2016-00204088-CU-MC

PERB vs. SEIU Local 1000

Nature of Proceeding: Demurrer to Second Amended Cross-Complaint (PERB)

Filed By: Zeitlin, Jeremy G.

Cross-defendant Public Employment Relations Board’s (“PERB”) demurrer to California Department of Human Resources’ (“CalHR”) Second Amended Cross-Complaint for Declaratory Relief (“2ACC”) is SUSTAINED IN PART and OVERRULED IN PART, WITHOUT LEAVE TO AMEND, as follows.

Factual & Procedural Background

This action was commenced on 12/1/2016 by PERB. PERB sought to enjoin a strike by employees represented by Service Employees International Union, Local 1000 (“SEIU”) who were deemed essential because their absence from work would allegedly pose an imminent and substantial threat to the public’s health and safety.

CalHR’s Initial “Cross-Petition.” On 1/3/2017, CalHR filed an answer to the complaint along with what was designated “Cross-petition for traditional writ of mandamus; cross-complaint for declaratory relief” (“Cross-petition”). This latter pleading alleged that “PERB has consistently misapplied established law concerning the proper standard to seek injunctive relief on behalf of a public employer to enjoin a proposed public employee strike.” It further alleged that, “[a]s a result of this misapplication of law, PERB has frustrated the purpose of the various state labor relations acts it administers and rendered PERB’s administrative procedures to remedy violations of those acts ineffective.” In particular, CalHR asserted that SEIU’s 11/22/2016 notice of a strike planned for 12/5/2016 was an unfair labor practice and CalHR therefore properly requested PERB seek an injunction prohibiting all SEIU-represented from employees striking. CalHR alleged that PERB failed to seek such relief and instead sought to enjoin only certain “essential” employees from striking. (The court notes that on 12/6/2016, PERB “rescinded” its initial administrative decision to grant partially CalHR’s request for injunctive relief on the ground the request was moot. PERB denied CalHR’s request “without prejudice” and subsequently dismissed its complaint for injunctive relief also “without prejudice.”)

In the first cause of action for writ of mandate, CalHR alleged that that “PERB has a mandatory duty to comply with its statutory obligations to seek temporary relief from the court to effectuate the purposes of the Dills Act.” It alleged that under Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881 (“ Modesto City Schools”), “injunctive relief is warranted when (1) there is ‘reasonable cause’ to believe an unfair practice has been committed and (2) injunctive relief is ‘just and proper,’” which is when one of the following may result in the absence of injunctive

relief: There is a probability the Dills Act’s purpose would be frustrated; there is a reasonable apprehension that the efficacy of PERB’s final order may be nullified; or PERB’s administrative procedures would be rendered meaningless due to the passage of time. According to CalHR, PERB’s decision to not seek injunctive relief as to all SEIU-represented employees was based on an erroneous construction of County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564, mistakenly believing this precedent only permits PERB to seek injunctive relief as to employees it deems as “essential” regardless of whether the above-cited “just and proper” standard is met, not to mention an abuse of PERB’s discretion.

In the second cause of action for declaratory relief, CalHR alleged PERB has consistently sought to enjoin only those strikes by employees deemed “essential” to public health and safety — even where the “just and proper” standard for injunctive relief is met. CalHR alleged that this position created a live controversy inasmuch as it resulted in doubt and uncertainty as to the correct application of the above-cited authorities. CalHR sought a judicial declaration that Modesto City Schools sets the standard PERB must apply when determining whether to seek an injunction against a proposed strike; County Sanitation does not limit or abrogate this standard for injunctive relief; and where this standard is met, PERB must seek to enjoin the entire strike regardless of whether the employees are “essential.” CalHR adds that PERB’s refusal to seek injunctive relief presents an important issue which is capable of repetition but tends to evade judicial review since employee strikes are by their nature temporary and come with limited notice.

Both PERB and SEIU demurred to the Cross-petition on various grounds. The Court sustained the demurrers on various grounds, including CalHR’s failure to exhaust administrative remedies, the lack of a justiciable controversy, the lack of a “mandatory duty” on the part of PERB and the inapplicability of Modesto City Schools. The court granted leave to amend only as to the declaratory relief claim.

CalHR’s First Amended Cross-Complaint. On 6/30/2017, CalHR filed a First Amended Cross-Complaint for Declaratory Relief (“1ACC”), to which both PERB and SEIU demurred on several grounds. In lieu of opposing these demurrers which were to be heard on 9/1/2017, CalHR purported to file a Second Amended Cross-Complaint for Declaratory Relief. However, this pleading was stricken by the court since CalHR did not obtain leave to file such a pleading. Because CalHR did not file any opposition to the two demurrers set for 9/1/2017, they were sustained with leave to amend.

CalHR’s 2ACC. On 9/15/2017, CalHR filed its 2ACC. It opens with the following summary:

In this action, [CalHR] seeks declaratory relief against [PERB] because PERB, and more specifically the Board itself, has a pattern and practice of ignoring its legally mandated duties concerning the proper standard of review the Board must apply when determining whether to seek injunctive relief in superior court to enjoin a public employee strike. The Board’s pattern and practice is, in effect, an unwritten, overarching Board policy that ignores statutory and decisional law dictating the standard of review it must apply. Moreover, that unwritten policy is a standard of general application applied by the Board that conflicts with each of its published precedential decisions concerning the proper standard of review historically applied by the Board in evaluating requests for injunctive relief. Consequently, the Board’s precedential decisions and its

application of a new unwritten policy causes significant confusion for the various parties who seek injunctive relief from the Board. Because CalHR and PERB fundamentally disagree about PERB’s legal obligations regarding the proper standard of review the Board must apply when considering injunctive relief for public employee strikes, there is an actual, present controversy here, and that controversy will continue indefinitely unless the Court grants the relief CalHR seeks here. (2ACC, ¶2.)

The 2ACC again relies on Modesto City Schools as supplying the legal standard here. It alleges that “each of the Board’s precedential decisions concerning injunctive relief since 1982 (when Modesto City Schools was decided) mandates Modesto City Schools is the standard the Board applies when evaluating a request for injunctive relief.” (2ACC, ¶14.) CalHR alleges that under these precedential decisions, “the Board performs a detailed analysis under the Modesto City Schools two-element test and the Board states, either explicitly or implicitly, Modesto City Schools is the applicable standard when evaluating a request for injunctive relief” and “then grants or denies the request based on whether the Board finds the two elements satisfied.” (Id.)

The 2ACC goes on to assert that PERB has developed an “unwritten policy” which is contrary to Modesto City Schools and PERB’s own precedential decisions inasmuch as injunctive relief against a strike by public employees will only be granted for “essential employees” as defined in County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564….” In support of this contention,
CalHR cites PERB’s own demurrer to the former’s “Cross-petition” in this action, in which it was argued that the PERB Board has “unfettered discretion” under San Diego Teachers Association v. Superior Court (1979) 24 Cal.3d 1 to decide whether to seek injunctive relief in the courts and which demonstrates a belief by the Board that it may only seek injunctive relief when the standard set forth in County Sanitation is satisfied and may permissibly refuse to seek injunctive relief even when this standard is satisfied. CalHR insists that the “conflicting messages from PERB” justify a judicial declaration concerning the standard of review the Board must apply and further that PERB has misinterpreted the San Diego Teachers decision, which simply established the Board’s “exclusive initial jurisdiction over remedies against strikes that it properly could find were unfair [labor] practices.” According to the 2ACC, County Sanitation did not overrule or limit Modesto City Schools by it limiting the Board’s power to seeking to enjoin only those strikes which threaten public health or safety.

CalHR maintains that the disagreement over PERB’s obligation to utilize the proper standard for deciding whether to enjoin public employee strikes constitutes an actual and present controversy which necessitates declaratory relief particularly when CalHR will continue in the future to litigate unfair labor practices before PERB and seek injunctive relief when appropriate but will be thwarted by PERB’s policy, even when a strike of employees providing vital public services is imminent.

The 2ACC seeks the following forms of declaratory relief: (1) a declaration that Modesto City Schools provides the proper legal standard of review; (2) a declaration that that PERB and the Board must apply Modesto City Schools when evaluating whether to seek injunctive relief from a court to enjoin a proposed or threatened strike;

(3) an alternative declaration that of the legal standards PERB must apply in the future if Modesto City Schools does not supply not the proper legal standard; (4) a declaration determining the legal principles, guidelines or frameworks PERB must apply if San Diego Teachers is the proper standard and PERB has “unfettered

discretion” to seek or deny injunctive relief; and (5) a declaration that PERB must follow its own precedential decisions unless overruled, modified or superseded.

Demurrer to 2ACC. PERB demurs to CalHR’s 2ACC on multiple grounds. First, PERB contends this Court lacks subject matter jurisdiction because CalHR has not exhausted administrative remedies with PERB given that the latter’s decision on CalHR’s request for injunctive relief against the strike scheduled for 12/5/2016 was interlocutory and CalHR’s unfair practice charge regarding this proposed strike is still pending adjudication by PERB.

Second, PERB contends that CalHR has not alleged an actual justiciable controversy to justify any declaratory relief since the 2ACC does not include facts establishing a sufficiently definite dispute warranting a judicial declaration but rather merely speculates that there is controversy relating to PERB’s “pattern and practice” of departing from the two-part test in Modesto City Schools, without any “concrete” facts showing PERB does not comply with this precedent. Indeed, according to the demurrer, the only instance alleged where PERB did not comply with Modesto City Schools is the 12/5/2016 strike which led to the present action and even then, the 2ACC does not plead facts showing how the Board acted contrary to Modesto City Schools in deciding to seek an injunction against a strike by “essential employees” only. PERB also maintains that legal arguments which it may have asserted earlier in this case and other statements by its General Counsel’s Office do not rise to the level of official “policy” and therefore cannot be the basis for the present request for declaratory relief.

PERB further insists the relief requested in the 2ACC is neither necessary nor proper since CalHR can have this alleged dispute with PERB resolved via the administrative process provided by PERB along with an appeal of any adverse ruling and since declaratory relief would do little to resolve any dispute with PERB, given the breadth of discretion the Board has under Modesto City Schools. Thus, PERB argues this Court may decline jurisdiction over the single declaratory relief claim pursuant to the express language of Code of Civil Procedure §1061.

Finally, PERB demurred on the ground that CalHR’s declaratory relief is “derivative” of its previously-dismissed cause of action for writ of mandate but the Court holds this ground has been waived by PERB to the extent it is not addressed in its moving memorandum of points & authorities. Accordingly, the Court need not address this ground further here.

Opposition. CalHR opposes, arguing first that declaratory relief is proper means to challenge “an overarching, quasi-legislative policy” of an administrative agency such as PERB’s policy and practice of applying an incorrect standard to requests for injunctive relief, as specifically pled in the 2ACC. Next, the opposition maintains that there is a justiciable controversy here because regardless of whether the 12/5/2016 strike occurred and how PERB ruled on CalHR’s request to enjoin this 2016 strike, there is an actual current dispute of the proper legal standard to be applied by PERB when evaluating all current and future injunction requests which makes this controversy ripe for adjudication. CalHR further asserts that declaratory relief is necessary and proper because it will prevent in the future a multiplicity of actions challenging PERB’s application of an incorrect standard in individual cases. Finally, the opposition contends that the general rule requiring exhaustion of administrative remedies is inapplicable here since this action challenges an overarching policy of

PERB rather than an individual decision and/or since the administrative remedy available from PERB does not afford CalHR adequate relief from the use of an incorrect standard for injunctions.

Reply. PERB insists the 2ACC fails to plead facts sufficient to establish the existence of some overarching policy relating to injunctive relief but even if it did, CalHR failed to exhaust administrative remedies or a valid excuse for not doing so. Finally, the reply argues the 2ACC does not demonstrate an actual controversy to be resolved and given the alleged facts, declaratory relief is neither necessary nor proper because this action will not provide a final meaningful resolution of the alleged dispute.

Analysis

Exhaustion of Administrative Remedies. PERB’s demurrer on the grounds that CalHR failed either to exhaust administrative remedies or to establish a valid exception to the exhaustion requirement is overruled. Unlike CalHR’s initial Cross-petition which appeared to be seeking judicial relief limited only to PERB’s administrative decision on the injunctive relief requested in anticipation of the strike scheduled for 12/5/2016, the 2ACC is by its own terms focused far more broadly on PERB’s alleged policy, pattern and/or practice of applying an incorrect standard to determine whether it should ask the court to enjoin a strike by public employees. Given these factual allegations which must be presumed true for the purposes of this demurrer, the Court finds that the First District Court of Appeal’s decisions in Californians for Native Salmon Etc. Assn. v. Dept. of Forestry (1990) 221 Cal.App.3d 1419 (“Native Salmon”) and Third District’s Clovis Unified School District v. Chiang (2010) 188 Cal.App.4th 794 (“Clovis USD”), both stand for the proposition that an action for declaratory relief is an appropriate method by which to challenge “an overarching, quasi-legislative policy set by an administrative agency,” whereas the review of specific, discretionary administrative decisions is “generally subject to review only pursuant to a writ of administrative mandate…” (Clovis USD, at 808-809 (citing Native Salmon, at 1429); see also, Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1566; Simi Valley Adventist Hospital v. Bonta’ (2000) 81 Cal.App.4th 346, 354-355.) Accordingly, the general rule requiring the exhaustion of administrative remedies or a valid excuse therefrom is not a bar to CalHR’s claim for declaratory relief relative to PERB’s alleged policy, pattern and/or practice of handling injunctive relief in the face of strikes by public employees.

Justiciability. The demurrer based on the lack of a sufficiently definite and actual controversy between CalHR and PERB which warrants declaratory relief is sustained. Although the 2ACC asserts that PERB has a policy or practice of applying an incorrect standard to requests for injunctive relief, the 2ACC does not plead facts sufficient to establish that PERB actually has applied an incorrect standard.

First, while CalHR persists in its claim that Modesto City Schools sets the standard which PERB must apply when considering requests for injunctive relief, this Court previously explained in its ruling on PERB’s initial demurrer to CalHR’s Cross-petition that the Fifth District Court of Appeal nowhere in Modesto City Schools either considered or determined the standard which PERB must apply and it is well-established that “cases are not authority for propositions not considered.” (See, e.g., People v. Brown (2012) 54 Cal.4th 314, 330.) Instead, in pertinent part, the 1982 decision of Modesto City Schools merely considered whether the trial court properly granted PERB’s request for injunctive relief and in doing so, the Court of Appeal

pointed out that Government Code §3541.3(j) expressly provided that PERB “may petition the court for appropriate temporary relief or restraining order.” (Underline added for emphasis.) (Notably, this plain statutory language remains unchanged more than 35 years later and is diametrically opposed to CalHR’s underlying assertion that PERB is obligated to seek injunctive relief in a particular circumstance.) Regardless, the Fifth District went on to explain that a trial court’s decision to grant injunctive relief should be affirmed if the trial court did not abuse its discretion either in determining (1) there exists reasonable cause to believe an unfair labor practice had been committed or (2) the injunctive relief was “just and proper” under the circumstances, without ever deciding the question of whether PERB itself is required to seek a court order imposing injunctive relief when these conditions exist. Accordingly, this Court must again conclude that CalHR’s allegation about PERB being required to but nevertheless failing to follow Modesto City Schools’ standard is insufficient to state a claim which requires judicial resolution.

Second, CalHR’s reliance on “other precedential decisions” by PERB like San Ramon Valley Unified School Dist. v. San Ramon Valley Education Assoc. (1984) PERB Ord. IR-46 (“San Ramon Valley”), cited in Paragraph 15 of the 2ACC is equally unavailing. This PERB ruling which followed shortly after Modesto City Schools provided in pertinent part:

PERB’s authority to seek injunctive relief is governed by [Government Code] section 3541.3(j). That section empowers the Board:

To bring an action in a court of competent jurisdiction to enforce any of its orders, decisions, or rulings or to enforce the refusal to obey a subpoena. Upon issuance of a complaint charging that any person has engaged in or is engaging in an unfair practice, the board may petition the court for appropriate temporary relief or restraining order.
An injunction is proper in circumstances mandating extraordinary relief. Thus, the charge must not only state a prima facie violation of the Act, but the Board must determine that (1) there is “reasonable cause” to believe that an unfair practice has been committed, and (2) that the relief sought is “just and proper.” [Citing Modesto City Schools, at 895.]

(PERB Ord. IR-46, p.2 (underline added for emphasis).)

Assuming arguendo that this is an accurate statement of the standard which PERB must apply when a request for injunctive relief is made, the 2ACC fails to plead facts which affirmatively demonstrate that PERB has applied and continues to apply a different standard so as to constitute an actual controversy which warrants judicial resolution here. In short, both the express provisions of Government Code §3541.3(j) and the individual components of the two-part test afford PERB broad latitude to determine based on the unique facts of each case whether or not injunctive relief would be “just and proper” under those particular circumstances. Indeed, existing decisional law in this state clearly holds that PERB is vested with discretion in deciding whether and when to petition a trial court for temporary relief or restraining orders. (See, e.g., San Diego Municipal Employees Assoc. v. Superior Court (City of San Diego) (2012) 206 Cal.App.4th 1447, 1460 [“the statutory scheme expressly contemplates that PERB, upon issuance of a complaint charging an unfair labor practice, has discretion to “petition the court for appropriate temporary relief or restraining order”]; City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1287-1288.)

In light of the discretionary elements of the aforementioned two-part standard as well as the plain language of Government Code §3541.3(j) which authorizes PERB to seek “appropriate” relief, CalHR allegations about PERB seeking only to enjoin “essential employees” from striking fail to establish that PERB is actually either applying an incorrect standard to injunction requests or otherwise violating applicable precedent including but not limited to Modesto City Schools and/or other unspecified PERB precedent. Consequently, the 2ACC fails to plead facts which demonstrate the existence of an actual, present controversy which amenable to judicial resolution via declaratory relief.

Necessary and Proper. Given CalHR’s failure to plead facts establishing the existence of an actual justiciable controversy with PERB, the Court will also sustain PERB’s demurrer on the ground that declaratory relief is under the present circumstances neither necessary nor proper within the meaning of Code of Civil Procedure §1061, especially since PERB clearly has under California law broad discretion in determining whether and when to petition the courts for “appropriate” relief including injunctions.

Conclusion

For the reasons explained above, PERB’s demurrer to CalHR’s 2ACC is sustained in part and overruled in part.

Because the Court concludes CalHR has no reasonable possibility of stating a valid claim for declaratory relief here, leave to amend is denied.

If CalHR requests oral argument in an attempt to obtain leave to amend its cross -complaint, it shall be prepared to specifically discuss the new or different facts which may now be alleged in good faith to overcome the deficiencies noted above.

Pursuant to CRC Rule 3.1312, PERB to prepare a judgment of dismissal of CalHR’s cross-complaint.