The opinion
Filed 6/22/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
CITY AND COUNTY OF SAN
FRANCISCO, A173302
Petitioner,
(Public Employment Relations
v. Board Decision No. 2958-M
PUBLIC EMPLOYMENT Case No. SF-CE-2157-M)
RELATIONS BOARD,
Respondent;
MUNICIPAL ATTORNEYS
ASSOCIATION OF SAN
FRANCSICO,
A Real Party in Interest.
The Meyers-Milias-Brown Act (MMBA) (Gov. Code, §§ 3500–
3511) governs “disputes regarding wages, hours, and other terms and
conditions of employment between public employers and public” unions.
(Id., § 3500.) Among other things, the MMBA establishes procedures
for resolving those disputes if the public employer and union reach an
impasse during negotiations. (Gov. Code, §§ 3505.4 & 3505.5.) Under
those impasse resolution procedures, a factfinding panel may
“recommend terms of settlement . . . .” (Id., § 3505.5, subd. (a).) But
that recommendation is “advisory only.” (Ibid.) Thus, notwithstanding
the panel’s recommendation, the public employer “may, after holding a
1
public hearing regarding the impasse, implement its last, best, and
final offer.” (Id., § 3505.7.)
The MMBA also provides an alternative for charter cities or
counties. Those cities and counties may adopt their own impasse
resolution procedures in lieu of the MMBA’s procedures, so long as
their procedures include “a process for binding arbitration.” (Gov.
Code, § 3505.5, subd. (e).)
Petitioner City and County of San Francisco (City), a charter city
and county, has opted for this alternative. Under the Charter of the
City and County of San Francisco (Charter), certain labor disputes are
eligible for interest arbitration if the City and its employee union reach
an impasse. If the dispute is eligible for and submitted to arbitration,
then the arbitrators must choose between the “last offer[s] of
settlement on each of the remaining issues in dispute” between the City
and its union. (Charter, § A8.409-4.) 1 Once the arbitrators make that
choice, their decision is “final and binding,” and the City has no other
recourse. (Ibid.)
Real party in interest Municipal Attorneys Association of San
Francisco (MAA) represents City employees who are “exempt from
competitive civil service selection, appointment, and removal
procedures” under the Charter. (§ 10.104.) As “exempt appointments”
(S.F. Civ. Service Com. Rules, rule 114, § 114.25), 2 MAA members are
at-will employees who “serve at the pleasure of the appointing
authority” and may be terminated without cause (§ 10.104). During its
1 Unless otherwise indicated, all further statutory references are
to the Charter.
2 All further rule references are to the San Francisco Civil Service
Commission Rules.
2
most recent labor negotiations with the City, the MAA made two
proposals that would have altered the at-will status of its members.
The first would have limited the City’s ability to discharge MAA
members by requiring “just cause” for any “discipline,” including
“terminations (discharges).” The second would have required the City
to lay off MAA members in order of their seniority. After the City
refused to submit these proposals to binding interest arbitration, the
MAA filed an unfair practice charge with respondent Public
Employment Relations Board (PERB). PERB found that the MAA’s
proposals were eligible for arbitration under the impasse resolution
provisions of the Charter and held that the City engaged in bad faith
bargaining by refusing to submit those proposals to arbitration. We,
however, find that the MAA’s proposals are not eligible for arbitration
under the Charter. We therefore vacate PERB’s decision to the
contrary.
BACKGROUND
A.
The MAA is the exclusive representative of roughly 500 attorneys
employed by the City. Those attorneys are currently “at-will”
employees with no “job protections.”
The MAA and the City entered into a memorandum of
understanding (MOU), effective July 1, 2022 through June 30, 2024.
During negotiations over that MOU, the MAA proposed adding certain
job protections, including binding arbitration for any discipline of its
members. The City, however, rejected that proposal, claiming that it
conflicted with the Charter. According to the MAA, the City refused to
negotiate over any proposals that would alter the at-will status of its
3
attorneys, but the City denied this. The parties, however, agreed that
the MAA’s proposal was never submitted to interest arbitration and
that the MAA did not file an unfair practice charge with PERB.
In December 2023, the MAA initiated negotiations over the next
MOU. During these negotiations, the MAA, which had recently
affiliated with “Teamsters Local 856,” prioritized the addition of job
protections due to the recent history of “mass political firings” at the
San Francisco District Attorney’s Office.
On February 12, 2024, the MAA sent its first proposal to the City.
Proposal 1, titled “Attorney Discipline,” would have altered the at-will
status of the City’s attorneys by establishing that “[a]ll discipline shall
be for just cause and progressive.” (Italics added.) Under the proposal,
“ ‘discipline’ means and includes demotions, suspensions, or
terminations (discharges).” Proposal 1 further stated that the City
“shall use progressive discipline in addressing the behavior of an
attorney” but may “skip one or all levels of progressive discipline, if
necessary.” Finally, the proposal provided that “[a]ll attorney
discipline will be reviewable, appealable and subject to binding
arbitration . . . .”
Over the rest of February and March 2024, the MAA submitted
additional proposals to the City, including Proposal 14. Under Proposal
14, titled “Reduction in Force and Layoff,” “[w]hen a reduction in force
becomes necessary, layoff and demotions in lieu of layoff shall be
accomplished in inverse order of total paid . . . continuous service in the
classification(s) in the current department of the effected attorney . . . .”
4
(Italics added.) Like Proposal 1, Proposal 14 would have limited the
ability of the City to discharge its attorneys without cause. 3
The City never made a counteroffer to the MAA’s just cause
proposals. Instead, the chief negotiator for the City wrote in an e-mail
to the MAA dated March 11, 2024: “The City has not taken the position
that Proposal #1 is outside the scope of bargaining under the MMBA,
nor has the City refused to bargain Proposal #1. Instead, as the City
has done any time [the] MAA has raised just cause rights in the past,
and as is permitted under the MMBA, the City has rejected Proposal #1
and proposed instead that the parties maintain the status quo.”
According to the City’s negotiator, “[s]ection 10.104 reflects the express
will of the voters that attorneys employed by the City be at[-]will,” and
“the City will not submit any proposal that would alter the attorneys’
exempt/at-will status to the impasse resolution procedures under . . .
[s]ection A8.409-4.”
In subsequent negotiation sessions, the City repeatedly rejected
the MAA’s just cause proposals. The City, however, agreed to mediate
and bargain over those proposals, explaining that they would be subject
to factfinding under the impasse resolution procedures of the MMBA.
In doing so, the City took the position that any just cause protections
would conflict with the Charter and that the MAA’s just cause
proposals were not eligible for binding interest arbitration under the
Charter. The MAA disagreed, arguing that its proposals were eligible
for arbitration.
3 We refer to Proposals 1 and 14 as the “just cause proposals.”
They are the only MAA proposals at issue here.
5
On April 25, 2024, the City and MAA reached a tentative
agreement. That agreement included a provision for reopening
negotiations over the MAA’s just cause proposals if PERB ruled in favor
of the MAA on its unfair practice charge. The current MOU between
the City and MAA runs from July 1, 2024 through June 30, 2027.
B.
On April 2, 2024, the MAA filed an unfair practice charge with
PERB. The charge alleged that the City violated the MMBA by
refusing “to submit to interest arbitration a dispute over job protections
for the bargaining unit members.” The MAA also moved to expedite
the charge.
PERB granted the request for expedited processing and issued a
complaint on May 3, 2024. 4 The complaint alleged that the City
engaged in bad faith bargaining in violation of the MMBA by refusing
“to bargain over mandatory subjects of bargaining including but not
limited to just cause protections and seniority” or “to submit mandatory
subjects of bargaining[,] which includes[ ] [the MAA’s] Proposal 1 (just
cause protections) and Proposal 14 (reductions in force based on
seniority) to interest arbitration as required by [s]ection A8.409-4 of the
. . . Charter.”
C.
At the hearing before an Administrative Law Judge (ALJ), the
MAA presented two witnesses who testified about the negotiations
between the City and MAA. The City countered with four witnesses
who testified about: (1) negotiations between the City and MAA;
4 PERB also denied the City’s motion to revoke the expedited
status of the charge.
6
(2) exempt appointments under the Charter; (3) the City’s Civil Service
Commission (Commission) and civil service merit system; and (4)
negotiations over the Charter’s impasse resolution provisions, including
the interest arbitration provisions, before their adoption by the voters.
After the hearing, the ALJ issued a proposed decision. In the
decision, the ALJ held that: (1) section 10.104 conflicted with the
MMBA because the section prevented the City “from agreeing to any
limitations on department heads’ authority to discipline, terminate, or
lay off [MAA] employees”; (2) the MMBA superseded section 10.104
under the home rule doctrine because the MMBA addresses “matter[s]
of statewide concern” that are “narrowly tailored”; (3) the MAA’s just
cause proposals were eligible for binding interest arbitration under the
Charter’s impasse resolution provisions; (4) the City’s refusal to submit
these proposals to arbitration “directly and irreconcilably conflict[ed]
with fundamental statewide principles of good faith bargaining as
codified in the MMBA”; and (5) the City engaged in bad faith
bargaining by refusing to submit the proposals to arbitration.
D.
In Municipal Attorneys Association of San Francisco, Teamsters
Local 856 v. City and County of San Francisco (2025) PERB Dec. No.
2958-M (MAA), PERB “affirm[ed] the . . . conclusions of the ALJ” but
for different reasons. (Id. at p. 3.) Like the ALJ, PERB agreed that the
Charter’s impasse resolution provisions did not exclude the MAA’s just
cause proposals from binding interest arbitration. (MAA, at pp. 18–19,
25.) But unlike the ALJ, PERB concluded that section 10.104 should
and could be harmonized with the MMBA. (MAA, at pp. 29–30.) Upon
doing so, PERB found that section 10.104 allows the City to “establish
7
[just cause] protections by regulation, policy, or MOU, including
provisions negotiated with [the] MAA or directed as part of the
Charter’s broad interest arbitration mechanism for resolving
bargaining disputes.” (MAA, at p. 30.) PERB therefore held that “the
City violated its Charter” and the MMBA “by refusing to engage in
interest arbitration over the” MAA’s proposals. (MAA, at p. 31.) For
this same reason, PERB held that the City engaged in bad faith
bargaining. (Id. at p. 32.) Finally, PERB enjoined the City from
“[r]efusing to allow [the] MAA to submit” its proposals to arbitration
and ordered the City to “[m]ake [the] MAA whole for extra bargaining
costs and any wasted or diverted resources (other than the costs of
litigating this case) that the City’s MMBA violations caused in
substantial part,” plus interest. (Id. at p. 34.)
Pursuant to Government Code section 3542, the City filed a
petition for a writ of extraordinary relief from PERB’s decision
(petition). We determined that a summary denial of the petition was
not warranted and issued a writ of review.
DISCUSSION
A.
Under California law, the same “principles of construction” apply
to statutes and charters. (Don’t Cell Our Parks v. City of San Diego
(2018) 21 Cal.App.5th 338, 349 (Don’t Cell Our Parks).) These
principles are well-established. “ ‘ “ ‘[I]n construing a statute, a court
[must] ascertain the intent of the Legislature so as to effectuate the
purpose of the law.’ [Citation.] In determining that intent, we first
examine the words of the respective statutes: ‘If there is no ambiguity
in the language of the statute, “then the Legislature is presumed to
8
have meant what it said, and the plain meaning of the language
governs.” [Citation.]’ ” ’ ” (T.M. v. Superior Court (2024) 104
Cal.App.5th 664, 680–681.) But if that language is ambiguous, then
“courts may resort to extrinsic sources, including the ostensible objects
to be achieved and the legislative history.” (People v. Coronado (1995)
12 Cal.4th 145, 151.) “Courts may also ‘ “ ‘examine the context in
which the [statutory] language appears, adopting the construction that
best harmonizes the statute . . . with related statutes’ ” ’ [citation], as
well as consider ‘ “ ‘public policy’ ” ’ [citation]. The end goal is to
‘ “ ‘select the construction that comports most closely with the apparent
intent of the Legislature, with a view to promoting rather than
defeating the general purpose of the statute . . . .’ ” ’ ” (T.M. v. Superior
Court, at p. 681.)
We “ ‘generally defer to PERB’s construction of labor law
provisions within its jurisdiction’ ” like the MMBA. (Boling v. Public
Employment Relations Bd. (2018) 5 Cal.5th 898, 911.) This is because
“ ‘ “PERB is ‘one of those agencies presumably equipped or informed by
experience to deal with a specialized field of knowledge, whose findings
within that field carry the authority of an expertness which courts do
not possess and therefore must respect.’ ” ’ ” (Id. at pp. 911–912.) We
therefore “ ‘follow PERB’s interpretation [of the MMBA] unless it is
clearly erroneous.’ ” (Id. at p. 912.) Finally, “[t]he findings of [PERB]
with respect to questions of fact, including ultimate facts, if supported
by substantial evidence on the record considered as a whole, are
conclusive.” (Gov. Code, § 3542, subd. (c).)
We do not, however, defer to PERB’s construction of laws outside
its jurisdiction like the Charter. (See Becerra v. McClatchy Co. (2021)
9
69 Cal.App.5th 913, 942–943 [“We are aware of no authority that
suggests a regulation is entitled to deference on a question outside the
promulgating agency’s jurisdiction”].) Indeed, the Charter is not a
labor law; it is “the supreme law of the City.” (Domar Electric, Inc. v.
City of Los Angeles (1994) 9 Cal.4th 161, 170.) As a result, “[w]e accord
‘great weight and respect’ to the City’s interpretation of its own charter,
‘unless shown to be clearly erroneous.’ ” (San Diegans for Open
Government v. City of San Diego (2018) 31 Cal.App.5th 349, 378 (San
Diegans).) This principle applies “in particular to the powers of” the
Commission because the “Charter invests [it] with such broad
discretionary powers.” (San Francisco Fire Fighters Local 798 v. City
and County of San Francisco (2006) 38 Cal.4th 653, 667 (S.F. Fire
Fighters).)
B.
PERB held that the MAA’s just cause proposals are eligible for
binding interest arbitration under the Charter’s impasse resolution
provisions. The City contends that PERB misconstrued those
provisions because they, by their terms, carve out the at-will status of
the City’s exempt employees from those matters otherwise subject to
arbitration. We agree with the City. 5
1.
In 1991, San Francisco voters adopted Proposition B, which
amended the Charter by adding what are now sections A8.409 through
5 Because we conclude that the MAA’s just cause proposals are
not eligible for interest arbitration under the Charter, we do not
address the other arguments made by the City, including its argument
that section 10.104 prohibits any alteration of the at-will status of the
City’s exempt employees without the approval of San Francisco voters.
We express no opinion as to the merits of those arguments.
10
A8.409-6. These amendments added, among other things, new impasse
resolution procedures, including binding interest arbitration. San
Francisco voters amended those procedures in 1995 by adopting
Proposition F. The Charter’s impasse resolution procedures—which
are codified in section A8.409-4—“apply to all miscellaneous officers
and employees,” including the attorneys represented by the MAA.
(§ A8.409-1.)
Under section A8.409, “the procedures herein adopted, except as
otherwise provided herein, shall supersede and displace all other
formulae, procedures and provisions relating to wages, hours, benefits
and other terms and conditions of employment found in this Charter, in
the ordinances and resolutions of the” City, “or in the rules, regulations
or actions of boards or commissions of the” City. (Italics added.)
Section A8.409-3, titled “Obligation to Bargain in Good Faith,”
imposes on the City an “obligation to bargain in good faith on all
matters within the scope of representation as defined by Government
[C]ode section 3504, relating to the wages, hours, benefits and other
terms and conditions of” City “employment, including the
establishment of procedures for the resolution of grievances concerning
the interpretation or application of any agreement, and including
agreements to provide binding arbitration of discipline and discharge
. . . .” But “except insofar as they affect compensation,” “matters within
the jurisdiction of the” Commission “which establish, implement and
regulate the civil service merit system shall not be subject to bargaining
under this part . . . .” (§ A8.409-3, italics added.)
Section A8.409-3 proceeds to identify specific “matters” within
the Commission’s jurisdiction that are carved out from the City’s
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obligation to bargain “under this part.” These matters include “the
authority, purpose, definitions, administration and organization of the
merit system and the” Commission; “policies, procedures and funding of
the operations of the” Commission “and its staff; the establishment and
maintenance of a classification plan including the classification and
reclassification of positions and the allocation and reallocation of
positions to the various classifications; status rights; the establishment
of standards, procedures and qualifications for employment,
recruitment, application, examination, selection, certification and
appointment; the establishment, administration and duration of eligible
lists; probationary status and the administration of probationary
periods, except duration; pre-employment and fitness for duty medical
examinations except for the conditions under which referrals for fitness
for duty examinations will be made, and the imposition of new
requirements; the designation of positions as exempt, temporary,
limited tenure, part-time, seasonal or permanent; resignation with
satisfactory service and reappointment; exempt entry level
appointment of the handicapped; approval of payrolls; and conflict of
interest. As to these matters, the” Commission “shall continue to be
required to meet and confer pursuant to state law.” (Ibid., italics
added.)
Section A8.409-4, titled “Impasse Resolution Procedures,”
establishes procedures for resolving certain labor disputes if the City
and union are unable to reach agreement on their own. “Subject to
[s]ection A8.409-4(g), disputes pertaining to wages, hours, benefits or
other terms and conditions of employment which remain unresolved
after good faith bargaining between the” City, “on behalf of its
12
departments, boards and commissions, and a recognized employee
organization representing classifications of employees covered under
this part [(union)] shall be submitted to a three-member
Mediation/Arbitration Board (‘the Board’) upon the declaration of an
impasse either by the” City or union. (§ A8.409-4(a), italics added.)
That Board consists of “one person” appointed by the City, “one person”
appointed by the union, and one person “selected by agreement
between the” City and union. (§ A8.409-4(b).)
“The Board may hold public hearings, receive evidence from the
parties and . . . cause a transcript of the proceedings to be prepared.”
(§ A8.409-4(c).) It may also “meet privately with the parties to mediate
or mediate/arbitrate the dispute” and “adopt other procedures designed
to encourage an agreement between the parties, expedite the
arbitration hearing process, or reduce the cost of the arbitration
process.” (Ibid.)
If the parties are unable to reach agreement after “the conclusion
of the arbitration hearings, the Board shall direct each of the parties to
submit . . . a last offer of settlement on each of the remaining issues in
dispute. The Board shall decide each issue . . . by selecting whichever
last offer of settlement on that issue it finds by a preponderance of the
evidence presented during the arbitration most nearly conforms to
those factors traditionally taken into consideration in the
determination of wages, hours, benefits and terms and conditions of
public and private employment . . . .” (§ A8.409-4(d).) Section A8.409-
4(d) then identifies the relevant factors and requires that the Board
“issue written findings on each and every one of” those “factors as they
may be applicable to each and every issue determined in the award.”
13
After giving the parties an opportunity to reach their own agreement
following the issuance of the arbitration award and after the Board has
“publicly disclosed” its award, the award is “final and binding.”
(§ A8.409-4(e).) “Except as otherwise provided by this part, the
arbitration decision shall supersede any and all other relevant
formulae, procedures, and provisions of this Charter relating to wages,
hours, benefits and terms and conditions of employment . . . .” (Ibid.)
“The impasse resolution procedures set forth in [s]ection A8.409-
4” “shall not apply to any rule, policy, procedure, order or practice . . .
which is necessary to ensure compliance with Federal, State or local
laws, ordinances or regulations.” (§ A8.409-4(g), italics added.) “[I]n
the event the City acts to ensure compliance with Federal, State, or
local laws, ordinances or regulations, and the affected employee
organization disputes said determination, that determination . . . shall
not be subject to arbitration, but may be challenged in a court of
competent jurisdiction.” (Ibid., italics added.) Finally, under section
16.116, sections A8.409 though A8.409-6 “shall remain in effect as a
part of this Charter as ‘Appendix A Employment Provisions,’ except
that in instance of conflict or inconsistency between these sections of
the Charter of 1932 and the body of this Charter, this Charter shall
prevail . . . .”
2.
Article X of the Charter, titled “Personnel Administration,”
establishes the Commission and the scope of its jurisdiction, including
its authority over the City’s civil service merit system.
Section 10.100 of article X creates the Commission “which is
charged with the duty of providing qualified persons for appointment to
14
the service of the” City. The powers of the Commission over
employment with the City are quite broad. Under section 10.101, the
Commission “shall adopt rules, policies and procedures to carry out the
civil service merit system provisions of this charter and . . . such rules
shall govern . . . appointments; promotions; transfers; resignations; lay-
offs or reduction in force, both permanent and temporary, due to lack of
work or funds, retrenchment or completion of work; the designation and
filling of positions, as exempt, temporary, provisional, part-time,
seasonal or permanent; status and status rights; . . . classification;
conflict of interest; and such other matters as are not in conflict with
this Charter . . . .” (Italics added.)
Under section 10.104 of article X, “[a]ll employees of the” City
“shall be appointed through competitive examination unless exempted
by this Charter.” (Italics added.) Section 10.104 then identifies
“positions” that are “exempt from competitive civil service selection,
appointment, and removal procedures” and establishes that “the person
serving in [that exempt] position shall serve at the pleasure of the
appointing authority . . . .” (Italics added.) Exempt positions identified
by section 10.104 include “[a]ll attorneys, including an attorney to the
Sheriff and an attorney for the Tax Collector, [and] City Attorney’s and
District Attorney’s investigators . . . .” Indeed, attorneys employed by
the City have always served at the “pleasure” of the appointing
authority under the Charter.6 (See, e.g., former S.F. Charter of 1900,
art. V; former S.F. Charter of 1932, §§ 26, 29, 32, 33.)
6 We grant the City’s request for judicial notice of sections of
earlier versions of the Charter and the ballot digests and results of
certain initiative measures relating to the City’s attorneys and the
Charter’s interest arbitration provisions. In doing so, we reject the
15
The “serve at the pleasure” language in the Charter has been
construed to mean that exempt employees like the City’s attorneys are
“terminable at will.” (Kreutzer v. City and County of San Francisco
(2008) 166 Cal.App.4th 306, 317.) This construction comports with
longstanding case law establishing that “[s]erving at pleasure means
one is an at-will employee who can be fired without cause.” 7 (Hill v.
City of Long Beach (1995) 33 Cal.App.4th 1684, 1693.)
3.
Pursuant to its broad authority “to carry out the civil service
provisions of” the Charter (§ 10.101), the Commission has adopted rule
114. That rule governs all appointments, including exempt
MAA’s contention that we may not consider these materials because
the City did not introduce them into evidence at the hearing. “The
interpretation of a statute . . . is a question of law, and we are not
bound by evidence presented on the question in the trial court.”
(California Teachers Assn. v. San Diego Community College Dist. (1981)
28 Cal.3d 692, 699 (CTA).) Indeed, we may consider legislative history
materials “for the first time on appeal.” (CD Investment Co. v.
California Insurance Guarantee Assn. (2000) 84 Cal.App.4th 1410,
1426.) We also deny as moot the City’s motion to strike the MAA’s
opposition or, in the alternative, to file a reply.
7 (See, e.g., Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771,
783 [“A public employee serving at the pleasure of the appointing
authority . . . is by the terms of his employment subject to removal
without judicially cognizable good cause”]; Johnston v. Trustees of Cal.
State Univ. & Colleges (1984) 151 Cal.App.3d 1003, 1008 [“A public
employee serving at the pleasure of the appointing authority may
constitutionally be terminated without judicially cognizable good cause
and without a hearing”]; Abel v. Cory (1977) 71 Cal.App.3d 589, 595 [“it
is settled that a public officer or employee serving at the pleasure of the
appointing authority may be removed without cause or notice of
hearing”]; Boyd v. Pendegast (1922) 57 Cal.App. 504, 507
[“Appointments to hold during the pleasure of the appointing power
may be terminated at any time and without notice”].)
16
appointments. 8 In fact, article VI of rule 114, titled “Exempt
Appointment,” specifically addresses exempt appointments.
Section 114.25 of article VI of rule 114 establishes that “[a]ll
permanent employees of the” City “shall be appointed through the civil
service process by competitive examination unless exempted from the
civil service examination and selection process in accordance with
Charter provisions. Appointments excluded by [the] Charter from the
competitive civil service examination and selection process shall be
known as exempt appointments. Any person occupying a position
under exempt appointment shall not be subject to civil service selection,
appointment, and removal procedures and shall serve at the pleasure of
the appointing officer.” (Italics added.) Section 114.26 then defines the
process for creating an exempt position and places various limits on
exempt appointments.
8 In his proposed decision, the ALJ refused to consider rule 114
because “the City never offered” it “into evidence.” PERB likewise
concluded that the City “waived” any argument based on the rule “by
not raising it before the ALJ.” (MAA, supra, at p. 21.) But on appeal,
neither PERB nor the MAA objected to the City’s reliance on rule 114
in its opening brief. They have therefore forfeited any objection to our
consideration of that rule here. (See Sciarratta v. U.S. Bank Nat. Assn.
(2016) 247 Cal.App.4th 552, 560, fn. 6 [by failing to raise an “issue in
their respondent’s brief,” the defendants have forfeited it].) In any
event, the City did not forfeit any appellate arguments based on the
entire “statutory framework” by failing to introduce that framework
into evidence at the hearing below because “we review de novo the
question of statutory interpretation . . . .” (Jackson v. LegalMatch.com
(2019) 42 Cal.App.5th 760, 769; see also CTA, supra, 28 Cal.3d at
p. 699 [“The interpretation of a statute . . . is a question of law, and we
are not bound by evidence presented on the question in the trial
court”].)
17
4.
Relying on section A8.409-4, PERB and the MAA contend that all
disputes over “discipline and order of layoff” must be submitted to
binding interest arbitration because they fall “within the broad
category of ‘wages, hours, benefits, or other terms and conditions of
employment.’ ” According to PERB, the City mistakenly “focuses . . . on
other, ultimately inapplicable, Charter provisions” like section A8.409-
3. We disagree. Upon considering all relevant Charter provisions and
Commission rules and after applying the relevant principles of
statutory construction, we conclude that the at-will status of exempt
employees, including any limits on their order of layoff, is not subject to
arbitration under the Charter.
As a threshold matter, we reject PERB’s argument that section
A8.409-3 does not carve out any matters from the impasse resolution
procedures established by section A8.409-4 because section A8.409-3
only “establishes a broad requirement for the City to bargain in good
faith, parallel to the requirement under the MMBA.” PERB is correct
that section A8.409-3 appears to restate the City’s duty to bargain in
good faith under the MMBA. But section A8.409-3 also states that
certain “matters . . . shall not be subject to bargaining under this part
. . . .” (Italics added.) Thus, section A8.409-3, by its terms, carves out
matters from the City’s duty to bargain “under this part.”
Section A8.409-3 does not define the term “part.” But it does
expressly reference “the arbitration provisions of this part.” (§ A8.409-
3 [“No memorandum of understanding negotiated pursuant to this
paragraph during the term of a City-wide memorandum of
understanding shall be subject to the arbitration provisions of this part
18
until re-negotiation of the employee organization’s City-wide
memorandum of understanding,” italics added].) In doing so, section
A8.409-3 itself establishes that the term “part” includes the binding
arbitration provisions found in section A8.409-4. (See People v. Thomas
(1997) 56 Cal.App.4th 396, 401 [“a word or phrase repeated in a statute
generally is presumed to have the same meaning throughout”].)
Other related Charter provisions confirm that the term “part” as
used in section A8.409-3 must, at a minimum, include sections A8.409
through A8.409-6, which were adopted by San Francisco voters when
they approved Proposition B in 1991 and Proposition F in 1995. (See
People v. Roberge (2003) 29 Cal.4th 979, 987 (Roberge) [same words or
phrases used in different parts of the same act generally have the same
meaning].) For example, section A8.409 states: “If any officer or
employee covered by this part engages in a strike . . ., said employee
shall be dismissed from his or her employment.” (Italics added.)
Similarly, section A8.409-4 references “a recognized employee
organization representing classifications of employees covered under
this part.” (Italics added.) Section A8.409-1, in turn, identifies the
officers or employees “covered by . . . this part” by establishing that
“[s]ections A8.409 through A8.409-6, inclusive, shall apply to all
miscellaneous officers and employees except as set forth in [s]ection
A8.590-1 et seq.” Thus, the term “part” as used in section A8.409-3
must include sections A8.409 through A8.409-6.
This interpretation is reinforced by section A8.409-6. That
section states: “Within sixty (60) days of adoption of this amendment,
the Mayor shall appoint a panel which . . . shall review the current
employee relations ordinance and make recommendations to the Board
19
of Supervisors for such changes as may be necessary to effectuate the
purposes of this part.” (Italics added.) By tying changes “necessary to
effectuate the purposes of this part” to the adoption date of the
corresponding “amendment” of the Charter, section A8.409-6
establishes that the term “part” must include the amendments that
enacted section A8.409-6. Because sections A8.409-3, A8.409-4 and
A8.409-6 were all part of the amendments to the Charter made by
Proposition B in 1991, the term “part” as used in section A8.409-3 must
include the binding interest arbitration provisions of section A8.409-4.
To the extent that any doubt remains, section 16.116 removes
them. (See Calatayud v. State of California (1998) 18 Cal.4th 1057,
1065 [statutory term must be construed “ ‘ “with reference to the entire
scheme of law of which it is part” ’ ”].) Under that section, the term
“part” appears to refer to “Appendix A: Employment Provisions.”
Because Appendix A includes section A8.409-4, the term “part” as used
in section A8.409-3 must include that section as well. (See Roberge,
supra, 29 Cal.4th at p. 987.)
Thus, section A8.409-3, by its terms, carves out certain matters
from “bargaining” under the impasse resolution procedures of section
A8.409-4, including its interest arbitration process. And under the
express terms of section A8.409-3, those carved-out matters encompass
the MAA’s just cause proposals.
Aside from an exception not applicable here,9 the matters carved
out by section A8.409-3 from the impasse resolution procedures in
section A8.409-4 consist of “matters within the jurisdiction of the”
9 Under section A8.409-3, matters that “affect compensation” are
still subject to “bargaining” under section A8.409-4. Neither PERB nor
the MAA argue that the just cause proposals fall within this exception.
20
Commission “which establish, implement and regulate the civil service
merit system.” Section A8.409-3 then identifies specific matters that
fall within this carve-out. As relevant here, these carved-out matters
include the “definitions, administration and organization of the merit
system,” “the establishment of standards, procedures and qualifications
for employment . . . and appointment,” and “the designation of positions
as exempt . . . .” (§ A8.409-3.)
The at-will status of the City’s attorneys and the City’s right to
terminate those attorneys without cause fall squarely within the ambit
of the specific matters carved out by section A8.409-3.
First, contrary to the assertions of PERB and the MAA, exempt
employees like the attorneys represented by the MAA are part of the
City’s “civil service merit system” as defined by the Charter. Under
section 10.100, the Commission has the “duty of providing qualified
persons for appointment to the service of the” City. To fulfill this duty,
the Commission “shall adopt rules . . . to carry out the civil service
merit system provisions of this charter . . . .” (§ 10.101, italics added.)
And in describing what those rules “shall govern,” section 10.101 does
not, in any way, exclude exempt employees from their purview. To the
contrary, section 10.101 makes clear that the Commission’s rules
“shall” cover, with no limitation: (1) “appointments,” which, under
longstanding case law, includes removals; 10 and (2) “lay-offs or
10 (See, e.g., Delano Farms Co. v. California Table Grape Com.
(2018) 4 Cal.5th 1204, 1240 [“as the officer who appoints the
commissioners, the Secretary also has the power to remove them from
office”]; Sponogle v. Curnow (1902) 136 Cal. 580, 582 [“ ‘The power to
remove is an incident to the power to appoint’ ”]; Ascherman v. San
Francisco Medical Society (1974) 39 Cal.App.3d 623, 642 [“The power to
appoint usually implies the authority to remove”]; Gardner v. Board of
21
reduction in force, both permanent and temporary.” Because the rules
adopted by the Commission to implement the City’s civil service merit
system “shall govern” the “appointments” and “lay-offs” of all City
employees, that system must govern the appointments and layoffs of
the City’s exempt employees. (See People v. Superior Court (Pearson)
(2010) 48 Cal.4th 564, 571 [“we may not add to the statute or rewrite it
to conform to some assumed intent not apparent from that language”].)
Indeed, section 10.101 expressly requires that the rules adopted
by the Commission to implement the City’s civil service merit system
“govern . . . the designation and filling of positions, as exempt . . . .”
(Italics added.) Because all positions, including exempt positions, are
filled through “appointments” reported to the Human Resources
Director (rule 114, § 114.1.1), the italicized language makes clear that
the City’s civil service merit system encompasses the hiring and firing
of its exempt employees. (See, ante, at p. 21 & fn. 10.)
To the extent that any doubt remains, the Commission’s rules
eliminate them. “[T]o carry out the civil service merit system
provisions of [the] Charter” (§ 10.101), the Commission adopted article
VI of rule 114, titled “Exempt Appointment.” That article both defines
and limits exempt appointments. (See rule 114, §§ 114.25 & 114.26.)
And with some exceptions that are not relevant here, article VI applies
“to employees in all classes.” (Rule 114, italics added.) Indeed, the
Commission—by adopting section 114.25 of rule 114 to implement
section 10.104, the Charter provision establishing the at-will status of
the City’s exempt employees—necessarily construed that provision as a
Park Directors (1917) 35 Cal.App. 597, 601 [“the power to appoint
includes by implication the power to remove”].)
22
“civil service merit system provision[ ].” (§ 10.101, italics added). Thus,
the Commission has determined that exempt employees are part of the
City’s civil service merit system. And that determination is entitled to
deference. (See S.F. Fire Fighters, supra, 38 Cal.4th at p. 667
[interpretations of civil service provisions by “municipal civil service
commissions” are entitled to deference and will not be overturned
absent “ ‘a clear abuse of discretion’ ”]; Mason v. Retirement Bd. (2003)
111 Cal.App.4th 1221, 1228–1229 (Mason) [according “substantial
deference” to “consistent interpretation of the charter provisions” by the
City agency “designated by” the Charter to “administer the city’s
retirement system”].)
Second, the MAA’s just cause proposals—which seek to alter the
at-will status of the City’s attorneys by limiting the City’s ability to
terminate them or lay them off—are “matters within the jurisdiction of
the” Commission as specified by section A8.409-3. As relevant here,
these “matters” include the “definitions, administration and
organization of the merit system,” “the establishment of standards . . .
for employment . . . and appointment,” and “the designation of positions
as exempt.” (§ A8.409-3.) And each of these specified matters
encompasses the MAA’s just cause proposals. For example, the
proposals sought to alter the “definition” of an exempt employee within
the City’s civil service merit system. (Ibid.) And by seeking to alter the
at-will status of the City’s attorneys, the proposals concern the
“administration and organization” of that system. (Ibid.) By requiring
just cause for the termination of attorneys employed by the City, the
proposals also create a new “standard[ ]” for the “employment” and
“appointment” of those attorneys. (Ibid.; see also, ante, at p. 21 & fn. 10
23
[power to appoint includes power to remove]). Finally, the proposals,
by seeking to alter the rights of certain City employees despite their
exempt status, affect the “designation of positions as exempt.” 11
(§ A8.409-3.) Because the MAA’s just cause proposals fall squarely
within the ambit of “matters” expressly carved out by section A8.409-3
from the impasse resolution procedures of section A8.409-4, they are
not eligible for interest arbitration.
Once again, article VI of rule 114 reinforces this conclusion.
Section 114.25 of that article establishes that “[a]ny person occupying a
position under exempt appointment” is an at-will employee serving “at
the pleasure of the appointing officer.” (Rule 114, § 114.25; see, ante, at
p. 17.) Thus, the Commission has determined that the at-will status of
the City’s exempt employees falls within its “jurisdiction” to “establish,
implement and regulate the civil service merit system.” (§ A8.409-3.)
Because that determination is entitled to deference (see S.F. Fire
Fighters, supra, 38 Cal.4th at p. 667; Mason, supra, 111 Cal.App.4th at
pp. 1228–1229), we conclude that the MAA’s just cause proposals are
“matters” within the Commission’s “jurisdiction” that are ineligible for
interest arbitration under section A8.409-3’s carve-out.
We reach the same conclusion under the language of section
A8.409-4. Subdivision (g) of that section states that “[t]he impasse
resolution procedures set forth in [s]ection A.409-4 . . . shall not apply
to any rule, policy, procedure, order or practice . . . which is necessary
to ensure compliance with . . . local laws, ordinances or regulations.”
11 PERB argues that the at-will status of the City’s attorneys has
nothing to do with the designation of their positions as exempt. But
the definition of an “exempt” position under the Charter includes the
at-will status of any person “serving in” that position. (§ 10.104.)
24
(Italics added.) And “in the event the City acts to ensure compliance
with . . . local laws, ordinances or regulations, and the affected
employee organization disputes said determination, that determination
or action shall not be subject to arbitration, but may be challenged in a
court of competent jurisdiction.” (§ A8.409-4(g), italics added.) In
rejecting the MAA’s just cause proposals, the City acted to ensure
compliance with at least two “local laws, ordinances or regulations:”
section 10.104 and section 114.25 of rule 114. (§ A8.409-4(g).) Thus,
under section A8.409-4(g), the proposals are exempt from the Charter’s
interest arbitration provisions. (See S.F. Fire Fighters, supra, 38
Cal.4th at pp. 673–674 [“exempted from the binding arbitration
provisions are . . . actions taken to comply with antidiscrimination laws
passed by the City itself, and not only City ordinances, but also
municipal antidiscrimination ‘regulations’ ”].)
The legislative history bolsters this conclusion. The at-will status
of exempt employees like the City’s attorneys is an important issue for
San Francisco voters. Indeed, those voters have repeatedly approved
Charter provisions establishing that the City’s attorneys “serve at the
pleasure of the appointing authority.” (§ 10.104; see former S.F.
Charter of 1900, art. V; former S.F. Charter of 1932, §§ 26, 29, 32, 33.)
And in 1976, the voters rejected an initiative measure that would have
“subject[ed]” the City’s attorneys to “removal only for cause.” Yet, the
ballot materials for the Charter’s interest arbitration provisions do not
even hint that unelected arbitrators may change the at-will status of
the City’s exempt employees, such as the City’s attorneys, by overriding
section 10.104, a measure repeatedly approved by the voters. Because
the at-will status of public employees is “such a vital condition of
25
employment,” any possible change to that status through binding
interest arbitration should have been “discussed” in the ballot
materials. (California Teamsters Public, Prof. etc. Union v. County of
Solano (1991) 233 Cal.App.3d 800, 804.)
It was not. Indeed, to the extent that the ballot materials
mentioned the City’s civil service system provisions, they stated that
the interest arbitration provisions would not affect them. 12 Thus, we
can reasonably infer that San Francisco voters did not intend to give
unelected arbitrators the power to override voter approval of section
10.104 and alter the at-will status of any exempt City employee. (See
People v. Valencia (2017) 3 Cal.5th 347, 364, fn. 6 (Valencia)
[application of Proposition 47 “to inmates seeking resentencing under
the Three Strikes Reform Act is a matter of such substantial import
that the voters could reasonably expect that, if Proposition 47 applied
to such inmates, the ballot materials would mention it”].)
Finally, the City’s position that the at-will status of its exempt
employees is not subject to binding interest arbitration under section
A8.409-4 is entitled to deference. During negotiations with the MAA,
the City never wavered from that position. Moreover, in a 2005
interest arbitration, the City reiterated its position that proposals to
alter the at-will status of its exempt employees are “illegal” and cannot
be adopted through arbitration. Meanwhile, neither PERB nor the
12 In its only express references to the City’s civil service merit
system, the ballot materials stated: (1) “Proposition B would not affect
the civil service provisions on hiring and promotions;” (2) “Proposition F
includes major cost-cutters, such as: [¶] . . . [¶] Protection of the civil
service system based on merit; and (3) “Proposition F eliminates
automatic salary increases for City employees while maintaining the
fairness of the Civil Service system. (Italics added, boldface omitted.)
26
MAA identify any instance where the City has agreed, much less
suggested, that the at-will status of its exempt employees is subject to
interest arbitration under section A8.409-4. Indeed, none of the
purported inconsistencies in the City’s positions identified by PERB
and the MAA reveal any inconsistency in the City’s position on what
matters are exempt from interest arbitration. 13 We therefore defer to
that longstanding position here. (See San Diegans, supra, 31
Cal.App.5th at p. 378 [longstanding administrative interpretations of
city charter provisions are entitled to deference]; Don’t Cell Our Parks,
supra, 21 Cal.App.5th at p. 350 [same]; Mason, supra, 111 Cal.App.4th
at pp. 1228–1229 [same].)
Accordingly, we conclude that the MAA’s just cause proposals are
not eligible for binding interest arbitration under section A8.409-4.
5.
PERB and the MAA offer a number of reasons why the MAA’s
just cause proposals must be submitted to binding interest arbitration
under section A8.409-4. But none are persuasive.
First, the existence of express exclusions in section A8.409-4 and
an analogous impasse resolution procedure for safety workers codified
13 PERB and the MAA argue that the City took inconsistent
positions on whether the at-will status of its exempt employees is
subject to “bargaining.” But they do not dispute that the City
consistently “asserted that [the] MAA’s” just cause proposals were
“ineligible for interest arbitration.” In any event, bargaining is not the
same as agreeing to engage in binding interest arbitration.
PERB also claims that the City took inconsistent positions on
whether it could agree to alter the at-will status of its attorneys. But
this purported inconsistency creates no conflicts with the City’s position
that the at-will status of its attorneys is not subject to interest
arbitration.
27
in section A8.590-5 have no bearing on the arbitrability of the MAA’s
just cause proposals. (See §§ A8.409-4(g) [consent decrees] & (h)
[strikes], A8.409-7 [retiree health insurance contributions], A8.590-5
[identifying topics that are not subject to “[t]he impasse resolution
procedures set forth in [s]ection A8.590-5”].) Based on these express
exclusions, PERB and the MAA argue that under the maxim expressio
unius est exclusion alterius, the absence of a similar exclusion for the
at-will status of the City’s exempt employees means that the MAA’s
proposals to alter that status must be eligible for interest arbitration.
But as explained above, those proposals do fall within express
exclusions codified in sections A8.409-3 and A8.409-4(g). (See, ante, at
pp. 21–25.)
In any event, arguments predicated on omissions in the interest
arbitration provisions of the Charter contravene the rules of statutory
construction applicable to city charters. “The controlling principle
governing charter cities is ‘that by accepting the privilege of
autonomous rule the city has all powers over municipal affairs . . .
subject only to the clear and explicit limitations and restrictions
contained in the charter. . . . All rules of statutory construction as
applied to charter provisions [citations] are subordinate to this
controlling principle. . . . Thus in construing the city’s charter a
restriction on the exercise of municipal power may not be implied.’ ”
(Westsiders Opposed to Overdevelopment v. City of Los Angeles (2018)
27 Cal.App.5th 1079, 1086–1087.) The Charter’s interest arbitration
provisions “intrude[ ] significantly upon the functions of” the City
(County of Sonoma v. Superior Court (2009) 173 Cal.App.4th 322, 354)
by giving arbitrators “the power to . . . perform municipal functions”
28
(County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 281).
Specifically, they give arbitrators the City’s “legislative” power to
fashion “new contractual obligations.” (County of Sonoma v. Superior
Court, at p. 342; see also id. at p. 355 [“The decision of the arbitration
panel is in no sense an act of the governing body”].) Thus, we may not
imply any enlargement of that arbitral power, at the expense of the
City’s power over its own municipal affairs, based on the maxim
expressio unius est exclusio alterius. (See Long v. City of Fresno (1964)
225 Cal.App.2d 59, 64–66 [“expressio unius est exclusio alterius does not
control” if it would limit the city’s authority over its municipal affairs].)
Second, the City’s “obligation to bargain in good faith” over
“agreements to provide binding arbitration of discipline and discharge”
under section A8.409-3 does not obligate the City to subject those
agreements to binding interest arbitration. Indeed, bargaining does
not require binding arbitration. For example, under the impasse
resolution procedures of the MMBA, good faith bargaining may, at
most, result in an “advisory” recommendation from a “factfinding
panel” (Gov. Code, § 3505.5, subd. (a)) that the public employer may
reject (id., § 3505.7). The City could also have bargained with the MAA
over the submission of its proposals to voters under People ex rel. Seal
Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591,
without engaging in interest arbitration.
Third, the fact that the City’s exempt employees are not subject
to “competitive civil service selection, appointment, and removal
procedures” does not mean that they are not part of the City’s civil
service merit system. (§ 10.104, italics added.) At most, this exemption
establishes that those employees are not subject to certain specified
29
civil service merit system provisions. Nothing in the 2018 Commission
memorandum suggests otherwise. Indeed, that memorandum largely
repeats the language of section 10.104. And by stating that “Civil
Service Rules and Commission policies regarding matters other than
selections, appointments and separations may still apply to exempt
appointees,” the memo is presumably referring only to the “competitive
civil service selection, appointment, and removal procedures”
referenced in the previous paragraph of the memorandum and section
10.104.
Fourth, the Commission’s absence from negotiations with the
MAA does not support PERB’s interpretation of the Charter’s interest
arbitration provisions. Although the Commission has the obligation
under section A8.409-3 to meet and confer on any “matters” carved out
from interest arbitration, that section further states that the City,
“through its duly authorized representatives,” may fulfill that
obligation. To the extent that section A8.409-3 is ambiguous as to
whether the City may negotiate on behalf of the Commission, section
A8.409-4 is not. Section A8.409-4(a) makes clear that its impasse
resolution procedures only apply to “disputes . . . which remain
unresolved after good faith bargaining between the” City, “on behalf of
its . . . commissions,” and the union. (Italics added.)
Fifth, testimony from the City’s witnesses about the meaning of
any Charter provision has no bearing on our interpretation of that
provision because “there is no evidence that the electorate as a whole,
or indeed any significant part of it, was aware of” it. (Valencia, supra, 3
Cal.5th at p. 364, fn. 5; cf. People v. Wade (2016) 63 Cal.4th 137, 143
[statements of individual legislators are not relevant when construing a
30
statute].) In any event, that testimony is, at best, ambiguous and does
not support PERB’s and the MAA’s interpretation of the Charter. 14
Finally, nothing in the MMBA precludes San Francisco voters
from excluding the MAA’s just cause proposals from binding interest
arbitration under the Charter. Both PERB and the MAA appear to
concede this. Presumably, this is because the MMBA gives the City
broad authority to “adopt reasonable rules and regulations . . . for the
administration of employer-employee relations . . . .” (Gov. Code,
§ 3507, subd. (a).)
We therefore reject PERB’s interpretation of the impasse
resolution provisions of the Charter and hold, instead, that the MAA’s
just cause proposals are not subject to binding interest arbitration
under those provisions.
14 Based on testimony from a witness for the City, PERB and the
MAA argue that the Commission has “no role with respect to the
subjects listed in the Commission carve-out, including appointments.”
But that testimony does not support their argument. In the testimony
cited by PERB and the MAA, the witness was asked: “So the rules that
the commission establishes with respect to all of the various carve-outs
listed are not applicable to attorneys, correct?” In response, the
witness did not respond with an unequivocal, “yes.” Instead, she
responded: “To the extent that they don’t apply to exempt employees,
correct.” (Italics added.) This carefully qualified response arguably
implies that some of the carve-outs do apply to exempt employees.
The MAA also points to testimony where another witness for the
City acknowledged that the duty to bargain under section A8.409-3
includes “ ‘the obligation to bargain over agreements to provide binding
arbitration of discipline and discharge.’ ” As explained above,
bargaining over a matter is not the same as agreeing to submit that
matter to binding interest arbitration. (See, ante, at p. 29.)
31
C.
PERB found that the City “engaged in bad faith bargaining” in
violation of the MMBA solely because the City “repeatedly and
preemptively stated that” the MAA’s just cause proposals “would be
ineligible for interest arbitration.” (MAA, supra, at p. 32.) We,
however, find that those proposals were, in fact, ineligible for
arbitration. Thus, PERB erred in finding that the City violated the
MMBA. We therefore vacate PERB’s findings to the contrary and its
remedies based on those findings. 15
DISPOSITION
We reverse PERB’s finding that the MAA’s just cause proposals
are subject to binding interest arbitration under the Charter. We
therefore set aside PERB’s finding that the City violated the MMBA by
refusing to submit those proposals to interest arbitration as well as the
associated remedies ordered by PERB. The City is entitled to recover
its costs on appeal.
CHOU, J.
WE CONCUR.
JACKSON, P. J.
SIMONS, J.
A173302/ CCSF v. PERB
15 Because we vacate PERB’s findings of bad faith bargaining by
the City, we need not address the propriety of PERB’s remedies.
32
City and County of San Francisco v. Public Employment Relations
Board (A173302)
Counsel: Renne Public Law Group, Arthur Anthony Hartinger,
Jonathan Victor Holtzman and Rafal Ofierski for
Petitioner.
Public Employment Relations Board, Jessica S. Kim,
Joseph William Eckhart, Fernando Arturo Reyes and
Jose Felix DeLaTorre for Respondent.
Beeson, Tayer & Bodine, Susan K. Garea and Laura
A. Christensen Garcia for Real Party in Interest.
33