Filed 6/10/20 Public Employment Relations Bd. v. County of Riverside CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL – FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PUBLIC EMPLOYMENT RELATIONS BOARD,

Plaintiff and Respondent,

v.

COUNTY OF RIVERSIDE,

Defendant and Appellant;

__________________________________

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 721,

Real Party in Interest and

Respondent.

D075941

(Super. Ct. No. RIC 1809250)

APPEAL from an order of the Superior Court of Riverside County, Sharon J. Waters, Judge. Reversed as moot and remanded with directions.

Liebert Cassidy Whitmore, Mark H. Meyerhoff, David A. Urban, and Kevin J. Chicas for Defendant and Appellant.

J. Felix De La Torre, Wendi L. Ross, Sara T. Kang, and Blaire Baily for Plaintiff and Respondent.

Rothner, Segall & Greenstone, Maria Keegan Myers, Carlos Coye, and Juhyung Harold Lee for Real Party in Interest.

On July 30, 2018, the Public Employment Relations Board (PERB) obtained a preliminary injunction (the Order) to temporarily halt conduct by the County of Riverside (County) that allegedly violated the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.). The trial court issued the Order to maintain and restore the status quo while PERB adjudicated numerous unfair practice charges filed with PERB by real party in interest and respondent Service Employees International Union, Local 721 (SEIU). The County appealed, seeking to vacate the Order. SEIU and PERB responded to the appeal.

Citing Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129 (Paul), the parties seek a qualified reversal of the Order solely for the purpose of restoring the matter to the jurisdiction of the trial court with directions to dismiss the entire action as moot. We agree with the parties that the appropriate disposition is to reverse the moot Order and remand with instructions to the trial court to dismiss the action as moot.

FACTUAL AND PROCEDURAL BACKGROUND

SEIU represents four bargaining units of employees working for the County. SEIU and the County had been involved in months of contentious bargaining over a new Memorandum of Understanding (MOU). SEIU filed numerous unfair practice charges against the County with PERB, on which PERB issued about 22 complaints. The County also brought its own allegations of unfair practices against SEIU, and PERB issued a complaint as to the County’s claims.

The Order enjoined the County from, among other things, implementing a last, best, and final offer (LBFO) and from making changes to the existing terms and conditions contained in the most recent MOU. In August 2018, the County appealed, seeking to vacate the Order. In November 2018, the Court of Appeal, Fourth District, Division Two issued a writ of supersedeas staying the Order barring implementation of the LBFO: “It is ordered that the trial court’s preliminary injunction as to the County’s implementation of its last, best and final offer is STAYED pending issuance of the remittitur on appeal.” After the Fourth District, Division Two denied petitions for rehearing filed by SEIU and PERB, and the Supreme Court denied petitions for review, the Supreme Court transferred the matter to this court. At a regularly scheduled meeting on December 11, 2018, the Board voted to impose the LBFO.

In or about December 2019, the County and SEIU successfully negotiated a tentative agreement (Successor MOU). SEIU and PERB then responded to the appeal. During our review of the matter we requested that the parties submit briefing on whether the appellate issues related to the LBFO were moot. Thereafter, on January 28, 2020, the County’s Board of Supervisors adopted a resolution ratifying the Successor MOU. By its own terms, the Successor MOU became effective immediately and superseded all prior terms of the County’s LBFO that were imposed on employees in December 2018. Additionally, SEIU and the County settled or otherwise resolved all of the unfair practice charges listed in the Order.

The parties filed a joint motion requesting a qualified reversal of the Order. The parties asserted that the entire case and controversy were moot. Accordingly, they sought a reversal and remand to the trial court with directions to dismiss the entire action as moot. We asked the parties to submit further briefing on whether Code of Civil Procedure section 128, subdivision (a)(8) (section 128(a)(8)) applies to the qualified reversal; and, if so, whether the statutory requirements were satisfied. We received and reviewed a joint submission from the parties.

DISCUSSION

Under Neary v. Regents of the University of California (1992) 3 Cal.4th 273 (Neary), parties to an action may agree to settle their dispute and stipulate to a reversal of the trial court judgment. (Id. at p. 284.) “The Neary rule amounted to a presumption that motions for stipulated reversal should ordinarily be granted.” (In re B.D. (2019) 35 Cal.App.5th 803, 819.) The Legislature later reversed the presumption in favor of accepting stipulated reversals and instead created a presumption against stipulated reversals. (Ibid.) Section 128(a)(8) provides, in part, that “An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.” (Italics added.)

Section 128(a)(8) applies to a “duly entered judgment.” The statute does not address whether it also applies to appealable orders such as the preliminary injunction at issue in this action. (Code Civ. Proc., § 904.1, subd. (a)(6).) We located no authority addressing this issue, but note that some appellate courts have applied section 128(a)(8) to an order without addressing this statutory interpretation issue. (See Estate of Regli (2004) 121 Cal.App.4th 878, 879-880 [applying section 128(a)(8) to a probate order settling a final account and orders finding beneficiaries’ objections were time-barred]; Union Bank of Calif. v. Braille Institute of America (2001) 92 Cal.App.4th 1324, 1326 [applying section 128(a)(8) to orders relating to the appointment of successor co-trustees and modification of a trust]; In re Rashad H. (2000) 78 Cal.App.4th 376, 378 [applying section 128(a)(8) to order terminating parental rights and accepting stipulated reversal].) We conclude that the public policies underlying section 128(a)(8) do not apply where, as here, the basis for the stipulated reversal is mootness. Accordingly, we need not address whether section 128(a)(8) applies to appealable orders.

” ‘ “It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions or abstract propositions, or declare principles of law which cannot affect the matter at issue on appeal.” ‘ ” (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1205.) ” ‘[A]n appeal is moot if ” ‘the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.’ ” ‘ ” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590 (La Mirada).) Subsequent legislation or administrative action can render a pending appeal moot. (Ibid.)

In Paul, supra, 62 Cal.2d 129, the Department of Agriculture sought an injunction and penalties against a company that sold milk below the price specified by regulation. (Id. at pp. 130-131.) The trial court entered an injunction and the Department appealed. (Id. at p. 132.) Before the appeal could be decided, both the regulation in question and the company ceased to exist. (Ibid.) In reversing and remanding to the trial court to dismiss the underlying action as moot, our Supreme Court explained that, “when a case becomes moot pending an appellate decision ‘the court will not proceed to a formal judgment, but will dismiss the appeal.’ [Citation.] . . . ‘The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from . . . .’ As we do not reach the merits of the appeal in the case at bench, it is appropriate to avoid thus ‘impliedly’ affirming a judgment. . . . Since the basis for that judgment has now disappeared we should ‘dispose of the case, not merely of the appellate proceeding which brought it here.’ [Citation.] That result can be achieved by reversing the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions to the court to dismiss the proceeding. [Citations.] Such a reversal, of course, does not imply approval of a contrary judgment, but is merely a procedural step necessary to a proper disposition of this case.” (Id. at pp. 134-135, citation omitted.)

Other courts have similarly concluded that an appeal should be dismissed where the challenge to the underlying ruling is rendered moot. (Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 944-945 [following Paul where the basis for the judgment had disappeared before the case could be fully litigated]; Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 636-637 [dismissing as moot appeal where challenged legislation had been repealed and replaced with materially different law]; Nat. Assn. of Wine Bottlers v. Paul (1969) 268 Cal.App.2d 741, 746-748 [dismissing as moot appeal where challenged order had been terminated].)

The reasoning in Paul, supra, 62 Cal.2d 129, applies to this appeal. Review of the Order and the declarations filed in support of the joint motion shows that this matter is moot. Notably, the Order provided that it “shall remain in full force and effect until the PERB administrative proceedings . . . on all underlying complaints are completed.” The PERB administrative proceedings on all underlying complaints have since been completed. Additionally, the County’s Board of Supervisors adopted a resolution ratifying the Successor MOU. By its own terms, the Successor MOU became effective immediately and superseded all prior terms of the County’s LBFO that were imposed on employees in December 2018. Accordingly, no actual controversy regarding the propriety of the Order exists, rendering a ruling on the merits of the Order unnecessary.

We agree with the parties that the appropriate disposition here is to reverse the Order and remand with directions to dismiss the action as moot. (Paul, supra, 62 Cal.2d at p. 134; La Mirada, supra, 2 Cal.App.5th at pp. 590-591.) This disposition is not based on the merits, but is based on the mootness of the Order.

DISPOSITION

The parties’ joint motion is granted. The preliminary injunction dated July 30, 2018 is reversed. This reversal does not imply that the preliminary injunction was erroneous on the merits, but is solely for the purpose of returning jurisdiction to the trial court by vacating the preliminary injunction on the ground of mootness. The remittitur shall issue on or after 60 days after the filing date of this opinion, unless the parties stipulate in writing to the earlier issuance of the remittitur. (Cal. Rules of Court, rules 8.264(b)(1), 8.272(a), (c)(1).) The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.