2013-00153684-CU-PN

Earl N Mykles vs. Melinda L Williams

Nature of Proceeding: Hearing on Demurrer
Nature of Proceeding: Hearing on Demurrer

Filed By: De La Torre, J. Felix

Defendants Melinda Williams (“Williams”) and Service Employees International Union,
Local 1000’s (“Local 1000”) (collectively “Defendants”) demurrer to the First Amended
Complaint (“1AC”) is SUSTAINED with leave to amend, as follows.

Although the notice of demurrer provided notice of the Court’s tentative ruling system
as required by Local Rule 1.06(D), the notice does not comply with that rule. Moving
counsel is directed to review the Local Rules, effective 1/1/2013.

Plaintiff, a former employee of State Compensation Insurance Fund (“SCIF”) who is
representing himself in this action, has sued Defendants relating to their representation
of him in connection with SCIF’s termination of his employment in 2007. Plaintiff
contends that his termination was wrongful for several reasons and when he requested
assistance of the union to challenge SCIF’s action, Local 1000 assigned its “in-house
counsel” (Williams) to represent plaintiff. In short, the 1AC alleges attorney Williams
committed legal malpractice by failing to inform plaintiff before he agreed to settle his
claims that he could have also filed with the Public Employment Relations Board
(“PERB”) a charge against SCIF for violating not only the union’s collective bargaining
agreement (“CBA”) but also federal law known as the “Weingarten Rule.”

Defendants demur to the 1AC on several independent grounds. First, they argue that
plaintiff’s sole claim for legal malpractice fails as a matter of law as against Local 1000
because there was no attorney-client relationship between plaintiff and Local 1000.
Defendants also note in their reply papers that an attorney cannot be the agent of a
non-attorney organization such as Local 1000 because the latter is prohibited by
California Rules of Professional Conduct from exercising any control over its attorneys
in their representation of clients, including union members. Second, defendants assert
that the 1AC fails to plead any facts which tend to show that Local 1000 acted
negligently. Third, defendants insist that the only duty which Local 1000 itself owed to
plaintiff was that of “fair representation” pursuant to Government Code §3515.7(g) and
a breach of this duty occurs only where the union acted discriminatorily, arbitrarily or in
bad faith, none of which is alleged in plaintiff’s 1AC solely for legal malpractice.
Regardless, defendants add that even if a claim for breach of this “fair representation”
duty was found in the 1AC, this Court lacks jurisdiction to entertain it since
Government Code §3514.5 vests PERB with exclusive jurisdiction over such claims.

Defendants contend that the 1AC fails to state a valid claim against attorney Williams
herself because under established law, union attorneys are immune from individual
liability for any actions taken on behalf of the union. (See, e.g., Atkinson v. Sinclair
refining Co. (1962) 370 U.S. 238, 249; Peterson v. Kennedy (9th Cir. 1985) 771 F.2d
1244, 1258; Breda v. Scott (9th Cir. 1993) 1 F.3d 908, 909.) Defendants also contend
that plaintiff’s claim that he should have advised of the opportunity to file with PERB a
claim against SCIF for violating the union’s CBA and the “Weingarten Rule” does not
as a matter of law constitute actionable malpractice since PERB clearly has no
jurisdiction over violations of CBAs (Gov. Code §3514.5(b)) or federal law since
PERB’s jurisdiction is limited to California statutes governing public sector collective
bargaining in this state.

Although plaintiff filed an opposition to this demurrer, it fails to meaningfully address a
number of defendants’ contentions. Instead, the opposition merely asserts without
reference to any relevant legal authorities that attorney Williams had a duty to advise
plaintiff of the right to file with PERB additional claims against SCIF and that since
Williams was an employee of Local 1000, the latter is also liable for the former’s
malpractice. The opposition also proposes to add a number of new allegations to the
complaint some of which may be an attempt to show “bad faith” on the part of
defendants and discusses at length a number of other issues which are not truly
relevant to the disposition of this demurrer.

Because plaintiff has failed to demonstrate that attorney Williams is not immune from
liability for actions taken during her representation of him and/or that PERB had
jurisdiction to entertain the claim plaintiff would have filed against SCIF, the 1AC
currently does not state facts sufficient to constitute actionable malpractice against
Williams. Likewise, the 1AC does not plead a valid legal malpractice claim against
Local 1000 since plaintiff has failed to establish the existence of an attorney-client
relationship with Local 1000 or that the latter acted negligently at any time.
Accordingly, defendants’ demurrer to the 1AC is hereby sustained.

Since this is the first challenge to the complaint on which this Court has had
opportunity to rule, leave to amend is granted. Plaintiff may file and serve an amended
complaint no later than 6/13/2014. Although not required by court rule or statute,
plaintiff is directed to present a copy of this order when the amended complaint
is presented for filing.

Defendants to respond within 15 days if the amended complaint is personally served,
20 days if served by mail.

If any defendant demurs to the amended complaint or moves to strike, a copy of the
amended complaint shall be included with the moving papers.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 19 2013-00153684-CU-PN

Earl N Mykles vs. Melinda L Williams

Nature of Proceeding: Motion to Strike

Filed By: De La Torre, J. Felix

Defendants Melinda Williams and Service Employees International Union, Local
1000’s motion to strike portions of the First Amended Complaint (“1AC”) is DROPPED
as moot in light of the Court’s tentative ruling on defendants’ demurer to the 1AC.

Defendants remain free to file a motion to strike these portions of the complaint if any
or all are included in any amended complaint which plaintiff may file in response to the
Court’s tentative ruling on defendants’ demurer to the 1AC.