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

Maria Dolores SANCHEZ, Petitioner and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, an agency of the State of California, Respondent.

Civ. 48278.

Decided: July 15, 1976

Joseph P. Charney, Kenyon F. Dobberteen, Legal Aid Foundation of Los Angeles, Los Angeles, for appellant. Evelle J. Younger, Atty. Gen., Thomas Scheerer, Deputy Atty. Gen., for respondent.

Maria Dolores Sanchez appeals from a judgment of the superior court denying her application for a peremptory writ of mandate under Code of Civil Procedure section 1094.5 (administrative mandamus) to review a decision of the California Unemployment Insurance Appeals Board (the board) that she was ineligible for unemployment insurance benefits.

The superior court, applying its independent judgment, found that the weight of the evidence favored the board's decision that appellant was not available for work as required by section 1253(c) of the Unemployment Code.1

When reviewing decisions granting or denying unemployment insurance benefits, the trial court exercises its independent judgment in determining whether the administrative agency's findings are supported by the weight of the evidence. (Lacy v. California, Unemployment Ins. Appeals Bd., 17 Cal.App.3d 1128, 1132, 95 Cal.Rptr. 566; Thomas v. California Emp. Stab. Com., 39 Cal.2d 501, 504, 247 P.2d 561.)

After the trial court has so exercised its independent judgment this court need only review the record to determine whether the trial court's findings are supported by substantial evidence. (Quintana v. Board of Administration, 54 Cal.App.3d 1018, 127 Cal.Rptr. 11; Foreman & Clark Corp. v. Fallon, 3 Cal.3d 875, 92 Cal.Rptr. 162, 479 P.2d 362; Moran v. Board of Medical Examiners, 32 Cal.2d 301, 196 P.2d 20.) There was little factual dispute presented. The major disagreement between the parties is the conclusion of the board and the trial court that appellant was unavailable for work within the meaning of the statute.

Appellant last worked in August 1974, as a waitress in a restaurant in Los Angeles County. Her days off were Tuesday and Sunday. On August 20, 1974, a Tuesday, apparently as a result of a dispute with her employer over working on that day, she was discharged. She filed a claim for unemployment compensation two days later. We emphasize that appellant's disqualification was not premised on the circumstances under which her prior employment was terminated, but upon her subsequent unavailability for new employment.

The determination of unavailability resulted from a statement appellant made to the Employment Development Department that she could not work weekends. Her primary employment experience for the previous eight or nine years had been as a waitress and she had worked weekends but she contended that she now had no one to care for her five year old son. The care had previously been provided by a sister who was no longer available.

The trial court judicially noticed that restaurants in the Los Angeles area are generally open on weekends and determined that appellant in refusing to work on weekends had voluntarily and materially reduced her opportunity for suitable employment. The court thus concluded that appellant was not available for work within the meaning of Unemployment Insurance Code section 1253(c).

The purpose and objective of unemployment insurance is to provide a cushion or buffer against the hardship of sudden loss of employment which is not the fault of the applicant. (Unempl.Ins.C., § 100.)

Eligibility to receive benefits is affected by the circumstances of termination of previous employment (Unempl.Ins.C., § 1256), availability (Unempl.Ins.C., § 1253) and willingness to accept ‘suitable’ new employment (Unempl.Ins.C., §§ 1257, 1258). Unemployment Insurance Code section 1256 declares that an individual is disqualified if he is discharged for misconduct or voluntarily leaves his employment without ‘good cause.’ Similiarly section 1257 provides that a claimant is disqualified for refusing ‘suitable employment’ without ‘good cause.’

On the other hand, section 1253, which requires an applicant to be available for work does not contain any exception based on ‘good cause.’

The burden is on the applicant to establish that he remains attached to the labor market and is available for suitable work. (Loew's Inc. v. California Emp. Etc. Com., 76 Cal.App.2d 231, 172 P.2d 938.) A claimant may not unreasonably restrict his availability in terms of hours, days or wages thereby materially reducing the possibility of employment. In so doing he removes himself from the general labor market.

In earlier cases the courts tended to blur the distinction between an individual's availability for work and his willingness to accept offered employment. For example, in Loew's Inc. v. California Emp. Etc. Com., supra, the court stated that an applicant was ‘available’ for work even if he refused to accept employment in other than his usual occupation. The key issue there was in fact ‘suitability’ of offered employment.

And Garcia v. California Emp. Stab. Com., 71 Cal.App.2d 107, 161 P.2d 972, which is relied upon heavily by appellant dealt essentially with ‘suitability’ of employment. There the claimant had refused an offer of employment in her usual occupation at a location some ten miles from her home on the basis of lack of transportation. The court held that her refusal to accept otherwise suitable employment was for ‘good cause’ as permitted by the statute. (Then Employment Insurance Act, stats.1935, p. 1226, as amended, § 56; now Unempl.Ins.C., § 1257.) The case was remanded for the taking of further evidence on the availability of other ‘suitable employment’ nearer to the claimant's home.

In dicta the court there stated at page 113, 161 P.2d at page 975: ‘[I]f the unavailability for work be involuntary and without fault, a claimant may not be deprived of benefits, . . .’ It is this phrase that appellant stresses here. But as pointed out earlier the court was actually speaking of the refusal of employment.

Since the Loew and Garcia decisions, the unemployment insurance law has undergone substantial amendment. Those cases have simply been overtaken by the statutes.

The statutes now contain standards of ‘suitable employment’ which embrace the concepts of Loew and Garcia, supra, (Unempl.Ins.C., §§ 1258, 1258.5) and also list conditions authorizing refusal of new work (Unempl.Ins.C., § 1259).2

The Legislature also has not been unmindful of the possibility that an individual may have ‘good cause’ for being unavailable. The Unemployment Insurance Code contains several sections which specifically relieve an individual from the strictures of section 1253(c). (Section 1235.1 [Unlawful Detention]; section 1253.5 [Payment of benefit to individual unable to work due to physical or mental illness or injury for one or more days during such week]; section 1253.6 [Grand or petit jury service]; section 1253.8 [Individual not disqualified solely on the basis that he or she is a student]; section 1253.12 [Death in the family]; section 1253.15 [Unemployed individual discharged from armed services with unexpired leave time].) The specificity with which the Legislature has described what constitutes ‘good cause’ for refusing offered employment and ‘good cause’ for being unavailable denotes an intent on its part to limit such exceptions and application of the maxim expressio unius est exclusio alterius would exclude all others.

Appellant now seeks to expand on these exceptions and asks this court to add to the statutory scheme an overriding ‘good cause’ exception by reverting to the dicta of Garcia, supra.

We hasten to point out that aside from her declaration that she had no one available to care for her child, appellant offered no evidence that child care was in fact totally unavailable. Be that as it may, the desirability of providing an exception to section 1253(c) for mothers with the problem of obtaining child care is a matter to be addressed to the Legislature.

The undisputed fact here is that appellant has significantly restricted her availability to work at her usual occupation by refusing to work on weekends. Her reason for such refusal does not fall within any of the statutory exceptions to Unemployment Insurance Code section 1253.

Appellant additionally contends that the board made no showing that employment was available to her but for her refusal to work weekends. She relies on Spangler v. California Unempl. Ins. App. Bd., 14 Cal.App.3d 284, 92 Cal.Rptr. 266 and Chambers v. Unemployment Ins. Appeals Bd., 33 Cal.App.3d 923, 109 Cal.Rptr. 413 (the only case which our research discloses to cite Spangler on this point) as authority for the proposition that the board has the burden of such a showing.

Spangler and Chambers are both distinguishable from the instant case. In those cases claimants of limited availability produced evidence at their hearings that no jobs were available in their occupational fields. The board did not contradict the claimants' evidence thus permitting the conclusion that claimants' limited availability for work, whether voluntary or involuntary, was not the proximate cause of the claimants' unemployment.

In the instant case appellant produced no evidence that waitress jobs were unavailable. In fact, the evidence was to the contrary. Hence, there is no evidence to support an inference or conclusion that appellant's limitation on her availability was not the proximate cause of her unemployment. The trial court's finding on this issue is supported by substantial evidence.

The judgment is affirmed.


1.  Unemployment Insurance Code section 1253 (c) provides:‘An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the director finds that: . . . (c) He was able to work and available for work for that week.’

2.  Unemployment Insurance Code section 1258 provides:“Suitable employment' means work in the individual's usual occupation or for which he is reasonably fitted, regardless of whether or not it is subject to this division. In determining whether the work is work for which the individual is reasonably fitted, the director shall consider the degree of risk involved to the individual's health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence, and such other factors as would influence a reasonably prudent person in the individual's circumstances.'Unemployment Insurance Code section 1258.5 provides:“Suitable employment' does not include employment with an employer who does not: (a) Possess an appropriate state license to engage in his business, trade, or profession; or (b) Withhold or hold in trust the employee contributions required by Part 2 (commencing with Section 2601) of this division for unemployment compensation disability benefits and does not transmit all such employee contributions to the Department of Benefit Payments for the Disability Fund as required by Section 986; or (c) Carry either workmen's compensation insurance or possess a certificate of self-insurance as required by Division 4 (commencing with Section 3201) of the Labor Code.'Unemployment Insurance Code section 1259 provides:‘Notwithstanding any other provisions of this division, no work or employment shall be deemed suitable and benefits shall not be denied to any otherwise eligible and qualified individual for refusing new work under any of the following conditions: (a) If the position offered is vacant due directly to a strike, lockout, or other labor dispute. (b) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. (c) If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization. (d) If the offer or employment is from an employer who does not possess an appropriate state license to engage in his business, trade, or profession if required by state law. (e) If the offer or employment is from an employer who does not carry either workmen's compensation insurance or possess a certificate of self-insurance as required by Division 4 (commencing with Section 3201) of the Labor Code. (f) If the offer of employment is from an employer who does not withhold or hold in trust the employee contributions required by Part 2 (commencing with Section 2601) of this division for unemployment compensation disability benefits and does not transmit all such employee contributions to the Department of Benefit Payments for the Disability Fund as required by Section 986.’

COMPTON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.

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