California Employment Stabilization Commission v. Smileage Co.

WOOD (W. J.), J. Plaintiff commenced this action under the provisions of sections 37, 38 and 44 of the California Unemployment Insurance Act [Stats. 1935, p. 1226, as amended; Deering’s Gen. Laws, Act 8780d] for the collection of contributions, interest and penalties alleged to be due from defendant in the sum of $8,270.84 for the period from January 1, 1936, to September 30, 1939. The trial court found that contributions for the period from January 1, 1936 to June 30, 1936, were barred by the provisions of section 338, subdivision 1, of the Code of Civil Procedure, but entered judgment for the contributions and interest claimed for the period from July 1, 1936 to September 30, 1939. Defendant has appealed from this judgment.

Defendant now claims that the evidence fails to show that, during the period covered by the judgment, it was an employer within the meaning of the Unemployment Insurance Act or that it was indebted for any amount whatever. It is also claimed that plaintiff’s action is barred by subdivision 1, section 338, of the Code of Civil Procedure.

We are satisfied that the findings of the trial court are supported by the evidence. In addition to evidence concerning the number of employees that were employed by defendant during the period in question and concerning the failure of defendant to file returns, plaintiff relies upon the certificate provided for by section 45.1 of the California Unemployment Insurance Act, which was introduced in evidence. By the terms of this section the certificate is made prima facie evidence of the payment by the employer of the amount of wages set forth therein, of the levy of the contributions, of the delinquency and of the compliance by the commission with all of the provisions of the act in relation to the contributions and levy of the contributions specified in the certificate. The certificate being prima facie evidence of the facts it sets forth, it established the allegations necessary to make out a case for plaintiff until contradicted and overcome by other evidence. Any evidence in the ease contrary to the prima facie ease established by the certificate of delinquency merely created a conflict in the evidence to be resolved by the trial court. (People v. Mahoney, 13 Cal.2d 729 [91 P.2d 1029].) Defendant did not present its books at the trial and we find no evidence in the record which compels a ruling that as a matter of law the [252]prima facie case established by plaintiff by the introduction of the certificate was overcome. Indeed, plaintiff’s auditor testified that when seeking to audit the books of the defendant he “saw an incomplete and unintelligible set of records, books and records, that did not tie in”; that he requested the rest of the books and records, and after several visits in the early part of 1939 he saw some of defendant’s books and records; that he examined the general ledger, which showed deductions for unemployment purposes; that these deductions had been made from the salaries of employees of the corporation according to law and that these amounts were not sent to the Sacramento office of the department.