Filed 7/8/26 Schwartz v. City of Compton CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
COREY SCHWARTZ, B347429
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No.
24CMCV01550)
CITY OF COMPTON,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Elizabeth L. Bradley, Judge. Affirmed.
Ferrone Law Group, Stefon L. Jackson and Derek
Thompson for plaintiff and appellant.
Liebert Cassidy Whitmore, Paul D. Knothe and Gabriella
A. Kamran for defendant and respondent.
_______________________________________
Plaintiff and appellant Corey Schwartz appeals from a
judgment entered after the trial court sustained a demurrer by
defendant and respondent City of Compton (the City) to his
complaint for whistleblower retaliation (Labor Code, § 1102.5)
and violation of the Firefighter Bill of Rights (Gov. Code, §§ 3254
& 3260; FBOR). The operative complaint alleged the City
retaliated against him for his participation in protected union
activities and reporting unsafe conditions with the Fire
Department. Schwartz contends the trial court erred in holding
the Public Employment Relations Board (PERB) has exclusive
initial jurisdiction over the action. We conclude the trial court
correctly determined it lacked subject matter jurisdiction and
affirm.
BACKGROUND
I. Allegations in the First Amended Complaint
Schwartz’s first amended complaint (FAC) against the City
purports to set forth causes of action for whistleblower retaliation
and violation of the FBOR. He bases his two causes of action on
the following allegations.
Schwartz is employed as a Fire Engineer for the City of
Compton Fire Department. He is a member of a bargaining unit,
the Compton Firefighters Association, IAFF Local 2216 (Union).
Between approximately 2008 through 2016, Schwartz served on
the Union’s Board of Directors and as the Grievance Director. As
a Grievance Director, Schwartz advocated for individual Union
members when the City was allegedly denying members rights
provided by the City’s policies, procedures, or contracts with the
Union. Schwartz was also on the Union’s negotiation team from
2014 to 2022.
2
In or about 2022, Schwartz “and his Union prepared a
Compton Fire Department, ‘Stations Repairs & Renovations
Inspections Reports’ ” and presented it to City Council members,
the City Manager and the Fire Chief. “Among the complaints
about working conditions, there were several instances where
[Schwartz] through his Union complained about working
conditions which included multiple instances of violations of
California and Federal safety regulations.”
After the City dismissed his and his Union’s concerns, the
Union decided to picket and Schwartz was “among the chief
supporters and played a pivotal role in the planning and
preparation for picketing.”
In or about March 2023, “while advocating on behalf of his
Union,” Schwartz contacted City officials to complain about
working conditions at the City Fire Department. The following
month, the City issued Schwartz a Notice of Intent to Suspend
Schwartz for two shifts without pay in relation to a traffic
collision involving a Fire Department vehicle. In issuing this
discipline, the City “retaliated or otherwise discriminated against
[Schwartz] for his participation in protected union activities and
reporting of unsafe conditions with the Fire Department.”
II. Procedural History
The City demurred to the FAC on the ground that PERB
has exclusive jurisdiction over the action.1 It argued that the
Meyers-Milias-Brown Act, Government Code section 3500 et seq.
1 The City also demurred to the second cause of action for
violation of the FBOR on the ground that it failed to identify the
statutory rights that Schwartz allegedly exercised and is
therefore uncertain.
3
(MMBA) confers exclusive initial jurisdiction to PERB over
activities arguably protected or prohibited by the MMBA,
including retaliation for union activity.
Schwartz opposed the demurrer, arguing whistleblower
claims are not within PERB’s jurisdiction. He argued his Union
membership is not the basis for his claims, but rather “is
referenced solely to illustrate his long-standing history of
successful service and deep engagement within [the City’s]
professional environment.”
After a hearing, the trial court issued a ruling sustaining
the City’s demurrer without leave to amend. The court explained
that “the conduct that forms the basis for [Schwartz’s] civil
claims is an arguably unfair labor practice under the MMBA
subject to PERB’s exclusive jurisdiction because the controversy
presented to the state court appears to be a controversy which
could have been, but was not, presented to the Labor Board.”
The court further stated that “[a]t a minimum, there is a
substantial risk of interference with the unfair labor practice
jurisdiction of the Board.” Thus, the court concluded it did “not
have jurisdiction over [Schwartz’s] claims at this time, as
[Schwartz] must first exhaust his administrative remedies under
the MMBA.”
The trial court dismissed the action and entered judgment
in favor of the City. Schwartz timely appealed.
DISCUSSION
We review an order sustaining a demurrer de novo. (New
Livable California v. Association of Bay Area Governments (2020)
59 Cal.App.5th 709, 14.) In reviewing the operative complaint,
we assume the truth of the facts alleged or reasonably inferred,
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but we do not assume the truth of plaintiff’s contentions,
deductions, or conclusions of law. (Ibid.)
Schwartz contends the trial court erred in holding PERB
has exclusive initial jurisdiction over his action for retaliation
based on union activity. We disagree.
“In California, labor relations between most local public
entities and their employees are governed by the [MMBA], which
recognizes the right of public employees to bargain collectively
with their employers over wages and other terms of
employment.” (City of San Jose v. Operating Engineers Local
Union No. 3 (2010) 49 Cal.4th 597, 601 (San Jose).) The MMBA
provides “a reasonable method of resolving disputes regarding
wages, hours, and other terms and conditions of employment
between public employers and public employee organizations.”
(Gov. Code, § 3500, subd. (a).) Of relevance here, the MMBA
prohibits public agencies from interfering, intimidating,
restraining, coercing or discriminating against public employees
because of their exercise of their rights under Government Code
section 3502. (Gov. Code, § 3506.) Government Code section 3502
provides public employees “shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations.”
“The administrative agency authorized to adjudicate unfair
labor practice charges under the MMBA is [PERB].” (San Jose,
supra, 49 Cal.4th at p. 601.) “PERB is an expert, quasi-judicial
administrative agency.” (City and County of San Francisco v.
International Union of Operating Engineers, Local 39 (2007) 151
Cal.App.4th 938, 943 (Local 39).) “Because ‘PERB’s primary
function[ ] is to investigate and adjudicate charges of unfair labor
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practices,’ the agency has ‘exclusive jurisdiction’ over alleged
violations of the MMBA.” (Palomar Health v. National Nurses
United (2023) 97 Cal.App.5th 1189, 1201 (Palomar).) Thus,
“ ‘local public agencies and their employees must exhaust their
administrative remedies under the MMBA by applying to PERB
for relief before they can ask a court to intervene in a labor
dispute.’ ” (Id. at p. 1202.)
In addition to alleged violations of the MMBA, PERB also
has exclusive jurisdiction over claims which are premised on
conduct that is “ ‘arguably protected or prohibited’ ” by the
MMBA. (Palomar, supra, 97 Cal.App.5th at p. 1201.) Thus, in
determining whether PERB has exclusive jurisdiction, we
“ ‘consider the underlying conduct on which the suit is based
rather than a superficial reading of the pleadings.’ ” (Id. at p.
1203.)
Here, the FAC alleges causes of action which are premised
on conduct “arguably protected or prohibited” under the MMBA.
Under the “Factual Allegations” heading, the FAC alleges that
the City retaliated against Schwartz for “his participation in
protected union activities and reporting of unsafe conditions with
the Fire Department. Without [Schwartz’s] engagement in
protected union activities, and his reporting of safety violations,
he would not have received such a harsh punishment.” In
support of the whistleblower retaliation claim, the FAC alleges
the City “discriminated against and retaliated against [Schwartz]
by suspending him without pay for two days” after Schwartz
“reported serious violations of state and federal laws.” And in
support of the second cause of action, the FAC alleges: “[The
City’s] actions, as alleged herein, are violations of these statutory
protections afforded to individuals such as [Schwartz]. In
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engaging in the aforementioned activities, [Schwartz] engaged in
activities protected by these statutes. As a direct result of
[Schwartz’s] speech and his disclosures, the [City] took the
aforementioned adverse actions against him.” Both causes of
action incorporate by reference the preceding paragraphs
describing the alleged retaliation for engaging in protected union
activities. The FAC does not include any allegations concerning
activities unrelated to Schwartz’s union participation.
Despite the clear language of the FAC, Schwartz argues his
“union membership is referenced solely to illustrate his
longstanding history of successful service and deep engagement
within [the City’s] professional environment” and his union
status is “not the basis of [his] claims, but rather contextualizes
the basis for the [City’s] retaliation against [him].” We are
unpersuaded.
“While it is true the [plaintiff’s] complaint does not mention
the MMBA, ‘[a]t this stage in the proceedings, where the only
question is PERB’s jurisdiction, what matters is whether the
underlying conduct on which the suit is based—however
described in the complaint—may fall within PERB’s exclusive
jurisdiction.’ ” (Local 39, supra, 151 Cal.App.4th at p. 945.) As
explained, the underling conduct here potentially falls within
PERB’s exclusive jurisdiction.
Schwartz next argues PERB does not have jurisdiction over
his action because PERB “does not enforce other independent
statutory schemes,” such as Labor Code section 1102.5. This
argument misses the point. The question is whether the factual
allegations underlying Schwartz’s claims could arguably support
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a claim under the MMBA, not whether PERB specifically
enforces claims under Labor Code 1102.5.2
In Palomar, supra, 97 Cal.App.5th at p. 1204, the Court of
Appeal reversed the trial court’s order overruling the unions’
demurrer because it found the conduct that formed the basis of
the employer’s “civil claims is an arguably unfair labor practice
under the MMBA subject to PERB’s exclusive jurisdiction.”
There, the employer filed a civil action alleging trespass against
union organizers based on allegations that the organizers
accessed the employer’s premises to picket. (Id. at p. 1195.) The
Palomar court concluded that the conduct at issue, i.e., the
alleged trespass and leafletting at the employer’s entrance, is
arguably protected by labor law, and thus, within PERB’s
exclusive initial jurisdiction. (Id. at p. 1206.)
So too here. The alleged conduct underlying Schwartz’s
claims—retaliation by the City against him for engaging in union
activity—is arguably a violation of the MMBA. That the conduct
might also support claims under the Labor Code and other
2 We reject Schwartz’s unsupported contention that
violations of safety regulations are outside the scope of
representation governed by the MMBA, and therefore is not
under the exclusive jurisdiction of PERB. PERB has repeatedly
recognized that employees engage in protected activity under the
MMBA when reporting safety concerns. (See e.g. City & County
of San Francisco (2020) PERB Decision No. 2712-M at pp. 18–19
[a union officer’s emails to her employer about health and safety
concerns related to concrete drilling and dust exposure could
constitute protected activity under the MMBA]; see also San
Mateo County Firefighters Local 2400 v. Menlo Park Fire
Protection District (2008) PERB Decision No. 1983-M, p. 6 [an
employee engages in protected activity under the MMBA when he
or she reports safety concerns to his or her employer].)
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provisions of the Government Code does not divest PERB of its
exclusive initial jurisdiction.
Moreover, none of the PERB decisions cited by Schwartz
convince us that the superior court has jurisdiction. In Lana
Wilson-Combs v. State of California (Department of Consumer
Affairs) (2005) PERB Decision No. 1762-S, an employee filed a
PERB charge alleging, among other claims, that her employer
retaliated against her for alleged union activities in violation of
the Ralph C. Dills Act (Gov. Code, § 3512, et seq.). PERB found
the employee did not state a prima facie case of retaliation for
protected activity under the Dills Act because she did not identify
the dates or describe the nature of her union advocacy. (Id. at p.
4.) Because the employee could not show she engaged in conduct
protected by the Dills Act, and PERB does not enforce Labor Code
whistleblower statutes, PERB dismissed her charge. (Id. at pp.
9–10.)
In Darrell J. Moore, Sr. v. Housing Authority of the City of
Los Angeles (2011) PERB Decision No. 2166-M, the charge
alleged the employer violated the MMBA by refusing to allow the
employee to return to work following a medical leave. After
finding the retaliation charge was untimely filed under the
MMBA, PERB dismissed the allegation. (Id. at p. 3.) PERB then
acknowledged the employee also alleged a violation of “a variety
of state and federal statutory schemes” including the Fair
Employment and Housing Act and whistleblower protection laws,
but concluded that PERB “lacks jurisdiction over each of these
claims.” (Id. at p. 4.)
These decisions merely confirm that PERB lacks
jurisdiction to adjudicate retaliation claims unless the facts
underlying those claims also arguably allege a violation of the
9
MMBA or the applicable public employment labor law.3 Nothing
in the PERB decisions on which Schwartz relies supports his
position that he was not required to first exhaust his
administrative remedies under the MMBA before bringing his
action in superior court.
Schwartz lastly argues that filing a charge with PERB
would be futile because PERB is “not equipped to deal with
interpretations of ‘independent statutory schemes’ such as Labor
Code section 1102.5 and, therefore, Schwartz will be left with
“inadequate remedies.” But PERB has jurisdiction to hear claims
under the MMBA; thus, Schwartz has an effective remedy before
PERB for retaliation for participation in protected union
activities even if the same alleged conduct may support a claim
for whistleblower retaliation under Labor Code section 1102.5. If
PERB ultimately concludes the allegations do not, in fact, state a
prima facie case of retaliation under the MMBA, the complainant
may then file a complaint in the superior court. He must first,
however, exhaust his administrative remedies.4
3 Schwartz also cites California Correctional Peace Officers
Association v. State of California (2009) PERB Decision No. 2018-
S for the same general proposition that PERB does not enforce
other independent statutory schemes.
4 With respect to the second cause of action, the trial court
concluded that “[a]lthough the complaint does not specify which
protected right plaintiff alleges that Defendant violated it is clear
that plaintiff’s second cause of action derives from the same
underlying conduct as the first cause of action.” Thus, PERB has
exclusive jurisdiction over both claims. Schwartz does not dispute
this finding on appeal. We therefore need not address the trial
court’s alternative ground for sustaining the demurrer to the
second cause of action (i.e., that the cause of action is uncertain).
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Accordingly, we conclude the trial court correctly
determined it lacked jurisdiction because Schwartz must “first
exhaust his administrative remedies under the MMBA.” And
because Schwartz has not met his burden of showing the defects
in the FAC can be cured by amendment, the trial court did not
abuse its discretion by sustaining the demurrer without leave to
amend. (See McAllister v. Los Angeles Unified School Dist. (2013)
216 Cal.App.4th 1198, 1206 [it is an abuse of discretion to sustain
a demurrer without leave to amend only if the plaintiff shows
there is a reasonable possibility any defect in the complaint can
be cured by amendment].)
DISPOSITION
The judgment is affirmed. Respondent City of Compton is
awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
ZUKIN, P. J.
MORI, J.
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