Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2009-00117552, Daniel J. Didier, Judge.
Richard Melim, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown Jr., Attorney General, Douglas Press, Leslie P. McElroy, and Karen L. Fried, Deputy Attorneys General, for Defendants and Respondents.
Aleshire & Wynder, William W. Wynder, and Jeff M. Malawy for Real Party in Interest.
OPINION
IKOLA, J.
Richard Melim, a former employee of the City of Cypress (Cypress) involved in a dispute concerning unemployment benefits, appeals the trial court’s denial of his petition for writ of administrative mandamus. (See Code Civ. Proc., § 1094.5.) Because there is substantial evidence in the record supporting the trial court’s judgment, we affirm.
We deny Cypress’s motion to dismiss the appeal for lack of standing and mootness. Melim’s declaration in opposition to the motion states that he never received a portion of the unemployment benefits at issue in this case, even though Cypress actually paid these benefits to the applicable agency charged with distributing unemployment benefits to claimants.
FACTS
It is helpful for purposes of analyzing this case to divide our recitation of the evidence between: (1) background facts, which are confirmed by Melim’s testimony; and (2) disputed facts.
Undisputed Facts
Melim was a Cypress employee for approximately seven years, serving as a custodian at the Cypress senior center. Cypress had personnel rules and regulations in place at all relevant times. Of particular note is “Section 17.02 Gifts and Gratuities”: “No officer or employee of the City shall solicit or accept any gift or gratuity, except those unsolicited gifts that are reported in a standard conflict of interest statement filed with either the City Clerk of the City of Cypress or the State of California.” “Section 17.03 Employee Performance or Conduct (Grounds for Discipline)” explains: “Unacceptable job performance or conduct may result in disciplinary action including discharge. Unacceptable job performance or conduct includes, but is not limited to” “[v]iolation of rules and regulations.” Melim was aware “accepting gratuities was a violation of the City rules at the time” of the incident at issue.
Mary Lee, a senior citizen, frequented the Cypress senior center during 2006 and 2007. On January 29, 2007, Lee provided Melim with a personal check in the amount of $200. Melim received the check at Lee’s home after he took her out to dinner; they left together from the senior center before dinner. Melim deposited the check in his bank account the next day.
On February 9, 2007, a Cypress employee asked Melim whether he “ever received money from any seniors at the Senior Center.” Melim did not mention the check from Lee. Several days later, another employee asked additional questions about whether Melim had received money from any senior. Melim did not mention Lee’s check at the meeting. The employee then confronted Melim with the claim that she had a check made out to Melim from a senior center patron; Melim did not at that time describe a loan transaction between himself and Lee. At a subsequent meeting, on March 6, 2007 (after Melim had retained an attorney and knew Cypress intended to terminate him), Melim was confronted with a copy of the cancelled $200 check.
Cypress terminated Melim on or about May 9, 2007, based on the circumstances surrounding Melim’s receipt of the $200 check and subsequent interactions between Cypress representatives and Melim pertaining to the receipt of the check.
Disputed Facts
The primary factual dispute in this case is whether the $200 check was a gift/gratuity or the repayment of a loan; Melim rightly points out that nothing in the Cypress personnel regulations precludes employees from loaning money to patrons of the senior center. There is no evidence from Lee in the record; she died sometime before the evidentiary hearing took place before the administrative law judge. A witness for Cypress testified that, in investigating the incident, Lee’s son informed her he had discovered the $200 check while reconciling his mother’s financial records. The investigator noted Lee said she could not remember writing the check; indeed, it seemed like Lee had difficulty remembering what she had just said minutes before.
Laura Detweiler, the Director of Recreation and Community Services, also testified at the hearing. Detweiler described the second interview with Melim: “I asked him directly if he had ever received money or gifts from any of our Senior Center patrons, he said no. I then stated that I had a copy of a check that had been cashed from Ms. Lee, and the approximate date of it, I think I said something like two weeks ago, can you explain why you cashed this check. And he said, oh, well she gives money away all of the time, she... has a lot of money, and she doesn’t have kids that live nearby, and she wants to get rid of it before she dies.” “[H]e became very aggravated, and... somewhat hostile, and stated that I was picking on him, and harassing him, and that he declined to sign the preliminary discipline action notice that I had handed to him.”
Jeff Draper, Melim’s immediate supervisor, did not testify at the unemployment benefits hearing but did testify at a prior administrative disciplinary appeal, the transcript of which was admitted into evidence by the unemployment case administrative law judge. Draper described Lee’s mental deterioration during the eight months he knew her. Draper testified a volunteer took a phone call from Lee, who subsequently explained to the volunteer and Draper that her son was questioning her about a check written to Melim that she needed to get back. Draper and his supervisor Dena Diggins attended the initial meeting with Melim: “[Diggins] asked [Melim] numerous times if he has ever taken money from seniors, from patrons, or if he provides services for money. Or she asked it many different ways, you know, if he had ever received money, have you ever provided services and gotten money from it. So she asked him all the questions. And [Melim] basically stated that, no, he did not.” Draper was cross-examined by Melim’s attorney at that hearing. Diggins confirmed this testimony at the same hearing; she was also subject to cross-examination.
Melim correctly notes in his brief that the administrative law judge in the unemployment benefits case did not apply collateral estoppel to any of the issues litigated at the prior administrative hearing pertaining to disciplinary matters. But Melim is incorrect in suggesting the administrative judge did not consider the testimony from this prior hearing to be admissible evidence in the unemployment benefits hearing.
Melim testified he loaned Lee $200 a year earlier, which she paid back with the $200 check in January 2007. Melim acknowledged there were no witnesses to the loan or any documentary evidence suggesting the $200 check was a loan repayment. In his testimony at the personnel disciplinary hearing, Melim explained his statements to Detweiler at the second interview referred to a different woman who handed out money at Costco, not Lee.
Procedural History
Melim sought unemployment benefits. The Employment Development Department, Orange County Adjudication Center, found Cypress “discharged [Melim] for breaking one of [its] rules. After considering the available information, the Department finds the reasons for discharge do not meet the definition of misconduct connected with the work.”
Cypress took issue with the Department’s finding and appealed to the Orange County Office of Appeals. After taking evidence and making various findings of fact, the administrative law judge ruled in favor of Melim. Despite describing Melim’s credibility as “questionable, ” the administrative law judge concluded: “[Melim’s] receipt of the money, which was most likely a gift [by] legal definition, was unaware that he was violating an employer rule. He did not perceive the money as a gift. He perceived it as repayment of a loan. Therefore it is concluded [Melim] did not intentionally disregard the employer’s interests and was discharged for reasons other than misconduct connected with his most recent work.”
The California Unemployment Insurance Appeals Board (Board) reversed: “we find [Melim’s] testimony to be both contradictory to earlier statements he made, and highly improbable.” “The employer’s rule against employees taking gifts from the clients of the senior center was reasonable as there is a possibility of elder abuse. Indeed, the client in this case is exactly the type of person the rule is designed to protect. [¶] The employer’s interrogation of [Melim] was thorough and professional.... [¶] In sum we reject the administrative law judge’s credibility finding and hold [Melim] accepted a gift from a client of the senior center, in violation of the employer’s rules. Further, [Melim] lied when he denied receiving money from the client. Since [Melim’s] actions were in willful disregard of duties owed to the employer, [Melim’s] conduct amounts to misconduct and he is thus disqualified from receiving benefits.”
The trial court denied Melim’s petition for writ of mandate. The court’s tentative ruling, subsequently adopted as its final judgment, stated: “The evidence supports the findings [by the Unemployment Insurance Appeals Board] and the findings support the decision. The evidence shows that Melim was deceptive in his responses to his supervisors[’] initial inquir[i]es about receiving any money from seniors. When later confronted with the check from Ms. Lee he explained that she was giving away money. He then tried to later explain away that admission by claiming he was actually referring to another senior from whom he received money. That conduct would have also violated the gift policy. There was testimony from Mr. Draper that he spoke to Ms. Lee and when question[ed] why she wrote the check for $200, she responded that Melim stated he needed financial help. That testimony is either hearsay testimony that explained Melim’s prior lack of candor or was admissible evidence under the declarant’s state of mind exception to the hearsay rule, as an explanation of her conduct. That supports finding that the $200 was a gift that was improperly accepted by Melim.”
DISCUSSION
Code of Civil Procedure section 1094.5, subdivision (a), authorizes writ of mandate petitions “for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.” “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
On appeal, we review the trial court’s legal determinations de novo and factual findings for substantial evidence. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443-1444.) “The appeals board and its representatives and administrative law judges are not bound by common law or statutory rules of evidence or by technical or formal rules of procedure but may conduct the hearings and appeals in such manner as to ascertain the substantial rights of the parties.” (Unemp. Ins. Code, § 1952.)
“An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work.” (Unemp. Ins. Code, § 1256.) Melim does not argue that the allegations against him, if true, would not constitute misconduct sufficient to disqualify him for unemployment compensation benefits. Melim instead suggests the court erred because: (1) the record shows his testimony was consistent and unimpeachable; (2) Draper’s testimony was inadmissible at the unemployment benefits administrative proceedings and should not have been relied on as evidence by the trial court; and (3) even if Draper’s testimony were credited, there is insufficient evidence in the record to conclude Melim committed misconduct.
Melim’s briefs display a fundamental misunderstanding of both the substantial evidence standard of review and the role of circumstantial evidence in litigation. Melim discounts Detweiler’s testimony as inaccurate (and lauds his own testimony as credible and consistent), but it is a fair inference Melim admitted to receiving a gift from Lee at the Detweiler interview (even though Lee’s name was never specifically mentioned). Melim also seems to think only direct evidence from himself or Lee that the $200 check was a gift rather than a loan could constitute substantial evidence that he improperly received a gift from Lee. This is not the law. “[T]he fact that evidence is ‘circumstantial’ does not mean that it cannot be ‘substantial.’ Relevant circumstantial evidence is admissible in California. [Citation.] Moreover, the jury is entitled to accept persuasive circumstantial evidence even where contradicted by direct testimony.” (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548, overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574-580.) Circumstantial evidence, much of it derived from Melim’s own testimony, clearly provided the Board with sufficient evidence to find against Melim. Melim received a $200 check from a senior citizen who had memory problems and died soon after the events at issue. Melim was evasive when questioned about money provided to him by seniors at the senior center. Melim’s “loan” explanation, based entirely on his own self-serving testimony, did not arise until after he had retained an attorney and was confronted with unassailable evidence he had received the check. The testimony provided by Detweiler, Draper, and Diggins reinforced the circumstantial case against Melim. Substantial evidence supports the trial court’s finding that the administrative board did not abuse its discretion.
DISPOSITION
The judgment is affirmed. In the interest of justice, the parties shall bear their own costs.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.