Assn. of >Orange> >County> Deputy
Sheriffs v. County> of >Orange>

 

 

 

 

 

 

 

 

 

 

Filed 6/21/13  Assn. of Orange County Deputy Sheriffs v. County of Orange CA4/3

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

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opinion has not been certified for publication or ordered published for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.

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

ASSOCIATION OF ORANGE COUNTY DEPUTY SHERIFFS,         Plaintiff and Appellant,               v.   COUNTY OF ORANGE et al.,         Defendants and Respondents;   ORANGE COUNTY EMPLOYEES ASSOCIATION,         Intervener and Respondent.

G047102            (Super. Ct. No. 30-2010-00400085)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Franz E. Miller, Judge.  Affirmed. 
Motion to take additional evidence on appeal.  Denied.

                        Law Offices of Charles
Goldwasser, Charles A. Goldwasser, David C. Goldwasser, Theodore H. Dokko; The
Krolikowski Law Firm and Adam J. Krolikowski for Plaintiff and Appellant.

                        Nicholas S. Chrisos, County
Counsel, and Nicole M. Walsh,
Deputy County Counsel, for Defendants and Respondents.

                        Silver, Hadden, Silver,
Wexler & Levine and Richard Alan Levine for Intervener and Respondent.

*                      *                      *

 

INTRODUCTION

                        In January 2010, for the
purpose of cutting costs, the Orange County Sheriff’s Department (the
Department) employed a new classification of civilian employee (the CSA
classificationhref="#_ftn1" name="_ftnref1"
title="">[1])
to do office work in the Orange County
(the County) jail system.  Before this
new classification, such work had been exclusively performed by deputy
sheriffs.  The Association of Orange
County Deputy Sheriffs (the Association) sued the County, the Department, and
the County Sheriff Sandra Hutchens (collectively, defendants).  The Association alleged defendants
transferred duties performed by deputy sheriffs to CSA’s (who were assigned to
the bargaining unit of another union, the Orange County Employees Association
(OCEA)), without having first complied with the meet‑and‑confer
obligations required by the Association’s applicable memorandum of
understanding with the County and the Meyers‑Milias‑Brown Act
(MMBA) (Gov. Code, § 3500 et seq.). 
(All further statutory references are to the Government Code unless
otherwise specified.)  OCEA filed a
complaint in intervention, seeking, inter alia, a judicial declaration that the
CSA classification was lawfully created and properly assigned to OCEA as its
bargaining unit.

                        Following trial, the
court found the creation of the CSA classification and assignment of that
classification to OCEA were lawful, but the effects of the CSA classification
on deputy sheriffs represented by the Association fell within the scope of
representation, and were thus subject to the meet‑and‑confer
requirements of the MMBA.  The trial
court found no violation of the applicable memorandum of understanding. 

                        The trial court issued a
writ of mandate commanding defendants and the Association to immediately meet
and confer on the impacts of the CSA classification on deputy sheriffs
represented by the Association.  The
court’s statement of decision thoroughly explained its reasoning.  The trial court also enjoined defendants from
placing any CSA’s into positions not already occupied by CSA’s, pending the
court’s determination the parties satisfied the meet‑and‑confer
requirements.  The Association contends
the trial court’s order violated the contracts clause of the California
Constitution and was otherwise inadequate.

                        We affirm.  The Association has failed to provide
relevant legal authority and analysis
in support of its arguments and has failed to demonstrate how the trial court’s
order issuing a writ of mandate and providing injunctive relief in favor of the
Association constituted error.

 

FACTUAL AND PROCEDURAL
BACKGROUND

I.

The Association’s and OCEA’s Relationships to Defendants

                        The Association is an
employee organization within the meaning of the MMBA.  It represents employees of the Department who
hold nonmanagement positions, including employees in positions classified as
deputy sheriff I and deputy sheriff II.  As a recognized employee organization, the
Association has the right to represent its members in their employment
relations with the County and the Department. 
In October 2007, the County Board
of Supervisors ratified a memorandum of understanding agreed to by the
Association and the County.  OCEA is also
an employee organization recognized by the County to represent several
classifications of nonsworn county employees regarding wages, hours, and other
terms and conditions of employment. 

 

II.

The Development of the CSA Classificationhref="#_ftn2" name="_ftnref2" title="">[2]

                        At the beginning of
2008, defendants and the Association began working together “to address the
fiscal difficulties created by the evident economic crisis.”  Defendants began developing the idea of
creating a new nonsworn classification of employee who would work in the County
jail system; the Association became aware of defendants’ efforts in February
2008.  “During the development of the
classification, the general working concept among [defendants] and [the
Association] was that the new classification of employee would fill jobs in the
Orange County jails that deputy sheriffs had done in the past when the job
became available by way of attrition, retirement, or transfer of a deputy
sheriff.”  The Department and the
Association contemplated that the Association would represent employees
belonging to the new classification. 

                        After newspaper articles
were published, reporting on the new classification, the Association sent two
letters to then Acting Sheriff Jack Anderson, stating that defendants were
required to meet and confer with the Association before the implementation of
the new classification.  Although the
Association asserted the parties were required to meet and confer on this
issue, the Association also asserted it would not agree to meet and confer
until negotiations opened for the 2009‑2012 memorandum of understanding
(the MOU), pursuant to the so‑called “zipper clause” in the then
applicable memorandum of understanding. 

                        Defendants and the
Association continued to discuss the new classification throughout 2008 and in
early 2009.  In July 2009, the County
Board of Supervisors adopted the
CSA classification.  The board of
supervisors directed the County’s human resources department to make a
recommendation regarding placement in the appropriate representation unit for
the CSA classification, in accordance with the applicable employee relations
resolution. 

                        In August 2009, contract
negotiations between defendants and the Association opened for the MOU.  At that time, the Association proposed that
the parties bargain the issue of representation of the CSA classification.  The County refused to negotiate that issue,
and it was later withdrawn from the negotiations by the Association. 

 

III.

The
CSA Classification Is Assigned to OCEA as Its Bargaining Unit; the Association
Does Not Challenge That Assignment.

                        The County’s human
resources director, Carl Crown, recommended that the CSA classification be
represented by OCEA, based on the criteria set forth in section 8 of the
employee relations resolution.  Crown’s
decision was supported by, inter alia, evidence that OCEA represented other
nonsworn classifications of employees, which had similar salary scales and
retirement benefits as the CSA classification. 
In October 2009, the County Board of Supervisors determined the CSA
classification would be represented by OCEA. 


                        The Association did not
file a challenge to the assignment with the personnel director within 15 days,
as required by section 8I of the employee relations resolution.  Had such a challenge been filed, a hearing of
the matter would have been conducted by the board of supervisors. 

 

IV.

CSA’s Are Placed in the County Jail System and
the Association Files a Complaint and Request for a Preliminary Injunction
Against Defendants; the Trial Court Issues Preliminary Injunction Against
Defendants.

                        In January 2010, the
first group of CSA’s was assigned and placed in the County jail system.  During a shift schedule change in the summer
of 2010, one or more deputies at the Theo Lacy Facility were told that certain
assignments in two modules, which had been traditionally assigned to deputy
sheriffs, would be filled by CSA’s, not deputy sheriffs. 

                        In August 2010, the
Association sued defendants (the action) by filing a verified complaint against
them, asserting claims for breach of the MOU and violation of the MMBA.  The Association sought href="http://www.fearnotlaw.com/">injunctive relief preventing defendants
“from changing the status quo prior to [defendants] complying with the meet and
confer, bargaining and impasse procedures required” by the MOU and the
MMBA.  The complaint further prayed for
the issuance of a peremptory writ of mandate commanding defendants to follow
the requirements of the MOU and the MMBA, “concerning meet and confer,
bargaining and impasse procedures on the issue of the CSA’s impact on
employment conditions and employer‑employee relations.” 

                        A day after the
complaint was filed, the Association applied ex parte for a temporary
restraining order and an order to show cause regarding the issuance of a
preliminary injunction to enjoin defendants from replacing the Association’s members
with CSA’s, and thus maintain the status quo. 
In support of the Association’s application, the Association’s executive
director, Mark Nichols, declared, inter alia, that the Association “has
suffered immediate damage due to the supplanting of [the Association’s]
positions in the Orange County Jails, the permanent loss of bargaining unit
positions, and will continue to suffer loss of bargaining unit positions of
Orange County Jail staffing according to [defendants]’ own statements.” 

                        In August 2010, the
trial court denied the Association’s application for a temporary restraining
order, but issued an order to show cause, which stated, in part:  “[I]t appears to the satisfaction of the
court that this is a proper case for granting an order to show cause for a
preliminary injunction.”  In late
September 2010, the trial court issued a preliminary injunction, stating, in
part, that during the pendency of the action, defendants were enjoined from
“[f]illing any Deputy Sheriff positions which existed in the Orange County jail
system on July 30, 2010, with CSA employees other than had been in effect
on July 30, 2010.” 

                        Defendants moved to
dissolve the preliminary injunction on the ground the trial court failed to
order an undertaking as required by Code of Civil Procedure
section 529.  Defendants requested
that the trial court order an undertaking in the amount of $650,000.  In support of defendants’ motion, Captain
Davis Nighswonger declared that as of October 14, 2010, 24 people were
being trained in the CSA academy and were expected to graduate on
November 2, 2010.  Nighswonger
stated that as part of their continued training, the CSA’s receive six weeks of
on‑the‑job training in jails with deputy sheriffs.  At the end of this six‑week period, the
staffing plan called for the CSA’s to occupy positions in the jails on their
own.  The differential in hourly rate of
pay between a deputy sheriff I and a CSA is $12.49.  Nighswonger declared it will cost an
additional $23,980 per pay period if the sheriff cannot use the CSA’s in their
intended capacity.  If the preliminary
injunction remained in effect in mid‑December when the CSA’s would be
ready to assume solo positions in the jails, Nighswonger stated the Department
“will have to find other positions for them or potentially lay them off.  Also, the positions that CSAs are intended to
fill come mid‑December will have to be filled by Deputies instead.  The cost impact on the budget as approved by
the Board of Supervisors will be significant.” 


                        In mid‑October
2010, the trial court issued a new preliminary injunction which stated:  “IT IS HEREBY ORDERED that during the
pendency of the above‑entitled action or until further court order, the
County of Orange, Orange County Sheriff’s Department, and Orange County Sheriff
Sandra Hutchens, Defendants/ Respondents in the above‑entitled matter,
their employees and agents are hereby enjoined and restrained from filling any
Deputy Sheriff positions which existed in the jail system on September 24,
2010, with employees classified as CSAs other than were in effect on
September 24, 2010.  [¶] The above
injunction shall issue and become effective upon [the Association]’s filing an
undertaking in the amount of $10,000 as required by law.  [¶] The Preliminary Injunction previously signed
and issued by the Court on September 28, 2010, is superseded and
supplanted by this Order.” 

 

V.

OCEA Intervenes in the Action, Seeking
Declaratory Relief Against the Association and Defendants.

                        In mid‑October
2010, OCEA intervened in the action, by filing a complaint in intervention
seeking “a judicial determination that: 
(a) [the] County lawfully created the classification of [CSA] to
perform duties by employees represented by [OCEA]; (b) the duties and
responsibilities performed by the employees occupying the classification of
[CSA] were not subject to meet and confer or impasse procedures between the
. . . County and [the] Association . . . ;
[(]c) employees currently occupying the classification of [CSA] and vested
with their current duties and responsibilities were properly placed within the
bargaining unit represented by the [OCEA]; (d) employees currently
occupying the classification of [CSA] are vested with a property interest and
constitutional and statutory rights to continue in their current
classification, salary and benefits; (e) any future vacancy in the
classification of [CSA] should be filled by eligible employees within the
bargaining unit represented by [OCEA]; (f) any change in work performed or
changes to wages, hours or working conditions by employees occupying the
classification of [CSA] must be preceded by advanced written notice to [OCEA]
and the opportunity of [OCEA] to meet and confer with [the] County as well as
to exhaust any and all impasse procedures before implementation; and
(g) [the] Association . . . is estopped from challenging the
creation or placement of the classification of [CSA] in [OCEA]’s bargaining
unit by failure to exhaust administrative
remedies.” 

 

VI.

Defendants
Appeal; the Preliminary Injunction

and the Trial Court Proceedings Are Stayed.

                        Defendants appealed from
the order issuing the preliminary injunction against them, arguing the
Association failed to establish a likelihood of prevailing on the merits of its
claims and further failed to show it would suffer interim harm in the absence
of such an injunction.  In the
alternative, defendants also argued the amount of the undertaking ordered by
the trial court was insufficient. 

                        We granted defendants’
requests to stay the preliminary injunction and trial court proceedings
(including trial which was scheduled for March 2011) pending resolution of
their appeal. 

 

VII.

This Court Affirms Order Issuing Preliminary
Injunction.

                        In September 2011, in an
unpublished opinion, this court affirmed the trial court’s order issuing a
preliminary injunction and imposing a $10,000 undertaking.  (Association
of Orange County Deputy Sheriffs v. County of Orange (Sept. 28, 2011,
G044502) [nonpub. opn.].)  In our
opinion, we explained in part:  “Well‑established
California Supreme Court precedent, including International Assn. of Fire Fighters, Local 188, AFL‑CIO v.
Public Employment Relations Bd. (2011) 51 Cal.4th 259, 277
. . . , Claremont Police
Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630
. . . , and Building
Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d
651, 655 . . . , is directly on point with the issues raised in
this case.  These opinions establish that
a public employer must meet and confer with the bargaining unit regarding a
decision to transfer duties away from that bargaining unit and the impacts of
such a decision, when the purpose of the decision was to save labor
expenses.  Here, evidence showed
defendants permanently transferred duties that historically were performed by
members of the Association to employees belonging to a different bargaining
unit to save labor costs, but did not meet and confer as to that decision or
its impacts on the Association or its members. 
Some of the Association members’ ‘position choices’ have been
consequently eliminated.  [¶] We hold the
trial court did not err by concluding a preliminary injunction should be issued
after weighing (1) the likelihood the Association would prove defendants
were required to meet and confer as to the decision to use CSA’s in the
County’s jails and the impacts of such a decision but failed to do so, and
(2) the relative harm the parties would suffer by the issuance or
nonissuance of a preliminary injunction. 
We further conclude defendants failed to demonstrate the court erred by
imposing a $10,000 undertaking.” 

                        In our opinion, we
explained that although the gravamen of the Association’s complaint against
defendants was that they not only violated the MMBA, but also breached a
memorandum of understanding, we could not evaluate “the extent to which
defendants breached [any such agreement] because those documents are not
included in our record.” 

 

VIII.

The Trial Court Denies the Association’s
Motion for Sanctions Against Defendants; the Association Amends Complaint to
Allege Damages.

                        In January 2012, the
Association filed a motion for sanctions against defendants for failure to
comply with the preliminary injunction. 
The trial court denied the motion, explaining in a minute order that the
motion for sanctions “appears to be an attempted application for an [order to
show cause] re contempt, such applications should be sought with caution
[citation], the declaration in support of the motion is light years from pleading
contempt elements, none of the apparent contemnors has been personally served,
the sanctions sought are not clearly specified, and no hearing would be held
before arraignment in any event.” 

                        The Association filed a
first amended complaint in which the Association reiterated its claims that
defendants breached the MOU and violated the MMBA.  The first amended complaint repeated the
Association’s prayer for a writ of mandate and injunctive relief, and also
included the allegation that the Association suffered damages in excess of
$25,000. 

 

IX.

Following Trial on the First Amended
Complaint, the Court Issues A Statement of Decision and Orders Issuance of
Peremptory Writ of Mandate, Injunctive Relief, and Declaratory Relief; the
Association Appeals.

                        Following trial on the
first amended complaint and OCEA’s complaint in intervention, the court issued
a statement of decision and an order for the issuance of a peremptory writ of
mandate.  The trial court’s order also granted
the Association limited injunctive relief and granted OCEA the declaratory
relief it sought in its complaint in intervention.

 

A.

>Statement of Decision

                        The trial court issued a
statement of decision, setting forth its conclusions of law which, as pertinent
to the issues raised in this appeal, included (1) defendants have a duty
to meet and confer with the Association regarding the impacts of the CSA
classification on the wages, hours, and working conditions of deputy sheriffs,
pursuant to the MMBA; (2) defendants’ failure to bargain the CSA
classification’s impacts on deputy sheriffs during the negotiations for the MOU
was not in bad faith; (3) defendants did not have a duty to meet and
confer pursuant to the MOU “because no applicable provision of the MOU requires
meet and confer or dictates specific procedures for meet and confer”;
(4) the County’s assignment of the CSA classification to OCEA for
representation was reasonable because OCEA represented other nonsworn
classifications with similar salary scales and retirement benefits; (5) the
Association failed to appeal the decision to assign the CSA classification to
the OCEA bargaining unit within 15 days as required by the employee relations
resolution; (6) â€œ[b]efore removal of CSAs from their current job
assignments/positions, meet and confer pursuant to the MMBA would be required,”
and, therefore, the court “does not have the Constitutional authority to order
the removal of particular individuals from their positions”; and
(7) â€œ[t]he Court does not have power to remove CSAs from OCEA and place
them in [the Association]’s bargaining unit because to do so would violate
MMBA.” 

                        In addition to the
conclusions of law listed ante, in
the statement of decision, the trial court stated:  “[The Association] cannot assert the [MOU’s]
‘zipper clause’ . . . to prevent meet and confer regarding the CSAs
from occurring until contract negotiations open with the County of Orange in
fall, 2012.  Nor was it proper for [the
Association] to raise the need to negotiate the CSA classification in 2008‑2009,
but then assert the ‘zipper clause’ as a basis to refuse to meet and confer
about the issue until the MOU was open for negotiations in 2009.  [¶] The ‘zipper clause’ is intended to
protect a party to the MOU from having negotiations forced upon it during the term
of the contract; it is not intended to allow a party to identify and demand
that an issue is subject to meet and confer but thereafter refuse to meet and
confer until the contract is open for negotiations.  Such an interpretation would frustrate the purpose
of the MMBA and constitute an illegality in the contract.” 

 

B.

>The Trial Court’s Order Issuing Peremptory
Writ of Mandate, and Granting Injunctive Relief to the Association and
Declaratory Relief to OCEA

                        The trial court’s order
stated in pertinent part:

                        “1.  The
Petition for Writ of Mandate and Complaint for Injunctive Relief is >GRANTED IN PART AND DENIED IN PART AS
FOLLOWS:

                        “a.  [The
Association]’s request, as set forth in the FAC [(first amended complaint)],
for a writ of mandate to issue commanding County/Sheriff to meet and confer
pursuant to the MMBA is GRANTED as
set forth below in paragraph 2;

                        “b.  [The
Association]’s request, as set forth in the FAC, for a writ of mandate to issue
commanding County/Sheriff to meet and confer pursuant to the operative
Memorandum of Understanding is DENIED;

                        “c.  [The
Association]’s request, made at trial but not pled in the FAC, for a writ of
mandate to issue commanding County/Sheriff to remove CSA’s from the [OCEA] and
place them in the [Association] bargaining unit is DENIED;

                        “d.  [The
Association]’s request, made at trial but not pled in the FAC, for a writ of
mandate to issue commanding the County Human Resources Department to comply
with the Employee Relations Resolution is DENIED;

                        “e.  [The
Association]’s request, made at trial but not pled in the FAC, for a writ of
mandate to issue commanding County/Sheriff to remove CSAs from positions worked
by Deputy Sheriffs in the Orange County jails as of July 1, 2009, is >DENIED;

                        “f.  [The
Association]’s request, made at trial but not pled in the FAC, for a writ of
mandate to issue commanding County/Sheriff to return work and positions to [the
Association] bargaining unit members is DENIED;

                        “g.  [The
Association]’s request, made at trial but not pled in the FAC, for an
injunction to issue mandating that County/Sheriff remove CSAs from Deputy
Sheriff positions in the Orange County jails as of July 1, 2009, is >DENIED;

                        “h.  [The
Association]’s request, as set forth in the FAC, for an injunction to issue
prohibiting County/Sheriff in the future from assigning CSAs to Deputy Sheriff
positions in the Orange County jails until such time as [the Association] and
County/Sheriff meet and confer is
GRANTED as follows: 
(1) County/Sheriff is enjoined from placing CSAs in the Orange
County jails, except to replace those positions currently occupied and vacated,
for whatever reason, by CSAs, pending resolution of the meet and confer between
County/Sheriff and [the Association] or in the alternative, pending County
action after impasse or upon further Court order; (2) Except for those
positions that CSAs already occupy in the jail as noted above, the
County/Sheriff is enjoined from placing new CSAs in positions previously
occupied by deputy sheriffs and later vacated by deputy sheriffs, for whatever
reason, pending resolution of the meet and confer between County/Sheriff and
[the Association] or in the alternative, pending County action after impasse or
upon further Court order;

                        “i.  [The
Association]’s request, made at trial but not pled in the FAC, for an
injunction to issue prohibiting County/Sheriff from declaring impasse and
imposing last, best and final offer unless impasse is resolved by fact finding
and mediation is DENIED.

                        “j.  The
preliminary injunction originally ordered on October 14, 2010, is vacated.

                        “2.  A
peremptory writ of mandate shall issue under seal of this Court commanding
County/Sheriff to engage in meet and confer and seek to reach agreement with
[the Association] on the issue of the impacts of the CSAs on the wages, hours,
and working conditions of Deputy Sheriffs in the Orange County jails.  The peremptory writ shall be in the form
attached hereto as Exhibit A.

                        “3.  [The
Association] is ordered to engage in meet and confer and seek to reach
agreement with County/Sheriff on the issue of the impacts of the CSAs on the
wages, hours, and working conditions of Deputy Sheriffs in the Orange County
jails.

                        “4.  This
Court shall reserve and retain jurisdiction over this action until such time as
County/Sheriff file a return evidencing that it has complied with the attached >Peremptory Writ of Mandate.

                        “5.  County/Sheriff
shall file a return to this writ no later than fifteen days from 6/20, 2012; on
7/5, 2012.  Hearing on the return shall
be held on 8/6, 2012, at 8:30 AM in Department C‑14.

                        “IT IS FURTHER ORDERED AND DECREED, as to the Cross‑Complaint
filed by OCEA that:

                        “6.  OCEA’s
requests for Declaratory Relief are GRANTED.  OCEA is entitled to declaratory relief as
follows:  (1) The CSA and CSA
trainee classifications were lawfully created by County/Sheriff; (2) the
CSA and CSA trainee classifications were property placed by County in the OCEA
bargaining unit; and (3) CSAs and CSA trainees should not be prohibited
from doing duties set forth in their class specifications.

                        “IT IS SO ORDERED.” 

                        The trial court issued a
peremptory writ of mandate that was consistent with its order.

 

C.

>The Association Appeals and Defendants
Request We Consider Additional Evidence They Contend Establish the
Association’s Appeal Is Moot.

                        The Association
appealed.  Defendants filed a “Motion to
Take Additional Evidence to Establish Occurrence of Event Rendering the Appeal
Moot.”  The Association filed written
opposition to the motion. 

 

DISCUSSION

I.

We Deny Defendants’ Motion to Take Additional
Evidence on Appeal.

                        Defendants filed a
motion requesting that we take additional evidence in the form of the
declaration of the County’s assistant human resources director, Terri Bruner,
“in order to establish the occurrence of events rendering this appeal
moot.”  Defendants’ motion was brought
under Code of Civil Procedure section 909 and California Rules of Court,
rule 8.252. 

                        Code of Civil Procedure
section 909 provides:  “In all cases
where trial by jury is not a matter of right or where trial by jury has been
waived, the reviewing court may make factual determinations contrary to or in
addition to those made by the trial court. 
The factual determinations may be based on the evidence adduced before
the trial court either with or without the taking of evidence by the reviewing
court.  The reviewing court may for the
purpose of making the factual determinations or for any other purpose in the
interests of justice, take additional evidence of or concerning facts occurring
at any time prior to the decision of the appeal, and may give or direct the
entry of any judgment or order and may make any further or other order as the
case may require.  This section shall be
liberally construed to the end among others that, where feasible, causes may be
finally disposed of by a single appeal and without further proceedings in the
trial court except where in the interests of justice a new trial is required on
some or all of the issues.” 

                        Bruner’s two‑and‑one‑half‑page
declaration summarizes negotiations between defendants and the Association
regarding the CSA classification from April to October 2012, and concludes by
stating:  “The County’s proposal
regarding the CSA classification remains on the bargaining table, though no
final agreement on the issue has been reached.” 
Defendants’ moving papers fail to analyze how Bruner’s declaration
establishes the mootness of the issues in this appeal.  Furthermore, defendants’ motion does not
include a statement of proposed findings as required by rule 8.252(b) of
the California Rules of Court, which states: 
“A party may move that the reviewing court make findings under Code of
Civil Procedure section 909.  The
motion must include proposed findings.” 
Defendant’s motion is therefore denied.

 

II.

General Legal Principles Governing Writs of
Mandate and the Provision of Injunctive Relief; the Applicable Standard of
Review

                        A
writ of mandate will issue 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)), “where there is not a plain, speedy,
and adequate remedy, in the ordinary course of law” (Code Civ. Proc.,
§ 1086).  The writ will issue
against a county, city, or other public body, or against a public officer.  (Housing
Authority v. City of L. A. (1952) 38 Cal.2d 853, 869‑871; >County of Los Angeles v. City of Los Angeles
(2013) 214 Cal.App.4th 643, 653.)  The
Association could seek a writ of mandate to challenge the County’s alleged
breach of its duty under the MMBA.  (>Santa Clara County Counsel Attys. Assn. v.
Woodside (1994) 7 Cal.4th 525, 541; Coachella
Valley Mosquito & Vector Control Dist. v. California Public Employment
Relations Bd. (2005) 35 Cal.4th 1072, 1077, fn. 1.)

                        “In
reviewing the trial court’s denial of the writ, we must determine whether its
findings and judgment are supported by substantial evidence.  However, where the facts are undisputed and a
question of law is involved, we may exercise our independent judgment.”  (Riverside
Sheriff’s Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289.)

                        “The
grant or denial of a permanent injunction rests within the trial court’s sound
discretion and will not be disturbed on appeal absent a showing of a clear
abuse of discretion.  [Citation.]  The exercise of discretion must be supported
by the evidence and, ‘to the extent the trial court had to review the evidence
to resolve disputed factual issues, and draw inferences from the presented
facts, [we] review such factual findings under a substantial evidence
standard.’  [Citation.]  We resolve all factual conflicts and
questions of credibility in favor of the prevailing party and indulge all
reasonable inferences to support the trial court’s order.”  (Horsford
v. Board of Trustees of California State University (2005) 132 Cal.App.4th
359, 390.)

 

III.

The Association’s Challenges to the Trial
Court’s Order Are Without Merit.

                        “The MMBA applies to
local government employees in California.” 
(Claremont Police Officers Assn.
v. City of Claremont (2006) 39 Cal.4th 623, 630 (Claremont).)  Under the MMBA,
a public employer and a recognized employee organization have a “‘“mutual
obligation personally to meet and confer promptly upon request by either party
. . . and to endeavor to reach agreement on matters within the scope
of representation prior to the adoption by the public agency of its final
budget for the ensuing year.”’”  (>International Assn. of Fire Fighters, Local
188, AFL‑CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th
259, 271.)  The obligation to bargain in
good faith requires that the parties “must genuinely seek to reach
agreement.”  (Ibid.)  The MMBA does not
require that the parties actually reach an agreement.  (International
Assn. of Fire Fighters, Local 188, AFL‑CIO, supra, at p. 271.)  “[A]
public employer has the ultimate power to reject employee proposals on any
particular issue.”  (Ibid.; see Claremont, >supra, at p. 630 [“Even if the
parties meet and confer, they are not required to reach an agreement because
the employer has ‘the ultimate power to refuse to agree on any particular
issue’”].)

                        As described in detail >ante, the trial court, in awarding OCEA
declaratory relief, found that defendants’ creation of the CSA classification
and the placement of CSA’s in the OCEA bargaining unit constituted lawful
conduct.  The trial court, however, also
found that the impacts or> effects of the placement of CSA’s in
the County jail system on deputy sheriffs, who belong to the Association’s
bargaining unit, fell within the scope of representation under the MMBA, and,
thus, were subject to the meet‑and‑confer requirements of the
MMBA.  (See Claremont, supra, 39
Cal.4th at p. 635 [although employer’s fundamental policy decision might
not be subject to meet‑and‑confer requirements of the MMBA, the
effects of that decision on wages, hours, or other conditions of employment
might be subject to those requirements].)

                        The trial court granted
the Association’s petition to issue a writ of mandate by ordering the parties
to meet and confer within 15 days of the date of the court’s order.  The court also granted the Association
injunctive relief against defendants, prohibiting them from placing any new
CSA’s in the County jail system into positions not already filled by CSA’s
until the court determined the mandated meet‑and‑confer
requirements were satisfied.

                        The Association’s appeal
is limited to challenging the trial court’s order issuing the writ of mandate
and providing injunctive relief on
behalf of the Association, on the ground the court provided insufficient relief
which failed to make the Association whole. 
Before we address the Association’s arguments challenging the relief
provided by the trial court, we note the Association does not challenge any of
the court’s factual findings as set forth in the statement of decision.  In addition, the Association does not mount
any challenge to the declaratory relief provided to OCEA, which included a
judicial declaration that defendants lawfully created the CSA classification,
the CSA classification was properly placed by the County in the OCEA bargaining
unit, and CSA’s “should not be prohibited from doing duties set forth in their
class specifications.”  We address the
Association’s arguments challenging the trial court’s order issuing a writ of
mandate and injunctive relief, in turn.

A.

>The Association Fails to Show How the Trial
Court’s Order Issuing a Writ of Mandate Commanding Defendants to Immediately
Meet and Confer with the Association Constituted an Abuse of Discretion.

                        The Association argues
the trial court’s order issuing a writ of mandate commanding the parties to
meet and confer about the impacts of the CSA classification on deputy sheriffs
within 15 days (by July 5, 2012) was in error.  The Association contends the parties had
agreed in the MOU that absent mutual agreement, negotiations regarding issues
within the scope of representation would not occur during the term of the MOU,
but only when negotiations for the next memorandum of understanding opened
(which was scheduled to occur in August 2012). 
In support of its argument, the Association exclusively relies on the so‑called
zipper clause of article XXIII of the MOU, which is entitled “MODIFICATION
AND WAIVER,” and states the following in its entirety:  “Except as specifically provided herein, it
is agreed and understood that the parties hereto reserve the right, only upon
mutual agreement, to negotiate with respect to any subject or matter covered
herein or with respect to any other matter within the scope of representation
during the term of the Memorandum of Understanding.”href="#_ftn3" name="_ftnref3" title="">[3] 

                        The Association argues
the trial court was without authority to require the parties to immediately
meet and confer regarding the impacts of the CSA classification on deputy
sheriffs and, by ordering the parties to do so, the court ignored
article XXIII of the MOU and thus violated the contracts clause of the
California Constitution.  (Cal. Const.,
art. I, § 9 [“A . . . law impairing the obligation of
contracts may not be passed”]; Colony
Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1169‑1170 [“‘the state
contract clause has been construed also to apply to judicial action’”].)  Conspicuously absent from the Association’s
appellate briefs is relevant legal analysis explaining how the trial court’s
order runs afoul of the California Constitution under the circumstances of this
case.  The court’s order did not purport
to rewrite the MOU; rather, it attempted to ameliorate the harm caused by
defendants’ failure to meet and confer on the effects of the CSA classification
on deputy sheriffs before entering the MOU, in the context of the already
existing placement of CSA’s in the County jail system.

                        In any event, the
express language of article XXIII of the MOU prohibits the unilateral
modification of that agreement by either party. 
Article XXIII does not constitute an integration provision.  As drafted, it cannot be reasonably
interpreted to operate as a limitation on the authority of the trial court to
fashion a suitable equitable remedy to address the parties’ failure to
negotiate the impacts of a decision that has already been, at least partially,
implemented.

                        Here, the trial court
was faced with defendants’ failure in 2009 to meet and confer with the
Association, regarding the effects of the CSA classification before the parties
agreed on the MOU.  During the term of
the MOU, the Association sought court intervention to require defendants to
meet and confer on that issue.  But, as
explained in its opening brief, the Association in the same breath refused to
meet and confer on the issue until the term of the MOU expired and the
beginning of “regular collective bargaining [that] was set to begin in August
2012 and continue for up to ninety (90) days.” 


                        The Association’s failure
to cite legal authority or provide legal analysis showing how the trial court
exceeded its authority in fashioning this remedy is fatal to the Association’s
challenge.  As appellant, the Association
has the burden of proving error and that burden includes the obligation to
present argument and legal authority on each point raised.  (E.g., In
re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1333-1134.)  As explained by the appellate court in >Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956: 
“‘Appellate briefs must provide argument and legal authority for the
positions taken.  “When an appellant
fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived.”’  [Citation.] 
‘We are not bound to develop appellants’ arguments for them.  [Citation.] 
The absence of cogent legal argument or citation to authority allows
this court to treat the contention as waived.’”

B.

>The Association’s Challenges to the Injunctive
Relief Order Are Similarly Without Merit.

                        The Association argues
the injunctive relief ordered by the trial court was inadequate.  In its opening brief, the Association argues
to “make [it] whole as a result of Defendants’ failure and refusal to meet and
confer concerning CSAs during the 2009 negotiation period, the injunctive
relief should place the parties in their respective bargaining positions as of
that bargaining period and afford [the Association] the opportunity to
negotiate the value of the lost work to CSAs in conjunction with all other
issues for bargaining.  This effectuates
the purpose of the MOU zipper clause and the [employee relations resolution]
zipper clause.” 

                        The Association’s
proposed remedy, however, was rejected by the trial court.  As set forth in the statement of decision,
“plac[ing] the parties in their respective bargaining positions as of that
bargaining period” would require the removal of CSA’s who had been placed in
the County jail system either before the trial court issued the preliminary
injunction, or after this court stayed the preliminary injunction, pending the
first appeal in this matter in which defendants challenged the preliminary
injunction.  In the statement of
decision, the trial court explained it did not have the authority to order the
removal of particular individuals from their positions, and stated the removal
of employees would be subject to the meet‑and‑confer requirements
of the MMBA as well.  In its appellate
briefs, the Association does not address the trial court’s stated reasons or
otherwise cite legal authority showing the trial court had the authority to
provide the relief the Association proposes.

                        In its opening brief,
the Association also asserts defendants disobeyed the preliminary injunction because
they failed to return staffing to the level which existed on September 24,
2010.  As discussed ante, the preliminary injunction ordered that “during the pendency
of the above‑entitled action or until further court order, [defendants]
. . . are hereby enjoined and restrained from filling any Deputy
Sheriff positions which existed in the jail system on September 24, 2010,
with employees classified as CSAs other than were in effect on
September 24, 2010.”  As also
explained ante, this court issued a
stay of the preliminary injunction, pending resolution of defendants’ appeal
from the order issuing the preliminary injunction.  Although we affirmed the preliminary
injunction in our opinion filed on September 28, 2011, neither this court
nor the trial court ever ordered defendants, upon the affirmance of the
preliminary injunction and dissolution of the stay on its enforcement, to
remove any CSA’s who had been placed in the County jail system during the
stay.  Furthermore, the Association has
failed to cite or analyze any evidence regarding the timing and nature of any
alleged violation of the preliminary injunction.

                        In light of the
Association’s failure to demonstrate error, we affirm the trial court’s order.

 

DISPOSITION

                        The order is
affirmed.  Respondents shall recover
costs on appeal.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P.
J.

 

 

 

IKOLA, J.