The opinion
Filed 12/30/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CITY OF LOS ANGELES, B261246
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BS148148)
CITY OF LOS ANGELES EMPLOYEE
RELATIONS BOARD,
Defendant and Respondent;
DEPARTMENT OF WATER AND
POWER MANAGEMENT
EMPLOYEES ASSOCIATION,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Reversed and
remanded.
Mike N. Feuer, City Attorney and Wendy K. Genz, Deputy
City Attorney for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
The Myers Law Group, Adam Stern and D. Smith for Real
Party in Interest and Respondent.
_____________________
The City of Los Angeles (City), acting by and through its
Department of Water and Power (DWP), appeals the judgment of
dismissal entered after the superior court sustained the demurrer
of real party in interest Department of Water and Power
Management Employees Association (MEA) to the DWP’s petition
for writ of mandate. The sole issue before us is whether
Government Code section 3509.51 controls review of a decision of
the City’s Employee Relations Board (ERB), or whether the
ERB’s decisions are reviewable on a writ petition brought in the
superior court. We conclude section 3509.5 does not apply to
ERB decisions, and therefore reverse the superior court’s order
and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
1. The parties
The DWP is a municipal utility and a proprietary
department of the City. Labor relations between the City and its
employees are governed by the City’s Employee Relations
Ordinance (ERO), codified in the Los Angeles Administrative
Code section 4.800 et seq. The ERB, which was established by
the ERO, is charged with, among other things, certifying
employee bargaining units and investigating and determining the
validity of unfair employee relations practices, including
resolving disputes about wages, hours, and other terms and
conditions of City employees’ employment. Real party in interest
MEA is the certified bargaining representative for DWP
management employees.
1 All further undesignated statutory references are to the
Government Code.
2
2. The dispute
According to the allegations of the DWP’s petition, which
we accept as true for purposes of reviewing the superior court’s
ruling on MEA’s demurrer (Weiss v. City of Los Angeles (2016)
2 Cal.App.5th 194, 205; Vitkievicz v. Valverde (2012) 202
Cal.App.4th 1306, 1311), in approximately 1994 DWP
Transmission and Distribution District Supervisor Dennis Barr
and Transmission and Distribution Manager Robert Spease, both
members of the MEA and employees of the DWP, entered into a
“ ‘handshake agreement’ ” regarding compensation for
transmission supervisors’ weekend standby duties. Barr and
Spease agreed that DWP supervisors who were assigned to
weekend standby duty, but not actually called in to work, would
be compensated for their time. Although a payroll code for such
standby duty existed, it was never used; instead, standby time
was reported to payroll as overtime, and supervisors were
compensated for their hours.
In June 2012 the DWP’s executive management learned of
this arrangement and ordered the cessation of standby duty
payments to MEA members unless and until a standby provision
was negotiated in a Memorandum of Understanding (MOU) or
other formal agreement.
On September 12, 2012, the MEA filed with the ERB an
unfair employee relations practices claim (UERP 1885) alleging
that the DWP had violated the ERO, Los Angeles Administrative
Code section 4.860, by unilaterally changing MEA members’
terms and conditions of employment in regard to standby pay
without giving MEA notice or the opportunity to bargain. The
DWP took the position that it had not violated the ERO because
pay for standby duties had never been incorporated into the
3
MOU between the DWP and the MEA, had never been ratified or
approved by a final policymaking authority, and was therefore
not a binding past practice.
On May 1 and 2, 2013, an ERB hearing officer heard the
unfair practices claim at a hearing at which evidence was taken.
On October 9, 2013, the hearing officer issued a report and
recommendation in favor of MEA, finding that MEA had
established the existence of a binding past practice of providing
compensation for standby duties to certain MEA members, and
that the DWP had discontinued the practice without first giving
MEA notice and an opportunity to meet and confer. The DWP
filed exceptions to the report and recommendation. On
January 27, 2014, the ERB adopted the hearing officer’s written
decision and issued a final order in favor of the MEA.
3. The petition for writ of mandate
The DWP challenged the ERB’s decision by means of a
petition for writ of administrative mandate (Code Civ. Proc.,
§ 1094.5) filed in the superior court on April 10, 2014, within 90
days of the ERB’s order. The DWP argued the ERB’s decision
exceeded its authority; violated the City Charter and public
policy; was not supported by findings of fact or law; and was not
supported by the evidence.
In response, the MEA filed a demurrer asserting that the
petition was untimely and the superior court lacked subject
matter jurisdiction over it. Relying primarily on Singletary v.
International Brotherhood of Electrical Workers, Local 18 (2012)
212 Cal.App.4th 34 (Singletary), MEA argued that review of ERB
decisions is governed by section 3509.5, which requires that a
challenge to a final decision be filed with the Court of Appeal
within 30 days of its issuance. In the MEA’s view, the DWP had
4
“simply filed its writ in the wrong court,” and because over 30
days had elapsed since issuance of the ERB’s final order, the
DWP was time-barred from filing its petition in the Court of
Appeal.
The DWP opposed the demurrer. It argued that section
3509.5 applied only to the Public Employment Relations Board
(PERB), not the ERB, and contrary language in Singletary was
nonbinding dicta and was incorrect in any event. The DWP
urged that a petition for writ of administrative mandamus filed
in the superior court was the appropriate mechanism for review
of the ERB’s decisions. The DWP alternatively urged that, if the
procedural requirements of section 3509.5 applied to ERB, then
section 3509, subdivision (f) – which excludes designated
management employees from PERB’s jurisdiction – applied to
exclude MEA members from ERB’s jurisdiction as well.
Therefore, DWP argued that if the superior court concluded
section 3509.5 applied to ERB, it should grant DWP leave to
amend the petition to argue that no ERB hearing should have
been held at all.
On September 30, 2014, the superior court sustained the
MEA’s demurrer to the DWP’s petition with leave to amend. The
court found persuasive the DWP’s arguments that the plain
language and relevant legislative history indicated section 3509.5
was inapplicable to the ERB. However, the court concluded
statements to the contrary in Singletary were not dicta and were
binding upon it. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.) In light of the DWP’s alternative argument
regarding management employees, the court granted leave to
amend. The DWP declined to amend the petition and on
November 13, 2014, the court entered a signed order dismissing
5
it. Notice of entry of dismissal was filed and served on
January 6, 2015.
On January 9, 2015, the DWP filed a timely notice of
appeal.
DISCUSSION
The dispositive question before us is whether section 3509.5
applies to decisions of the ERB. The DWP argues that based on
the plain language of the relevant statutory provisions and
legislative history, it does not. The MEA argues to the contrary.
We conclude the DWP has the better argument, and section
3509.5 is inapplicable to ERB decisions. Before reaching the
merits, we first consider three preliminary issues raised by the
MEA.
1. Preliminary issues
a. Appeal from minute order dismissing the case
The MEA argues the DWP’s appeal should be dismissed
because the DWP has “appealed a non-appealable minute order.”
It contends that a minute order dismissing a case is not
appealable, and an order sustaining or overruling a demurrer is
reviewable on appeal only from a judgment of dismissal.
The MEA’s contentions lack merit. On September 30, 2014
the superior court issued a minute order sustaining MEA’s
demurrer with 30 days leave to amend. The minute order stated
that if the DWP “has not amended by the above date, the Court
will dismiss the matter.” On November 13, 2014, the court issued
a signed minute order stating: “There being no amended Petition
filed, the case is hereby dismissed.” The DWP subsequently filed
and served a notice of entry of the order of dismissal.
Code of Civil Procedure section 581d provides that “All
dismissals ordered by the court shall be in the form of a written
6
order signed by the court and filed in the action and those orders
when so filed shall constitute judgments and be effective for all
purposes . . . .” (Italics added.) As the dismissal here met these
requirements, the DWP’s appeal is proper. (See, e.g., Vitkievicz v.
Valverde, supra, 202 Cal.App.4th at p. 1310 & fn. 1; Sisemore v.
Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396
[although “[a]n order sustaining a demurrer without leave to
amend is not appealable,” an “appeal is proper . . . after entry of a
dismissal on such an order”]; Morgan Creek Residential v. Kemp
(2007) 153 Cal.App.4th 675, 683 [trial court sustained demurrer
without leave to amend; the “ensuing order of dismissal”
constituted “a judgment subject to appeal”]; Alexander v. Exxon
Mobil (2013) 219 Cal.App.4th 1236, 1249.)
b. Mootness
MEA next argues the appeal should be dismissed as moot.
It contends no justiciable controversy exists because the parties
have come to an agreement regarding the standby pay issue. In
support of this contention, MEA requests that we take judicial
notice of a MOU covering the period October 1, 2012 through
December 31, 2016, providing that certain DWP employees shall
receive specified amounts of weekday and weekend standby pay.
(See Evid. Code, §§ 459, subd. (a), 452, subd. (h)).
The DWP opposes the request for judicial notice on the
ground the MOU is irrelevant and does not demonstrate the
issues presented in the appeal are moot. DWP urges that the
parties’ agreement on standby pay resolves neither the question
of the superior court’s jurisdiction over a petition for writ of
administrative mandate challenging an ERB decision, nor the
underlying issue of whether MEA members have sufficient
authority to create a past practice binding on the DWP.
7
Moreover, the DWP contends that the controversy over the
jurisdictional issue still exists and is likely to arise between the
parties in the future.
“ ‘ “[T]here are three discretionary exceptions to the rules
regarding mootness: (1) when the case presents an issue of broad
public interest that is likely to recur [citation]; (2) when there
may be a recurrence of the controversy between the parties
[citation]; and (3) when a material question remains for the
court’s determination [citation].” ’ ” (Harris v. Stampolis (2016)
248 Cal.App.4th 484, 495-496.) Here, even if the parties’
agreement on the question of standby pay renders the appeal
technically moot, it seems likely the controversy will arise
between the parties in the future, and the issue is of continuing
public interest. (See People v. Morales (2016) 63 Cal.4th 399,
409; Coachella Valley Mosquito & Vector Control Dist. v.
California Public Employment Relations Bd. (2005) 35 Cal.4th
1072, 1079, fn. 3 (Coachella).) We therefore exercise our
discretion to address the merits of the DWP’s contentions.2
(Coachella, supra, at p. 1079 & fn. 3; City and County of San
Francisco v. International Union of Operating Engineers, Local
39 (2007) 151 Cal.App.4th 938, 943 & fn. 3.)
2 Because the fact the parties have come to an agreement on
the standby pay issue is therefore irrelevant to our decision, we
decline MEA’s request that we take judicial notice of the MOU.
(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.)
8
c. Amendment of the petition
MEA next contends that the “DWP has waived review of
any possible amendment to its petition.” However, as noted, the
superior court granted the DWP leave to amend and the DWP
opted not to do so. The DWP reiterates in its briefs on appeal
that it does not seek further leave to amend and has not
requested review of any issue related to possible amendment of
the petition. The question of amendment to the petition is
therefore not before us.
2. Section 3509.5 does not apply to decisions of the ERB
a. Standard of review
A demurrer tests the legal sufficiency of the factual
allegations in a complaint and will be sustained when the
pleading is defective on its face. (Mitchell v. State Dept. of Public
Health (2016) 1 Cal.App.5th 1000, 1007; Vitkievicz v. Valverde,
supra, 202 Cal.App.4th at pp. 1310-1311.) A demurrer may
properly be sustained on the ground the court lacks subject
matter jurisdiction (Code Civ. Proc., § 430.10, subd. (a)) and on
statute of limitations grounds if the defect is clear on the face of
the complaint. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.) We
independently review the trial court’s ruling. (Vitkievicz v.
Valverde, supra, at pp. 1310-1311.) De novo review is
additionally proper here because the question presented is purely
one of law. (John v. Superior Court (2016) 63 Cal.4th 91, 95;
Singletary, supra, 212 Cal.App.4th at p. 41.)
b. The PERB, the ERB, the ERCOM, and the MMBA
To properly frame the issue at hand, a review of the
development of California’s labor law as it pertains to local public
employment is necessary. The National Labor Relations Act
governs collective bargaining in private sector employment, but
9
leaves states free to regulate labor relationships with their public
employees. (County of Los Angeles v. Los Angeles County
Employee Relations Com. (2013) 56 Cal.4th 905, 915 (County of
Los Angeles).) “Public employees in California do not have the
right to bargain collectively absent enabling legislation.” (Ibid.)
In 1961, the Legislature enacted the George Brown Act,
which for the first time recognized the rights of state and local
public employees to organize and have their representatives
“meet and confer” with their public agency employers over wages
and working conditions. (Coachella, supra, 35 Cal.4th at p. 1083;
City of San Jose v. Operating Engineers Local Union No. 3 (2010)
49 Cal.4th 597, 603 (City of San Jose).) Those rights were
expanded in 1968 with enactment of the Meyers-Milias-Brown
Act (MMBA) (§ 3500 et seq.), which authorized public entities
and labor representatives to not only confer, but to reach binding
agreements regarding wages, hours, and working conditions.
(Coachella, supra, at p. 1083; City of San Jose, supra, at p. 603;
County of Los Angeles, supra, 56 Cal.4th at p. 915.) Section 3507
of the MMBA provides that a public agency may adopt reasonable
rules and regulations after consultation in good faith with
representatives of a recognized employee organization or
organizations for the administration of employer-employee
relations. (§ 3507, subd. (a).)
The Legislature created the PERB, an expert, quasi-judicial
administrative agency modeled after the National Labor
Relations Board, in 1975. (County of Los Angeles, supra,
56 Cal.4th at p. 916; City of San Jose, supra, 49 Cal.4th at
pp. 603-604; Coachella, supra, 35 Cal.4th at pp. 1084-1085.)
PERB was initially created to administer and enforce a different
employment relations statute, the Educational Employment
10
Relations Act. (City of San Jose, supra, at pp. 603-604;
Coachella, supra, at pp. 1084-1085.) Over time, the Legislature
expanded PERB’s jurisdiction “as the Legislature passed new
laws addressing specific realms of public employment.” (County
of Los Angeles, supra, at p. 916.) Both the City and the County of
Los Angeles have established their own administrative bodies to
administer the MMBA and resolve employment disputes
involving City or County employees. In 1968, the year the
MMBA was enacted, the County created the Los Angeles County
Employee Relations Commission (ERCOM) for such purposes.
(Ibid.) In 1971, the City enacted the ERO which, as noted ante,
created the ERB and authorized it to, among other things,
investigate, hold public hearings, and determine the validity of
charges of unfair employee relations practices. (See L.A. Admin.
Code, §§ 4.800 et seq., 4.810, 4.860; Singletary, supra,
212 Cal.App.4th at pp. 43-44.)
“When the Legislature enacted the MMBA in 1968, it had
not yet created the PERB, and it did not include in the MMBA
any provisions expressly authorizing either administrative or
judicial proceedings to enforce its provisions. Resolving the
resulting uncertainty regarding methods of enforcement, [our
Supreme Court] in 1994 concluded that MMBA-created rights
and duties were enforceable by a traditional mandate action
under Code of Civil Procedure section 1085.” (Coachella, supra,
35 Cal.4th at p. 1084.) Thus, prior to July 2001, a party claiming
a violation of the MMBA could bring an action in superior court.
(City and County of San Francisco v. International Union of
Operating Engineers, Local 39, supra, 151 Cal.App.4th at p. 943.)
The Legislature remedied the MMBA’s lack of an
administrative enforcement mechanism in 2000 by enacting
11
section 3509, which brought the MMBA within PERB’s authority.
Effective July 1, 2001, section 3509 expressly gave PERB
“exclusive initial jurisdiction over complaints alleging unfair
labor practices violating the MMBA.”3 (County of Los Angeles,
3 Section 3509 currently provides: “(a) The powers and
duties of the board described in Section 3541.3 shall also apply,
as appropriate, to this chapter and shall include the authority as
set forth in subdivisions (b) and (c). Included among the
appropriate powers of the board are the power to order elections,
to conduct any election the board orders, and to adopt rules to
apply in areas where a public agency has no rule.
“(b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 or 3507.5 shall be processed as an unfair practice
charge by the board. The initial determination as to whether the
charge of unfair practice is justified and, if so, the appropriate
remedy necessary to effectuate the purposes of this chapter, shall
be a matter within the exclusive jurisdiction of the board, except
that in an action to recover damages due to an unlawful strike,
the board shall have no authority to award strike-preparation
expenses as damages, and shall have no authority to award
damages for costs, expenses, or revenue losses incurred during, or
as a consequence of, an unlawful strike. The board shall apply
and interpret unfair labor practices consistent with existing
judicial interpretations of this chapter.
“(c) The board shall enforce and apply rules adopted by a public
agency concerning unit determinations, representation,
recognition, and elections.
“(d) Notwithstanding subdivisions (a) to (c), inclusive, the
employee relations commissions established by, and in effect for,
the County of Los Angeles and the City of Los Angeles pursuant
to Section 3507 shall have the power and responsibility to take
12
supra, 56 Cal.4th at p. 916; Coachella, supra, 35 Cal.4th at
p. 1077; City of San Jose, supra, 49 Cal.4th at p. 605.) Section
3509 thus removed “from the courts their initial jurisdiction over
MMBA unfair practice charges” and vested such jurisdiction in
PERB. (Coachella, supra, at p. 1089; City of San Jose, supra, at
p. 605; Singletary, supra, 212 Cal.App.4th at p. 43.)
At the same time, section 3509 expressly exempted the City
and County of Los Angeles from PERB’s jurisdiction. (§ 3509,
subd. (d); County of Los Angeles, supra, 56 Cal.4th at p. 916;
Coachella, supra, 35 Cal.4th at p. 1077, fn. 1.) Section 3509,
subdivision (d) provides: “Notwithstanding subdivisions (a) to (c),
actions on recognition, unit determinations, elections, and all
unfair practices, and to issue determinations and orders as the
employee relations commissions deem necessary, consistent with
and pursuant to the policies of this chapter.
“(e) Notwithstanding subdivisions (a) to (c), inclusive, consistent
with, and pursuant to, the provisions of Sections 3500 and
3505.4, superior courts shall have exclusive jurisdiction over
actions involving interest arbitration, as governed by Title 9
(commencing with Section 1280) of Part 3 of the Code of Civil
Procedure, when the action involves an employee organization
that represents firefighters, as defined in Section 3251.
“(f) This section shall not apply to employees designated as
management employees under Section 3507.5.
“(g) The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a public
agency if that rule or regulation is itself in violation of this
chapter. This subdivision shall not be construed to restrict or
expand the board’s jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive.”
13
inclusive, the employee relations commissions established by, and
in effect for, the County of Los Angeles and the City of
Los Angeles pursuant to Section 3507 shall have the power and
responsibility to take actions on recognition, unit determinations,
elections, and all unfair practices, and to issue determinations
and orders as the employee relations commissions deem
necessary, consistent with and pursuant to the policies of this
chapter.” (§ 3509, subd. (d); County of Los Angeles, supra, at
p. 916.) Thus, allegations of unfair practices by the County or
City must be brought before ERCOM or ERB, respectively, not
PERB. (County of Los Angeles, supra, at p. 916.) ERCOM and
ERB are thus “separate agenc[ies] empowered to resolve public
employment labor disputes” in the County and City of
Los Angeles, respectively, “just as PERB does for all other
counties in California.” (Ibid.)
In 2002, the Legislature enacted section 3509.5, which
provides for judicial review of PERB decisions.4 (International
4 Section 3509.5 provides in full: “(a) Any charging party,
respondent, or intervenor aggrieved by a final decision or order of
the board in an unfair practice case, except a decision of the
board not to issue a complaint in such a case, and any party to a
final decision or order of the board in a unit determination,
representation, recognition, or election matter that is not brought
as an unfair practice case, may petition for a writ of
extraordinary relief from that decision or order. A board order
directing an election may not be stayed pending judicial review.
“(b) A petition for a writ of extraordinary relief shall be filed in
the district court of appeal having jurisdiction over the county
where the events giving rise to the decision or order occurred.
The petition shall be filed within 30 days from the date of the
issuance of the board’s final decision or order, or order denying
14
reconsideration, as applicable. Upon the filing of the petition, the
court shall cause notice to be served upon the board and
thereafter shall have jurisdiction of the proceeding. The board
shall file in the court the record of the proceeding, certified by the
board, within 10 days after the clerk’s notice unless that time is
extended by the court for good cause shown. The court shall have
jurisdiction to grant any temporary relief or restraining order it
deems just and proper, and in like manner to make and enter a
decree enforcing, modifying, and enforcing as modified, or setting
aside in whole or in part the decision or order of the board. The
findings of the board with respect to questions of fact, including
ultimate facts, if supported by substantial evidence on the record
considered as a whole, shall be conclusive. Title 1 (commencing
with Section 1067) of Part 3 of the Code of Civil Procedure
relating to writs shall, except where specifically superseded by
this section, apply to proceedings pursuant to this section.
“(c) If the time to petition for extraordinary relief from a board
decision or order has expired, the board may seek enforcement of
any final decision or order in a district court of appeal or superior
court having jurisdiction over the county where the events giving
rise to the decision or order occurred. The board shall respond
within 10 days to any inquiry from a party to the action as to why
the board has not sought court enforcement of the final decision
or order. If the response does not indicate that there has been
compliance with the board’s final decision or order, the board
shall seek enforcement of the final decision or order upon the
request of the party. The board shall file in the court the record
of the proceeding, certified by the board, and appropriate
evidence disclosing the failure to comply with the decision or
order. If, after hearing, the court determines that the order was
issued pursuant to the procedures established by the board and
that the person or entity refuses to comply with the order, the
court shall enforce the order by writ of mandamus or other proper
process. The court may not review the merits of the order.”
15
Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment
Relations Bd. (2011) 51 Cal.4th 259, 267 (International Assn. of
Fire Fighters).) Section 3509.5, subdivision (a) states that a party
“aggrieved by a final decision or order of the board in an unfair
practice case, except a decision of the board not to issue a
complaint in such a case, . . . may petition for a writ of
extraordinary relief from that decision or order.” Subdivision (b)
provides in pertinent part: “A petition for a writ of extraordinary
relief shall be filed in the district court of appeal having
jurisdiction over the county where the events giving rise to the
decision or order occurred. The petition shall be filed within 30
days from the date of the issuance of the board’s final decision or
order, or order denying reconsideration, as applicable. Upon the
filing of the petition, the court shall cause notice to be served
upon the board and thereafter shall have jurisdiction of the
proceeding.” As a result of section 3509.5’s enactment, “[f]inal
decisions of the PERB are now reviewable by a writ petition filed
directly in the Court of Appeal, rather than in the superior court.”
(Coachella, supra, 35 Cal.4th at p. 1078, fn. 2.)5
5 A narrow exception exists to section 3509.5’s requirement
that review of a PERB decision lies with the court of appeal.
Notwithstanding section 3509.5, when “PERB refuses to issue a
complaint under the MMBA, a superior court may exercise
mandamus jurisdiction to determine whether PERB’s decision
violates a constitutional right, exceeds a specific grant of
authority, or is based on an erroneous statutory construction.”
(International Assn. of Fire Fighters, supra, 51 Cal.4th at pp. 264,
271.) However, PERB’s refusal to issue a complaint under the
MMBA “is not subject to judicial review for ordinary error,
including insufficiency of the evidence to support the agency’s
16
c. Application here
When interpreting a statute, our goal is to effectuate the
Legislature’s intent. (Riverside County Sheriff’s Dept. v. Stiglitz
(2014) 60 Cal.4th 624, 630; John v. Superior Court, supra,
63 Cal.4th at pp. 95-96.) We begin by examining the statutory
language, giving the words their usual and ordinary meaning,
because this is usually the most reliable indicator of legislative
intent. (Lee v. Hanley, supra, 61 Cal.4th at pp. 1232-1233; Poole
v. Orange County Fire Authority (2015) 61 Cal.4th 1378, 1384-
1385.) “ ‘ “ If the plain, commonsense meaning of a statute’s
words is unambiguous, the plain meaning controls.” [Citation.]’ ”
(Catlin v. Superior Court (2011) 51 Cal.4th 300, 304; Poole v.
Orange County Fire Authority, supra, at p. 1385.) If the statutory
language is ambiguous or subject to more than one
interpretation, we may look to extrinsic aids, including the
legislative history or statutory purpose, to inform our views.
(John v. Superior Court, supra, at p. 96; Holland v. Assessment
Appeals Bd. No. 1 (2014) 58 Cal.4th 482, 490.)
We conclude section 3509.5 does not govern judicial review
of ERB decisions for several reasons. First, the plain language of
the relevant statutory provisions indicates section 3509.5 does
not apply to ERB decisions. Section 3501 defines various terms
as used in the MMBA, Chapter 10 of Division 4 of Title 1 of the
Government Code. Subdivision (f) of section 3501 states that,
“[a]s used in this chapter,” “ ‘[b]oard’ means the Public
Employment Relations Board established pursuant to Section
3541.” Section 3509.5 is contained in Chapter 10 and the
factual findings and misapplication of the law to the facts, or for
abuse of discretion.” (Id. at p. 271.)
17
definition in section 3501, subdivision (f) therefore applies to it.
Section 3509.5 states that a party aggrieved by “a final decision
or order of the board in an unfair practice case” may “petition for
a writ of extraordinary relief from that decision or order.”
(§ 3509.5, subd. (a), italics added.) Subdivision (b) states that a
“petition for a writ of extraordinary relief shall be filed in the
district court of appeal having jurisdiction over the county where
the events giving rise to the decision or order occurred. The
petition shall be filed within 30 days from the date of the
issuance of the board’s final decision or order . . . .” (§ 3509.5,
subd. (b), italics added.) Other portions of section 3509.5
repeatedly reference “the board,” but nowhere does section 3509.5
mention the ERB or the ERCOM or indicate the provision applies
to entities other than PERB. In other words, “the board” in
section 3509.5 is the PERB, not the ERB. “The Legislature has
power to prescribe legal definitions of its own language, and
when an act passed by the Legislature embodies a defined term,
its statutory definition is ordinarily binding on the courts.”
(Faulder v. Mendocino County Bd. of Supervisors (2006)
144 Cal.App.4th 1362, 1371; State ex rel. Dept. of California
Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1011;
Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) Thus, on
its face section 3509.5 unambiguously applies only to PERB. The
omission of any mention of ERB or ERCOM in section 3509.5
suggests the Legislature did not intend its provisions to apply to
them. (See People v. Arriaga (2014) 58 Cal.4th 950, 960 [“It is a
settled principle of statutory interpretation that if a statute
contains a provision regarding one subject, that provision’s
omission in the same or another statute regarding a related
subject is evidence of a different legislative intent”]; Slocum v.
18
State Bd. of Equalization (2005) 134 Cal.App.4th 969, 978
[“Where the Legislature carefully uses a term or phrase in one
place but excludes it in another, we will not imply the term or
phrase where excluded”]; Suarez v. Pacific Northstar Mechanical,
Inc. (2009) 180 Cal.App.4th 430, 443 [under standard rules of
statutory construction, courts “ ‘will not read into the statute a
limitation that is not there’ ”]; Doe v. City of Los Angeles, supra,
42 Cal.4th at p. 545; Code Civ. Proc., § 1858.)
Second, we do not readily infer the Legislature has acted to
deprive a court of jurisdiction in the absence of an express
indication it intended to do so. Our Supreme Court’s analysis in
International Assn. of Fire Fighters is instructive. There, the
court considered whether the PERB’s decision not to issue a
complaint was ever subject to judicial review, in light of section
3509.5’s provision that an aggrieved party may seek writ relief to
challenge “ ‘a final decision or order of the board in an unfair
practice case, except a decision of the board not to issue a
complaint in such a case . . . .’ ” (International Assn. of Fire
Fighters, supra, 51 Cal.4th at pp. 264, 267; § 3509.5, subd. (a).)
Concluding that limited review in the superior court was
permissible, the court reasoned as follows. “The California
Constitution gives rise to a presumption in favor of at least
limited judicial review of state administrative agency actions. It
does so through section 10 of article VI, which, as relevant here,
gives superior courts ‘original jurisdiction in proceedings for
extraordinary relief in the nature of mandamus, certiorari, and
prohibition.’ Traditional mandamus review is available ‘to
compel the performance of an act which the law specially enjoins,
as a duty resulting from an office, trust, or station.’ (Code Civ.
Proc., § 1085, subd. (a).) Recognizing that ‘[t]he power of superior
19
courts to perform mandamus review of administrative decisions
derives in part’ from this constitutional provision, [our Supreme
Court] has said that ‘ “[t]he jurisdiction thus vested may not
lightly be deemed to have been destroyed.” ’ [Citations.]” (Id. at
p. 270.) A court “will not infer a legislative intent to entirely
deprive the superior courts of judicial authority in a particular
area; the Legislature must have expressly so provided or
otherwise clearly indicated such an intent. [Citations.]” (Ibid.)
Despite section 3509.5’s language, International Assn. of Fire
Fighters concluded “[i]n section 3509.5, the Legislature has not
expressly provided or otherwise clearly indicated that under
California’s MMBA superior courts are prohibited in all
circumstances from exercising traditional mandamus jurisdiction
to review a PERB decision refusing to issue a complaint.”
(International Assn. of Fire Fighters, supra, at p. 271.) Similarly,
there is no indication in section 3509.5 that the Legislature
intended to divest the superior courts of jurisdiction to entertain
administrative mandamus proceedings challenging a final ERB
order.
Third, the legislative history of sections 3509.5 and 3509
supports the conclusion that section 3509.5 was not intended to
apply to the ERB.6 (See Diamond v. Superior Court (2013)
217 Cal.App.4th 1172, 1189 [even where the plain language of
the statute dictates the result, the legislative history may provide
additional authority confirming the court’s interpretation]; Doe v.
6 We take judicial notice of the cited legislative history
materials relating to sections 3509 and 3509.5. (Evid. Code,
§ 452, subd. (c); see Ennabe v. Manosa (2014) 58 Cal.4th 697, 709,
fn. 9.)
20
City of Los Angeles, supra, 42 Cal.4th at p. 544.) Section 3509.5
was enacted during the 2001-2002 legislative session by
Assembly Bill No. 2908. The Legislature’s uncodified statement
of intent provides that by enacting section 3509.5, the legislature
intended “to establish procedures for judicial review of
determinations by the Public Employment Relations Board.”
(Stats. 2002, ch. 1137, § 1(c), italics added.) The Legislature did
not state it intended to establish procedures for judicial review of
decisions of the ERB or ERCOM, separate agencies which the
Legislature had expressly exempted from PERB’s jurisdiction two
years earlier in section 3509, subdivision (d).
Analyses prepared for the Assembly and Senate repeatedly
stated that the bill would provide “that the Court of Appeal[] has
jurisdiction to review decisions or orders of the Public
Employment Relations Board (PERB).” (See, e.g., Assem. Com.
on Public Employees, Retirement and Social Security, analysis of
Assem. Bill No. 2908 (2001-2002 Reg. Sess.) as amended Apr. 29,
2002, p. 1; Assem. Com. on Appropriations, analysis of Assem.
Bill No. 2908 (2001-2002 Reg. Sess.) as amended Apr. 29, 2002,
p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill No. 2908 (2001-2002 Reg. Sess.) as
amended Aug. 5, 2002, p. 1 [“This bill . . . provides that the Court
of Appeal[ ] has jurisdiction to review decisions or orders of the
Public Employment Relations Board”].) Bill analyses repeatedly
explained that the bill was “ ‘a necessary clean-up measure’ ” to
Senate Bill No. 739, which had enacted section 3509 in 2000. It
had become “ ‘apparent that there was the need for some
clarification with respect to the Court of Appeal[ ] having
jurisdiction to review PERB decisions; and on unfair practice
charges over local rules that are in violation [of] the statute.
21
Currently, the other collective bargaining laws for school, state
and higher education employees all clearly state that the Court of
Appeal[ ] has jurisdiction to review decisions or orders by PERB if
an aggrieved person or entity makes a petition for a writ of
extraordinary relief.’ ” (Assem. Com. on Public Employees,
Retirement and Social Security, analysis of Assem. Bill No. 2908,
supra, at p. 1.)
Likewise, a bill analysis prepared by the Department of
Finance explained that when section 3509 was enacted,
“jurisdiction for the resolution of unfair labor practice charges
and representation disputes under the MMBA” was transferred
“from the courts to PERB. Prior to [Senate Bill No. 739, which
enacted section 3509], PERB administered only three statutes:
the Higher Education Employment Relations Act, the Education
Employment Relations Act, and the Ralph C. [Dills] Act. All
three statutes provide that the Court of Appeal[ ] shall review the
decisions made by PERB. However, provisions within [Senate
Bill No. 739] failed to change jurisdiction of the review process for
MMBA-related decisions by PERB from the Superior Court (as
was practiced by the court system) to the Courts of Appeal[ ] (as
is practiced by other statutes administered by PERB). [¶]
[Assembly Bill No.] 2908 place[s] the review of MMBA decisions
by PERB with the Court of Appeal[ ].” (Dept. of Finance, Bill
Analysis of Assem. Bill No. 2908 (2001-2002 Reg. Sess.) as
amended Aug. 5, 2002.)
The upshot of the foregoing is that the Legislature, in
enacting section 3509.5, intended to make sure the review
procedure for PERB decisions was consistent, regardless of which
statute was at issue. There is no reason to assume the
Legislature thought such uniformity was desirable for decisions
22
issued by ERB and ERCOM, administrative bodies which are
separate from the PERB. Certainly, nothing in the committee
reports or legislative history indicates an intent that section
3509.5 apply to ERB decisions.
Additionally, the history of section 3509 suggests the
Legislature did not intend to divest the superior courts of
jurisdiction to entertain mandate proceedings in regard to ERB,
as opposed to PERB, decisions. Section 3509 was enacted by
Senate Bill No. 739, which was introduced on February 24, 1999
and amended nine times before it became law. An August 16,
1999 amendment to the bill renumbered former section 3509 and
added the provision that eventually became current section 3509.
(Sen. Bill No. 739 (1999-2000 Reg. Sess.) §§ 6, 9, as amended
Aug. 16, 1999.) As originally drafted, subdivision (d) provided:
“Notwithstanding subdivisions (a) to (c), inclusive, the employee
relations commissions established by, and in effect for, the
County of Los Angeles and the City of Los Angeles pursuant to
Section 3507 shall have the power and responsibility to take
actions on recognition, unit determinations, elections, and unfair
practices, and to issue determinations and orders as the employee
relations commissions deem necessary, consistent with and
pursuant to the policies of this chapter. Any judicial review
applicable to a superior court or municipal court shall be filed
directly with the Court of Appeal.” (Sen. Bill No. 739 (1999-2000
Reg. Sess.) § 9, as amended Aug. 16, 1999, italics added.) The
italicized language was subsequently removed in a June 6, 2000
amendment. (Sen. Bill No. 739 (1999-2000 Reg. Sess.) as
amended June 6, 2000.) The Legislature’s consideration and
subsequent rejection of the language requiring judicial review of
ERB decisions in the Court of Appeal is strong evidence it did not
23
intend section 3509.5 to apply to review of ERB decisions. “ ‘The
rejection by the Legislature of a specific provision contained in an
act as originally introduced is most persuasive to the conclusion
that the act should not be construed to include the omitted
provision.’ ” (People v. Soto (2011) 51 Cal.4th 229, 245; O.W.L.
Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568,
590-591 [the “ ‘Legislature’s rejection of specific language
constitutes persuasive evidence a statute should not be
interpreted to include the omitted language’ ”]; People v. Goodloe
(1995) 37 Cal.App.4th 485, 491; Wilson v. City of Laguna Beach
(1992) 6 Cal.App.4th 543, 555; Central Delta Water Agency v.
State Water Resources Control Bd. (1993) 17 Cal.App.4th 621,
634.)7
To sum up, the legislative history supports our conclusion
based on the plain language of the statutes. Neither the plain
language of the relevant statutes nor their legislative history
suggest that section 3509.5 applies to the review of ERB
decisions.
As noted, the superior court agreed that the foregoing
considerations supported the conclusion that section 3509.5 did
not apply to ERB decisions, but understandably felt constrained
by contrary language in Singletary. In Singletary, plaintiffs,
DWP security guards, claimed that their union had breached its
duty of fair representation, as well as the collective bargaining
7 MEA argues that the subsequent rejection of the language
contained in the August 16, 1999 amendment to Senate Bill
No. 739 is irrelevant because the Legislature’s action pertained to
the enactment of section 3509 in 2000, rather than the enactment
of section 3509.5 in 2002. We disagree that this circumstance
renders the legislative history irrelevant.
24
agreement, by failing to ensure overtime was fairly allotted.
(Singletary, supra, 212 Cal.App.4th at p. 37.) They filed a
complaint in the superior court against the union and the City
without first obtaining a formal adjudication of the issue by the
ERB. (Id. at pp. 38-39.) The union demurred on the ground that,
inter alia, under section 3509 the superior court lacked subject
matter jurisdiction to initially adjudicate the charge. (Singletary,
at pp. 39-40.) The superior court agreed that ERB had exclusive
initial jurisdiction over the claims and dismissed the complaint.
(Id. at pp. 37, 40.) On appeal, plaintiffs argued that ERB did not
have exclusive initial subject matter jurisdiction because,
although subdivision (d) of section 3509 granted ERB authority to
conduct proceedings, the statute did not state that such authority
was exclusive. Plaintiffs also contended they had exhausted their
administrative remedies, permitting them to proceed to superior
court. (Singletary, at p. 41.)
Our colleagues in Division One affirmed. The court
reasoned that when remedies are available before an
administrative body, a party must generally exhaust those
remedies before seeking judicial relief. (Singletary, supra,
212 Cal.App.4th at p. 45.) Citing an Assembly analysis of Senate
Bill No. 739, Singletary observed that when the Legislature
extended PERB’s jurisdiction in 2000, it recognized that the
MMBA had “ ‘no effective enforcement procedures except for
court action, which is time-consuming and expensive. One of the
basic principles of an effective collective bargaining law should be
to provide for enforcement by an administrative agency with
expertise in labor relations. The appropriate role for the courts is
to serve as an appellate body.’ ” (Id. at p. 42, quoting Assem.
Com. on Appropriations, analysis of Sen. Bill No. 739 (1999-2000
25
Reg. Sess.) as amended June 6, 2000, p. 2.) The court reasoned
that interpreting section 3509, subdivision (d) to allow an unfair
labor practice charge to be filed in the superior court in the first
instance “would nullify the stated legislative purpose of providing
primary jurisdiction in personnel boards for review of violations
of the MMBA. Given that the City’s ERB was created in 1971,
before the establishment of PERB in 1975, when the Legislature
acted in 2000 to expressly specify the means of review of
decisions of PERB, the Legislature did not want to appear to
nullify the powers of ERB. Consistent with this purpose, the
word ‘[n]otwithstanding’ that prefaces subdivision (d) of section
3509 does not operate to exempt ERB from the review provisions
of section 3509, but is merely a recognition of ERB’s continued
autonomy as an employee relations board. This fact is recognized
in the closing clause of subdivision (d), which states that ERB has
the power to ‘issue determinations and orders as the employee
relations commissions deem necessary, consistent with and
pursuant to the policies of this chapter.’ [Citation.] Thus, the
provisions of section 3509, subdivisions (a) through (c), to the
extent they delimit the jurisdiction of the courts vis-à-vis review
of the actions of employee relations boards, apply equally to ERB
except that those sections do nothing in derogation of ERB’s
powers. [¶] For this reason, even if plaintiffs had exhausted their
administrative remedies by pursuing their claims before ERB,
plaintiffs could not have commenced their action in superior court
to challenge ERB’s ruling. Instead, pursuant to section 3509.5,
subdivisions (b) and (c), they were required to commence a writ
petition in the Court of Appeal within 30 days of the adverse
decision. As a result, the trial court did not err in dismissing the
26
action for lack of jurisdiction.” (Singletary, at p. 46, second italics
added.)
The DWP argues that the second italicized portion of
Singletary was dicta, in that the primary issue before the court
was whether the ERB had exclusive initial jurisdiction over the
plaintiffs’ claims, not whether section 3509.5 applied. It points
out that an appellate decision is not authority for everything
stated in the opinion, but only for the points actually involved
and actually decided. “Mere observations by an appellate court
are dicta and not precedent, unless a statement of law was
‘necessary to the decision . . . .’ ” (Areso v. CarMax, Inc. (2011)
195 Cal.App.4th 996, 1006.) The superior court, on the other
hand, carefully parsed the Singletary decision and concluded
Singletary’s observations were not dicta, but were necessary to
resolve the plaintiffs’ contention that they had exhausted their
administrative remedies, a point that was actually involved and
actually decided in the decision.
Whether dicta or not, in light of the plain language of
section 3509.5 and the legislative history discussed ante, we
respectfully part company with Singletary insofar as it concluded
that a party challenging an ERB decision must commence a writ
petition in the Court of Appeal within 30 days of the decision
pursuant to section 3509.5.8 On this point, Singletary’s
conclusion appears to be based on the language in section 3509,
subdivision (d), that ERB and ERCOM have “the power and
responsibility to take actions on . . . all unfair practices, and to
8 Although the MEA’s demurrer below relied primarily on
the Singletary decision, on appeal the MEA makes little attempt
to argue the case was correctly decided.
27
issue determinations and orders as [they] deem necessary,
consistent with and pursuant to the policies of this chapter.”
(§ 3509, subd. (d), italics added.) Singletary appears to have
assumed that this language required that the jurisdictional rule
contained in section 3509.5, subdivision (b), applied to the ERB
as well as to the PERB. In our view, this conclusion does not
follow from the statutory language. As the DWP argues and the
superior court suggested, as used in section 3509, subdivision (d),
the word “policies” is substantive and requires that the ERB
adhere to the guiding principles of the MMBA when enforcing the
ERO. (See County of Los Angeles, supra, 56 Cal.4th at p. 917
[ERCOM must exercise its authority in a manner consistent with
and pursuant to the policies of the MMBA as interpreted and
administered by PERB; accordingly, the County’s ordinance must
be construed to avoid any conflict with the MMBA].) Black’s Law
Dictionary defines “policy” as, inter alia, “[t]he general principles
by which a government is guided in its management of public
affairs.” (Black’s Law Dict. (9th ed. 2009) p. 1278, col. 1.) In
other words, “policies,” as used in section 3509, subdivision (d),
does not compel a conclusion that every procedural rule
applicable to PERB must likewise apply to ERB. Given the
absence of any clear indication the Legislature intended section
3509.5, subdivision (b)’s jurisdictional rule to apply to ERB, the
reference in section 3509 to consistency with the policies of the
chapter neither creates ambiguity nor compels the conclusion
that section 3509.5, subdivision (b) applies to ERB decisions.
Nor do we think that our conclusion undercuts Singletary’s
primary holding that the ERB has exclusive initial jurisdiction
over unfair practices charges. As Singletary pointed out, when
remedies are available before an administrative body – such as
28
the ERB here – a party generally must exhaust those remedies
before seeking judicial relief. (Singletary, supra, 212 Cal.App.4th
at p. 45.) Furthermore, the legislative history cited by
Singletary, expressing the Legislature’s intent to effectuate the
broad policy of providing for enforcement by an administrative
agency with expertise in labor relations, with the courts serving
an appellate function, also supports the conclusion that the ERB
has exclusive initial jurisdiction over alleged MMBA violations.
(Id. at p. 42.) These points amply support Singletary’s conclusion
that the ERB has exclusive initial jurisdiction over unfair
practices charges involving the City and its employees. Further,
the City’s ERO provides that claims of unfair employee relations
practices “shall be processed by the Board [the ERB] in
accordance with its rules.” (L.A. Admin. Code, §§ 4.860, subd. (c);
4.801.) Here, of course, the ERB did exercise initial jurisdiction
over the MEA’s unfair practice charge, and excluding ERB
decisions from section 3509.5’s reach does not conflict with the
legislative intent that expert administrative bodies, rather than
the courts, exercise initial jurisdiction over MMBA charges.
29
DISPOSITION
The judgment is reversed and the matter is remanded for
further proceedings consistent with the opinions expressed
herein. Each party shall bear its own costs.
CERTIFIED FOR PUBLICATION
ALDRICH, J.
We concur:
EDMON, P. J.
STRATTON, J.
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
30