GREEN v. OBLEDO

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Court of Appeal, Third District, California.

Elizabeth GREEN et al., Plaintiffs, Respondents and Cross-Appellants, v. Mario OBLEDO, Secretary of the Health and Welfare Agency et al., Defendants, Appellants and Cross-Respondents.

Civ. 17652.

Decided: December 18, 1979

Evelle J. Younger and George Deukmejian, Attys. Gen., John J. Klee, Jr., Asst. Atty. Gen., and Thomas E. Warriner, Floyd D. Shimomura and Richard M. Skinner, Deputy Attys. Gen., for defendants, appellants and cross-respondents. Andrea J. Saltzman, Thomas W. Pulliam, Jr., Mary K. Gillespie, San Francisco Neighborhood Legal Assistance Foundation, Contra Costa Legal Services Foundation, David J. Rapport, California Indian Legal Services, San Francisco, for plaintiffs, respondents and cross-appellants.

Mario Obledo, Secretary of the California Health and Welfare Agency, and Marion J. Woods, Director of the State Department of Benefit Payments (hereafter Department), appeal from a judgment granting a peremptory writ of mandate to petitioners, Elizabeth Green and Neva Fingers (hereafter plaintiffs); the judgment essentially invalidates a welfare departmental regulation (EAS 44-113.241(d)), which establishes certain eligibility and assistance standards, and certifies the action as a class action for all present and future recipients whose grants in aid are affected by the regulation. The plaintiffs have cross-appealed.

The essential facts are undisputed. Plaintiffs Green and Fingers are each recipients in the California Aid to Families with Dependent Children program (AFDC). California participates in the Aid to Families with Department Children program (AFDC) which is partially funded by the federal government. (42 U.S.C. s 602 et seq.; Welf. & Inst.Code, s 11200 et seq.) The relationship between the federal government and the states in programs established under the Social Security Act requires that participating states conform to federal regulations as a condition of continued receipt of federal funds. (King v. Smith (1968) 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118.) In determining eligibility for the amount of an AFDC grant, federal law requires the state to “. . . take into consideration any . . . income and resources of any child or relative claiming aid . . . or of any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid, . . .” (42 U.S.C. s 602(a)(7).) There are other exemptions and deductions from income which are allowed in certain cases but which are not applicable in the factual context here presented. (See 42 U.S.C. s 602(a)(8).) The amount of aid to which a recipient is entitled is computed by subtracting nonexempt income from a schedule of maximum aid payments. (Welf. & Inst.Code, s 11450; Conover v. Hall (1974) 11 Cal.3d 842, 847, 114 Cal.Rptr. 642, 523 P.2d 682.) In determining the amount of a recipient's nonexempt income federal law also requires the state to consider “. . . any expenses reasonably attributable to the earning of any such income.” (42 U.S.C. s 602(a)(7).)

Prior to institution of this proceeding and as an outgrowth of the 1971 Welfare Reform Act, the Department of Benefit Payments enacted Eligibility and Assistance Standards Regulation 44-113.23.1 It provided certain work-expense deductions to be used in determining an applicant's eligibility for AFDC grants. Those work-related expenses are (1) tax withholding, social security, compulsory retirement, unemployment and disability insurance contributions (EAS 44-113.231(a)), (2) child care expenses (44-113.231(b)), (3) cost of food, clothing, and incidentals required by the employment (44-113.231(c)), (4) expenses of transportation to and from work not to exceed the amount of public transportation calculated at 12 cents per mile (44-113.231(d)), (5) the cost of transportation to call on customers, calculated at 12 cents a mile (44-113.232(a)), (6) the reasonable and necessary cost of tools, materials, and licenses required for employment (44-113.232(b)), (7) the cost of union dues or employee association dues when required for employment (44-113.232(c)), and (8) the cost of self-employed persons necessary to the production of income (44-113.233).

In this proceeding plaintiffs do not contend the defendants exceeded their authority by adopting the questioned regulation (EAS 44-113.241) as an implementing tool in the AFDC program; they do contend, however, that the regulation, as adopted, conflicts with federal and state statutory regulations which require allowance for work-related expenses, and is therefore void. The trial court refused to consider the challenge to the entire regulation and limited the proceeding to the transportation portion of the regulation (EAS 44-113.241(d)), as each plaintiff has only asserted facts related to transportation costs which allegedly affect her welfare grant. It is not contended that EAS 44-113.241(a), (b), and (c), relating to cost of food, clothing, withholding taxes, and child care expenses were involved or affected the grants of either plaintiff.

The issues framed by the parties, when distilled to their essence, require resolution of the following questions:

(1) Does EAS 44-113.241(d) conflict with federal and state welfare statutes? (2) Did the court err by limiting the scope of its consideration to a challenge of the regulations to transportation expense only? (3) Did the court err by certifying the action as a class action limited to present and future AFDC recipients? In addition, the Department contends the one year statute of limitations embodied in Welfare and Institutions Code section 10951 is a bar to the action and questions the applicability of administrative mandamus (Code Civ.Proc., s 1094.5) as a means of reviewing the action of the Department.

On October 23, 1975, the plaintiffs instituted this challenge to the regulations. Factually, the petition was framed in three causes of action, the first in administrative mandamus. Green alleged that in October 1974, she had been receiving benefits under the AFDC program for herself, Donald Parshall and their child. Pursuant to EAS 44-113.241(d) they were allowed a deduction of $10.08 for transportation costs to and from work (84 miles at 12 cents per mile). Green also sought to deduct a $105 transmission repair bill incurred during that month; the Department refused to allow that deduction.

In a second cause of action, Green and Fingers sought to establish a class action in ordinary mandate (Code Civ.Proc., s 1085) for themselves and all persons similarly situated as AFDC recipients affected by the regulations. The third cause of action, also a class action, was essentially identical to the second except that it also sought declaratory relief.

Fingers alleged that she drove 306 miles to and from work in July of 1975 and was allowed a deduction of $36.96 from her earned income as a work-related transportation expense. She also alleged that in August she drove 112 miles and was allowed a deduction of $13.44 for work-related transportation. Her additional claim of monthly automobile expense ($71.25 car payment, $25 insurance payment, and $2 registration and license fees) was denied.

At a “fair hearing” (Welf. & Inst.Code, s 10950 et seq.) the denial of Green's claim for the transmission repair deduction was upheld.

On October 6, 1976, the trial court granted class certification of the second and third causes of action. The court found that the allowance of a per mile deduction actually fixed a maximum limit on the allowable travel expense reasonably attributable to the earning of income, and therefore violated the provisions of 42 U.S.C. section 602(a)(7) and was therefore invalid.

The court also granted plaintiff Green relief in the administrative mandamus proceeding and directed that the fair hearing decision of February 19, 1975, be set aside. On August 23, 1977, the court recertified the class action and limited the class to those recipients receiving present and prospective grants. In its amended judgment the court ruled that by establishing a per mile standard allowance for work-incurred travel expenses (EAS 44-113.241(d)) a maximum limit was effectively imposed in violation of 42 U.S.C. section 602(a) (7). It also determined that the regulation violated Welfare and Institutions Code section 11008 by denying work-related transportation expense deductions permitted by federal law and had been authorized by prior California regulations. The trial court limited its decision to the transportation expense provisions of the regulations only and did not consider or decide the efficacy or applicability of any of the other regulations enacted in connection with the Welfare Reform Act of 1971.

I

Plaintiffs, by their cross-appeal, contend the limitation of the proceeding to one challenging EAS 44-113.241(d) only (cost of work-related transportation) was error. They assert they are “interested persons” within the language of Government Code section 11440 entitled to challenge the regulation in its entirety. That section provides that an “interested party” may use the declaratory relief procedure of the Code of Civil Procedure to obtain a judicial determination of the validity of a regulation adopted by a state agency; however, an actual controversy over the regulation must be involved. Such controversy may be implied without specific allegation or proof of its existence. However, in such a challenge to a regulation, the plaintiff must be shown to be directly affected or in clear peril of financial or other serious loss. (Sperry & Hutchinson Co. v. Cal. State Bd. of Pharmacy (1966) 241 Cal.App.2d 229, 233, 50 Cal.Rptr. 489; Chas. L. Harney, Inc. v. Contractors' Bd. (1952) 39 Cal.2d 561, 564, 247 P.2d 1.)

In this instance it was not shown that plaintiffs were directly affected or in a position to suffer loss as a result of the remaining portions of the regulation. Plaintiffs, on behalf of themselves and an asserted class, may at best be analogized to an association attempting to challenge a regulation in a representative manner without the necessity of pleading and proving the existence of a direct interest as contrasted to a mere consequential interest. (Associated Boat Industries v. Marshall (1951) 104 Cal.App.2d 21, 22, 230 P.2d 379.)

The factual circumstances alleged in the pleading present only a direct challenge to the cost of transportation portion of the regulation (44-113.241(d)). As such, the case is factually distinguishable from this court's decision in Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1977) 74 Cal.App.3d 150, 141 Cal.Rptr. 474. The trial court properly limited the scope of the challenge to one directed to the transportation cost provisions of the regulation in which the plaintiffs assertedly had a direct and consequential financial interest (the amount of their grant in aid).

Courts of Appeal of this state do not render advisory opinions on abstract questions of law. To consider the challenge first presented would have required just such an opinion by the trial court. The plaintiffs have failed to indicate that the remaining portions of the regulation, if applied, would directly or indirectly deny them any benefits authorized by federal or state statute. (See Donato v. Bd. of Barber Examiners (1943) 56 Cal.App.2d 916, 133 P.2d 490; Hazelwood v. Hazelwood (1976) 57 Cal.App.3d 693, 699, 129 Cal.Rptr. 384.)

II

The principal question presented is whether EAS 44-113.241(d) violates either 42 U.S.C. section 602(a)(7) or Welfare and Institutions Code section 11008, each of which directly or impliedly requires that in determining need under the AFDC program the state take into consideration “ . . . any expenses reasonably attributable to the earning of . . . income.” We conclude that the trial court erred in its decision and that the regulation does not conflict with federal law.

In Shea v. Vialpando (1974) 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120, the United States Supreme Court evaluated a state AFDC regulation which imposed an absolute flat limit of $30 per month upon All work-related expenses, excluding mandatory payroll deductions and child care expenses. In holding the regulation conflicted with 42 U.S.C. section 602(a)(7), the court stated that the language of the federal statute meant that “ . . . no limitation, apart from that of reasonableness, may be placed upon the recognition of expenses attributable to the earning of income. Accordingly, a fixed work-expense allowance which does not permit deductions for expenses in excess of that standard is directly contrary to the language of the statute.” (416 U.S. at p. 260, 94 S.Ct. at p. 1753.) The Shea court noted that “ . . . Congress has sought to ensure . . . that the amount of (AFDC) assistance actually paid is based on the amount needed in the Individual case after other income and resources are considered.” (416 U.S. at p. 261, 94 S.Ct. at p. 1754; fn. omitted; emphasis in original.) After reviewing the federal statute's legislative history, the Shea court declared that “(s)tandardized treatment of employment-related expenses without provision for demonstrating actual and reasonable expenses in excess of that standard amount, such as Colorado has adopted, threatens to defeat the goal Congress sought to achieve in adopting the mandatory work-expense recognition provisions of . . . (42 U.S.C. s 602(a) (7)). By limiting employment expenses to $30 per month, the Colorado regulation results in a disincentive to seek or retain employment for all recipients whose reasonable work-related expenses exceed or would exceed that amount. Accordingly, the Colorado regulation conflicts with federal law and is therefore invalid.” (416 U.S. at pp. 264-265, 94 S.Ct. at 1755-1756.) Finally, the court explained that the regulation violated section 602(a)(7) not because it adopted a standardized work-expense allowance per se, but because it was in effect a maximum or absolute limitation upon the amount of such expenses. (416 U.S. at p. 265, 94 S.Ct. 1746.)

Shortly after the Shea decision, the California Supreme Court in Conover v. Hall, supra, 11 Cal.3d 842, 114 Cal.Rptr. 642, 523 P.2d 682; invalidated Welfare and Institutions Code section 11451.6 which imposed a maximum standard work-related allowance of $50 as incompatible with 42 U.S.C. section 602(a)(7).

However, we do not perceive the questioned regulation authorizing a cost per mile deduction to be incompatible with the federal statute, as was the case in Shea and Conover. Those cases noted the federal statute evinced a concern for individualized treatment of expenses incurred by an AFDC recipient earning income and found a fixed maximum amount to be in conflict with the statutory aim. By providing for a fixed cost per mile allowance to a recipient for the use of his or her automobile in traveling to and from employment, the regulation does not establish a fixed standardized maximum deduction such as those invalidated in Shea and Conover. Instead, the amount of the deduction for use of a car is individually tailored to the number of work-related miles driven by the recipient to and from work.

The trial court misperceived the effect of the cost per mile allowance when it found that it imposed a maximum limit on allowable expenses. The reasonableness of fixing 15 cents per mile as fair compensation for the cost of transportation is obvious, and we fail to discern any maximum fixed by the regulation; rather the per mile formula provides for and includes allowance of normally expected maintenance and repair expenses amortized on a per mile basis, and by such means accomplishes that which the federal regulations directs as well as accommodates the streamlining goals sought by the 1971 legislative Welfare Reform Act. (Stats.1971, ch. 578.)

In making our determination that EAS 44-113.241(d) is reasonable and not in conflict with federal regulations, we have recognized the intricate and technical nature of the subject matter as well as the expertise and specialized knowledge the administration of the program requires. Unless the alleged conflict is obvious and blatant, we will not superimpose our policy judgment for that of the agency. The regulation is not arbitrary in its application, nor was it capriciously enacted in disregard of all applicable statutes and regulations. (See Pitts v. Perluss (1962) 58 Cal.2d 824, 832, 27 Cal.Rptr. 19, 377 P.2d 83.)

In reviewing the enabling legislation and the challenged regulation, the most reasonable and obvious conclusion is that the Department regulation intended that each AFDC recipient be expeditiously compensated for all work-related transportation expenses. It accomplished that end by amortizing all costs normally attributable to the operation of a motor vehicle on a per mile traveled basis. The federal and state requirements of allowance for transportation costs have not been abused.

III

Each of the parties asserts error in the trial court's order certifying the class action. The plaintiffs argue that it was error to limit the class to present and future AFDC recipients subject to payment or credit for work-related transportation costs pursuant to EAS 44-113.241(d); that order amended an earlier order certifying the Entire class sought by the plaintiffs. The Department first opposes any confusion of a class action and secondarily argues that the Limitation of the class was both proper and timely. Inasmuch as we find the regulation unobjectionable, we need not reach the propriety of the order establishing a limited class, but will consider only whether under the pleaded circumstances a class action was proper. We conclude that plaintiffs' action does not qualify as a class action.

The statutory authority for filing class actions is found in Code of Civil Procedure section 382. That section establishes two basic requirements: (1) there must be an ascertainable class, and (2) there must be a well-defined community of interest in the questions of law and fact to be resolved. Prior decisional review of the section has removed any semblance of rigid and unbending concepts when determining the requirements for such an action. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732; Vasquez v. Superior Court (1971) 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964; Collins v. Rocha (1972) 7 Cal.3d 232, 102 Cal.Rptr. 1, 497 P.2d 225.) However, the right to bring a class action is not without limitation; an ascertainable class is a fundamental ingredient, and its existence turns upon the community of interest among the asserted members in the questions of law and fact involved. (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 706, 63 Cal.Rptr. 724, 433 P.2d 732.) If the rights of each member of the asserted class are dependent upon facts applicable only to that person, then the requisite ascertainable class has not been established for a representative suit. (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 809, 94 Cal.Rptr. 796, 484 P.2d 964.) If the community of interest is mainly one of law and the factual issues require separate adjudication and are numerous and substantial, a class action does not promote and expedite the judicial process or well serve the litigant. (Collins v. Rocha, supra, 7 Cal.3d at p. 238, 102 Cal.Rptr. 1, 497 P.2d 225.) The fundamental requirements of a class action have not here been met. The complaint seeks to recover work-related transportation costs or expenses for AFDC recipients who have been subject to the application of EAS 44-113.241(d). Every member of the asserted class would have a community of interest in the question of law, i. e., the validity of the regulation. However, it is obvious that the right of each individual to recover would be based upon separate facts applicable only to that recipient. Even were the common question of law decided in plaintiffs' favor (which we have not done), the separate factual issues requiring separate litigation are so numerous that the maintenance of a representative action could not subserve the judicial process or the parties involved. For example, each affected individual would be required to submit for validation, expenses of maintenance, repair, replacement, service, gas, oil, etc., together with proof that those claimed expenses were related solely to the production of income. All expense items therefore would, of necessity, be subject to proof of their work-related nature as contrasted to pleasure or incidental use; prior AFDC payments made pursuant to the regulation would have to be established and credited against the asserted claim of work-related transportation expense to establish either an under or over allowance together with any other rights or defenses which might be asserted by the Department against the claim.

We have compared the cases relied upon by plaintiffs in support of their argument for a class action to the present proceeding and have found each to be factually inapposite. In those cases, although the parties were required to prove individual damages, each had a well-defined community of interest in a substantial number of questions of law and fact. The latter element is totally lacking in this instance.

The trial court order certifying the suit as a class action was erroneous.

IV

By virtue of the foregoing, we need not decide the applicability of Welfare and Institutions Code section 10951 to the factual situation presented. However, we note that plaintiffs Green and Fingers appear to have filed their request for hearing within the requisite time and that such a hearing was conducted.

V

Similarly, our decision upholding the validity of the regulation and directing that the judgment be reversed obviates the necessity of confronting the right of plaintiff Green to proceed in administrative mandamus.

The judgment is reversed.

I dissent. My disagreement with the majority is three fold. First, the trial court improperly limited the scope of plaintiffs' challenge to the issue of transportation costs. In my view plaintiffs have standing to challenge the entire work expense regulation and may not be limited to that portion of it which deals with transportation. Second, in this proper class action the trial court improperly limited plaintiffs' class. Third, the trial court correctly ruled that the transportation cost provisions of the state regulation conflicts with federal law in that the effect of the cost per mile allowance is to impose a maximum limit on allowable expenses.

1. Standing to Challenge Work Expense Regulation in its Entirety

Plaintiffs have standing to challenge the entire work-related expense regulation by way of mandamus or by way of an action for declaratory relief.

California has long enjoyed a relaxed rule regarding standing (whether litigants are sufficiently interested in and affected by certain regulations) to bring actions for mandamus challenging administrative regulations. Thus, in Bd. of Soc. Welfare v. County of L. A. (1945) 27 Cal.2d 98, 162 P.2d 627, the Supreme Court expressed the proper standard as follows:

“ ‘(W)here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. . . .’ (Citation.)” (Id., at pp. 100-101, 162 P.2d at pp. 628-629.)

This court has applied the relaxed standing rule to questions involving the administration of public welfare programs. (Diaz v. Quitoriano (1969) 268 Cal.App.2d 807, 811, 74 Cal.Rptr. 358; American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 256, 109 Cal.Rptr. 22.) There is no question that the issue of work-related expenses for employed recipients of AFDC is one involving a public right. Accordingly, plaintiffs have a right to challenge the regulation in its entirety. The least that can be said is that plaintiffs are citizens seeking to procure the enforcement of a public duty. Accordingly, they need not show that they have a special interest in the result. That their interest is so direct, and the regulation invalid on its face, makes their right even more compelling.

Similarly, plaintiffs have standing to challenge the entire regulation in an action for declaratory relief. Standing relates to the stake plaintiffs have in presenting a case with vigor for themselves and for the class they represent. The nature of the cause, and the interest which these litigants have shown has traditionally provided standing in this type of case. (See Farley v. Cory (1978) 78 Cal.App.3d 583, 144 Cal.Rptr. 923; Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 101 Cal.Rptr. 880, 496 P.2d 1248.) The intensity and calibre of plaintiffs' advocacy which this record reveals amply justifies the view California courts have taken.

2. Propriety of Class Action: Limitation of the Class to Present and Future AFDC Claimants.

The majority misread the record in a crucial respect. The issue on appeal is Not the propriety of a class action. Neither party so argues.1 The issue presented is whether the trial court, after certifying the class and rendering a decision on the merits, may later partially decertify. Secondly, if the trial court has such power does the record show an abuse of discretion? Since neither party raises the issue nor presents any argument pertaining to the propriety of the class action we may treat such a possible argument as waived. (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, s 425, p. 4392.)

That the class, as certified, was proper appears manifest. Decisional review of Code of Civil Procedure section 382 has removed any semblance of rigid and unbending concepts when determining the requirements for a class action. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732; Vasquez v. Superior Court (1971) 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964; Collins v. Rocha (1972) 7 Cal.3d 232, 102 Cal.Rptr. 1, 497 P.2d 225.) The Vasquez court explains that “The requirement of a community of interest does not depend upon an identical recovery, and the fact that each member of the class must prove his separate claim to a portion of any recovery by the class is only one factor to be considered in determining whether a class action is proper.” (Vasquez, supra, 4 Cal.3d at p. 809, 94 Cal.Rptr. at p. 801, 484 P.2d at p. 969.) Collins v. Rocha, supra, 7 Cal.3d at page 238, 102 Cal.Rptr. at page 4, 497 P.2d at page 228 adds: “Undoubtedly, after liability is established, such elements as the earnings of each individual plaintiff must be shown in order to assess his collectible damages, but as we pointed out in Vasquez, that each class member might be required ultimately to justify an individual claim does not necessarily preclude the maintenance of a class action. (4 Cal.3d at p. 815 (94 Cal.Rptr. 796, 484 P.2d 964)) (P) . . . (I)f the named plaintiffs prove the allegations of their complaint there is at least a substantial likelihood that only the issue of damages will require separate proof for each class member, and this (under facts such as in Collins ) is a relatively uncomplicated problem . . ..”

Liability to the class can be resolved on the basis of questions of law and fact common to the class. The amount of any class member's recovery may depend on a unique set of facts, but this does not defeat the community of interest requirement. The majority worries unduly that each affected individual who submits for validation expenses of maintenance, repair, service, etc., will apparently end in litigation. Not so The administrative process is generally adequate to deal with the claims. The certification of the class, challenged by none of the parties, was proper; the trial court did not err in that respect.

I proceed to the issue of whether the trial court's limitation of the class was timely and proper. I find that it was neither. The trial court in my view abused its discretion.2

Appellants argue unpersuasively that a class may be decertified at any time before final judgment. Generally, procedural fairness requires that once the merits have been determined the class may not be decertified. (See Colwell Co. v. Superior Court (1975) 50 Cal.App.3d 32, 123 Cal.Rptr. 228.) The authorities cited by appellants to the contrary are unpersuasive. Vasquez v. Superior Court, supra, 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964, states that “Subdivision (c)(1) of rule 23 (of the Federal Rules of Civil Procedure) provides that the trial court's initial determination may be conditional and may be altered or amended Before a decision on the merits.” (Emphasis added.) (Id., at p. 821, 94 Cal.Rptr. at p. 809, 484 P.2d at p. 977.) Appellants also cite Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 134 Cal.Rptr. 388, 556 P.2d 750, which follows Vasquez stating: “Vasquez authorized the courts to utilize the procedures of rule 23 of the Federal Rules of Civil Procedure, and observed that a certification order issued under rule 23 ‘may be conditional and may be altered or amended before a decision on the merits.’ ” (Id., at p. 360, 134 Cal.Rptr. at p. 390, 556 P.2d at p. 752.) Finally, appellants rely on Travelers Ins. Co. v. Superior Court (1977) 65 Cal.App.3d 751, 135 Cal.Rptr. 579. Travelers is not on point since there the court failed to certify a class Before hearing the merits, and what is advocated here by appellants is the decertification of a class After the merits have been resolved. The cases cited are inapposite and present no authority in support of appellant's argument that the certification was timely.

Aside from the timeliness, the decertification was an abuse of discretion and improper as a matter of law. Plaintiffs sought certification of all working AFDC recipients whose grants were unlawfully reduced after October 1, 1971, due to the challenged regulation. The trial court originally certified the class. Later, it restricted the class to those who presently or in the future might suffer unlawful reductions. Nothing in the record suggests that the original class may not be ascertained, or that the issue posed by the prior recipients is different than present or future recipients. In short, the entire class comes within a black letter law definition of an appropriate class. (See Vasquez, supra, 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964; Diaz, supra, 268 Cal.App.2d 807, 74 Cal.Rptr. 358.)

3. Individualized Treatment of Reasonable Transportation Expenses

Finally, I turn to the main issue in the case at bench. Did the trial court err when it ruled that the per mile reimbursement regulation violates the federal statute (42 U.S.C. s 602(a)(7)) as interpreted by the United States and California Supreme Courts? (Shea v. Vialpando (1974) 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120; Conover v. Hall (1974) 11 Cal.3d 842, 114 Cal.Rptr. 642, 523 P.2d 682.) In Shea, the U.S. Supreme Court explained the import of the legislative history of the statute as follows: “Congress thus sought to encourage AFDC recipients to secure and retain employment by requiring the States to take into account fully any expenses attributable to the earning of income in determining eligibility for assistance. Such expenses reduce the level of actually available income, and if not deducted from gross income will not produce a corresponding increase in AFDC assistance. Failing to allow the deduction of reasonable expenses might well discourage the applicant from seeking or retaining employment whereby such expenses are incurred. Section (602(a)(7)) was Aimed at removing this disincentive.” (Emphasis added.) (Shea, supra, 416 U.S. at p. 264, 94 S.Ct. at 1755, 40 L.Ed.2d at p. 131.)

Shea, the majority explains, evinces a concern for individualized treatment of expenses incurred by an AFDC recipient earning income. I agree. I cannot agree, however, with the conclusion the appellants and the majority then extrapolate. Let us not lose sight of the argument. Plaintiffs argue only that the per mile allowance, with no exceptions in the regulations, sets a maximum a recipient can receive which at times will be unrelated to the true transportation expenses needed to find or continue employment. They do Not argue that the per mile regulation is generally an unreasonable method to figure transportation expenses. What the regulation needs, however, is some flexibility. Plaintiffs referred to that need at oral argument as a “safety valve.” However, neither plaintiffs nor this court have the authority to rewrite the regulations. (Cal. Drive-In Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 292, 140 P.2d 657.) We, the court, must rule on the regulation as we find it. Narrowly speaking, therefore, the question is this: does the regulation limit the work-related expenses imposing a maximum which may be unrelated to the actual expenses of a claimant? The straight-forward and simple answer is that the per mile limit plainly imposes a maximum unrelated to actual expenses. (Shea, supra, 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120; Conover v. Hall, supra, 11 Cal.3d 842, 114 Cal.Rptr. 642, 523 P.2d 682.)

An example will explain. Let us examine the effect of a needed major auto repair. Fifteen cents per mile may well be sufficient to cover the expense by amortizing such an allowance over many months. The reality of the immediate effect is that without the money to cover a major car repair, transportation which facilitates travel to and from work is lost. Consequently employment is lost. Ideally, an AFDC recipient who suffered a major repair would be able to afford such a major repair, assuming saving of a portion of the mileage payment for this possibility, and assuming further that the employment were in its second or third year of duration. Clearly, however, a new AFDC recipient would not have those funds. The Supreme Court's analysis of legislative intent is that the purpose behind the regulation was to “encourage” AFDC recipients to secure employment, and to “retain” it. Failing to allow this deduction for an AFDC recipient presently without the necessary financial resources to cover such an expense would clearly “discourage the applicant from . . . retaining employment.” (Shea, supra, 416 U.S. at p. 264, 94 S.Ct. at 1755, 40 L.Ed.2d at p. 131.) The challenged regulation, the trial court correctly ruled, fails.

I would reverse the trial court's ruling pertaining to standing and the decertification of the class. I would affirm its ruling on transportation costs. The cause should be remanded.

FOOTNOTES

1.  The trial court ordered the judgment and peremptory writs amended to substitute EAS “44-113.241(d)” for EAS “44-113.23(d).” When suit was filed, the work-related transportation expenses regulations were contained in EAS 44-113.231(d).The work-related transportation expenses were later renumbered as EAS 44-113.241(d) and amended to provide for a rate of 15 cents per mile effective January 1, 1977. Currently, the EAS 44-113.241(d) in addition to some minor changes not in issue here continues to allow a 15 cent per mile expense. For purposes of clarity, we shall refer to the regulation as EAS 44-113.241(d) and to the current rate of 15 cents per mile.When suit was filed the regulation (then EAS 44-113.231(d)) provided:“Transportation The necessary costs of transportation to and from work shall be allowed as follows:“(1) If the recipient uses his own motor vehicle 12 cents/mile less any amounts contributed by persons who ride with him. If the total amount contributed is greater than 12 cents/mile, the excess shall be net nonexempt income to the recipient.“(2) If the recipient rides in a private motor vehicle other than his own the amount contributed by the recipient to the owner or driver of the motor vehicle, provided such amount is reasonable and does not exceed 6 cents/mile.“The amount allowed for transportation costs in any of the above situations may not exceed the actual cost of public transportation (bus, train or streetcar), if the county determines that it is available to the recipient.” (Effective Dec. 22, 1972.)

1.  The appellants' opening brief lists four “questions presented.” None deals with the propriety of the class. The cross-appellant argues that the trial court erred in limiting the plaintiff class. Appellants, in the response brief, argue that the trial court did not err in such limitation. It is within the context of defending the trial court's action that appellants present the argument that a class action must have a community of both law and fact. Appellants' response brief list the argument as follows:“II. THE TRIAL COURT DID NOT ERR IN LIMITING THE PLAINTIFF CLASS TO PRESENT AND FUTURE AFDC CLAIMANTS ONLY“. . .“B. The Trial Court Did Not Abuse His Discretion In Partially Decertifying The Class“1. A Class Action Must Have A Community Of Interest In Both Law and Fact“2. There Is No Community Of Interest Where Each Class Member Would Have To Prove Numerous Individual Facts To Establish a Right To Recover“3. Only Where Common Questions Predominate Have Class Actions Been ProperAppellants, their brief shows, argue only that the trial court did not err, and not that it erred in certifying the class it did certify.

2.  I do not reach the issue of whether, as a matter of law, the trial court may never so decertify.

EVANS, Associate Justice.

PARAS, Acting P. J., concurs.

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