Judge: Mary H. Strobel, Case: 21STCP00924, Date: 2023-02-16 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP00924    Hearing Date: February 16, 2023    Dept: 82

            Petitioner Pasadena City College Police Officers Association (“Petitioner” or “PCCPOA”) petitions for a writ of mandate directing Respondent Pasadena Area Community College District (“Respondent” or “District”) “to comply with the terms of the Memorandum of Understanding between the parties by immediately ceasing of its violation of Article 6.11 by no longer offering shifts to non-union or part time employees when POA member’s desire the shift as an overtime opportunity.”  (TAP Prayer ¶ 1)

Background and Procedural History

The Parties

Petitioner is “the recognized employee organization,” which represents the following classifications of employees employed by the District: “College Police/Safety Officers, Parking and Security Officers, College Police/Safety Investigators, Dispatchers, Parking Equipment Technicians, and Transportation Assistants.”  (DeSpain Decl. ¶ 3.)

            Respondent is a community college district governed by a board of trustees.  (See Educ. Code § 70902.)  Among other powers granted by the legislature, “the governing board of a community college district shall employ persons for positions that are not academic positions. The governing board … shall classify all those employees and positions.”  (Id. § 88003(a).)  Exclusions from classified service include employees designated as “substitute employee” and “short-term employee.”  (Ibid.)  As relevant to this case, “substitute employee” is defined to mean “a person employed to replace a classified employee who is temporarily absent from duty.” (Educ. Code § 88003(b).)

The MOUs Between Petitioner and District

             Petitioner and District have executed two Memorandum of Understanding (“MOU”) relevant to this action.  The first MOU was entered between the District and Petitioner on July 1, 2017, and was effective from July 1, 2017 through “midnight on June 30, 2019.”  The second MOU was entered between the District and Petitioner on February 19, 2020, and was retroactively effective from July 1, 2019 through “midnight on June 30, 2022.”  (DeSpain Decl.¶¶ 5-6, Exh. 1-2.)  District represents in its opposition brief that “[n]o subsequent successor agreement, for a period commencing on or after July 1, 2022, has been reached.”  (Oppo. 12:8-9.)  Petitioner has not submitted evidence that a new MOU has been executed for the period commencing July 1, 2022. 

Writ Proceedings

             On March 23, 2021, Petitioner filed a verified petition for writ of mandate pursuant to CCP sections 1094.5 and 1085.  On September 30, 2021 the court sustained Respondent’s demurrer with leave to amend.  In part, the ruling was based on Petitioner’s failure to allege that a MOU was effective during the time any alleged breach occurred.  

On October 20, 2021, Petitioner filed its second amended petition for writ of mandate (“SAP”).  On April 5, 2022 the court sustained Respondent’s demurrer to the second amended petition with leave to amend.  The court’s ruling was based in part on the fact Petitioner was relying on a MOU that had expired by its own terms.

On April 26, 2022, Petitioner filed the operative third amended petition (“TAP”).  The TAP includes a single cause of action for writ of mandate pursuant to CCP sections 1085 and 1094.5. The third amended petition alleged that a second MOU had been negotiated, and its terms were retroactive to the expiration of the first MOU.  On August 18, 2022, after a hearing, the court overruled Respondent’s demurrer to the TAP. The court noted in its ruling on the demurrer that Respondent had not developed any argument related to the fact the second MOU had also expired.  Footnote 2 to the August 18, 2022 ruling on demurrer states: “Nor has Respondent developed any argument regarding the effect of alleged expiration of the second MOU on available remedies. This issue may also be addressed at trial.” (8/18/22 min. order.)

            Neither party has addressed that threshold issue - the effect of expiration of the second MOU on this court’s ability to issue writ relief.  The potential effect of the expiration of the MOU raises many issues.  Do the terms of the MOU remain binding pending negotiation of a new MOU?  If so, are the terms enforceable through a writ of mandate or only as an unfair labor practice claim?  If Petitioner has proven a breach of the expired MOU, can damages be awarded “incident” to the writ, if no prospective relief could be granted?  The parties need to address these issues before the court can analyze whether any writ relief should be granted.  The court will discuss with the parties further briefing on these issues and set a future hearing date.