Crook v. Department of Employment

DESMOND, P. J. The trial court, by its judgment in this case, ordered a refund to plaintiff in the sum of $350.09 which in behalf of himself and Bertha A. Crook he had paid under protest as unemployment insurance contributions (and interest thereon) for the period August 19, 1941, to September 30, 1942. The California Employment Stabilization Commission takes this appeal as a party directly interested and claims that the amount collected was properly due under the provisions of the California Unemployment Insurance Act. As a basis for this claim the appellant cites certain sections of the act, including section 9 (a), section 8.5 and section 38. Section 9 (a) defined as “Employer” as “Any employing unit, which . . . has within the current calendar year or had [309]within the preceding calendar year in employment four or more individuals. ...” Section 8.5 provides that an “ ‘Employing unit,’ as used in this act, means any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has, or subsequent to January 1, 1936, had, in its employ one or more individuals performing services for it within this state. All individuals performing services within this state for any employing unit which maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of this act.” Section 38 provided that every employer should pay into the unemployment fund contributions equal to certain fixed amounts: “the contributions required to be paid by every employer . . , shall be payable only upon $3,000 or less of wages earned in any calendar year by any worker employed by such employer.”

It is contended by appellant that under these sections the commission was entitled to levy the questioned assessment on the ground that three different entities are involved as employers. The first of these is described by appellant as “Crook Company, a partnership, prior to February 13, 1940, composed of E. I. Crook and Wayne D. Crook”; the second, as “Wayne D. Crook, subsequent to February 13, 1940, the personal representative of E. I. Crook, deceased”; the third, as “Crook Company, a partnership, subsequent to order of distribution in the estate of E. I. Crook, deceased, dated August 18, 1941, composed of Wayne D. Crook and Bertha A. Crook, distributee of the estate of E. I. Crook, deceased.” Upon this theory of succession it is argued that a change of entity in the employing unit took place when E. I. Crook died on February 13, 1940, and also when the services of Wayne D. Crook, as his executor, were terminated on August 19, 1941, the court at the same time ordering distribution of the entire estate of E. I. Crook to his widow. The contrary claim of the respondent is that there was only one change of entity during the period involved, namely, when the death of E. I. Crook occurred.