GARDNER v. CALIFORNIA EMPLOYMENT STABILIZATION COMMISSION (1959)

District Court of Appeal, First District, Division 2, California.

Carolyn H. GARDNER et al., Petitioners and Respondents, v. CALIFORNIA EMPLOYMENT STABILIZATION COMMISSION, Harry W. Stewart, Director of Employment, The Den, Archie's Steak House, et al., Appellants and Respondents. *

Civ. 18296.

Decided: April 10, 1959

Edmund G. Brown, Atty. Gen., Irving H. Perluss, Asst. Atty. Gen., William L. Shaw, Deputy Atty. Gen., for appellants California Employment Stabilization Commission and Stewart. Rea, Frasse, Anastasi, Clark & Chapman, San Jose, for employer appellants The Den et al. Johnson, Thorne, Speed & Bamford, San Jose, for respondents.

Appellant director and appellant employers separately petition for rehearing. The employers point out that the trial judge, on motion for new trial, stated ‘The Court here didn't weigh the testimony,’ and made other similar statements. They argue from these statements that the trial court did not exercise its independent judgment on the facts. Thus, they say, our holding that the question was one of fact for the trial court does not determine the questions presented on this appeal. But in its findings of fact the trial court specifically found that the decision of the appeals board ‘is contrary to the facts developed within the administrative record,’ and that ‘the decision of the referee * * * was a correct determination of the * * * facts.’ Other findings directly upon the fact issues are specifically made. It is clear that the trial court did review the evidence and itself determine the facts. No cases are cited, and we find none, which would give to the comments of the trial judge on argument on motion for new trial the effect of a modification of the written findings.

Petitions for rehearing denied.

PER CURIAM.

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