidence and the inferences reasonably to be drawn therefrom.” (Rowe, supra, 41 Cal.App.3d at p. 520.)
Plaintiff’s claim is essentially that Cischke engaged in misconduct by refusing to perform a lawful directive. The cases cited by plaintiff do not support such a conclusion. Rather, they illustrate the level of intent required for an employee’s refusal or failure to perform to constitute misconduct. In Rowe v. Hansen, supra, 41 Cal.App.3d 512 and Davis v. Unemployment Ins. Appeals Bd., supra, 43 Cal.App.3d 71, courts upheld a misconduct finding. In each case, the employee unequivocally refused to comply with the employer’s rule. Each court concluded that the unequivocal refusal alone was insufficient to be deemed misconduct and left questions about whether the employee’s intent was sufficiently culpable, wrongful or of evil design to constitute misconduct. (Davis, supra, at p. 74; Rowe, supra, at p. 522.) In each case, there was a record of prior similar incidents, with warnings to the employee about complying with the employer’s rules. In each opinion, the circumstantial evidence of prior incidents and warnings provided sufficient evidence of culpable intent for the court to conclude that substantial evidence supported a finding that the employee’s refusal constituted misconduct. (Davis, supra, at pp. 75-76; Rowe, supra, at pp. 522-523.)
An employee’s knowing refusal to comply with an employer’s directive has in some cases been determined to be based on good cause, amounting at most to a “good faith error” in judgment, rather than “misconduct.” The showing of good cause effectively negates any finding of the culpable intent required to constitute “misconduct.” In Delgado v. Unemployment Ins. Appeals Bd., supra, 41 Cal.App.3d 788, the employee’s intentional failure to comply could be seen as favoring the employer’s interest rather than having been done in willful disregard of it, i.e., with the requisite intent for misconduct. The employee, a grocery cashier, believed that the instances she violated the employer’s rule were acceptable, in that her supervisors condoned her practice, and it resulted in convenience and time-savings to customers, who otherwise would have to go to another check out department to make a single item liquor purchase after she checked out their grocery purchases. (Id. at pp. 790-791, 792.) The court found that the evidence did not compel the conclusion that the employee’s conduct constituted willful or wanton disregard of the employer’s interests or negligence of such degree as to manifest the same culpability or wrongful intent, i.e., that the conduct constituted misconduct. (Id. at p. 792; see Amador v. Unemployment Ins. Appeals Bd., supra, 35 Cal.3d at p. 680 and fn. 6.)
In Amador v. Unemployment Ins. Appeals Bd., supra, 35 Cal.3d 671, a histotechnician was fired for refusing to perform a particular type of tissue preparation procedure. Her refusal stemmed from her belief that she was not qualified to do the procedure and that a patient’s life and health could hinge on proper execution of the procedure. Her belief had a factual basis. It was based in part on her past experience at two university hospitals which did not allow histotechnicians to perform the procedure and opinions that she sought from two physicians who agreed. (Id. at pp. 675-677.) The Supreme Court held that, because section 1256 does not disqualify employees who leave employment voluntarily with good cause, it follows that an employee who refuses a work assignment for good cause is not disqualified. (Id. at p. 680.) The court explained that in such proceedings to determine misconduct, the employer bears the burden of proving misconduct by establishing that the employee has violated a reasonable order, but the burden then shifts to the employee to show good cause. (Id. at pp. 680-681 and fn. 7.) The court determined that the histotechnician presented uncontroverted evidence sufficient to support her claim that she refused the assignment for good cause. (Id. at p. 681.) The court concluded that, “[f]urther, it is apparent that an employee who has refused work for good cause has—at the very worst—made a ‘good faith error in judgment’ [citation].” (Ibid.)
Plaintiff’s argument that Amador is inapplicable, because Cischke’s conduct had nothing to do with anyone’s health, overlooks the operative principle. The Amador court discussed several cases as part of its rational for its “good cause” decision, and only a portion of the cases related to health risks as “good cause.” (Id. at pp. 681-684.) Thus, the principles articulated by the court with respect to “good cause” and “good faith error in judgment” have applicability beyond fact situations in which health risks are the basis for an employee’s failure to comply with an employer’s directive.
The evidence of Cischke’s efforts to reach numerous individuals for comment and his success in garnering comments from two of them within the hours given him on January 2, 2007 to complete the profile provides substantial evidence from which it can reasonably be inferred that Cischke’s overall intent was to comply with the editor’s directive. When given the directive, Cischke accepted the directive and went to work on it; he did not simply refuse to accept or perform the directive. As the trial court observed, this removes Cischke’s case from the four cases previously discussed, in that there was no unequivocal refusal to accept a work assignment. (Amador v. Unemployment Ins. Appeals Bd., supra, 35 Cal.3d at pp. 680-681.) As the Supreme Court said in Amador, it is the employer’s burden to prove that the employee “willfully refused a reasonable order,” that is, that the employee had culpable intent in refusing the order. (Ibid.) In its reply brief and consistent with the record, plaintiff acknowledged that Cischke did not immediately refuse the directive but rather “initially undertook to get comments” and only “ceased his effort after he received lukewarm comments” regarding the quality of the justice’s opinions.
Even assuming arguendo that Cischke’s ultimate decision to omit the comments from the profile rose to the level of a refusal to comply with the editor’s directive, evidence of the requisite ill intent is lacking. Rather, the record shows that Cischke’s intent was to favor, and to act in accordance with, the plaintiff’s interests. “Misconduct,” by contrast, requires conduct evincing “‘“‘wilful or wanton disregard of an employer’s interests’”’” or showing “‘“‘an intentional and substantial disregard of the employer’s interests.’”’” (Delgado v. Unemployment Ins. Appeals Bd., supra, 41 Cal.App.3d at p. 791, italics added.)
On appeal, plaintiff characterizes Cischke’s decision to leave out any comments about quality as resting on the assumption “the editor would not want those comments in the profile” and his assessment that “it would not be ethical to include favorable ones he might subsequently garner without including those of the two Justices.” That is consistent with Cischke’s testimony about his reasons for not including any comments on quality of opinions. By contrast, there is nothing in the record indicating that Cischke willfully refused to follow an order or intentionally and substantially disregarded plaintiff’s interests. (Amador v. Unemployment Ins. Appeals Bd., supra, 35 Cal.3d at pp. 680-681; Delgado v. Unemployment Ins. Appeals Bd., supra, 41 Cal.App.3d at p. 792.) Rather, there is substantial evidence that Cischke did not willfully refuse the directive. His omission of comments on quality of work resulted from the exercise of Cischke’s professional judgment and his assessment that omitting the comments about an individual whom plaintiff had chosen to honor would be consistent with plaintiff’s goals and interests.
Plaintiff claims that no case supports the trial court’s conclusion, which plaintiff characterizes as being that Cischke’s actions constituted a “good faith error in judgment.” The conclusion at issue in this case, however, was that Cischke’s conduct did not rise to the level of misconduct under section 1256. As we discussed, ante, we conclude that substantial evidence supports a finding that Cischke’s action did not constitute “misconduct” and, therefore, we affirm the determination of the trial court. (County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 910.)
Plaintiff advances arguments that relate to the distinction between a “good faith error in judgment” and a showing of “good cause,” and the allocation of the burden of proof on these elements between plaintiff and Cischke. Our task, however, is to determine if the trial court’s conclusion is correct on any ground, regardless of the reasons given by the court. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)
C. Due Process
Plaintiff’s claim of a due process violation is based upon its contention that the Appeals Board decision makers were not qualified to render a decision, in that they were not attorneys and, therefore, not qualified to interpret the law. Plaintiff cites no statute or judicial opinion on point or directly analogous to the circumstances presented here establishing that due process required the Appeals Board decision makers to be attorneys.
In support of its due process argument, plaintiff relies on Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81. As to administrative proceedings, the Nightlife Partners court opined that what constitutes due process differs in accordance with the applicable circumstances, and at a minimum, due process requires “a fair hearing before a neutral or unbiased decision-maker.” (Id. at p. 90.) The holding in Nightlife Partners was that the decision maker was biased, resulting in a due process violation and, therefore, is inapposite here.
Viewing the administrative and judicial review of plaintiff’s claim as a whole, there was no due process violation in this case. Plaintiff exercised its rights to appeal its case to an ALJ, then to the Appeals Board, and, ultimately, to the trial court. (Unemp. Ins. Code, §§ 404, 407, 409; Code Civ. Proc., § 1094.5.) Code of Civil Procedure section 1094.5 provided a safety net against prior erroneous interpretations of the law by requiring the trial court to exercise its independent judgment on the law, as well as the facts, and the trial court was clearly qualified to do so. (Fukuda v. City of Angels, supra, 20 Cal.4th at pp. 811, 823-824; Nightlife Partners, Ltd. v. City of Beverly Hills, supra, 108 Cal.App.4th at pp. 90-91.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.