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Court of Appeal, First District, Division 1, California.

Reatha ZUNINO, Plaintiff and appellant, v. Robert B. CARLESON, Defendant and Respondent.

Jeri SINGER, Plaintiff and Appellant, v. Robert B. CARLESON, Director, State Department of Social Welfare, Defendant and Respondent.

Civ. 31616, 31860.

Decided: April 30, 1973

James W. Luther, Ukiah, for appellant, Reatha Zunino. Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., David J. Bowie, Deputy Atty. Gen., San Francisco, for respondent. Armando M. Menocal, III, Christopher N. May, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, for appellant, Jeri Singer. Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., Sheridan H. Brown, Deputy Atty. Gen., San Francisco, for respondent.

We have consolidated for hearing and decision separate appeals of Reatha Zunino and Jeri Singer. Each of these parties had applied for welfare aid as a needy ‘totally disabled’ person under California's ‘Aid to the Needy Disabled’ Act found in Welfare and Institutions Code sections 13500 to 13801, inclusive (hereafter the ‘Act’). Abbreviated statutory citations, unless otherwise stated, will hereafter refer to the Welfare and Institutions Code.

The Director of the State Department of Social Welfare found neither applicant to qualify as a ‘totally disabled’ person under the Act. They then sought relief in the superior court by proceedings in mandate under Code of Civil Procedure section 1094.5. The instant appeals were taken from the adverse decisions entered in those proceedings.

The Act, which was enacted in 1965, is a part of California's state and county welfare aid system. Implicit in the Act is a recognition that needy persons who are also ‘totally disabled’ generally stand in greater need than indigent persons who are not so disabled. Among other considerations, added to their ordinary living costs are sums which must frequently be paid for personal care, such as one who is not totally disabled could furnish himself. To implement this intent, section 13503 provides that ‘the provisions of this chapter shall be construed as an additional method of supporting and providing for the needy disabled.’ (Emphasis added.)

Among the additional benefits provided the needy totally disabled by the Act, are funds for ‘homemaking,’ ‘housekeeping,’ ‘protective,’ and other services ‘which make it possible for the [totally disabled person] to live in comfort and safety . . ..’ (§ 13910; see also §§ 13700, 13901, 13902, 13903, 13911, 13912.)

Section 13501 provides:

‘When used in this chapter, the following words shall have the meanings ascribed to them in this section:

‘(a) ‘Needy disabled person’ means a person who meets the eligibility requirements set forth in this chapter and who is both permanently impaired and totally disabled.

‘(b) ‘Permanently impaired’ means that the individual has a major physical or a major mental impairment, or a combination of both, which is verified by medical findings and appears reasonably certain to continue throughout the lifetime of the individual without substantial improvement.

‘(c) ‘Totally disabled’ means that the impairment substantially precludes the individual from engaging in useful occupations within his competence, such as holding a job or homemaking. Employment in a sheltered workshop or under an approved vocational rehabilitation plan shall not be considered a ‘useful occupation’ for purposes of this chapter.'

Each of the instant appeals relates closely to the first sentence (which we have italicized) of subdivision (c) of this section.

It will be seen that the Act defines ‘totally disabled’ as the condition of a needy person resulting from physical or mental impairment which prevents him from engaging in any useful occupation within his competence. Such a useful occupation may be gainful employment, i. e., ‘holding a job,’ or it may be the nonremunerative but useful occupation of ‘homemaking.’ Inability to engage in any such useful occupation is the criteria selected by the Legislature as establishing ‘total disability,’ thus qualifying the subject for the greater benefits of the Act.

It becomes clear that a needy person, although perhaps entitled to a different class or lower level of welfare relief, who is physically and mentally able, and otherwise qualified, to ‘hold a job’ or engage in ‘homemaking’ is not to be deemed a ‘totally disabled’ person under the Act.

In the instant cases we observe that both appellants were either receiving, or entitled to receive, other forms of welfare relief. Reatha Zunino alleged that she was without income and unable to earn a living; as such a needy person she would be eligible for assistance under the state and federally subsidized ‘County Aid and Relief to Indigents' program. (§§ 17000–17409; the record does not indicate whether in fact she had been receiving such relief.) Jeri Singer was being supported by ‘Aid to Families with Dependent Children.’ (See §§ 11200–11507.)

The parties are in agreement that the standard of review to be applied by this court is that of ‘substantial evidence,’ i. e., whether the respondent director's decisions were supported by substantial evidence in light of the whole record. (See Bertch v. Social Welfare Dept., 45 Cal.2d 524, 529, 289 P.2d 485; County of Contra Costa v. Social Welfare Board, 199 Cal.App.2d 468, 473, 18 Cal.Rptr. 573.) Our function is thus identical with that exercised by the superior court. (Bixby v. Pierno, 4 Cal.3d 130, 149, 93 Cal.Rptr. 234, 481 P.2d 242.)

We turn now to a consideration of points raised by each appellant relating only to her appeal.

The appeal of Reatha Zunino

In Reatha Zunino's case the director's inquiry appeared to be focussed on whether she had the competence, and was physically and mentally able, to ‘hold a job.’

The director's findings of fact which adopted certain medical reports follow: ‘The claimant is a 59-year-old widow who lives alone in Mendocino, California. Claimant has an 8th-grade education completed in 1927. Work experience has been primarily as a ranch cook although claimant has also been employed as a domestic (1938–1960). Claimant's last employment was as a cook and was terminated in July 1960 after 22 years' duration. This employment was terminated because the claimant was in poor health. Claimant has no income. Claimant's major complaints are kidney troubles, arthritis, chronic back strain, and varicose veins. The effects of such disabilities are described by the claimant as follows: Unable to work. . . . Hahn, M.D.: ‘. . . I would feel that she is not able to do the only kind of work she thinks she could get: domestic housework.’ . . . Havstad, M.D.: ‘She is physically frail and is unable to work in any gainful competitive occupation. Her main finding is that of arthritis which affects numerous joints. . . . Vladyka, D.C.: ‘Very poor stamina due to pain in both back and legs.’'

There was no evidence contradictory to these findings.

The director concluded: ‘Based upon the preponderance of evidence, it is determined that claimant is not eligible for [Aid to the Needy Disabled] on the basis that impairments are not total and permanent and do not preclude claimant from employment within her competence.’

This determination must reasonably be construed as meaning that Reatha Zunino was not precluded by physical or mental impairment from holding a job within her competence. We find it to be unsupported by substantial evidence in the light of the whole record.

We observe that the director made no determination whether ‘homemaking’ was within Reatha Zunino's competence and, if so, whether she was precluded by any impairment from engaging in that occupation. This he was required to do by the Act.

The cause must accordingly be remanded to the director for further proceedings not inconsistent with this opinion.

The appeal of Jeri Singer

Jeri Singer was a 30-year-old widow. She was concedely unable to ‘hold a job’ because of mental impairment. On the issue of her ability and competence to engage in ‘homemaking’ she pointed out, among other things, the following.

She often lay ‘plastered flat to the bed with depression,’ and it sometimes took her two or three days to wash the accumulated dishes. Speaking of ‘things like laundry, cleaning house, making beds, washing windows, cleaning bathtubs, dusting, mopping, scrubbing floors, ironing and that sort of thing,’ she said ‘I just never get it done. . . . I just can's start to do it.’

Psychiatrists reported Jeri Singer to be suffering from ‘psychoneurotic depressive reaction with anxiety, chronic, moderately severe in a borderline and hysterical personality.’ One stated: ‘The cyclic though irregular ups and downs of the patient's emotional problems, especially depression, make regular habits virtually impossible. This not only prevents regular employment at this time, but also means that her homemaking function is severely impaired. Though cleaning and such household chores are neglected the patient can pull herself together enough to care for her child in an adequate way. I have observed the child and will attest to her emotional and apparent nutritional well-being.’ Another reported: ‘It is my impression that due to the nature of her schizophrenic reaction she is really unable to provide for herself and in addition has extreme difficulty maintaining her own household duties. She has a child to care for and in view of the fact that she is enervated much of the time, it is extremely difficult for her to find the energy to do even minimal household duties. She realizes that her child needs much more from her but she finds it difficult, if not impossible, to give. Thus I do not see how she can adequately care for herself and child, either by getting a job or by doing the necessary housework to cope with her day-by-day living situation. Her constant anxiety and depression simply render her inadequate to do the necessary day-by-day tasks in caring for herself and her child.’

It was also reported by doctors that she was a ‘well developed, well nourished apprehensive . . . white female, lucid, co-operative, pleasant and in no acute distress,’ and that ‘her assets are high intelligence, insight, sensitivity and personal warmth.’ But for her mental condition it was said that she was capable of performing ‘full time hard labor’ and ‘all housework.’

At a hearing Jeri Singer testified further. Asked about what kinds of household tasks she was unable to do, she replied, ‘I don't seem to be a born homemaker. I don't do it the way my mother did it. That's for sure. I don't wash dishes very often, not very well. . . . I have to like work up to it and frequently I find I'm not working up to it for two or three days—to wash the accumulated dishes.’ Sweeping and dusting, she said, ‘seems like a monumental thing to do sometimes.’ She was able to do the necessary shopping, but the ‘neon lights and people rushing around’ bothered her and she just didn't ‘face it very well sometimes.’ On a typical weekday morning she took her daughter to, and returned her from, a cooperative nursery school. She was required to spend one morning a week at the school, watching over the children from 8:45 to 11:45 a. m. She stated that when school was over she and her little girl would ‘go home and have lunch and if the weather is nice we may go to the park or we might finger paint inside. Or I might take her to the beach and play with some of the little girls in her nursery school. Or sometimes we don't go home, we go like directly to a little girl's house and then usually I come home . . . and read and usually play in the house or go see the other people in my apartment house. She gets supper around, maybe,—if we go to a movie or she visits with other children—around—and then I put her to bed and I read myself to sleep. Or I make shopping lists at night or I wash my hair,—things like that.’ She had no difficulty preparing meals for herself and her daughter; she said, ‘I like to cook.’

From the whole record the respondent director could reasonably have concluded that Jeri Singer had little or no difficulty taking care of her own, and her daughter's, needs. Both were physically healthy and strong. Some homemaking chores were obviously difficult while others which she enjoyed, such as preparing meals, cooking, and caring for her little girl, she seemed to do very well. One of the doctors pointed out, ‘Though cleaning and such household chores are neglected the patient can pull herself together enough to care for the child in an adequate way.’

By any standard the care of one's child must be considered at least as important a function of homemaking, as what is sometimes considered the drudgery of cleaning, mopping, scrubbing and dusting around the house. Few would criticize a mother's greater emphasis on the former.

Much stress is placed upon Jeri Singer's answer, ‘I just never get it done,’ to the question about ‘laundry, cleaning house, making beds, washing windows, cleaning bathtubs, dusting, mopping, scrubbing floors, ironing and that sort of thing.’ The reply was obviously an expression of the often heard saying of ancient origin—‘Woman's work is never done.’ (Address at Cambridge commencement, circa 1714—see Barlett's ‘Familiar Quotations' (10th ed.), p. 874.) Elsewhere, speaking of such household chores, she had testified, not that they were undone, but that ‘I have to like work up to it.’

The respondent director concluded that Jeri Singer could ‘perform a significant combination or grouping of homemaking activities,’ and accordingly was not ‘totally disabled’ within the meaning of Welfare and Institutions Code section 13501. This conclusion, on the whole record, appears to have been supported by substantial evidence. The order of the superior court denying a writ of mandate must therefore be affirmed.

The judgment entered March 27, 1972, denying Reatha Zunino's application for a writ of mandate is reversed. The superior court by such a writ will remand the cause to the respondent director with instructions to reconsider the application fo Reatha Zunino in a manner not inconsistent with the views we have expressed. The superior court will also fix and award costs and reasonable attorney's fees for services in that court and on this appeal, as authorized by Welfare and Institutions Code section 10962.

The order of January 10, 1972, denying Jeri Singer's petition for a writ of mandate, and the order of June 27, 1972 denying her motion for reconsideration, are and each is, affirmed.

I concur in the decision affirming the judgment in Singer v. Carleson, and in the decision which reverses the judgment in Zunino v. Carleson with directions to the superior court to remand the matter to the director. In view of the direction to the director to determine whether or not that petitioner is precluded from ‘homemaking,’ I would add the comments which follow.

The purpose of the Aid to the Needy Disabled Program (‘A.T.D.’; Welf. & Inst. Code, § 13500 et seq.) is set forth in Rosas v. Montgomery (1970) 10 Cal.App.3d 77, 88 Cal.Rptr. 907 as follows: ‘The Legislature has stated that the purpose of the law itself (chapter 6 of part 3 of division 9 [commencing with § 13500]) is ‘to provide persons whose dependency results from disability defined by Section 13501 with assistance and services which will encourage them to make greater efforts to achieve self-care and self-support and to enlarge their opportunities for independence.’ (§ 13500.) Although the term ‘disability’ is not literally ‘defined by Section 13501’ (see fn. 4, ante), this reference thereto unmistakably aims the remedial effect of ATD at a person who is precluded from ‘engaging in useful occupations within his competence, such as holding a job. . . .’ (§ 13501, subd. [c].)

‘ATD, moreover, is one of several ‘public social services.’ (§ 10000 et seq.) The stated legislative purpose of all such services is ‘. . . to provide for protection, care, and assistance to the people of the state in need thereof, and to promote the welfare and happiness of all of the people of the state by providing appropriate aid and services to all of its needy and distressed.’ (§ 10000.) Declaring this purpose (id.), the Legislature also expressed its specific ‘intent that . . . aid shall be so administered and services so provided as to encourage self-respect, self-reliance, and the desire to be a good citizen, useful to society.’ (Id.) The purposes of all ‘public social services' which are supported by state grants-in-aid to counties (and which include ATD) are further stated by the Legislature as follows: ‘(a) To provide on behalf of the general public, and within the limits of public resources, reasonable support and maintenance for needy and dependent . . . persons. (b) To provide timely and appropriate services to assist individuals develop or use [sic] whatever capacity they can maintain or achieve for self-care or self-support. . . .’ (§ 10001.)' (10 Cal.3d at pp. 88–89, 88 Cal.Rptr. at p. 914.)

The same case recognizes that the provisions should be liberally construed. ‘While we recognize the possibility that the Legislature used the just-quoted language to state nobility of purpose rather than specificity thereof, the stated purpose of the ATD law and program is reasonably clear. Our construction of the applicable statutes, moreover, is subject to the Legislature's express admonition that ‘[t]he provisions of law relating to a public assistance program shall be liberally construed to effect the stated objects and purposes of the program.’ (§ 11000 [italics added].)' (Id. at p. 89, 88 Cal.Rptr. at p. 914, fn. omitted.)

The crucial provision is found in subdivision (c) of section 13501, reading as follows: “Totally disabled' means that the impairment substantially precludes the individual from engaging in useful occupations within his competence, such as holding a job or homemaking. . . .' It was contended by petitioner Junino that although there may have been substantial evidence to support a finding that she was able to engage in performing some of the responsibilities of homemaking she could not be evaluated on that basis under regulations promulgated by the director. Regulation 41–303.32 reads as follows:

‘Useful Occupation—Homemaking [¶] A homemaker is defined as a person of either sex who carries homemaking responsibilities for at least one person in addition to himself. A homemaker is evaluated against both employability and ability to carry the major duties of homemaking. A parson living alone shall not be evaluated as a homemaker.

‘A person who has carried the responsibilities for both homemaking and employment and is unable to continue employment shall be evaluated against homemaking. Homemaking responsibilities include maintenance of the home in an acceptable state of cleanliness, laundry, preparation of meals, procurement of necessary supplies. Activities of homemaking also include: the care of young children, such as lifting and carrying infants, and in an emergency, preschool children; accompanying children to community activities; to sources of medical care; and in primitive settings, carrying water or fuel and building fires.

‘A finding that a person is unable to perform the occupation of homemaking shall require a determination that he is unable to perform a significant combination or grouping of homemaking activities because of his permanent impairment.’ (Emphasis added.)

Insofar as the emphasized portion of the regulation purports to establish eligibility for benefits for a single person, who is not precluded from engaging in the useful occupation of homemaking, merely because he or she lives alone, the regulation conflicts with the statute and should be disregarded. On the other hand, if a person is precluded from holding a job within his competence, the mere fact that he or she can perform some of the tasks of a homemaker should not render that person ineligible for benefits.

In my opinion if the Legislature had intended that the mere physical ability to provide for one's own material needs at the lowest plateau of achievement was to be the upper threshold of total disability it would have said so. Statutory history indicates that the Legislature did so provide in the past. When provisions for aid to the needy disabled were first enacted as section 4000 et seq. of the Welfare and Institutions Code in 1957, section 4000 provided in pertinent part, ‘Such permanently impaired and totally disabled person shall not be qualified under this chapter unless he requires constant and continuous care.

‘A person needing constant and continuous care is one who is bedfast, chairbound, or in need of physical assistance without which the daily regimen could not continue or whose mental or physical impairment makes continuous supervision essential.

‘The definitions of terms as provided for in this section shall not be liberally construed as if such terms were used in contracts, but the definitions of such terms shall be strictly construed.’ (Stats.1957, ch. 2411, § 2, p. 4157.)

In 1961 the provisions relating to strict construction were deleted and the qualifications quoted above were relaxed by the substitution of the following language: ‘Such permanently impaired and totally disabled person shall not be qualified under this chapter unless he needs care regularly.

‘A person needing care regularly is one who is in need of physical assistance with the daily regimen or whose mental or physical impairment makes continuous supervision essential.’ (Stats.1961, ch. 1416, § 1, p. 3218.)

In 1963 the provisions were amended to read as ultimately restated in section 13501. (Stats.1963, ch. 510, § 19, p. 1383; and Stats.1965, ch. 1784, § 5, p. 4050.)

With this background in mind the emphasis should not be on whether or not the individual can mange his daily regimen without constant and continuous care, or without continuous supervision. The emphasis is on the ability to engage in a useful occupation. The individual, if a job-holder, stands on the threshold of eligibility if a permanent impairment precludes him from engaging in the performance of that job or any other job within his competence. The individual, if a homemaker, stands on the threshold of eligibility if a permanent impairment precludes him from carrying on homemaking responsibilities, household and family management, for one or more persons and himself. The emphasis on the useful occupation is warranted by the fact that in the usual situation one who can hold a job, whether single or with a family, can purchase the wherewithal to provide a homemaker be it the support of a wife, housekeeper, or other source of homemaking assistance. Conversely one engaged in the occupation of homemaker generally receives support and assistance from, or, as in the case of dependent children, by reason of, the presence of others in the home. In either event, when the ability to engage in the useful occupation is lost, there is an economic as well as a physical impairment, and ATD may properly be resorted to for the purpose of alleviating that loss.

When the precluded job holder has and retains competence as a homemaker, he may not be eligible even though he has no one for whom to make a home. Nevertheless, if the impairment is such that he could not engage in the useful occupation of homemaking, the mere fact that he can manage his daily regimen, should not preclude him from benefits.1

It has been concluded that the evidence required a finding that the petitioner was precluded from holding a job within her competence. The question of whether she is precluded from engaging in the useful occupation of homemaking should be determined with the foregoing principles in mind, and in the light of the fact that her areas of competence as a job holder were related to domestic work. I believe it was the purpose of the amendments to liberalize relief so that the single disabled needy person need not live in filth and squalor on those days when, as petitioner testified, she only had ‘tomorrow’ to clean up. If the duties of her former employment be deemed not commensurate with the duties of homemaking, is she any more competent to engage in the useful occupation of homemaking than the impaired single male cook, steelworker, or other manual worker who can no longer hold a job within his competence, but seeks to take care of himself as best he can?

The question of whether the petitioner is eligible for assistance under other provisions of law is immaterial if she satisfies the requirements of eligibility of this program. (See § 13503; but cf. § 13553.) The extent of the aid furnished will of course depend upon the actual needs (§ 13700).


1.  Conversely when the precluded homemaker has and retains competence as a job holder, he may not be eligible if employable.

ELKINGTON, Associate Justice.

MOLINARI, P. J., concurs.

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Docket No: Civ. 31616, 31860.

Decided: April 30, 1973

Court: Court of Appeal, First District, Division 1, California.

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