PACIFIC LEGAL FOUNDATION v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD

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Court of Appeal, Third District, California.

PACIFIC LEGAL FOUNDATION, a non-profit California Corporation, Plaintiff, Respondent and Cross-Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant, Appellant and Cross-Respondent.

Civ. 18239.

Decided: December 31, 1979

Ronald A. Zumbrun, John H. Findley, Sandra M. Robertson, Sacramento, for plaintiff, respondent and cross-appellant. George Deukmejian, Atty. Gen., Carol Hunter, Deputy Atty. Gen., for defendant, appellant and cross-respondent.

The Unemployment Insurance Appeals Board (Board) appeals from a judgment of the superior court which invalidated a Board decision awarding Thurman Carroll unemployment insurance benefits. The basis of the court's decision was its finding that Carroll had not genuinely sought work and was therefore ineligible for benefits.

Pacific Legal Foundation (PLF) brought this action to review the Board's determination, and cross-appeals from that portion of the judgment which denies it recovery for attorney fees.

This court has previously determined that PLF has standing to bring the main action. (Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1977) 74 Cal.App.3d 150, 157-158, 141 Cal.Rptr. 474.)

FACTS

Thurman Carroll was unemployed from February to August 1975. He previously had been employed as a gardener or ranch caretaker and had only a 7th grade education. On June 2, 1975 he went to the office of the Employment Development Department (EDD) in Marysville to register and be interviewed for unemployment insurance benefits.

The interview revealed that: (1) Carroll was 64 years of age and on social security; (2) he wanted a job as a gardener or caretaker where his wife could do some housework; and (3) he was seeking a job that paid $200 per month and provided living quarters so that he would not lose any social security benefits, or alternatively, one that paid $500 a month so he could forego his social security benefits. In the questionnaire he filled out, he checked the box indicating he thought his chances of finding work were poor. During the interview, Carroll was told to seek work in farming. He was also told not to limit his search to live-in jobs and to register with the “employment service;” that he must seek farm work to be in the labor market.

A June 16, 1975 interview disclosed that on June 12 Carroll had gone to Quincy with his brother-in-law, who was going there to see about a job in a mill. While there, Carroll thought he might find a job as a caretaker, and filed an application with the employment office, but he was apparently not offered employment. The interviewer noted that despite instructions to look for farm work, Carroll did not contact any farmers, had looked in only three newspapers, and responded to only three newspaper ads. The interviewer denied benefits for the period in question (the weeks ending June 7 and June 14, 1975) on the ground that Carroll's “minimum efforts to find work indicate that you are not genuinely in the labor market and . . . you are not available.”

Carroll appealed the denial of benefits. At the administrative hearing the administrative law judge affirmed the denial upon the basis that Carroll had not made sufficient independent efforts to find work and therefore was not genuinely attached to the labor market and available for work. The administrative record further discloses that as Carroll put it “the farmers I knew wasn't hiring nobody and then on top of that I didn't have gas enough to go out and run around.” He had contacted John Douglas, a former employer in San Rafael, for whom he had worked as a caretaker, and asked Douglas if he would look for a job for him. In response to a newspaper ad, he called, without success, a private employment agency in Marysville, and also went to a “place where they wanted a set-up man on in the molding machine,” but was told that a young man was desired. He confirmed that he had been told not to restrict his search to caretaker or other live-in arrangements, and to seek farm work. He testified, however, that at a time not specified, he had contacted a state employment office regarding a ranch job, and “they” told him that there would be no farm work “until the tomatoes started” in the Yuba-Sutter area.1

Carroll appealed the decision of the administrative law judge to the Board. In a 3-2 decision (Precedent Benefit Decision No. P-B-292), the Board determined that Carroll was not disqualified for benefits under Unemployment Insurance Code section 1253, subdivisions (c) and (e),2 notwithstanding his minimal efforts to seek work in compliance with or beyond the directions given him by EDD. The Board reasoned that subdivisions (c) and (e) set forth separate eligibility requirements. As stated in the Board decision, “. . . (i)t is our conclusion that while the failure to seek work may be a factor to be considered together with restrictions and limitations placed by a claimant on acceptable work in arriving at the conclusion that a claimant is not available for work, such failure in and of itself cannot form the basis for a determination of unavailability (citation). (P) The claimant in this case imposed no unreasonable restrictions on acceptable work and there was a labor market for his services. Therefore, we hold that the claimant was available for work as required by section 1253(c) of the code.”

In a forceful opinion, the two dissenting members of the Board pointed out that “the majority opinion requires nothing more than that a claimant read the ‘help wanted’ ads in a newspaper to be eligible under both (subds. (c) and (e)). Such a rule is in discord with both the plain meaning of section 1253 and the decisional law of this state.” The dissent reasoned that Carroll had not acted diligently because tomato harvesting is a late summer crop, preceding the early autumn harvesting of melons and pumpkins; that prior to the tomato harvesting there come the picking, transporting, canning, drying, and marketing of two other principal crops: apricots and peaches.

After the decision of the Board granting Carroll benefits, PLF named the Board as defendant in this action for declaratory relief and succeeded in obtaining a judgment holding the Board action invalid, and Carroll ineligible for benefits. The trial court, although concluding that the Board had erred in awarding benefits, determined that Carroll would not be held liable for the amount of the benefits received (for the weeks ending June 7 and June 14, 1975) pursuant to the Board's ruling.3

After entry of the judgment, PLF moved for an award of attorney fees. The trial court denied the motion, and PLF appeals from the order. The Board appeals from the judgment invalidating its decision. The parties have stipulated to share the costs on appeal.

DISCUSSION

Defendant's Appeal

The Board contends, as it did in the trial court, that the “available for work” requirement of section 1253, subdivision (c), is distinct and separate from the requirement of section 1253, subdivision (e) that the claimant conduct “a search for suitable work in accordance with specific and reasonable instructions of a public employment office.” The crux of the argument is that while a claimant's failure to seek work may be considered along with any restrictions or limitations placed by him on acceptable work in determining whether he is available for work, such failure alone cannot form the basis for a determination of unavailability.

We cannot agree with an interpretation which treats the requirements of section 1253 as separate and disjunctive. The Board's reasoning as to the separability of subdivisions (c) and (e) centered largely upon the 1961 amendment of section 1253. That amendment changed the prior version of the section which had read, in pertinent part:

“. . . (c) He was able to work and available for work that week, And had made such effort to seek work on his own behalf as may be required in accordance with such regulations as the director shall prescribe.” (Stats.1953, ch. 308, p. 1501.) (Emphasis added.)

As our subsequent discussion will demonstrate, the 1961 amendment was not the result of legislative intent to make the section disjunctive rather than conjunctive.

The Legislative Counsel's Digest to the 1961 amendment (Stats.1961, ch. 2208, s 1 (AB 1744) indicates that the purpose of the amendment was not to enable claimants to qualify for unemployment insurance benefits by merely satisfying one of the provisions of section 1253, but rather to provide that the claimant's search “. . . be directed to suitable work, and that it be conducted pursuant to specific reasonable local office instructions rather than those of the Director of Employment.” (See 1961 Leg.Sess., AB 1744.)

Second, examination of other sections of the code dealing with unemployment insurance benefits indicates that had the Legislature been desirous of allowing claimants to qualify by merely satisfying one of the provisions of section 1253, different phraseology would have been used.

We note that where (1) the Unemployment Insurance Code makes provision for the payment of benefits, (2) lists nonobvious mutually exclusive categories, and (3) there is an intent to qualify or allow exclusions on account of only some of the enumerated requirements, the phrase “any of” is inserted before the words “the following conditions.”4 It appears, therefore, that the Legislature's omission of the phrase “any of the following” is a significant factor militating against the Board's interpretation of section 1253.

Third, the EDD's own regulations indicate the section has been construed by the administrative agency charged with administering the system of unemployment insurance benefits to provide that a claimant must satisfy each part of section 1253.

“(A) ‘contemporaneous and practical construction of a statute by those whose duty it is to carry it into effect, while not controlling, is given great respect.’ (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 643, 122 P.2d 526, 531.)” (People v. McGee (1977) 19 Cal.3d 948, 961, 140 Cal.Rptr. 657, 663, 568 P.2d 382, 388; see, Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 55, 67, 141 Cal.Rptr. 146, 569 P.2d 740.)

The applicable administrative regulations promulgated by the EDD and here relevant indicate the department has construed section 1253 as imposing conjunctive requirements, all of which must be satisfied. Pursuant to the regulations, an applicant must: (1) register to work by personally, or by mail if unable to appear in person, reporting (Tit. 22, Cal.Admin.Code, s 1253(b)-1; (2) demonstrate to the satisfaction of the department that he or she is able to work and is pursuing a course of action reasonably designed to result in prompt reemployment in suitable work (Tit. 22, Cal.Admin.Code, s 1253(c)-2); (3) as the department shall provide to each claimant written information and assistance as to how, when, where, and in what manner to apply for and look for a job, each claimant must make a reasonable effort to search for suitable work on his or her own behalf in accordance with specific and reasonable instructions of a public employment office during the week for which benefits are sought (Tit. 22, Cal.Admin.Code, s 1253(e)-1). Furthermore, the regulations provide: “(f)or an individual who becomes and remains totally unemployed, there are five basic steps in the usual procedure for handling a typical unemployment insurance claim. . . . (P) STEP 1. . . . An individual who becomes unemployed and wishes to claim unemployment benefits is required to report in person to an Employment Development Department field office, where he or she files a new claim for unemployment insurance. . . . When the new claim is filed, the claimant fills out an employment history and registers for work. The department gives him or her detailed written information on his or her benefit rights and duties, assistance in filing the new claim, and written instructions on his or her responsibility to look for work. The claimant is told to report back to the department field office in person, usually in two weeks. (P) STEP 2. . . . In two weeks, or as directed by the department, the claimant reports in person to the department field office to file a continued claim. The department conducts an eligibility and benefit rights interview to review the claimant's understanding of his or her benefit rights and duties, including the department's written instructions on the claimant's responsibility to look for work. The department interviews the claimant in detail on reasons for unemployment, job prospects, what he or she has done to find work, and any facts which might raise a question concerning eligibility. The claimant is required to certify on a continued claim form as to his or her efforts to seek work, And other eligibility requirements. (Emphasis added.)” (Tit. 22, Cal.Admin.Code, s 1326-1, subd. (b), subds. (1) & (2).)

Fourth, the Board's interpretation of section 1253 is in conflict with that portion of section 100 providing that: “(P) (i)t is the intent of the Legislature that unemployed persons claiming unemployment insurance benefits shall be required to make all reasonable effort to secure employment on their own behalf.” In this regard, “A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. (Citations.) This rule applies although one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject. (Citations.)” (Hough v. McCarthy (1960) 54 Cal.2d 273, 279, 5 Cal.Rptr. 668, 672, 353 P.2d 276, 280; see, Turner v. Board of Trustees (1976) 16 Cal.3d 818, 826-827, 129 Cal.Rptr. 443, 548 P.2d 1115; Carleson v. Unemployment Ins. Appeals Bd. (1976) 64 Cal.App.3d 145, 155-156, 134 Cal.Rptr. 278; State Comp. Ins. Fund v. Industrial Acc. Com. (1961) 56 Cal.2d 681, 686, 16 Cal.Rptr. 359, 365 P.2d 415.) Thus, we cannot ignore the conjunctivity of sections 100 and 1253. (See p. 221 infra.)

Fifth, and finally, albeit carried to a less than logical conclusion, were the Board's interpretation of section 1253 correct, i. e., that parts of the section are to be read separately or disjunctively, a person would, according to subdivision (d), be able to qualify for unemployment insurance benefits merely by being unemployed for a waiting period of one week.5

Having concluded that section 1253 must be interpreted as requiring that a claimant satisfy all of its provisions, we next consider whether the trial court's decision holding Carroll ineligible for the questioned benefits is supported by the record.

It is clear the independent judgment test applies to review of decisions of the Unemployment Insurance Appeals Board. (Thomas v. California Emp. Stab. Com. (1952) 39 Cal.2d 501, 504; 247 P.2d 561; King v. California Unemployment Ins. Appeals Bd. (1972) 25 Cal.App.3d 199, 203, 101 Cal.Rptr. 660; Lacy v. California Unemployment Ins. Appeals Bd. (1971) 17 Cal.App.3d 1128, 1132, 95 Cal.Rptr. 566.)

“Our function here as an appellate court is to determine whether, under applicable principles of law, substantial evidence supports the trial court's finding. (Citations omitted.)” (Glick v. Unemployment Insurance Appeals Bd. (1979) 23 Cal.3d 493, 503, 153 Cal.Rptr. 1, 6, 591 P.2d 24, 30.) All issues of credibility, likewise, are for the trier of fact. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 496 P.2d 480; Unruh v. City Council (1978) 78 Cal.App.3d 18, 25, 143 Cal.Rptr. 870; see, Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1016, 128 Cal.Rptr. 137.)

The burden is on the claimant to unemployment compensation benefits to prove that he was available for work during the period in question. (Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 55, 70-71, 141 Cal.Rptr. 146, 569 P.2d 740; Ashdown v. State of California (1955) 135 Cal.App.2d 291, 300, 287 P.2d 176; Loew's Inc. v. California Emp. Etc. Com. (1946) 76 Cal.App.2d 231, 238, 172 P.2d 938.) “ ‘Once a claimant has shown he is available for suitable work which he has no good cause for refusing, the burden of proof on the issue of whether he is available to a ‘substantial field of employment’ lies with the department. If the department believes that a given claimant, despite his availability for such suitable work, is nevertheless not attached to a labor market of sufficient dimension, it may be expected to explain its position and support it with appropriate evidence.' (Sanchez v. Unemployment Ins. Appeals Bd., supra) (Fn. omitted.) (20 Cal.3d at p. 71, 141 Cal.Rptr. at p. 156, 569 P.2d at p. 750.)” (Glick v. Unemployment Insurance Appeals Bd., supra, 23 Cal.3d at pp. 504-505, 153 Cal.Rptr. at pp. 7-8, 591 P.2d at pp. 31-32.)6

Section 1253 must be read in light of section 100 of the Unemployment Insurance Code, which “was included in the Code ‘(a)s a guide to . . . the interpretation and application’ of other sections (Unemp.Ins.Code, s 100).” (Jefferson v. Unemployment Ins. Appeals Bd. (1976) 59 Cal.App.3d 72, 79, 130 Cal.Rptr. 405, 410.) Section 100 provides, in part, “The Legislature therefore declares that in its considered judgment the public good and the general welfare of the citizens of the State require the enactment of this measure under the police power of the State, for the compulsory setting aside of funds to be used for a system of unemployment insurance providing benefits for persons unemployed through no fault of their own, and to reduce involuntary unemployment and the suffering caused thereby to a minimum.” In light of section 100 it has been concluded that “ ‘fault is the basic element to be considered in interpreting and applying the code sections on unemployment compensation.’ ” (Jefferson v. Unemployment Ins. Appeals Bd., supra, at p. 79, 130 Cal.Rptr. at p. 410, quoting Rowe v. Hansen (1974) 41 Cal.App.3d 512, 521, 116 Cal.Rptr. 16; see also Sherman Bertram, Inc. v. Calif. Dept. of Employment (1962) 202 Cal.App.2d 733, 736, 21 Cal.Rptr. 130.)

Here, the superior court found that the instructions given Carroll by the local EDD office were specific and reasonable under the circumstances; determined further that he had a duty, not resting solely with the employment office, to seek work on his own; that he had not satisfied his duty of searching for work; and therefore concluded that the determination of the Board that Carroll was available for work was unsupported by the record.

“ ‘ Availability for work’ within the meaning of section 1253, subdivision (c), requires no more than (1) that an individual claimant be willing to accept suitable work which he has no good cause for refusing and (2) that the claimant thereby makes himself available to a substantial field of employment.” (Sanchez v. Unemployment Ins. Appeals Bd., supra, 20 Cal.3d 55, 67, 141 Cal.Rptr. 146, 154, 569 P.2d 740, 748; Loew's Inc. v. California Emp. Etc. Com., supra, 76 Cal.App.2d at p. 238, 172 P.2d 938.) Nor need an applicant for benefits “accept work which represents a risk to his ‘health, safety, and morals', or which fails to correspond to his ‘physical fitness and prior training’ or his ‘experience and prior earnings.’ ” (Sanchez v. California Unemployment Ins. Appeals Bd., supra, 20 Cal.3d at p. 63, 141 Cal.Rptr. at p. 151, 569 P.2d at p. 745.) However, the claimant is required to be Genuinely diligent in trying to obtain work (Loew's, Inc., supra, 76 Cal.App.2d at p. 242, 172 P.2d 938),7 and in view of the clear mandate of section 100, it does no violence to section 1253 to require of a claimant the exercise, if necessary, of diligence beyond or in addition to instructions received from EDD. It has been pointed out that, as a fundamental principle, the Act is “designed to act as a buffer or hedge against the ravages of sudden and unexpected loss of one's livelihood. As the Legislature's declaration of policy states, the system of unemployment insurance is to provide ‘benefits for persons unemployed through no fault of their own, and to reduce involuntary unemployment and the suffering caused thereby to a minimum. (P) It is the intent of the Legislature that unemployed persons claiming unemployment insurance benefits shall be required to make all reasonable effort to seek employment on their own behalf.” (Zorrero v. Unemployment Ins. Appeals Bd. (1975) 47 Cal.App.3d 434, 439, 120 Cal.Rptr. 855, 858, citing s 100.)

Responsive to the foregoing authorities, and upon substantial evidence, the trial court reasonably concluded, inter alia, that Carroll had failed to act diligently in searching for work. (See, Swaby v. Cal. Unemployment Ins. Appeals Bd. (1978) 85 Cal.App.3d 264, 270-271, 149 Cal.Rptr. 336.)

Plaintiff's Appeal

Following the entry of judgment, PLF made a timely motion for attorney fees. PLF contends that the trial court erroneously denied the motion.

The right to attorney fees has been codified in Code of Civil Procedure section 1021.5 (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 593 P.2d 200.) Prior to the enactment of Code of Civil Procedure section 1021.5 the award of attorney fees was an exception to the general rule prohibiting such an award absent written agreement or statutory authority; therefore, recovery of attorney fees was within the inherent equitable powers of the courts. (Serrano v. Priest (1977) 20 Cal.3d 25, 43, 141 Cal.Rptr. 146, 569 P.2d 740; County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 86-87, 144 Cal.Rptr. 71.)

In determining whether PLF may recover its attorney fees under Code of Civil Procedure section 1021.5, “we must consider whether: (1) plaintiff(‘s) action ‘has resulted in the enforcement of an important right affecting the public interest,’ (2) ‘a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons' and (3) ‘the necessity and financial burden of private enforcement are such as to make the award appropriate.’ ” (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 935, 154 Cal.Rptr. at p. 512, 593 P.2d at p. 209.)

The elements mentioned above are present in this case. First, in litigation preceding trial of the merits, this court has determined that under section 409.2, persons or entities affected by a precedent benefit decision of the Board may challenge such decision in the superior court, even though they were not parties to the administrative proceedings. (Pacific Legal Foundation v. Unemployment Ins. Appeals Bd., supra, 74 Cal.App.3d 150, 141 Cal.Rptr. 474.)8 Second, it cannot be gainsaid that contesting a precedent benefit decision which awards worker's compensation benefits without regard to the diligence of a claimant implicates a public interest in taking reasonable efforts to secure full employment, and affords a pecuniary benefit to the public through diminution of unjustified public spending and the efficient use of taxpayers' funds. As the appropriate agencies entrusted with administering the Act are those who have allegedly acted contrary to the statutory objectives, and would presumably be represented, as here, by the Attorney General, intervention by private parties or entities is the only effective means, other than legislative action, of altering the decision of the administrative agency. Moreover, as the issue arises in the context of a claimant's action to gain unemployment insurance benefits, there is little possibility that any recovery could result which would justify the expenditure of the time and money necessary to successfully contest the decision. We conclude, therefore, that PLF is entitled to recover attorney fees in this action, and turn to a determination of the amount of recovery.

Government Code section 800 limits recovery to $1500 “in any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the State Board of Control, where it is shown that the award, finding, or other determination of such proceeding was the result of arbitrary or capricious action or conduct by a public entity or officer thereof in his official capacity.” This section therefore imposes a limitation in those cases where (1) the decision of an administrative agency other than the State Board of Control is involved; and (2) the administrative decision was the result of arbitrary or capricious action.

PLF contends that its recovery is not limited by Government Code section 800. The contention is devoid of merit. In arguing that it may recover its attorney fees pursuant to Code of Civil Procedure section 1021.5, PLF relies primarily on the use of the phrase “a court may award attorney fees to a successful party in Any action.” (Emphasis added (by PLF.).) We are bound to give the statutes a reasonable and common sense construction which will render both valid, rather than defeat them. (People v. Davis (1968) 68 Cal.2d 481, 483-484, 67 Cal.Rptr. 547, 439 P.2d 651 (see citations therein).) Furthermore, “. . . we are to accord words their usual, ordinary, and common sense meaning based on the language the Legislature used and the evident purpose for which the statute was adopted. (Citations.)” (In re Rojas (1979) 23 Cal.3d 152, 155, 151 Cal.Rptr. 649, 651, 588 P.2d 789, 791.)

There are numerous statutory provisions providing for the recovery of attorney fees. (See citations in Plumbing Etc. Employers Council v. Quillin (1976) 64 Cal.App.3d 215, 222, fn. 8, 134 Cal.Rptr. 332.) Thus the Legislature could envision that attorney fees would be recoverable pursuant to statute in a wide variety of situations involving private litigants. Similarly, the Legislature was obviously aware of litigation by public agencies. Inasmuch as sovereign immunity could arguably be asserted as a limitation on equitable recovery of attorney fees in actions litigated with public agencies (see Gayer v. Whelan (1943) 60 Cal.App.2d 616, 619, 141 P.2d 514), enactment of Government Code section 800 evinces a reasonable legislative intent that where attorney fees are to be recoverable against public agencies in the context therein specified, Government Code section 800 operates as a limitation. Obviously if, as PLF contends, the use of the phrase “any action” in Code of Civil Procedure section 1021.5 indicates a legislative intent that that section apply in all actions, the use of such a phrase in Government Code section 800 must also reflect a similar legislative intent. (See, Stillwell v. State Bar (1946) 29 Cal.2d 119, 123, 173 P.2d 313; Estate of Kirshbaum (1968) 268 Cal.App.2d 155, 159, 73 Cal.Rptr. 711.)

If possible, we are bound to interpret both statutes so as to create a harmonious whole. (Hough v. McCarthy, supra, 54 Cal.2d at p. 279, 5 Cal.Rptr. 668, 353 P.2d 276; Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 913, 138 Cal.Rptr. 410.) Such a construction is accomplished by reading Code of Civil Procedure section 1021.5 as authorizing the recovery of attorney fees in situations collectively embodied in the “private attorney general” theory and non-statutory equitable doctrines (see Serrano v. Priest, supra, 20 Cal.3d at p. 46, 141 Cal.Rptr. 146, 569 P.2d 740; County of Inyo v. City of Los Angeles, supra, 78 Cal.App.3d at pp. 86-88, 144 Cal.Rptr. 71), and Government Code section 800 as establishing the maximum recovery in limited situations involving arbitrary or capricious actions.

Accordingly, the broad use in Government Code section 800 of the phrase “in any civil action to appeal or review the award” indicates a legislative intention to make Code of Civil Procedure section 1021.5 applicable in all proceedings except as specifically limited by section 800. Having concluded that section 800 is potentially applicable as a limitation on the recovery of attorney fees pursuant to section 1021.5, we next consider whether section 800 is determinative of the fees to be recovered herein.

In the declaratory judgment here reviewed, the superior court declared that the Board's action in finding Carroll eligible for benefits under subdivisions (c) and (e) of section 1253 was contrary to law, and an abuse of discretion.

“Although the phrase ‘arbitrary or capricious action or conduct,’ as used in Government Code section 800, has no precise meaning and is not defined by that section, it has been characterized as ‘conduct not supported by fair or substantial reason’ (A. B. C. Federation of Teachers (V. A. B. C. Unified School Dist. (1977)) 75 Cal.App.3d 332, 343, 142 Cal.Rptr. 111, 117-118), or ‘unsubstantiated determinations.’ (Ibid.)” (Reeves v. City of Burbank (1979) 94 Cal.App.3d 770, 776, 156 Cal.Rptr. 667, 670; see, Verdugo Hills Hospital, Inc. v. Department of Health (1979) 88 Cal.App.3d 957, 964, 152 Cal.Rptr. 263.)

The granting of unemployment insurance benefits after a hearing in which the claimant is a party, pursuant to an administrative standard that contravenes readily comprehended legislative intent expressed in section 1253, is action without fair, substantial reasons and is an unsubstantiated determination. (Verdugo Hills Hospital, Inc. v. Department of Public Health, supra, 88 Cal.App.3d at p. 964, 152 Cal.Rptr. 263; cf. Marin Hospital Dist. v. Department of Health (1979) 92 Cal.App.3d 442, 450, 154 Cal.Rptr. 838; Mennig v. City Council (1979) 86 Cal.App.3d 341, 355-356, 150 Cal.Rptr. 207.)

PLF, by letter subsequent to its briefing, has drawn our attention to the recent case of Gunn v. Employment Development Dept. (1979) 94 Cal.App.3d 658, 156 Cal.Rptr. 584, in support of its contention that Government Code section 800 does not preclude an award of fees based upon any other statute or equitable theory. Gunn does not aid PLF, in view of our conclusions reached above. There, the petitioning claimant, who sought reasonable attorney fees under both Government Code section 800 and Code of Civil Procedure section 1021.5, was found qualified under section 1021.5, but only after the court first found her ineligible under section 800 because of its determination that the denial of benefits was Not “the result of arbitrary or capricious action” by EDD and the Board. (94 Cal.App.3d at pp. 665-666, 156 Cal.Rptr. at p. 589.)9

Lastly, we reject PLF's contention that the challenge in the present case is directed toward a legislative function of the Board, rather than to an award of the outgrowth of an Administrative proceeding, hence that Government Code section 800 cannot be applicable here. Basic to the contention is a statement in Pacific Legal Foundation v. Unemployment Ins. Appeals Bd., supra, 74 Cal.App.3d at page 154, 141 Cal.Rptr. 474, equating parenthetically (in a context wholly irrelevant here) a precedent benefit decision of the Board with a “regulation” of the Board. In this connection, PLF also cites San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 127 Cal.Rptr. 856. The controversy in San Leandro centered upon the fixing of the compensation of municipal employees in a Meyer-Milias-Brown Act dispute (Gov.Code, ss 3500-3510) between management employees some of whom were organized and represented by associations and others who had refused to join or participate in employee organizations. The appellate court held improper an award of attorney fees to the prevailing employees under Government Code section 800 because “(t)he fixing of compensation for city employees is a legislative function.” (55 Cal.App.3d at p. 558, 127 Cal.Rptr. at p. 858.) Since “(t)he adoption of (a) . . . resolution establishing the compensation plan did not constitute an ‘administrative proceeding’ as specified in Government Code section 800,” an award of $1500 for attorney fees was stricken from the judgment. (Id.) To relate the circumstances of San Leandro is to distinguish the case. As opposed to a Legislative function, there could not be a more classic example of the review of an award resulting from an administrative or adjudicative proceeding than the case at bench. PLF's contention is unpersuasive; the cited authority inapposite.

Therefore, although the trial court improperly denied PLF's motion for attorney fees, the challenged action of the Board falls within the arbitrary or capricious provision of Government Code section 800, and therefore PLF's recovery may not exceed the $1500 limitation imposed therein.

The judgment is affirmed. The order denying PLF attorney fees is reversed with directions to the trial court to enter an order in favor of PLF for attorney fees in the amount of $1500.

FOOTNOTES

FOOTNOTE.  

1.  The trial court found, supported by the record, that “(t)he testimony by (Carroll) given at the hearing, to the extent that it implies a job search during the weeks ending June 7 and June 14, 1975, over and above answering three newspaper ads for gardener/caretaker work, traveling to Quincy, and contacting one employment agency, is contrary to evidence presented by claimant to his local EDD office on June 16, 1975, in his job search assistance and eligibility questionnaire.”

2.  Section 1253 provides in full:“An unemployed individual is eligible to receive unemployment compensation benefits with respect to any week only if the director finds that:“(a) A claim for benefits with respect to that week has been made in accordance with authorized regulations.“(b) He has registered for work, and thereafter continued to report, at a public employment office or such other place as the director may approve. Either or both of the requirements of this subdivision may be waived or altered by authorized regulation as to partially employed individuals attached to regular jobs.“(c) He was able to work and available for work for that week.“(d) He has been unemployed for a waiting period of one week as defined in Section 1254.“(e) He conducted a search for suitable work in accordance with specific and reasonable instructions of a public employment office.”Unless otherwise indicated, all section references are to the Unemployment Insurance Code.

3.  Carroll returned to work on August 19, 1975 in Lodi as a gardener.

4.  See, e. g., s 1252 (eligibility: when deemed unemployed): s 1259 (suitable employment: conditions authorizing refusal of new work). Compare with sections establishing mutually exclusive categories: s 1253.1 (eligibility: unlawful detention); s 1253.12 (eligibility: death in family); s 1257 (eligibility: disqualification for false statement or representation; refusal to accept or apply for suitable employment after notification by a public employment office).

5.  The Board's reliance upon its prior decision in P-B-62 is misplaced. That decision held that an individual who missed a union meeting because of transportation difficulties and was thereafter dropped on the eligibility list from 80 to 95 was available for work during that week. It must be emphasized that the claimant missed the meeting through no fault of his own and had expended good faith and reasonable efforts to attend the meeting. (See, Garcia v. California Emp. Stab. Com. (1945) 71 Cal.App.2d 107, 113, 161 P.2d 972.)

6.  In Spangler v. California Unemp. Ins. App. Bd. (1971) 14 Cal.App.3d 284, 288, 92 Cal.Rptr. 266, and Chambers v. Unemployment Ins. Appeals Bd. (1973) 33 Cal.App.3d 923, 928, 109 Cal.Rptr. 413, the trial court's decision was reversed on the ground there had been no showing employment was available. However, both of these cases concerned denial of unemployment insurance benefits on the theory the claimant had voluntarily removed himself from employment by refusing to modify an unkempt “long-hair” appearance. An important causal link in these cases was whether the claimants' appearance did in fact subjectively eliminate them from employment. In the present case, Carroll's alleged lack of diligence is objectively verifiable and these cases are inapposite. (See International Union of United Auto. Etc. Workers v. Department of Human Resources Dev. (1976) 58 Cal.App.3d 924, 930-931, 130 Cal.Rptr. 368.)

7.  Thus, a seasonal worker who cannot find employment in his usual occupation during the off-season must endeavor to seek any other work for which he is reasonably suited. (Garcia v. California Emp. Stab. Com. (1945) 71 Cal.App.2d 107, 111, 161 P.2d 972.)

8.  We do not imply that PLF would be entitled in this proceeding to an award of attorney fees for the efforts expended in the earlier case. (See Plumbing Etc. Employers Council v. Quillin (1976) 64 Cal.App.3d 215, 134 Cal.Rptr. 332.)

9.  No injustice is perpetrated upon PLF by an allowance of less than a justifiable award. It is still able to recover some part of its attorney fees; however, it will be able to recover much less than in litigation pursuant to a written agreement providing for such recovery. Nevertheless, “(a)ny expansion of awards pursuant to (s 800) is a matter for consideration by the Legislature.” (Reeves v. City of Burbank, supra, 94 Cal.App.3d at p. 780, 156 Cal.Rptr. at p. 673.) To make full compensation “. . . a matter of right in Pro bono publico litigation would make a mockery of the concept and lend credence to the public's cynical perception of lawyers as comprising a profession motivated solely by self interest if not greed.” (Tatum v. Morton (D.C.1974) 386 F.Supp. 1308, 1318-1319.)

JANES,* Associate Justice. FN* Assigned by the Chief Justice.

REGAN, Acting P. J., and WARREN (Assigned by the Chief Justice), J., concur.

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