RENNER, J.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201300153684CUPNGDS)
Plaintiff and appellant Earl Mykles sued defendants and respondents Service Employees International Union, Local 1000 (Local 1000) and union representative Melinda Williams (together, defendants). The trial court sustained defendants' demurrer to Mykles's third amended complaint without leave to amend on the grounds that the Public Employment Relations Board (PERB) has exclusive initial jurisdiction over Mykles's cause of action for breach of the duty of fair representation. Finding no error, we affirm.
I. BACKGROUNDMykles was employed by the State Compensation Insurance Fund (SCIF) for approximately 18 years. He was terminated for poor performance in March 2007. Mykles appealed his termination to the State Personnel Board (SPB), and asked his union, Local 1000, for help. Local 1000 assigned staff attorney Williams to represent him. Williams subsequently filed a whistleblower complaint with the SPB on Mykles's behalf.
Williams eventually negotiated a settlement for Mykles. As part of the settlement, Mykles received a lump sum payment of $43,704.30 and an additional two years of service credit for purposes of calculating his retirement benefits. In exchange, Mykles agreed to resign from state service, withdraw his appeal, and waive all known and unknown claims against SCIF. The terms of the settlement were memorialized in an amended stipulation for settlement which was approved by the SPB on February 25, 2011. Mykles commenced the present action on October 24, 2013. The initial complaint asserts a single cause of action for legal malpractice. The complaint alleges that Mykles would not have entered into the settlement agreement had Williams informed him that he could file an unfair practices charge (UPC) against SCIF with PERB. As described in the complaint, the UPC would have charged SCIF with violating a federal law known as the "Weingarten rule." (See NLRB v. Weingarten, Inc. (1975) 420 U.S. 251, 267 [employees in a unionized workplace may request the presence of a union representative at an investigatory interview which the employee reasonably believes may result in disciplinary action]; see also Rio Hondo Community College District (1982) PERB Dec. No. 260 [7 PERC § 14010, p. 26-30] [applying the Weingarten rule to state employees].) Had he filed such a UPC, Mykles contends, he "would have been reinstated to his employment with all back pay and seniority accrual, etc., and would have been working at such location to the present date." The complaint seeks compensatory damages in the amount of $750,000. The complaint does not allege facts showing that Mykles exhausted his administrative remedies or was excused from doing so.
On December 31, 2013, Mykles filed a first amended complaint alleging, again, that Williams negligently failed to inform him of his right to file a UPC with PERB. The first amended complaint additionally alleges that Local 1000 failed to ensure that SCIF provided him copies of certain work improvement plans. The first amended complaint does not allege facts showing that Mykles exhausted his administrative remedies or was excused from doing so.
Defendants demurred on the grounds that the trial court lacked jurisdiction over Mykles's claim and the first amended complaint failed to state facts sufficient to constitute a cause of action for legal malpractice. The trial court sustained the demurrer with leave to amend.
We take judicial notice on our own motion of the trial court's order sustaining the demurrer to the first amended complaint with leave to amend.
Mykles filed a second amended complaint on June 12, 2014. The second amended complaint asserts causes of action for legal malpractice against Williams and breach of the duty of fair representation and professional negligence against Local 1000. Although the second amended complaint elaborates on the particulars of Mykles's claims against defendants, it does not allege that Mykles exhausted his administrative remedies or was excused from doing so.
Defendants demurred on the grounds that the trial court lacked jurisdiction over Mykles's claims and the second amended complaint failed to state facts sufficient to constitute a cause of action against defendants. The trial court sustained the demurrer with leave to amend as to the cause of action for breach of the duty of fair representation and professional negligence and without leave to amend as to the cause of action for legal malpractice.
Mykles filed a third amended complaint—the operative pleading for purposes of this appeal—on October 6, 2014. The third amended complaint does not assert any specific cause of action against defendants. Instead, the third amended complaint alludes to violations of the Ralph C. Dills Act (Dills Act) (Gov. Code, § 3512 et seq.), and asks the trial court to "rule [that Local 1000] breached its duty of fair representation." The third amended complaint also alleges that union representative Don Stone failed to inform Mykles that he could pursue a grievance to arbitration without Local 1000's consent. The third amended complaint does not allege that Mykles exhausted his administrative remedies or was excused from doing so, but urges the trial court to "stay these proceedings so he can file [a] UPC against [Local 1000] (assuming plaintiff's settlement agreement doesn't bar him from doing so)."
Undesignated statutory references are to the Government Code.
The third amended complaint primarily consists of legal arguments explaining why the trial court should not have sustained the demurrer to the second amended complaint.
Defendants demurred to the third amended complaint on the grounds that the trial court lacked jurisdiction over Mykles's claim and the third amended complaint failed to state facts sufficient to constitute a cause of action for breach of the duty of fair representation. Mykles opposed the demurrer. In the opposition, Mykles acknowledged that the third amended complaint was intended to state a cause of action for breach of the duty of fair representation. Mykles also avered that he had filed a UPC against SCIF, and urged the trial court to stay the present action pending the resolution of the UPC. In January 2015, the trial court denied the request for a stay and sustained the demurrer without leave to amend.
Mykles filed a timely notice of appeal.
II. DISCUSSIONA. Standard of Review
In reviewing a judgment after a demurrer is sustained without leave to amend, we examine whether the plaintiff alleged facts sufficient to state a cause of action under any legal theory. (Koszdin v. State Comp. Ins. Fund (2010) 186 Cal.App.4th 480, 487.) We assume the truth of the alleged facts and all facts that may be reasonably inferred from the allegations. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) However, we do not assume the truth of contentions, deductions or conclusions of fact or law. (Ibid.) We apply a de novo standard of review, and are not bound by the trial court's stated reasons. (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 433.)
In reviewing the trial court's refusal to permit an amendment, we are governed by an abuse of discretion standard. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The trial court abuses its discretion if there is a reasonable possibility an amendment would cure the defects. (Ibid.) An appellant has the burden to show how the complaint could be amended to state a viable cause of action. (Ibid.) B. Breach of Duty of Fair Representation
The third amended complaint generally alleges that defendants breached the duty of fair representation by (1) failing to inform Mykles that he could pursue a grievance to arbitration without Local 1000's consent, and (2) failing to inform him that he could file a UPC with PERB. The trial court sustained defendants' demurrer without leave to amend on the ground that PERB has exclusive initial jurisdiction over Mykles's remaining cause of action. The trial court's ruling was correct.
As an employee of SCIF, Mykles was covered by the contract between Local 1000 and the State of California. Labor relations between the State of California and certain categories of state employees, including Mykles, are governed by the Dills Act. (California Assn. of Professional Scientists v. Schwarzenegger (2006) 137 Cal.App.4th 371, 380 ["Enacted in 1977, the Dills Act (formerly known as the State Employer- Employee Relations Act or SEERA) 'accords collective bargaining rights to state civil service employees' "].) The administrative agency authorized to adjudicate UPCs arising under the Dills Act is PERB. (Gov. Code, § 3514.5.) In fact, "[t]he initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of [PERB]." (Ibid.) Courts have consistently agreed that PERB has exclusive initial jurisdiction to make such determinations. (See City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 605 [construing similar statutory grant of jurisdiction under Myers-Milias-Brown Act (MMBA), § 3500 et seq.]; Personnel Com. v. Barstow Unified School Dist. (1996) 43 Cal.App.4th 871, 885 [construing similar statutory grant of jurisdiction under the Educational Employment Relations Act (EERA), § 3540 et seq.].) Furthermore, the scope of PERB's exclusive initial jurisdiction is construed broadly in favor of allowing PERB to exercise its expertise over public sector labor relations in the state. (City of San Jose v. Operating Engineers Local Union No. 3, supra, at pp. 605-606; El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 960-961; International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1207-1209.)
The breach of a union's duty of fair representation is an unfair labor practice. (Anderson v. California Faculty Assn. (1994) 25 Cal.App.4th 207, 211-213 (Anderson); Paulsen v. Local No. 856 of Internat. Brotherhood of Teamsters (2011) 193 Cal.App.4th 823, 831 (Paulsen).) The third amended complaint attempts to state a cause of action for breach of the duty of fair representation based on asserted violations of the Dills Act. PERB has exclusive initial jurisdiction over such claims.
We reject Mykles's contention that the trial court has concurrent jurisdiction over this case. Mykles's argument is based, in part, on Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259 (Fresno Unified), in which the court of appeal held that the trial court and PERB had concurrent jurisdiction over a claim by a school district that various teacher's organizations had breached a collective bargaining agreement in which the teachers had agreed not to strike. (Id. at pp. 262-263, 273-274.) The court's holding turned on Labor Code section 1126 (Fresno Unified, supra, at p. 273-274), which in general provides that a party to a collective bargaining agreement may enforce the contract in state court in the same manner as any other contract. Fresno Unified is inapposite because it pertains to a contractual dispute between an employer and a labor organization. (Id. at p. 262.) Here, the dispute is between an employee and his labor organization. Because Mykles does not claim any breach of the collective bargaining agreement by the parties to that contract, his claims are not governed by Labor Code section 1126 or the holding in Fresno Unified.
Mykles additionally argues that the use of the word "initial" in the phrase "exclusive initial jurisdiction" signifies that the trial court would have jurisdiction to adjudicate claims based on violations of the Dills Act at some later date. Mykles appears to confuse the concepts of original and appellate jurisdiction. Where, as here, PERB has exclusive initial jurisdiction, "the courts have only appellate, as opposed to original, jurisdiction to review PERB's decisions." (International Federation of Prof. & Technical Engineers v. Bunch (1995) 40 Cal.App.4th 670, 677; see § 3520, subds. (c)-(d).) "The assignment of exclusive initial jurisdiction in section 3514.5 to [PERB] means that the only forum to pursue a cause of action for violation of the statutory rights conferred in the Dills Act is before [PERB]." (Public Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4th 1816, 1826, fn. 9, italics added.) "Section 3520 then provides for the exclusive review of PERB orders, including those related to unfair practices, by way of writ in the district court of appeal." (Cal. Ass'n. of Highway Patrolmen v. Dep't of Pers. Admin. (1986) 185 Cal.App.3d 352, 358.) Mykles has not drawn our attention to any authority authorizing the trial court to adjudicate claims based on alleged violations of the Dills Act in the first instance, and our own research has uncovered none. We therefore reject his claim of error. C. Exhaustion of Administrative Remedies
Mykles elaborates upon this theory in his reply brief, offering references to "Paulsen, Richman, [and] Anderson." We assume that Mykles intends to refer to Paulsen, supra, 193 Cal.App.4th 823, Richman v. Cal. Schl. Emples. Ass'n. (May 9, 2012, B235128) [nonpub. opn.] (Richman) and Anderson, supra, 25 Cal.App.4th 207. Paulsen and Anderson support the trial court's conclusion that PERB has exclusive initial jurisdiction over Mykles's claims. (Paulsen, supra, at p. 831 ["PERB has exclusive initial jurisdiction over MMBA unfair practice charges"]; Anderson, supra, at p. 212 ["The initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of [the Higher Education Employer-Employee Relations Act], is a matter within the exclusive jurisdiction of PERB"].) Richman is not citable.
"In general, a party must exhaust its administrative remedies before resorting to the courts. [Citation.] Under this rule, an administrative remedy is exhausted only upon termination of all available, nonduplicative administrative review procedures. [Citation.]" (City and County of San Francisco v. International Union of Operating Engineers, Local 39 (2007) 151 Cal.App.4th 938, 947.) Here, Mykles elected to bring this lawsuit rather than proceed with PERB's administrative process. Thus, he failed to exhaust his administrative remedies with PERB prior to seeking relief from the courts.
The exhaustion of administrative remedies is subject to certain exceptions, "such as when the administrative remedy is inadequate or when it is clear it would be futile to seek administrative remedies." (Paulsen, supra, 193 Cal.App.4th at p. 829.) Mykles argues for the first time in his reply brief that his administrative remedy would be inadequate because PERB cannot award punitive damages. We do not consider arguments made for the first time in a reply brief because the opposing party has no opportunity to respond. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) In any event, the argument lacks merit.
As noted, section 3514.5 gives PERB exclusive initial jurisdiction to determine "whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter." (Italics added.) Although PERB may not be able to award punitive damages, it nonetheless has the power to fashion a remedy to address a union's breach of the duty of fair representation. Allowing courts to grant remedies withheld from PERB would undermine the statutory scheme and infringe upon PERB's jurisdiction. (El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 960.) In any case, none of Mykles's pleadings seek punitive damages. We therefore reject Mykles's untimely argument that he was excused from exhausting his administrative remedies. D. Stay Pending Resolution of UPC
An exception to this rule may apply when an award of damages is appropriate under the traditional law of torts, such as when there is conduct marked by violence. (El Rancho Unified School Dist. v. National Education Assn., supra, 33 Cal.3d at p. 960, fn. 20.)
Mykles asserts, without citation to the record, that he has filed a UPC with PERB. He argues that the trial court should have stayed the instant proceedings pending resolution of the supposed UPC. We disagree.
Mykles purports to find support for the imposition of a stay in "IUOE Local 39 v. Placer County." Mykles does not provide a citation, and we have not found any case with that name. --------
As previously discussed, the trial court correctly concluded that PERB has exclusive initial jurisdiction over this case. Having so concluded, the trial court's jurisdiction terminated, and any attempt to retain jurisdiction by means of a stay would have been a nullity. (Cf. Furtado v. Schriefer (1991) 228 Cal.App.3d 1608, 1613-1614 [once the trial court determines that Workers' Compensation Appeals Board has exclusive jurisdiction over employee's claims, the court's own jurisdiction terminates and attempt to retain jurisdiction by means of a stay was a nullity].) The trial court properly denied the request for a stay. E. Leave to Amend
We must reverse the judgment if there is a reasonable possibility an amendment would cure the defects in Mykles's third amended complaint. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) " 'The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citations.]" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
Mykles makes no attempt to show how his complaint could be amended to state a cause of action. Mykles argues for the first time in his reply brief that the trial court should have granted leave to amend the third amended complaint to allege that he has filed a UPC against SCIF with PERB. As noted, we do not consider arguments made for the first time in a reply brief. (Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 764.) In any event, that allegation does nothing to cure the jurisdictional defects described above. Under the circumstances, Mykles has not met his burden to establish a reasonable possibility that he could amend his complaint to state a viable cause of action. Accordingly, there is no basis to allow him leave to amend.
III. DISPOSITIONThe judgment is affirmed. Defendants and respondents Service Employees International Union, Local 1000 and Melinda Williams shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/_________
RENNER, J. We concur: /S/_________
NICHOLSON, Acting P. J. /S/_________
DUARTE, J.
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