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Burke v. Ipsen

October 29, 2010


APPEALS from a judgment and an order of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS117425).

The opinion of the court was delivered by: Mallano, P. J.


A member of a union filed a petition for a writ of mandate in the trial court, seeking to compel the union to conduct an election of officers and directors and to set aside the union's recently amended bylaws. The petition alleged violations of the Corporations Code and the union's original bylaws.

The union opposed the petition on the ground that plaintiff had failed to exhaust administrative remedies by not presenting his claims to the local employee relations commission.

The trial court concluded plaintiff did not have to exhaust administrative remedies because his claims involved internal union affairs, which the employee relations commission did not have the authority to resolve. The court granted the petition and issued a writ of mandate directing that an election be conducted and declaring the amended bylaws invalid. In subsequent proceedings, the court awarded attorney fees to plaintiff under the private attorney general statute, Code of Civil Procedure section 1021.5. The union appealed.

We agree with the trial court that plaintiff did not have to exhaust administrative remedies because the court was the proper tribunal to enforce the Corporations Code and the union's original bylaws in a dispute involving internal union affairs. We also conclude that the trial court did not abuse its discretion in awarding attorney fees under a private attorney general theory.


The Association of Deputy District Attorneys (ADDA) is a nonprofit mutual benefit corporation that began as a social organization for Los Angeles County deputy district attorneys. Its original bylaws, enacted in 1998, reflected the ADDA's status as a social organization.

In March 2008, the Los Angeles County Employee Relations Commission (Commission) certified the ADDA as an employee organization to represent deputy district attorneys in grades I through IV employed by the Los Angeles County District Attorney's Office. The Commission operates under the authority of the Employee Relations Ordinance of the County of Los Angeles (Ordinance), enacted in 1968. (See L.A. County Ord. No. 9646, codified at L.A. County Code, §§ 5.04.010-5.04.250.)

On October 8, 2008, the ADDA's board of directors submitted several proposed bylaw amendments to its members for approval. One amendment extended the terms of the existing officers and directors from one year to the earlier of three years or 12 months after the approval of a new collective bargaining agreement. Another amendment allowed the board to increase membership dues without a vote of the members. Before the vote on the amendments, annual dues were $30 for all grade levels.

On October 18, 2008, the ADDA counted the ballots and announced that the amendments had been adopted. On October 21, the board canceled the upcoming election of officers and directors, allowing them to remain in office after their one-year terms would have expired under the 1998 bylaws. The board also increased dues from $30 per year to $55 per month for grades I and II, and to $75 per month for grades III and IV.

On October 16, 2008, Peter Burke, a grade IV deputy district attorney and a member of the ADDA, filed a petition for a writ of mandate in the trial court, challenging the actions of the board. On December 5, 2008, Burke filed an amended petition (petition) against the board, the ADDA, and Steven Ipsen, the president of the board (collectively ADDA). The petition alleged that the ADDA's failure to hold annual elections and its adoption of the amended bylaws violated provisions of the Corporations Code and the 1998 bylaws. As relief, the petition sought to set aside the amended bylaws and to compel the ADDA to hold elections. The ADDA filed an answer to the petition.

On May 14, 2009, the ADDA filed a motion for judgment on the pleadings, contending Burke had failed to exhaust administrative remedies by not presenting his claims to the Commission. On the same day, the ADDA filed a "motion for judgment on peremptory writ," arguing Burke lacked standing to bring the petition because he was a "confidential" employee and was therefore prohibited from joining the ADDA. For his part, on May 26, 2009, Burke filed a notice of hearing on the petition, his supporting declaration, and a memorandum of points and authorities. The parties filed opposition and reply papers.

All matters were heard on June 17, 2009. The trial court provided the parties with a tentative ruling on each matter. After argument, the trial court adopted the tentative rulings as its final rulings, granting the petition and denying the ADDA's motions.

On July 24, 2009, the trial court filed a judgment granting the petition for a writ of mandate, directing the ADDA to: (1) conduct an election of officers and directors forthwith in accordance with the procedures set forth in the 1998 bylaws, and, if compliance with the 1998 bylaws was not possible or feasible, then in accordance with alternative procedures resembling the 1998 procedures; (2) set aside the vote of October 2008 adopting the amended bylaws, treat the amended bylaws as having no force and effect, and conduct a new election for amended bylaws; and (3) file a return with the court under oath within 30 days indicating what had been done to comply with the writ. On August 14, 2009, the ADDA filed an appeal from the judgment (B218286).

On September 22, 2009, Burke filed a motion for attorney fees under the private attorney general statute, Code of Civil Procedure section 1021.5. That statute provides: "[A] court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or non-pecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. . . ." The ADDA filed opposition.

The motion was heard on November 19, 2009. By order of that date, the trial court awarded Burke $60,000 in attorney fees. On December 17, 2009, the ADDA appealed from the order (B221436).

On October 7, 2010, we consolidated the appeals for purposes of oral argument and decision.


The ADDA contends the judgment granting the petition must be reversed because Burke failed to exhaust administrative remedies. We review that issue de novo. (See Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873.) The ADDA also argues the trial court erred in awarding attorney fees under Code of Civil Procedure section 1021.5. We review that alleged error for an abuse of discretion. (See New West Charter Middle School v. Los Angeles Unified School Dist. (2010) 187 Cal.App.4th 831, 848-849.)

A. Exhaustion of Administrative Remedies

"[W]here a right is given and a remedy provided by statute, the remedy so provided must ordinarily be pursued." (Rojo v. Kliger (1990) 52 Cal.3d 65, 83.) Thus, "'where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.'" (Id. at p. 84.) But "this oft-quoted rule speaks only to the need to exhaust administrative remedies provided for a statutory right and does not govern rights and remedies outside the legislative scheme." (Ibid.)

Burke's petition for a writ of mandate relied on the rights conferred by the Corporations Code and the ADDA's 1998 bylaws. By statute, the superior court has jurisdiction over claims under the Corporations Code. (See Corp. Code, §§ 7510, subd. (c), 7616, subd. (a), 7520, subd (c).) Further, an action for breach of a union's bylaws may be brought in superior court as a claim for breach of contract. (See CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1237-1238; see also San Lorenzo Education Assn. v. Wilson (1982) 32 Cal.3d 841, 853 [union did not have to exhaust administrative remedies before filing civil action against its members for breach of collective bargaining agreement].)

Nevertheless, the ADDA contends that, before resorting to the courts, Burke had to present his claims to the Commission because he sought to enforce rights created by the Ordinance. The ADDA had the burden of proof on this issue. (See Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 136-138; Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 729, 742, fn. 8.)

Under the Ordinance, the Commission "investigate[s] charges of unfair employee relations practices . . . [and takes] such action as the commission deems necessary to effectuate the policies of [the Ordinance], including, but not limited to, the issuance of cease and desist orders." (L.A. County Code, § 5.04.160, subd. E, italics added.) "Employees of the county shall have the right to form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation of all matters of employee relations." (Id., § 5.04.070, italics added.) "It shall be an unfair employee relations practice for employee organizations or their representatives or members: [¶] . . . [t]o interfere with, restrain or coerce employees in the exercise of the rights recognized or granted in [the Ordinance] . . . ." (Id., § 5.04.240, subd. B.1, italics added.) According to the ADDA, the writ petition actually accused it of having committed an unfair employee relations practice by interfering with or restraining Burke's right to participate in its activities (id., §§ 5.04.070, 5.04.240, subd. B.1), and the Commission had the authority to investigate and resolve the dispute (id., § 5.04.160, subd. E).

On the other hand, the Ordinance emphasizes that its purpose is to resolve disputes between an employer and its employees, not between groups of employees. The Ordinance begins with the statement: "The board of supervisors of the county of Los Angeles declares that it is the public policy of the county and the purpose of the ordinance . . . to promote the improvement of personnel management and relations between the county of Los Angeles and its employees . . . ." (L.A. County Code, § 5.04.020, italics added.) The Ordinance defines "employee relations" as "the relationship between the county and its employees and their employee organizations, or when used in a general sense, the relationship between management and employees or employee organizations." (Id., § 5.04.030, subd. H, italics added.) Given this tension in the purpose of the Commission -- (1) its primary function to regulate employer-employee relations (id., §§ 5.04.020, 5.04.030, subd. H), and (2) its obligation to resolve some disputes involving only employees (id., §§ 5.04.070, 5.04.240, subd. B.1) -- the courts must determine the scope of the Commission's authority to hear labor practice charges involving purely internal union affairs.

The Ordinance is a local employment regulation governed by the Meyers-Milias-Brown Act (MMBA) (Gov. Code, §§ 3500-3511; undesignated section references are to that code). (See Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 59-63; Union of American Physicians & Dentists v. County of Los Angeles (1983) 144 Cal.App.3d 236, 239-242.) The Commission's actions, determinations, and orders must be "consistent with and pursuant to the policies of [the MMBA]." (§ 3509, subd. (d).) "The MMBA has two stated purposes: (1) to promote full communication between public employers and employees; and (2) to improve personnel management and employer-employee relations within the various public agencies." (People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 597.)

The Public Employment Relations Board (PERB) is vested with the authority to interpret the provisions of six different labor relations acts, including the MMBA. (See Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077 & fn. 1, 1084-1086 (Coachella Valley).) The PERB is an independent state board consisting of five members appointed by the Governor with the advice and consent of the Senate. (§ 3541, subd. (a).) Although the PERB does not have jurisdiction over the Commission or the Ordinance (Coachella Valley, at p. 1077 & fn. 1), it has frequently construed statutory provisions similar to those at issue here. We therefore look to the PERB's decisions for guidance. (See Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 617.)*fn1

In Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106 [3 PERC ¶ 10134] (Kimmett), a union member filed an unfair practice charge against his union, alleging it had held meetings when his unit could not attend, prevented him from examining a union financial report, failed to inform his unit of the status of negotiations for a new collective bargaining agreement, and appointed a new secretary-treasurer without the participation of his unit. The charge asserted the union had violated section 3543.6, subdivision (b) of the Educational Employment Relations Act (EERA) (§§ 3540-3549). That statute provides: "It shall be unlawful for an employee organization to: [¶] . . . [i]mpose or threaten to impose reprisals on ...

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