American Federation of Teachers Guild v.
San Diego Community College Dist.
Filed 5/17/13 American Federation of Teachers Guild v. San Diego Community College Dist. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
AMERICAN FEDERATION OF TEACHERS
GUILD, LOCAL 1931, SAN DIEGO AND
GROSSMONT-CUYAMACA COMMUNITY COLLEGES,
Plaintiff and Appellant,
v.
SAN DIEGO COMMUNITY COLLEGE
DISTRICT et al.,
Defendants and Respondents.
D061047
(Super. Ct. No. 37-2011-00083074-
CU-WM-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Judith F. Hayes, Judge. Affirmed.
Law Office
of Robert J. Bezemek, Robert J. Bezemek, Patricia Lim and David Conway for
Plaintiff and Appellant.
Best Best
& Krieger and Alison D. Alpert for Defendants and Respondents.
INTRODUCTION
This appeal
from a judgment dismissing a petition for a writ of mandate following the
court's sustaining of a general demurrer without leave to amend, involves a
disagreement between plaintiff American Federation of Teachers Guild, Local 1931,
San Diego and Grossmont-Cuyamaca Community Colleges (the Guild) and defendants
San Diego Community College District and San Diego Community College District
Board of Trustees (together the District) regarding the District's exclusion of
six categories of current and former nonacademic employees from the District's
classified service─which confers certain statutory rights and benefits to
classified employees─based on two exemptions set forth in the Education
Code (undesignated statutory references will be to the Education Code unless
otherwise specified).
Specifically,
the District excluded from its classified service (1) lifeguards, tutors, art
models, accompanists, and interpreters for the deaf under the personal services
contracting exemption set forth in section 88003.1, subdivision (b)(7)
(hereafter section 88003.1(b)(7)), under which such exclusion is permissible
when the services "are of such an urgent, temporary, or occasional nature
that the delay incumbent in their implementation under the community college
district's regular or ordinary hiring process would frustrate their very
purpose"; and (2) employees of the District's KSDS Jazz88.3 radio station
under the professional experts exemption set forth in section 88003, which
provides that "professional experts employed on a temporary basis for a
specific project, regardless of length of employment, shall not be a part of
the classified service."
A.
The Guild
filed a verified petition for writ of mandamus (Code Civ. Proc., § 1085)
and complaint for declaratory judgment and injunctive relief (hereafter the
petition), alleging in count 1 ("Petition for Writ of Mandamus") that
it had standing under Government Code section 3543.8 (discussed,
categorized and excluded" current and former employees "working in
positions in any of the bargaining units the [Guild] represents, regardless of
whether . . . the employees . . . are
or were members of the [Guild] itself"; and that the District had a
"ministerial duty" under section 88000 et seq. "to employ and
classify within its classified service, and provide the benefits of classified
service, including probationary and permanent
employment . . . , to all non-academic employees and
positions except those specifically exempted from classified
service." The Guild further alleged
in count 1 that the District had "an ongoing, continual and mandatory duty
to properly classify, and to correct the mis-classification . . . of[,]
its employees, including those employees and former employees the [Guild]
represents." It also alleged that
"[i]n violation of the Education Code, the District has and is improperly
excluding many non-academic employees working in positions that require
classification, and in positions represented by the [Guild], from its
classified service," and "[i]n doing so, the District has failed to
identify any legitimate exemption from the classified service for these employees."
In count 2
("Abuse of Discretion") of the petition, the Guild alleged that,
"[t]o the extent the District retained any discretion in electing to
include the employees and former employees of the [Guild] represented in this
action in its classified service, the District abused that discretion by the actions
complained of herein," and it "denied those employees the benefits
and protections of inclusion in the District's classified service."
In its
prayer for relief, the Guild sought, in addition to related declaratory and
injunctive relief,
title="">[1]
a peremptory writ of mandate directing the District to (among other things)
"[r]ecognize the classified service status" of the affected
employees, "[r]einstate any former employee of the District improperly
excluded from its classified service," and "[r]etroactively compensate
and make whole all employees and former employees of the District who were
improperly excluded from its classified service for all lost wages, benefits,
leaves, holidays, seniority credits and other emoluments of employment, plus
interest thereon . . . ."
B.
Contentions on Appeal
The Guild
appeals from the judgment dismissing the petition, which the court entered
after it sustained without leave to amend the District's general demurrer based
on three findings: (1) The Guild lacked
standing to bring this action because "the relief requested requires the
participation of individual members in the lawsuit"; (2) as a matter of
law, the District does not have a ministerial duty to include the subject
nonacademic employees within its classified service; and (3) the court lacked
jurisdiction to hear this matter since the allegedly wrongful exclusion of the
employees from the District's classified service should be remedied through the
Public Employees Relations Board (PERB), but the Guild failed to exhaust its
PERB administrative remedies.
1.
The Guild
contends the judgment of dismissal should be reversed with directions that the
court overrule the District's demurrer for three principal reasons: (1) The District has a ministerial duty under
section 88004
title="">[2]
"to include all of its non-academic employees, for whom no exemption
exists, in its classified service," and the petition alleges facts
"that, if proven, are enough to support issuance of a writ" because
they show the District "wrongly excluded" from its classified service
(a) the District's KSDS Jazz 88.3 radio station employees under the
professional experts exemption (§ 88003), and (b) lifeguards, tutors, art
models, accompanists, and interpreters for the deaf under the personal services
contracting exemption (§ 88003.1(b)(7)); (2) the Guild "has standing
to represent these employees pursuant to Government Code section 3543.8";
and (3) the Guild "has properly exhausted its administrative remedies, since
PERB does not have jurisdiction over the Education Code violations." For reasons we shall explain, we affirm the
judgment.
BACKGROUND
A.
The San
Diego Community College District is a nonmerit system community college
district organized under the laws of the State of California,
including the Education and Government Codes.
The District includes San Diego
City College,
Mesa College,
Miramar College,
and other District campuses. The
District's affairs are administered by the San Diego Community College District
Board of Trustees.
The Guild
has been the exclusive representative of most of the District's nonmanagerial,
nonsupervisory employees, representing academic and classified employees in
several bargaining units. The nonacademic,
nonclassified employees (hereafter sometimes referred to as NANCEs) that are
the subjects of this appeal─lifeguards, tutors, art models, accompanists,
interpreters for the deaf, and employees of the District's KSDS Jazz88.3 radio
station─were not included within these units until late June 2008, when
the Guild became the exclusive representative of a bargaining unit of
"residual" nonacademic employees.
The
District thereafter announced a new policy for hiring NANCEs─including
professional experts and personal services contract employees (among
others)─outside of its classified service, as well as its determination
that lifeguards, tutors, art models, accompanists, and interpreters for the
deaf would be hired under the personal services contracting exemption set forth
in section 88003.1(b)(7) (discussed, ante),
rather than as classified service employees.
section 88003.1(b)(7) that, due to their "urgent" and
"unpredictable nature," these five categories of personal services
contract NANCE positions were of such an urgent, temporary, or occasional
nature that the delay experienced in their implementation under the District's
regular or ordinary hiring process would frustrate their very purpose.
The
District's radio station, KSDS Jazz88.3, is operated out of San
Diego City College. The District has hired KSDS Jazz88.3
employees outside of its classified service under the professional experts
exemption set forth in section 88003 (discussed, ante) for NANCEs employed on a temporary basis for a specific
project regardless of the length of employment.
These employees work as broadcasters and hosts, work in the radio
station library, and provide cataloguing and other services.
B.
1.
The
District filed a general demurrer challenging the legal sufficiency of the
Guild's petition. The District argued
that (1) the Guild lacked standing to bring this action; (2) the court lacked
jurisdiction because the PERB had initial jurisdiction in this matter, and the
Guild failed to exhaust its administrative remedies by failing to file an
unfair practices claim with the PERB; (3) the Guild was not entitled to a writ
under Code of Civil Procedure section 1085 because the District does not have a
ministerial duty to include in its classified service the categories of employees
at issue in this matter; (4) the Guild failed to sufficiently allege an abuse
of discretion because the Guild only alleged in paragraph 119 of the petition
that the District "abused that discretion by the actions complained of
herein"; (5) the Guild was barred from bringing this action based on
laches; (6) employee claims for back pay must be brought in an ordinary civil
action for damages; and (7) the Guild's claim for damages for back pay for more
than a year prior to the tort claim was barred by failure to timely file a tort
claim.
2.
reply
The Guild
opposed the District's demurrer on five asserted grounds: (1) Government Code section 3543.8 (see fn.
1, ante) confers standing on an
employee organization, such as the Guild, to bring any action as a
representative on behalf of its bargaining unit members; (2) the PERB has no
jurisdiction over this matter, as the alleged conduct at issue in this case
concerns violations of the Education Code and does not implicate the Education
Employment Relations Act (EERA)
name="_ftnref5" title="">[5]
(Gov. Code, § 3540 et seq.); (3) the Guild met the legal standard for
bringing this action for a writ of mandamus because (a) the District "has
a clear, present and ministerial duty" under section 88004 to ensure that
every position not exempted under the Education Code is included in the
District's classified service, and (b) the District has no discretion in
deciding when the relevant criteria set forth in the professional expert and
personal services contracting exemptions (§§ 88003 & 88003.1(b)(7),
respectively) apply to a specific District employee or position; (4) the
petition properly alleged that the District abused its discretion, to the
extent it had any, because its actions in attempting to utilize sections 88003
and 88003.1(b)(7) to justify its exclusions was "pretextual"; and (5)
the alleged facts do not support a showing of laches.
The
District's reply reiterated the District's earlier arguments. In support of its argument that it does not
have a ministerial duty to include the subject categories of employees in the
classified service, the District relied on Rodriguez
v. Solis (1991) 1 Cal.App.4th 495 and argued that "[t]he determination
of whether the employees or positions fit within the exceptions provided for in
Section 88003 and 88003.1(b)[(7)] requires discretion." The District asserted that it "must
determine, for example, in its discretion, whether due to the nature of the
position the regular hiring process would frustrate the very purpose of the
services, and whether the services are of an urgent, temporary or occasional
nature."
3.
Following a
hearing on the demurrer, the court issued a two-page minute order sustaining,
without leave to amend, the District's general demurrer based on three
findings: (1) The District "lacks
standing to bring the claims asserted on the grounds that the relief requested
requires the participation of individual members in the lawsuit," citing
Commission (1977) 432 U.S. 333 (Hunt);
(2) the District "does not have a ministerial duty to designate
non-academic employees within its classified service under [] sections 88003
and 88003.1," citing Rodriguez v.
Solis, supra, 1 Cal.App.4th 495;
and (3) the court "lacks jurisdiction to hear this matter since the
alleged wrongs arguably constitute unfair employment practices," such
practices are "remedied through the [PERB] and the matter should be
resolved by PERB," and the District "failed to exhaust its
administrative remedies before PERB."
The court thereafter entered the judgment of dismissal from which the
Guild appeals.
LEGAL
PRINCIPLES
A. Writs of
Mandate Generally
A writ of
mandate may be issued "by any court to any inferior tribunal, corporation,
board, or person, 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))
in cases "where there is not a plain, speedy, and adequate remedy, in the
ordinary course of law" (id.,
§ 1086).
"The
availability of writ relief to compel a public agency to perform an act
prescribed by law has long been recognized." (Santa Clara County Counsel Attys. Assn.
v. Woodside (1994) 7 Cal.4th 525, 539.)
A petitioner seeking writ relief must show: "'(1) A clear, present and usually
duty on the part of the respondent . . . ; and (2) a clear, present and
beneficial right in the petitioner to the performance of that duty . . .
.'" (Id. at pp. 539-540,
italics added.) Thus, traditional
mandamus under Code of Civil Procedure section 1085 generally "may only be
employed to compel the performance of a duty which is purely ministerial in character." (Rodriguez
v. Solis, supra, 1 Cal.App.4th at p. 501, italics added.)
"Although
mandate will not lie to control a public agency's discretion, that is to say,
force the exercise of discretion in a particular manner, it will lie to correct
abuses of discretion. [Citation.] In determining whether an agency has abused
its discretion, the court may not substitute its judgment for that of the
agency, and if reasonable minds may disagree as to the wisdom of the agency's
action, its determination must be upheld."
(Helena F. v. West Contra Costa Unified School Dist. (1996) 49
Cal.App.4th 1793, 1799; see also Lindell
Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 315.)
A general
demurrer to a petition for a writ of
mandamus is properly sustained where no mandatory duty on the part of the
respondent agency to perform the act the petitioner seeks to compel is shown to
exist. (Wilson v. Board of Retirement of the Los Angeles County Employees
Retirement Association (1957) 156 Cal.App.2d 195, 213.)
B.
Review
"A
demurrer tests the legal sufficiency of factual allegations in a
complaint." (Rakestraw v. California
Physicians' Service (2000) 81 Cal.App.4th 39, 42 (Rakestraw).) A general demurrer challenges the legal
sufficiency of the complaint on the ground it fails to state facts sufficient
to constitute a cause of action. (See
Code Civ. Proc., § 430.10, subd. (e).)
On appeal
from a judgment dismissing a complaint (or petition) after a demurrer is
sustained without leave to amend, we review de novo the trial court's decision
to sustain the demurrer, and we review under the abuse of discretion standard
the decision to deny the plaintiff leave to amend. (Lazar v. Hertz Corp. (1999) 69
Cal.App.4th 1494, 1501.)
In
reviewing the sufficiency of a complaint against a general demurrer, this court
treats the demurrer as admitting the truth of all properly pleaded material
facts, as well as facts inferred from the pleadings, but not the truth of
contentions, deductions, or conclusions of fact or law. This court also considers matters that may be
judicially noticed. (Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081 (Schifando);
Rakestraw, supra, 81 Cal.App.4th at p. 43.) When a general demurrer is sustained, this
court determines whether the complaint states facts sufficient to constitute a
cause of action under any legal theory.
(Schifando, at p.
1081; Rakestraw, at p. 43.)
"On appeal, a plaintiff bears the burden of demonstrating tht the
trial court erroneously sustained the demurrer as a matter of law." (Rakestraw, at p. 43.)
In
determining whether the court properly sustained the demurrer without leave to
amend, the reviewing court decides whether there is a reasonable possibility an
amendment could cure the pleading defect.
(Schifando, supra,
31 Cal.4th at p. 1081; Rakestraw, supra, 81 Cal.App.4th at p.
43.) If there is a reasonable
possibility the plaintiff could cure the defect with an amendment, we conclude
the trial court abused its discretion and we reverse the judgment; if not, no
abuse of discretion has occurred and we affirm the judgment. (Schifando,
at p. 1081; Rakestraw, at p. 43.)
The plaintiff bears the burden of proving there is a reasonable
possibility an amendment would cure the pleading defect. (Schifando,
at p. 1081.)
DISCUSSION
I
THE GUILD HAS NOT
SHOWN, AND CANNOT ESTABLISH,
THE EXISTENCE OF
A MINISTERIAL DUTY
In support
of its claim that the judgment of dismissal should be reversed, the Guild
contends that the District has a ministerial duty "to include all of its
non-academic employees, for whom no exemption exists, in its classified
service" and that the petition alleges facts that, if proven, are
sufficient to support issuance of a writ because they show the District
"wrongly excluded" from its classified service (1) the District's
KSDS Jazz88.3 radio station employees under the professional experts exemption
set forth in section 88003, and (2) lifeguards, tutors, art models,
accompanists, and interpreters for the deaf under the personal services
contracting exemption set forth in section 88003.1(b)(7)). Quoting Rodriguez
v. Solis, supra, 1 Cal.App.4th at
page 504 for the proposition that "[w]here a statute requires an officer
to do a prescribed act upon a prescribed contingency, his functions are
ministerial," the Guild further contends that sections 88003 and
88003.1(b)(7) "'clearly define' the course of conduct the District must
take with respect to the classifying employees, and provide
to ignore or circumvent" the requirements set forth therein. These contentions are unavailing.
Section
88003, which codifies the professional expert exemption, provides that
"professional experts employed on a temporary
basis for a specific project, regardless of length of employment, shall not
be a part of the classified service."
(Italics added.) Section 88003.1(b)(7), which codifies the personal
services contracting exemption, provides:
"(b) Notwithstanding any other provision of this
chapter, personal services contracting shall also be permissible when any of
the following conditions can be met:
[¶] . . . [¶] (7) The services are of
nature that the delay incumbent in their implementation under the community
college district's regular or ordinary hiring process would frustrate their
very purpose." (Italics added.)
Here, the
Guild claims the professional experts exemption (§ 88003) does not apply
to KSDS Jazz88.3 radio station employees because they "serv[e] in regular,
ongoing positions as hosts and broadcast operation specialists, have done so
for numerous years, and are not serving as 'professional experts' on a
'temporary basis' for a specific project.'" In support of this claim, the Guild asserts
"[t]he Petition alleges that [these]
employees . . . are not experts and not
employed on temporary bases for specific projects, and thus do not meet
the objective criteria for exempt professional experts."
The Guild
also claims the personal services contracting exemption (§ 88003.1(b)(7))
does not apply to lifeguards, tutors, art models, accompanists, and
interpreters for the deaf because these positions are "longstanding,
regular employee positions" and "[i]n no way are they of such an
'urgent, temporary, or occasional nature' that the utilization of the
District's ordinary hiring process would 'frustrate their very
purpose.'" In support of this
claim, the Guild specifically asserts "[t]he Petition alleges that these
individuals are employees, not
contractors, and the services they render are on-going and routine;
not urgent, temporary or of an occasional nature;
and . . . the District's use of its 'ordinary hiring
process' for these positions would not 'frustrate their very
purpose.'" (Italics added.)
The
principal question we must decide is whether the factual allegations in the
petition show the District has a ministerial
duty to include these excluded employees in the District's classified
service. In sustaining the District's
general demurrer without leave to amend, the court found the Guild's petition
shows the District has no such duty as a matter of law. We agree.
"A
officer is required to perform in a prescribed manner in obedience to the
mandate of legal authority and
without regard to his own judgment or opinion concerning such act's propriety
or impropriety, when a given state of facts exists. Discretion, on the other hand, is the power
conferred on public functionaries to act officially according to the dictates
of their own judgment." (
functionary has an enforceable ministerial duty or is required to exercise discretion
is dependent upon the interpretation of applicable statutory provisions (here,
§§ 88003 & 88003.1(b)(7)), and therefore presents a question of law
that we determine de novo. (
School Dist. (2003) 29 Cal.4th 911, 916; Rodriguez, at p. 502.)
We conclude
the District's determination that the personal services contracting and
professional experts exemptions (§§ 88003.1(b)(7) & 88003,
respectively) apply to the employee positions at issue in this case, required
the exercise of discretion as a matter of law; and, thus, the court properly
concluded the Guild had failed to state a claim for issuance of a writ of
mandate because it did not show the existence of an enforceable ministerial
duty to include the subject employees in the District's classified
service. Our analysis is guided by
Guild's petition.
In
automobile dealership, petitioned the trial court for a writ of mandate to
compel a city director of development to issue permits to erect freestanding
advertisement signs on the dealership premises.
(Rodriguez v. Solis,
500-501.) The director had denied the
petitioners' sign permit applications under city zoning regulations which
provided that permits for such signs should not be approved unless the signs
were "[c]ompatible with their surroundings." (Id.
at pp. 505, 502-503.) On appeal, the
petitioners claimed the director had a ministerial duty to issue the sign
permits, and, even if there were no such ministerial duty, the director abused
his discretion by applying arbitrary standards.
(Id. at pp. 504, 506.) Rejecting these claims, the
court's denial of the petition for writ of mandate, concluding that (1) the
director "was vested with the discretion to determine whether the signs
requested would have been compatible with their surroundings," and (2) the
court was "legally constrained from ruling otherwise" because
"mandamus cannot be used to control the discretion of an administrative
officer or agency." (
"may not substitute its discretion for the discretion properly vested in
the administrative agency."].)
Similarly
here, under sections 88003.1(b)(7) and 88003 the District is statutorily vested
with the discretion to determine whether the employee positions in question
should be excluded from the District's classified service under the personal
services contracting and professional experts exemptions provided therein. Specifically, under the personal services
contracting exemption statute (§ 88003.1(b)(7)), the District must
determine in its discretion whether the services to be provided are "of
such an urgent, temporary, or occasional nature" that the delay involved
in using the District's regular hiring process would "frustrate" the
purpose of those services. As section
88003.1 does not define the phrase "urgent, temporary, or occasional
nature" or the term "frustrate," the determination of whether
these exemption criteria are satisfied necessarily is left to the discretion of
the District.
Under the
professional experts exemption statute, the District must determine in its
discretion whether the position requires the services of a "professional
expert," and, if it does, whether such expert is to be "employed on a
temporary basis for a specific project, regardless of length of
employment." (§ 88003.) The term "professional expert" is
not statutorily defined, and the determination of whether the foregoing
exemption criteria are met of necessity must be left to the discretion of the
District as a matter of law.
We reject
the Guild's claim that the District has no discretion to exclude employees from
its classified service under the personal services contracting exemption
because (the Guild contends) section 88003.1(b)(7) applies to contractors, not
employees. Specifically, the Guild
asserts "[s]ection 88003.1, . . . including
[subdivision ](b), applies only to contractors, and not district
employees," and "is replete with references to contracting and
contractors." However, as the
District correctly points out, subdivision (b)(5) of section 88003.1
specifically references emergency appointment of "an employee" as
well as "length of employment."
Furthermore, section 88003.1(b)(7) expressly provides that, "[n]otwithstanding
any other provision of his chapter," personal services contracting is
permissible when the criteria set forth therein are met.
We also
reject the Guild's "alternative" claim that the petition
"properly alleges a count of abuse of discretion." In support of this claim, the Guild asserts
that, to the extent the District had any discretion, the petition alleges the
District's "actions were 'arbitrary, capricious, unreasonable, and/or a
prejudicial abuse of discretion.'"
abuse of discretion "whether the action
being . . . corrected can itself be characterized as
'ministerial' or 'legislative.'" (
Association v. Woodside, supra, 7 Cal.4th at p. 540, superseded on another
ground as stated in Coachella Valley Mosquito and Vector Control Dist. v.
California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077;
see also Saleeby v. State Bar (1985)
39 Cal.3d 547, 562.) However, as already discussed, traditional
mandamus does not lie to force the exercise of a public agency's discretion in
a particular manner, and this court may not substitute its discretion for the
discretion properly vested in the District.
(Lindell Co. v. Board of Permit
Appeals, supra, 23 Cal.2d at p.
315; Rodriguez v. Solis,
F. v. West Contra Costa Unified School Dist., supra, 49 Cal.App.4th at p. 1799.)
"[I]f reasonable minds may disagree as to the wisdom of the
agency's action, its determination must be upheld." (Helena F. v. West Contra Costa Unified
School Dist., supra, 49
Cal.App.4th at p. 1799; accord, Klajic v.
Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 995.) Here, the Guild's petition allegations show
that reasonable minds may disagree as to the wisdom of the District's
challenged actions. Accordingly, we
conclude the petition fails to state facts sufficient to state a a claim for
abuse of discretion.
For all of
the foregoing reasons, we conclude the court properly sustained the District's
general demurrer to the petition without leave to amend.
II
ADMINISTRATIVE REMEDIES
In light of
our conclusions that the Guild cannot show the existence of a ministerial duty
that would support the issuance of a writ of mandate in this matter, and that
the Guild cannot state a an abuse of discretion claim, we need not address the
Guild's remaining contentions that (1) it has standing to represent the subject
NANCEs, and (2) it "has properly exhausted its administrative remedies,
since PERB does not have jurisdiction over Education Code violations."
A.
Were it
necessary to reach the merits of these contentions, we would first conclude the
court did not err in finding that the Guild lacks standing to bring this action
because the relief requested requires the participation of individual members
in the lawsuit.
In support
of its claim that it has standing, the Guild principally relies on Government
Code section 3543.8, which provides:
"Any employee organization shall have standing to sue in any action
or proceeding heretofore or hereafter instituted by it as representative and on
behalf of one or more of its members."
The Guild asserts that the question of whether it has standing is solely
determined by that section, and the court's reliance on the federal standing
test in Hunt, supra, 432 U.S. 333 was
misplaced. Citing Anaheim Elementary Education Association. v. Board of Education
(1986) 179 Cal.App.3d 1153 (Anaheim)
and California School Employees Assn.,
Tustin Chapter No. 450 v. Tustin Unified School Dist. (2007) 148
Cal.App.4th 510 (CSEA), the Guild
also asserts that it has standing "to represent both current and former
employees of the District working in positions in any of the bargaining units
the Guild represents, regardless of whether . . . the
employees or former employees are or were members of the Guild itself";
and that "individual participation of each bargaining unit member as a
plaintiff is not required" because it does not request relief that
requires such participation.
The
California Supreme Court has explained that "[t]o have standing to seek a
writ of mandate, a party must be 'beneficially interested' (Code Civ. Proc., §
1086), i.e., have 'some special interest to be served or some particular right
to be preserved or protected over and above the interest held in common with
the public at large.' [Citation.] This standard . . . is
equivalent to the federal 'injury in fact' test." (Associated
Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21
Cal.4th 352, 361-362 (Associated Builders).)
In
explained the federal injury-in-fact test for determining whether an
association has standing to bring suit on behalf of its members:
"[A]n association has standing to bring suit on
behalf of its members when: (a) its
members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization's purpose; and
(c) neither the claim asserted nor the
relief requested requires the participation of individual members in the
lawsuit." (Id. at p. 343, italics added.)
Quoting
from its prior opinion in Warth v. Seldin
(1975) 422 U.S. 490, the Hunt court
further explained that "'[w]hether an association has standing to invoke
the court's remedial powers on behalf of its members depends in substantial
measure on the nature of the relief sought.
If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief,
it can reasonably be supposed that the remedy, if granted, will inure to the
benefit of those members of the association actually injured. Indeed, in all
cases in which we have expressly recognized standing in associations to
represent their members, the relief sought has been of this kind.'" (Hunt,
supra, 432 U.S. at p. 343.)
Here, the
Guild does not seek only prospective relief in its representative capacity
under Government Code section 3543.8. In
its petition, the Guild alleges it has standing to represent current and former
District employees, "includ[ing], but . . . not
limited to, lifeguards, tutors, art models, accompanists, interpreters for the
Deaf, and employees of the District's radio station," that the Guild
claims were "improperly categorized and excluded from the classified
service." As the District correctly
points out, the petition contains allegations that the radio station employees
excluded from classified service under the professional experts exemption were
improperly classified as "professional experts," and their positions
were not on a temporary basis for a specific project as required by section
88003. The petition also alleges the
five positions excluded under the personal services contracting exemption were
improperly excluded because the services were not "urgent,"
"temporary," or "occasional" such that the District's
normal hiring process would "frustrate their very purpose" as
required by section 88003.1(b)(7). Of
particular importance here, the Guild's prayer for relief sought, in addition
to prospective relief, a peremptory writ of mandate directing the District to
"[r]etroactively compensate and make whole all employees and former
employees of the District who were improperly excluded from its classified
service for all lost wages, benefits, leaves, holidays, seniority credits and
other emoluments of employment, plus interest
thereon . . . ."
Based on
the nature of the foregoing allegations in the petition, we conclude the court
did not err in finding that the relief requested "requires the participation
of individual members in the lawsuit."
Resolution of the numerous claims alleged in the petition would require
a factual inquiry into each employee's individual circumstance such that the
participation of the individual claimants would be required. Under these circumstances, as the court
properly found, the Guild lacks standing to bring this action without their
participation. (See Associated Builders, supra,
21 Cal.4th at pp. 361-362; Hunt,
B.
Were it
necessary to reach the merits of the Guild's contention that it has properly
exhausted its administrative remedies, we would conclude the court erred in
finding that the Guild "failed to exhaust its PERB administrative
remedies."
The
Education Employment Relations Act (EERA) (Gov. Code, § 3540 et seq.)
governs employer-employee relations within public school systems, and sets
forth conduct that constitutes an unfair employment practice by employers or
employee organizations. (
Dist. (1996) 43 Cal.App.4th 871, 885 (Barstow).)
Government
Code section 3541.5 provides that "[t]he initial determination as to
whether the charges of unfair practices are justified, and, if so, what remedy
is necessary to effectuate the purposes of this chapter, shall be a matter
within the exclusive jurisdiction of [PERB]."
"PERB's
exclusive jurisdiction extends to all alleged violations of the EERA, not just
those which constitute unfair practices." (Barstow,
supra, 43 Cal.App.4th at p.
885.) "PERB's exclusive
jurisdiction is not limited to cases in which it is clear that an EERA
violation is involved[; r]ather, '. . . courts have
permitted [PERB] to retain exclusive jurisdiction in order to resolve disputes
which arguably could give rise to an
unfair practice claim.'" (
initial jurisdiction where a pure Education Code violation (as opposed to an
arguably unfair practice) is alleged.'"
(Id. at p. 886.)
Here, the
Guild's petition alleges pure Education Code violations. Accordingly, we conclude that as PERB has no
initial jurisdiction over the claims asserted in the petition, the Guild has
not failed to exhaust PERB administrative remedies.
DISPOSITION
The judgment is affirmed.
The District shall recover its costs on appeal.
NARES,
Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
name="_ftn1" title="">[1] In count 3 ("Complaint for Declaratory Judgment"),
the Guild requested that the court declare "(1) what rights the employees
and former employees represented by the [Guild] in this action have to
inclusion in and with respect to the District's classified service." In count 4 ("Complaint for Injunctive
Relief"), the Guild sought "the issuance of a preliminary injunction
and a permanent injunction forbidding the District its officers, agents and
representatives, and anyone acting on its behalf, from henceforth denying its
employees and former employees inclusion in its classified service and denying
its employees and former employees the benefits and protections of inclusion in
its classified service."
name="_ftn2" title="">[2] Section 88004 provides that "[e]very position not
defined by the regulations of the board of governors as an academic position
and not specifically exempted from the classified service according to the
provisions of Section 88003 or 88076 shall be classified as required by these
sections and shall be a part of the classified service."
