Judge: Mary H. Strobel, Case: 21STCP00924, Date: 2023-04-13 Tentative Ruling

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

Case Number: 21STCP00924    Hearing Date: April 13, 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.)  Petitioner also requests that “the Court declare Respondent in breach of the MOU with Petitioner and award appropriate relief to Petitioner for such breach, including but not limited to all appropriate damages and/or specific performance to make impacted PCCPOA members whole.”  (Id. Prayer ¶ 2.)

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. 

            As relevant to this writ petition, Article 6.11 includes the same language in both MOUs and states the following: “The District shall assign District overtime based on the District’s needs, the requirements of the overtime assignment, and the District’s evaluation of the qualifications of employees. Permanent full time personnel shall have the first right of refusal for overtime assignments. Nothing herein shall require the District to assign overtime on a rotation basis. Nothing herein shall restrict the District’s right to require any employee to perform overtime work for the District.”  (DeSpain Decl. Exh. 1, 2.)

            Among other changes, the 2019-2022 MOU was amended to include the following provision at Article 6.19: “Unit members may trade work shifts by mutual agreement with the approval of the Chief of Police, or designee. The decision of the Chief shall be conclusive, and shall not be subject to the Article 14 grievance procedures.”  (Id. Exh. 2; see also Taylor Decl. ¶ 5.g and h and Exh. G and H.) 

            In opposition, District also relies, in part, on Article 16.3 of the MOUs, concerning vacation.  (Oppo. 12-13.)  Article 16.3 provides, in relevant part: “Insofar as practicable and consistent with the needs of the District, vacation shall be granted at times most desired by employees…. Employees shall submit vacation request to the Chief of Police or their designee. For time-off of less than one week, the employee shall submit a request no later than fourteen (14) calendar days in advance…. The requestor shall receive a response within seven (7) calendar days from the request. The decision of the Chief of Police or designee shall not be grievable.”  (Taylor Decl. Exh. D and E.)  The relevant language of Article 16.3 appears the same in both MOUs.

Policy 1038

District also maintains the Pasadena City College Police and Safety Services Policy Manual (“Manual”).  As relevant to this writ petition, the Manual includes Policy 1038, titled “Overtime Payment Requests and Scheduling.”  Policy 1038.1 states a policy of the Department to compensate non-exempt salaried employees who worked authorized overtime by payment of wages “as agreed and in effect through” the MOU.  Policy 1038.1.1 states that “all requests to work overtime shall be approved in advance by a supervisor.”  Policy 1038.1.2 sets forth procedures for filling overtime slots, for “planned overtime” and “unplanned overtime.”  The policy defines “planned overtime” as “overtime to fill vacancies as the result of vacation, medical leave, personal leave or any other type of approved leave which was applied for in advance.”  The policy defines “unplanned overtime” as “overtime that occurs suddenly such as when as employee calls off sick for their assigned shift.”  (DeSpain Decl. ¶ 11, Exh. 3.) 

Alleged Violation of Article 6.11

In this writ action, Petitioner alleges that “all of a sudden, beginning in or about November of 2019, the District began violating [Article 6.11] in the MOU by not providing the right of first refusal to permanent full-time personnel. Instead, the District began offering the vacant shift to nonpermanent, part time personnel in violation of Article 6.11.”  (DeSpain Decl. ¶ 14; see also Id. ¶¶ 15-18 and Exh. 4-8 and Roberts Decl. ¶¶ 14-18.)

Specifically, Petitioner submits evidence of the following: “[O]n or about November 9, 2019, a PCCPOA member requested time off for vacation. And the member found replacement coverage for her shift with a fellow PCCPOA member-a permanent, full-time employee. Part of the parties’ practice had been that, in accordance with the right of first refusal, the member taking time off would assist by finding a fellow PCCPOA member who would fill in for that vacancy. This has been the parties’ course of dealing for over 25 years. The District promptly approved the vacation request, but for the very first time, refused to honor the right of first refusal provision by giving the vacant shift work to another PCCPOA member. Instead, the District gave the vacant overtime shift to a non-union, part-time employee, in direct violation of Article 6.11.”  (DeSpain Decl. ¶ 15; see also Roberts Decl. ¶ 15.)

Petitioner contends that the violations of Article 6.11 are “ongoing” and “reoccurring on a weekly basis.”  (DeSpain Decl. ¶¶ 17-20; Roberts Decl. ¶¶ 17-19.) 

Grievance Proceedings

            Article 14 of the MOUs sets forth the Grievance Procedure.  Petitioner states that the affected member filed a grievance of the initial violation of Article 6.11 that occurred in November 2019.  (DeSpain Decl. ¶ 19.)  In opposition, District submits a copy of the President’s final decision, dated February 1, 2021 (hereafter “President’s Decision” or “Decision”), on “District’s request for an appeal of the Grievance panel’s decision concerning PCC-POA’s grievance relating to Article 6.11 and the ‘right of refusal’ to overtime.”  (Taylor Decl. Exh. I.) 

In the original writ briefing, the parties agreed that this writ action does not challenge the President’s Decision pursuant to CCP section 1094.5.  (See OB 8-9; Oppo. 9-11; Reply 4:11-18.)  In the supplemental brief, Petitioner takes a different position, which the court addresses in the Analysis section below.    

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.

            On August 18, 2022, after a hearing, the court overruled Respondent’s demurrer to the TAP. 

            On October 13, 2022, Petitioner filed its opening brief (“OB”) in support of the petition and supporting evidence.  On November 28, 2022, Petitioner filed a reply.  On December 20, 2022, Respondent filed its amended opposition brief.  The court considers this opposition brief in the analysis below, not the earlier Respondent’s briefs filed October 14 and November 14, 2022.  On January 13, 2023, Petitioner filed a notice indicating that it will submit on its previously filed reply brief.

            On February 1, 2023, Respondent filed a notice of errata attaching exhibits that were inadvertently omitted from the opposition filed December 20, 2022.

            On February 16, 2023, the petition came for hearing before the court.  After a hearing, the court continued the hearing so that the parties could submit supplemental briefing on the potential effect of the expiration of the MOU on this writ action. 

            On March 9, 2023, Petitioner and Respondent each filed a supplemental brief.

Standard of Review

The parties agree that the writ petition is governed by CCP section 1085.  (OB 8-9 [arguing standard of review is under CCP section 1085]; Oppo. 9-11 [same].) 

There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)  “Normally, mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. In determining whether a public 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. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.”  (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’”  (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)  The interpretation of statute or regulation is a question of law.  (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)  A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

Analysis

Ordinary Mandate

            A MOU adopted by the governing body of a public agency is a binding agreement that may be enforced against the agency by writ of ordinary mandate.  (Glendale City Employees' Association, Inc. v. City of Glendale (1975) 15 Cal. 3d 328, 337-345.)   “Labor-management agreements” of a public agency are “enforceable contracts … which should be interpreted to execute the mutual intent and purpose of the parties.”  (Id. at 339.)  When interpreting a MOU, courts “are guided by the well-settled rules of interpretation of a contract, endeavoring to effectuate the mutual intent of the parties as it existed at the time of contracting insofar as it is ascertainable and lawful.”  (City of El Cajon v. El Cajon Police Officers’ Assn. (1996) 49 Cal.App.4th 64, 71.)  “As a rule, the language of an instrument must govern its interpretation if the language is clear and explicit. [Citations.] A court must view the language in light of the instrument as a whole ….”  (Ibid.) 

As a general rule, “contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective-bargaining agreement provides in explicit terms that certain benefits continue after the agreement's expiration, disputes as to such continuing benefits may be found to arise under the agreement….”  (Litton Financial Printing Div., a Div. of Litton Business Systems, Inc. v. N.L.R.B. (1991) 501 U.S. 190, 207.)    

            Here, Petitioner and District have executed two MOUs relevant to this action.  The first MOU was entered into between the District and Petitioner on July 1, 2017, and was effective from July 1, 2017 through “midnight on June 30, 2019.”  Article 33 of the first MOU, entitled “Term,” does not include any language continuing the term of the MOU or any specific provisions until a successor MOU was agreed upon.  Petitioner cites no such language at any other part of the MOU.  (Cf. City of El Cajon, supra, 49 Cal.App.4th at 49 [MOU states that “the terms of this MOU shall remain in effect until a successor MOU is agreed upon”].)  Accordingly, pursuant to the clear language of the first MOU, the relevant contract provisions, including Article 6.11, were only effective through June 30, 2019. 

The court reached this conclusion in its rulings on demurrer dated September 30, 2021, and April 5, 2022, stating: “The petition alleges that Respondent violated the MOU by conduct in November 2019…. However, the petition and Exhibit 1 do not allege that the MOU was effective for that time period. Accordingly, Petitioner does not state a cause of action.”  (9/30/21 Min. Order 3.)  That same reasoning applies here with respect to the first MOU.  Petitioner does not submit evidence of any violations of the MOU occurring prior to June 30, 2019.  Rather, Petitioner’s declarants assert that “all of a sudden, beginning in or about November of 2019, the District began violating this right of first refusal provision in the MOU….”  (Roberts Decl. ¶ 14 [bold italics added]; DeSpain Decl. ¶ 14 [same].) 

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.  Like the first MOU, Article 33 of the second MOU does not include any language continuing the provisions of the second MOU until a successor MOU was agreed upon. Petitioner cites no such language at any other part of the MOU.  Accordingly, pursuant to the clear language of the second MOU, the relevant contract provisions, including Article 6.11, were only effective through June 30, 2022. 

As the court ruled for the demurrer to the TAP on August 18, 2022, the second MOU was made retroactive to a period that included alleged violations of Article 6.11 occurring in or about November 2019.  (8/18/22 Min. Order 6-7.)  The court noted in its ruling 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.)

Having requested supplemental briefing on the issue, the court concludes that Petitioner has not proven a basis for issuance of a writ to enforce the second MOU for alleged violations occurring before or after June 30, 2022. 

Petitioner alleges that the violations of Article 6.11 are “ongoing” and “reoccurring on a weekly basis.”  (DeSpain Decl. ¶¶ 17-20; Roberts Decl. ¶¶ 17-19.)  For any such “ongoing” or “reoccurring” conduct occurring after June 30, 2022, Petitioner does not have a cause of action in contract law and CCP section 1085 because the relevant terms of the expired MOU have expired.  Petitioner has developed no argument that Article 6.11 implicates vested rights that “survive termination of the agreement.”  (Litton Financial Printing Div., supra, 501 U.S. at  207.)    

Petitioner also has not proven a basis for issuance of a writ to enforce the second MOU for alleged violations occurring before June 30, 2022.  Petitioner submits declarations of Leilani Roberts, a member of Petitioner and a police dispatcher that has worked for District for 31 years, and Michael DeSpain, Petitioner’s president and a police officer that has worked for District for 18 years.  Roberts and DeSpain assert that District has breached Article 6.11 in connection with specific requests for time off made by PCCPOA members Roberts and Martinez in November 2019, December 2019, and February 2020.   (Roberts Decl. ¶¶ 17-18; DeSpain Decl. ¶¶ 17-18.)  These alleged violations of Article 6.11 between November 2019 and February 2020 fall within the term of the second MOU. 

Roberts and DeSpain also authenticate dispatcher work schedules for the months of August 2019, July and August 2020, July and August 2021, and July 2022.  They then declare as follows: “Each of these work schedules demonstrate continuous violations of the first right of refusal. The highlighted names on each of these work schedules are part-time dispatchers who are not members of PCCPOA. These individuals were used by the District to fill vacancies in the work schedule. On no occasion, did the District offer these vacant shifts to any PCCPOA dispatcher. Accordingly, the District did not give PCCPOA members their first right of refusal for those overtime shifts occurring every month between September 2019 and present day.”  (DeSpain Decl. ¶ 18.f and Exh. 8; see also Roberts Decl. ¶ 18.f.)  While the court finds this evidence conclusory, the alleged violations occurred from August 2019 to July 2022 and fall primarily within the term of the second MOU. 

However, in its February 16, 2023, ruling, the court raised several questions for the parties to address regarding the expiration of the MOU, specifically: 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?

Petitioner has not persuasively addressed these issues.  Contradicting its prior position (see OB 8-9), Petitioner now contends that the court may review the petition pursuant to CCP section 1094.5.  Petitioner states: “Writ review under Section 1094.5 is a review of a decision at that moment in time. Whether facts and circumstances have changed—i.e., the expiration of an MOU—should not serve to validate an otherwise improper administrative decision.”  (Pet. Suppl. Br. 2.)  Petitioner then argues that, even if section 1085 applies, “the inquiry is whether the allegations raised in the petition—that is, a failure to abide by a lawfully enacted, binding, and in effect MOU—can be remedied.”  (Id. at 3.)  Petitioner acknowledges that issuance of a writ of mandate “is not necessarily a matter of right, but lies rather in the discretion of the court” and that a “court will not issue a writ of mandate to enforce an abstract right of no practical benefit to petitioner.”  (Ibid.)

Petitioner’s arguments weigh against granting writ relief.  Petitioner points out that it cited CCP sections 1085 and 1094.5 in the petition.  However, as discussed below, Petitioner does not show that CCP section 1094.5 applies to this action and, even if it did, that a writ of administrative mandate should issue. 

For the claim under section 1085, Petitioner does not identify any authority for this court to issue a writ enforcing an expired MOU and for alleged violations that do not cause any ongoing or recurring harm.  A writ of mandate is a form of equitable remedy and is similar to injunctive relief. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1563, fn. 9.) “It is a familiar doctrine of equity that the scope of [an] injunction will be limited to the wrongful act sought to be prevented.” (Magill Bros. v. Building Service etc. Union (1942) 20 Cal.2d 506, 512, 127 P.2d 542.)  Since the first and second MOUs are expired, Petitioner does not show that there is any “ongoing” or “recurring” violation of Article 6.11 that could be enjoined by mandamus.   Petitioner fails to develop any argument that this court, in an equitable mandamus proceeding, should issue a damages remedy based on an expired MOU or that any damages would be “incidental” to a writ under the circumstances discussed above.  Further, any claims for administrative mandate or damages of individual grievants for conduct occurring prior to June 30, 2022, do not belong to Petitioner.  With respect to any damages caused by alleged breach of Article 6.11, those persons have a sufficient alternative remedy in the grievance procedure, a petition for writ of mandate pursuant to section 1094.5, and/or a separate contract action for damages.  A writ of ordinary mandate is only available “where the petitioner has no plain, speedy and adequate alternative remedy.”  (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 752.)

In its supplemental brief, Respondent argues that “the terms of the [MOUs] do not remain binding after expiration.”  (Resp. Suppl. Br. 3.)  The court agrees with that argument, as analyzed above.  In light of that conclusion, the court need not decide the remaining arguments in Respondent’s supplemental brief.

For benefit of oral argument, however, it appears that a petition for writ of mandate is not an appropriate legal proceeding to challenge alleged unfair labor practices of Respondent.  While not so stated, Petitioner may imply that Respondent has committed an unfair labor practice or bad faith bargaining by failing to honor Article 6.11 from the expired MOUs pending negotiations of a new MOU.  As the court stated in the April 5, 2022, ruling on demurrer, such allegation could arguably give rise to an unfair practice claim and therefore would fall within the exclusive jurisdiction of PERB.  (See 4/5/22 Min. Order 4-11; see also Personnel Commission v. Barstow Unified School District (1996) 43 Cal.App.4th 871, 885-886; Litton Financial Printing Div., a Div. of Litton Business Systems, Inc. v. N.L.R.B. (1991) 501 U.S. 190, 191 and 198-208.) 

The petition for writ of ordinary mandate pursuant to CCP section 1085 is DENIED.

Administrative Mandate

As noted, Petitioner argued in the opening brief that the writ petition is governed by CCP section 1085.  (OB 8-9.)  In its supplemental brief, Petitioner changes position and now contends that the court may adjudicate the petition under section 1094.5.  Under CCP section 1094.5(a), “the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision ….”  (bold italics added.) 

In the supplemental brief, Petitioner implies that the petition could be construed to seek review of the President’s Decision.  (Pet. Suppl. Br. 1-2.)  The court is not persuaded.  In the TAP, Petitioner referred to the President’s Decision but did not directly challenge that decision by seeking a writ under CCP section 1094.5 directing President or Respondent to set aside that decision.  (TAP ¶ 17 and Prayer.)  Indeed, Petitioner did not even name the President as a respondent.  In the TAP and briefs, Petitioner does not identify any other final administrative decision that could plausibly be subject to a petition under section 1094.5. 

Further, Petitioner concedes that the Grievance Procedure “does not provide for an administrative remedy for the PCCPOA-an association.”  (OB 8:9-13; see also Taylor Decl. ¶ 5, Exh. E [complete 2019-2022 MOU, including Article 14 and Grievance Report Form at Appendix B].)  While not briefed by the parties, that concession implies that Petitioner lacks standing to challenge the President’s Decision under section 1094.5. 

Assuming arguendo that Petitioner challenges the President’s Decision under section 1094.5 and has standing to do so, Petitioner must show a prejudicial abuse of discretion in that decision.  (CCP § 1094.5(b).)  As relevant here, an abuse of discretion is established if the decision is not supported by the findings, or the findings are not supported by the evidence.  (CCP § 1094.5(b).)  “[T]he challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging …. And in doing so, the challenger cannot simply ignore the evidence in the record that was relied upon by the board …. Rather, the challenger must explain why that evidence is insufficient to support that finding.  (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513; accord Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)  

Petitioner has not fulfilled these requirements for writ review under section 1094.5.  Petitioner has not provided a full administrative record of the proceedings leading to the President’s decision or articulated, with reference to the record, which administrative findings or conclusions are not supported by the evidence. The court does "not serve as 'backup appellate counsel,' or make the parties' arguments for them."  (Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14.)

For these reasons, the court finds no prejudicial abuse of discretion in the decision.  (See CCP § 1094.5(b).) 

The petition for writ of administrative mandate pursuant to CCP section 1085 is DENIED.  To the extent Petitioner asks the court to now construe its petition as one arising under section 1094.5, the Petition is denied.  In light of the court’s analysis above, the court does not reach the parties’ remaining arguments, including with respect to the proper interpretation of Article 6.11.

Declaratory Relief and Damages

In its prayer, Petitioner also seeks declaratory relief and damages necessary “to make impacted PCCPOA members whole.”  (Prayer ¶ 2.)  In this case, the prayers for declaratory relief and damages were pleaded as part of the cause of action for writ of mandate.  It appears these prayers are entirely dependent on the writ cause of action.  Accordingly, for the reasons stated above, the prayers for declaratory relief and damages are also denied. 

Conclusion

The petition for writ of mandate is DENIED.