MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART THE EXXONMOBIL DEFENDANTS' MOTION TO DISMISS
RICARDO M.URBINA, District Judge.
I. INTRODUCTION
The plaintiff, D.C. Oil, Inc., is the operator of an Exxon-branded retail gas station in the District of Columbia. Defendants ExxonMobil Corporation ("ExxonMobil") and ExxonMobil Oil Corporation ("ExxonMobil Oil" and, together with ExxonMobil, "the ExxonMobil defendants") are engaged in the business of oil production and refining. Until June 2009, the plaintiff leased the property on which its gas station is located from ExxonMobil and operated the station pursuant to a franchise agreement with ExxonMobil Oil. In June 2009, the ExxonMobil defendants executed a contract to sell the station property to defendant Anacostia Realty, LLC ("Anacostia"), a gasoline distributor that owns and supplies several retail gas station properties in the District of Columbia. The plaintiff alleges that the sale violated the District of Columbia Retail Service Station Amendment Act of 2009 ("RSSA"), D.C. CODE §§ 36-304.11 et seq., and has asserted claims of civil conspiracy and promissory estoppel.
The matter is now before the court on the ExxonMobil defendants' motion to dismiss the plaintiff's claims for failure to state a claim for which relief can be granted. Because the court cannot conclude based on the parties' submissions to date that the RSSA does not apply to the sale of the station property at issue, the court denies the ExxonMobil defendants' motion to dismiss the plaintiff's RSSA claim. Because, however, the plaintiff has not asserted a viable claim of civil conspiracy or promissory estoppel against the ExxonMobil defendants, the court dismisses these claims as to those defendants.
II. FACTUAL PROCEDURAL BACKGROUND
The plaintiff operated an Exxon-branded service station and convenience store located at 2150 M Street N.W. in the District of Columbia. Compl. ¶¶ 3, 7. The plaintiff leased the service station premises from ExxonMobil and was supplied with Exxon-branded motor fuel through a long-term franchise agreement with ExxonMobil Oil. Id. ¶ 8. The plaintiff's convenience store was located in the first floor of a condominium building located on the property. Id. ¶ 7. The convenience store premises were subject to a lease between ExxonMobil and the condominium building association. Id.
In 2008, the ExxonMobil defendants began divesting themselves from the retail gas station market, selling gas station properties and assigning franchise agreements to distributors. Id. ¶ 9. In June 2009, ExxonMobil and Anacostia executed contracts for the sale of several Exxon-branded service stations located in the District of Columbia, including the one operated by the plaintiff. Id. ¶¶ 18-19. ExxonMobil and Anacostia signed a Special Warranty Deed for the sale of the plaintiff's service station premises on June 11, 2009 ("the Deed"). Id.
The plaintiff contends that the sale of the plaintiff's service station premises did not close until August 6, 2009. Id. More specifically, the complaint states that on June 17, 2009, the plaintiff's principal shareholder, Raj Gupta, was advised by an Exxon representative that ExxonMobil's lease for the plaintiff's convenience store included a requirement that the condominium association be given advance notice of any proposed assignment of the lease and a right of first refusal. Id. ¶ 20. Because the condominium association had not been provided notice of the proposed sale in a sufficiently timely manner, the sale to Anacostia could not close until early August. Id. Gupta was allegedly advised by Anacostia's principal, Eyob Mamo, that the plaintiff would continue to receive motor fuel product directly from ExxonMobil Oil and would continue to pay rent directly to ExxonMobil until the plaintiff's premises were transferred to Anacostia. Id.
The plaintiff alleges that through early August 2009, it continued to deal directly with the ExxonMobil defendants as its lessor and supplier of motor fuel. Id. ¶ 21. According to the complaint, on August 6, 2009, the station premises were finally transferred to Anacostia, as reflected in the Deed recorded with the Office of the Recorder of Deeds. Id.
The date of the transfer is potentially significant because it may be relevant to whether the RSSA applies to the transaction. The RSSA requires that a supplier offer its franchisor a right of first refusal before selling service station property to a third party. D.C. CODE § 36-304.12. Accordingly, if the RSSA applies here, the plaintiff should have been given the right to purchase the service station property before it was sold to Anacostia. See id. The RSSA became effective on July 18, 2009, one month after ExxonMobil and Anacostia executed a contract for the sale of the premises but three weeks before the plaintiff alleges the transfer took effect. See Compl. ¶¶ 18-21.
In June 2010, the plaintiff commenced this action against the ExxonMobil defendants and Anacostia. See generally Compl. The plaintiff alleges that the defendants violated the RSSA by depriving the plaintiff of its right of first refusal guaranteed by the provision. Id. ¶¶ 29-30. The plaintiff also alleges that the defendants conspired to violate the RSSA. Id. ¶¶ 31-32. Lastly, the plaintiff has asserted a claim of promissory estoppel against the ExxonMobil defendants, alleging that it reasonably relied on the ExxonMobil defendants' promise that they would only sell to a reputable distributor with the infrastructure and technology in place to support the dealers as well as Exxon had done. Id. ¶¶ 33-36. On July 9, 2010, the ExxonMobil defendants moved to dismiss the claims against them under Federal Rule of Civil Procedure 12(b)(6). See generally ExxonMobil Defs.' Mot. With this motion now ripe for adjudication, the court turns to the applicable legal standards and the parties' arguments.
Anacostia filed an answer to the complaint on July 6, 2010. See generally Anacostia's Answer.
III. ANALYSIS A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or "plead law or match facts to every element of a legal theory, Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted). That said, "it is possible for a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render success on the merits impossible." Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1116 (D.C. Cir. 2000)
Yet, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim [] would entitle him to relief"). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.ct. at 1949 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556).
In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations — including mixed questions of law and fact — as true and draw all reasonable inferences therefrom in the plaintiff's favor. Holy Land Found. for Relief Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning, 292 F.3d at 242. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.ct. at 1949 (citing Twombly, 550 U.S. at 555).
B. The Court Grants in Part and Denies in Part the ExxonMobil Defendants' Motion to Dismiss
1. The Court Declines to Dismiss the Plaintiff's RSSA Claim
The ExxonMobil defendants contend that the plaintiff has not stated a viable claim under the RSSA. ExxonMobil Defs.' Mot. at 4-5. They argue that under District of Columbia law, the property at issue transferred to Anacostia on June 11, 2009, the date on which ExxonMobil and Anacostia executed the Deed, and not on August 6, 2009, the date on which the Deed was recorded. Id. at 5. Because the RSSA did not go into effect until July 18, 2009 and does not apply retroactively to transactions occurring prior to its effective date, the ExxonMobil defendants contend that the RSSA does not apply to the transaction at issue. Id. The plaintiff responds that the RSSA applies retroactively to sales occurring after April 1, 2009. Pl.'s Opp'n at 4. Furthermore, the plaintiff contends that even if the RSSA does not apply retroactively, it applies to the transaction at issue here because the transfer of the plaintiff's service station premises did not take place until August 6, 2009, rather than June 11, 2009 as the ExxonMobil defendants contend. Id. at 1-4.
This court has already held in a related case that the RSSA does not apply retroactively. See Metroil, Inc. v. ExxonMobil Oil Corp., 2010 WL 2814424, at *4-5 (D.D.C. July 20, 2010) (stating that "because the RSSA contains no express retroactivity language and is devoid of any clear implication that it was intended to apply retroactively, and because the Act is the sort of legislation for which retroactive application is particularly disfavored in the District of Columbia, the court concludes that the RSSA does not apply retroactively to the transaction at issue in this case"); see also generally Metroil, Inc. v. ExxonMobil Oil Corp., Civ. No. 09-1860 (D.D.C. Oct. 25, 2010) (Mem. Order) (denying the plaintiff's motion for relief upon reconsideration of its ruling that the RSSA does not apply retroactively). The parties in this litigation have not raised any new arguments not already considered in the court's prior rulings on this issue. Accordingly, the court concludes that the RSSA applies only prospectively to sales of service station premises occurring after its effective date of July 18, 2010.
The court therefore turns to the question of when the transfer of the station premises occurred. The D.C. Code provides that
[a]ny deed conveying real property in the District, or interest therein . . . executed and acknowledged and certified as provided in §§ 42-101, 42-121 to 42-123, 42-306, and 42-602 and delivered to the person in whose favor the same is executed, shall be held to take effect from the date of the delivery thereof, except that as to creditors and subsequent bona fide purchasers and mortgagees without notice of said deed, and others interested in said property, it shall only take effect from the time of its delivery to the Recorder of Deeds for record.
D.C. CODE § 42-401; see also Gomez v. Indep. Mgmt. of Del., 967 A.2d 1276, 1283 n. 6 (D.C. 2009) ("In determining when the transfer of a property took place, we look to the date the deed was delivered, not the date it is recorded." (citing Owens v. Liff, 65 A.2d 921, 923 (D.C. 1949))).
It is undisputed that the Deed was signed by Anacostia on June 9, 2009 and by ExxonMobil on June 11, 2009. See ExxonMobil Defs.' Mot., Ex. 2; Pl.'s Opp'n, Ex. A. The ExxonMobil defendants contend that as a result, the Deed's date of delivery is June 11, 2009, and that under D.C. Code § 42-401, the transfer took effect on that date. ExxonMobil Defs.' Mot. at 5.
A number of considerations preclude the court from adopting the ExxonMobil defendants' analysis at this stage of the litigation. First, the Deed's date of delivery remains unclear. The signature page of the deed states that it is being delivered "as of the date first set forth above." See ExxonMobil Defs.' Mot., Ex. 2; Pl.'s Opp'n, Ex. B. Yet, as the ExxonMobil defendants acknowledge, there are no dates set forth earlier in the Deed. ExxonMobil Defs.' Reply at 2. Although the ExxonMobil defendants contend that the date of delivery is the date on which ExxonMobil signed the Deed, they fail to provide any explanation for that assertion. See ExxonMobil Defs.' Mot. at 5; ExxonMobil Defs.' Reply at 1-2. Accordingly, it is not clear that the date of delivery is June 11, 2009, as the ExxonMobil defendants suggest.
Furthermore, there is a potentially material discrepancy in the copies of the Deed submitted by the ExxonMobil defendants and the plaintiff. See ExxonMobil Defs.' Mot., Ex. 2; Pl.'s Opp'n, Ex. B. The signature page of the version of the Deed submitted by the ExxonMobil defendants states as follows:
Grantor has signed this Deed this 11[th] day of June, 2009, but EFFECTIVE as of this day of, 2009 ("Effective Date").
ExxonMobil Defs.' Mot., Ex. 2.
On the other hand, in the version of the Deed submitted by the plaintiff, the date "Effective Date" is not left blank:
Grantor has signed this Deed this 11[th] day of June, 2009, but EFFECTIVE as of this 6th day of August, 2009 ("Effective Date").
Pl.'s Opp'n, Ex. B.
The version of the Deed submitted by the plaintiff bears a stamp from the Recorder of Deeds certifying that it is a true copy. Id. at 2 Ex. B. If the Deed specified an "Effective Date" of August 6, 2009 as the plaintiff's evidence suggests, it naturally calls into question the ExxonMobil defendants' assertion that the transfer took effect on June 16, 2009.
The plaintiff's contention that the transfer did not take effect until August 6, 2009 finds further support in the affidavit of Eyob Mamo, Anacostia's principal. In an affidavit submitted in connection with the related Metroil case, Ayob states that "[o]n August 6, 2009, ExxonMobil conveyed to Anacostia a second special warranty deed for a service station property located at 2150 M Street, N.W., Washington D.C." Metroil, Civ. No. 09-1860, Aff. of Eyob Mamo (Nov. 20, 2009), ECF No. 12-3, ¶ 5. Mamo's representation that ExxonMobil "conveyed" the Deed to the service station property at issue on August 6, 2009 casts further doubt on the contention that the transfer took place on June 11, 2009.
Finally, the court notes that in the complaint, the plaintiff alleges that the transfer of the service station property at issue was necessarily delayed until early August 2009 because of a provision in the lease between ExxonMobil and the condominium association requiring that the association be given advanced notice of any proposed sale and a right of first refusal. Compl. ¶¶ 18-20. This allegation is not addressed in the ExxonMobil defendants' motion to dismiss. See generally ExxonMobil Defs.' Mot.; ExxonMobil Defs.' Reply.
In light of these many unresolved issues, the court cannot conclude at this time that the sale of the service station property from ExxonMobil to Anacostia preceded the effective date of the RSSA. Because the ExxonMobil defendants have offered no other arguments for dismissal of this claim, the court declines to dismiss the plaintiff's RSSA claim.
2. The Court Dismisses the Civil Conspiracy Claim Against the ExxonMobil Defendants
The ExxonMobil defendants argue that regardless of the viability of the plaintiff's RSSA claim, the civil conspiracy claim against them must be dismissed. ExxonMobil Defs.' Mot. at 5. They contend that because civil conspiracy is a vehicle for asserting vicarious liability, and because the plaintiff seeks to impose direct liability for their violations of the RSSA, the civil conspiracy claim against them should be dismissed as redundant of the plaintiff's RSSA claim. Id. The plaintiff responds that nothing precludes them from seeking to hold the ExxonMobil defendants liable both for violating the RSSA and conspiring to violate the RSSA. Pl.'s Opp'n at 5-7.
Under District of Columbia law, "conspiracy is not an independent tort but only `a means for establishing vicarious liability for [an] underlying tort." Paul v. Howard Univ., 754 A.2d 297, 310 n. 27 (D.C. 2000) (quoting Griva v. Davidson, 637 A.2d 830, 848 (D.C. 1994)). In this case, the plaintiff does not seek to impose vicarious liability on the ExxonMobil defendants for their alleged violations of the RSSA; rather, the plaintiff alleges that the ExxonMobil defendants directly violated the RSSA by failing to offer the service station property to the plaintiff before selling it to Anacostia. See Compl. ¶¶ 29-32. Although this alleged violation required Anacostia's participation, this hardly changes the fact that the ExxonMobil defendants' purported liability is grounded in their failure to honor the plaintiff's alleged right of first refusal under the RSSA. See id. Accordingly, the plaintiff has failed to assert a viable claim of civil conspiracy against the ExxonMobil defendants and the court dismisses the claim.
3. The Court Dismisses the Promissory Estoppel Claim Against the ExxonMobil Defendants
The ExxonMobil defendants assert that the plaintiff's promissory estoppel claim must be dismissed. ExxonMobil Defs.' Mot. at 5-8. They contend that the plaintiff's franchise agreement expressly allowed ExxonMobil Oil to assign its interests to anyone without restriction. Id. at 6. Because promissory estoppel cannot be used to contradict the plain language of a written contract, the ExxonMobil defendants argue, the plaintiff's promissory estoppel claim must be dismissed. Id. at 5-8. In response, the plaintiff reiterates its allegation that ExxonMobil officials assured the plaintiff and other dealers that the station properties would be sold to a distributor that had the infrastructure and technology in place to support the dealers as well as Exxon had done, and asserts that Anacostia does not qualify as such a distributor. Pl.'s Opp'n at 7-9. The plaintiff does not, however, respond to the ExxonMobil defendants' argument that its promissory estoppel claim is precluded by the express terms of the franchise agreement. See id.
"Under District of Columbia law, to establish a promissory estoppel claim, the plaintiff must show (1) a promise; (2) that the promise reasonably induced reliance on it; and (3) that the promisee relied on the promise to her detriment." Daisley v. Riggs Bank, N.A., 372 F. Supp. 2d 61, 71 (D.D.C. 2005) (citing Simard v. Resolution Trust Corp., 639 A.2d 540, 552 (D.C. Cir. 1994)). "[R]eliance on a promise cannot be reasonable when it is completely at odds with the terms of a written contract covering the same transaction." Id. at 71 n. 5 (citing In Office Prods. Co. Sec. Litig., 251 F. Supp. 2d 77, 97-98 (D.D.C. 2003)). Indeed, "District of Columbia law is clear that promissory estoppel applies to arrangements only where no written agreements exist." Parnigoni v. St. Columba's Nursery Sch., 681 F. Supp. 2d 1, 26 (D.D.C. 2010) (citing Osseiran v. Int'l Fin. Corp., 498 F. Supp. 2d 139, 147 (D.D.C. 2007)); accord Bldg. Servs. Co. v. Nat'l R.R. Passenger Corp., 305 F. Supp. 2d 85, 95 (D.D.C. 2004) ("District of Columbia law presupposes that an express, enforceable contract is absent when the doctrine of promissory estoppel is applied.").
In this case, the plaintiff does not dispute that its franchise relationship with the ExxonMobil Oil is governed by a written franchise agreement. See Pl.'s Opp'n at 7-9; ExxonMobil Defs.' Mot. at 5-8. Nor does the plaintiff dispute that the franchise agreement expressly permitted ExxonMobil Oil to "transfer or assign all or part of its rights or interest in th[e] Agreement, or delegate all or part of its duties or obligations under th[e] Agreement, without restriction, to any person or entity." See Pl.'s Mot., Ex. 1 § 12.7; Pl.'s Opp'n at 7-9. Because the plaintiff's relationship with ExxonMobil Oil was memorialized in a written franchise agreement, and because the promise it seeks to enforce is at odds with the express terms of that agreement, the court dismisses the plaintiff's promissory estoppel claim.
IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part the ExxonMobil defendants' motion to dismiss. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 29th day of October, 2010.
cal right provided under the Educational Employment Relations Act (EERA) to determine if employees have any protected right `to have an employee organization structured or operated in any particular way.' . . . Pursuant to [
Kimmett], the statutes administered by PERB provide employees with no protected rights in the organization or operation of their exclusive representative unless the internal activities of the employee organization have a substantial impact on the employees' relationship with their employer. . . .
"In recent cases, the Board has reiterated that it will not intervene in matters involving the solely internal activities or relationships of an employee organization which do not impact employer-employee relations. . . . [I]n [ California State Employees Association (Garcia)] (1993) PERB Decision No. 1014-S [17 PERC ¶ 24153], the Board dismissed charges relating to alleged union election irregularities and union discipline procedures because there was no showing of a substantial impact on the charging party's relationship with her employer.
"[Yet] the Board has intervened in the internal affairs of a union when alleged retaliation against members for their union participation went beyond solely internal union activities or relations and impacted the employment relationship. In other cases, the Board has reviewed internal union affairs to consider the reasonableness of a union's membership restrictions or dismissals.
"In [ California Union of Safety Employees (Coelho)] (1994) PERB Decision No. 1032-S [18 PERC ¶ 25029], the Board found a violation in the union's retaliatory filing with the employer of a citizen's complaint against an employee, and in its subsequent refusal to represent the employee in the resulting investigation conducted by the employer. The union's conduct directly impacted the employee's relationship with his employer and was beyond the solely internal relationship of the employee and union. . . .
"These cases confirm that the Dills Act does not protect the solely internal union participation and activities of employees which do not impact employer-employee relations. However, the Board retains the authority to review internal union activities in order to examine allegations of retaliation against members for their union participation when the alleged misconduct impacts the employment relationship or employer-employee relations; or to assess the reasonableness of a union's membership restrictions." ( Hutchinson and Laosantos, supra, PERB Dec. No. 1304-S, pp. 2-6 [23 PERC ¶ 30028, pp. 97-98], fns. omitted.)
"[I]n [ California State Employees Association (Hutchinson)] (1999) PERB Decision No. 1369-S [24 PERC ¶ 31032], the Board [applied its analysis in Kimmett, supra, PERB Decision No. 106, pages 15-17 [3 PERC ¶ 10134, pp. 422-423]], and dismissed allegations that the union [had] conducted elections outside the timeframe required by internal union bylaws, mailed election ballots in violation of internal union bylaws, improperly validated ballots in violation of internal union bylaws, failed to properly distribute election results in violation of internal union bylaws and improperly installed union officers. . . ." ( Capistrano Unified Education Association (La Marca) (2001) PERB Dec. No. 1457, pp. 4-5 [25 PERC ¶ 32106, p. 361].)
In Service Employees International Union Local 1292 (Marriott et al.) (2008) PERB Decision No. 1956-M [32 PERC ¶ 78] ( Marriott), a "parent union," the Service Employees International Union (SEIU), was charged with violating section 3502 of the MMBA by consolidating several of its local unions into one local without permitting the charging party or her unit to vote on the matter. After the merger, the charging party's unit was represented by a local "`hundreds of miles away,'" and the local indicated it would not represent the charging party's unit in disputes with management because of the distance. ( Marriott, supra, PERB Dec. No. 1956-M, p. 4.)
In dismissing the unfair practice charge, the PERB said: "The MMBA confers on public employees the statutory right to be represented by employee organizations of their own choice. (MMBA sees. 3500 and 3502.) MMBA section 3502 provides in pertinent part that `public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing. . . .' (MMBA sec. 3502.) . . . [T]he MMBA `provides strong protection for the right of employees to be represented by unions of their own choosing.' . . .
"MMBA section 3502 implicitly recognizes that employees may choose to join or participate in different organizations. It also confers upon each employee the right not to join or otherwise participate in the activities of any employee organizations. . . . [¶] . . . [¶]
"We hold that under the MMBA, a local union member may challenge the parent union's consolidation decision, but only when that decision has a substantial [effect] on the employer-employee relationship. We also hold that an employee may only challenge the parent union's failure to afford its members the opportunity to vote for or against a consolidation of local unions under the MMBA, if the employee can demonstrate that such consolidation had a substantial impact on the employer-employee relationship. We find that [the charging party] has not alleged facts showing that her relationship with [her employer] was substantially affected by either SEIU's merger of [her] local union with other locals or SEIU's alleged failure to allow [her] bargaining unit to vote on the merger." ( Marriott, supra, PERB Dec. No. 1956-M, pp. 8-10 [32 PERC ¶ 78, p. 275].)
The PERB continued: "In [ Kimmett, supra, PERB Decision No. 106 [3 PERC ¶ 10134]], the Board held that the rights afforded under EERA to freely choose one's employee organization (which are substantially similar to those under the MMBA) do not allow PERB to scrutinize either the union's structure or the conduct of elections for union officers unless a significant effect on the employee's relationship with its employer results. . . .
"In [ California School Employees Association Its Chapter 36 (Peterson) (2004) PERB Decision No. 1733] [29 PERC ¶ 50], the [PERB] held that `Participation in union elections is an internal union affair.' In that case, the Board dismissed, among others, a charge that the union improperly denied an employee the opportunity to run for union office under its own constitution's election rules because no facts were alleged to support a finding that this conduct impacted the charging party's relationship with his employer." ( Marriott, supra, PERB Dec. No. 1956-M, p. 16 [32 PERC ¶ 78, p. 277].)
More recently, in California Faculty Association (Williams) (2010) PERB Decision No. 2116-H [34 PERC ¶ 101], the board reiterated that "matters concerning internal union affairs are immune from review by PERB, unless they have a `substantial impact' on the relationship of unit members to their employer so as to give rise to a duty of fair representation. . . . In numerous cases, the Board has refused to intervene where the alleged unlawful conduct involved internal union affairs and there was no showing of a substantial impact on the employee-employer relationship." ( Williams, PERB Dec. No. 2116-H, p. 4 [34 PERC ¶ 101, p. 504], citation fn. omitted.)
We find these PERB decisions persuasive. Notwithstanding the provisions in the Ordinance recognizing an employee's right to participate in union activities and making it an unfair practice for a union to interfere with that right, the Commission does not have authority over internal union affairs unless they have a substantial effect on the employer-employee relationship. The PERB has repeatedly interpreted provisions of the EERA, the Ralph C. Dills Act, and the MMBA as imposing the same restriction on its own authority. That restriction is the result of statutory interpretation and is not, as the ADDA contends, a self-imposed limitation created by the PERB for its own convenience. Like the state's labor relations acts, the Ordinance "does not describe the internal workings or structure of employee organizations nor does it define the internal rights of organization members." ( Kimmett, supra, PERB Dec. No. 106, p. 16 [3 PERC ¶ 10134, p. 423].) We therefore adopt the PERB's interpretation of state law in applying the virtually identical provisions of the Ordinance.
In determining whether Burke's claims involved a purely internal union matter, we examine the trial court's detailed analysis supporting the issuance of the writ of mandate. In its final ruling, the trial court explained: "Burke argues that the Bylaws amendments could not extend the terms of existing directors and the court should order that an election of directors take place that should have occurred in [2008]. He further argues that the amended bylaws were adopted through various procedural irregularities and must be set aside.
"California Corporations Code Section 7220(a) provides, in material part: `No amendment of the articles or bylaws may extend the term of a director beyond that for which the director was elected, nor may any bylaw provision increasing the terms of directors be adopted without approval of the members.' . . .
"The 1998 Bylaws provided for the annual election of 21 directors. The election procedure for directors began each year on October 5 and was concluded on December 5. Burke contends that the ADDA breached Corp. Code section 7220(a) when it failed to complete the [2008] election.
"[The ADDA] argue[s] that Corp. Code section 7220(a) permits the extension of a Board member's term `with the approval of the members.' [It is] wrong. Section 7220(a) quite clearly states that a sitting director's term may not be extended at all. . . . In other words, those directors in place may not have their terms extended, and bylaws can be amended to lengthen the terms of future directors. . . .
"By [statute], the ADDA could not extend the terms of sitting directors. The Amended Bylaws violated this law. . . . [¶] . . . [¶]
". . . The terms of the ADDA Board were extended unlawfully, and the remedy is to conduct the 2008 election in the manner most consistent with the procedures in effect at that time. That means an election under the 1998 Bylaws with deputies voting who were members in October 2008 or were eligible for membership by paying $30 dues for that year. [¶] . . . [¶]
"The vote on the Amended Bylaws was required to be 2/3 vote. . . . While Corp. Code section 7513(a) permits a vote by written ballot in lieu of a meeting, section 7513(b) provides in pertinent part that an `[a]pproval by written ballot . . . shall be valid only when . . . the number of approvals equals or exceeds the number of votes that would be required to approve at a meeting. . . .' Since Article XIII of the 1998 Bylaws provided for their amendment through a 2/3 vote at a membership meeting, the Amended Bylaws could be passed by written ballot only through a 2/3 vote.
"Corp. Code section 7333 prohibits discrimination between members in voting by requiring that `all memberships shall have the same rights, privileges, preferences, restrictions, and conditions.'
"Burke alleges that the vote on the Amended Bylaws discriminated against members in voting because only deputies who were willing to pay the $55/75 per month dues were permitted to vote. Those willing to pay the existing 2008 annual dues of $30 were turned away. Burke contends that those willing to pay the new dues were more likely to vote for the Amended Bylaws, affecting the outcome of the vote. He notes that it is impossible to tell how the dues authorization ballots voted, and public policy in favor of fair corporate elections require the ADDA bear the burden of proving fairness when there is evidence of voter manipulation. He argues that the dues authorization ballots should be excluded as illegal . . ., and when that occurs there was less than a 2/3 of votes in favor of the Amended Bylaws.
"The ADDA violated public policy in favor of fair corporate elections in its ballot information. The ballot merely stated that as follows: `You are eligible to VOTE if you: (1) signed the enclosed ADDA Membership and Dues Deduction Card, OR (2) are currently a member in good standing and eligible to vote under current ADDA bylaws. All [deputies] are encouraged to join or renew membership by signing the enclosed membership card and vote on this important issue.' Thus, deputies were informed that they could vote if they were a member in good standing, or if they signed up to pay the $50/75 per month dues. While deputies were encouraged to become a member and vote, they were not given the option of paying the 2008 $30 annual dues to do so. The only `membership card' that was enclosed was the card authorizing the increased dues deduction.
"This notification plainly excluded deputies who were not members and who wanted to pay the $30 2008 fee in order to vote. The fact that the ADDA actually permitted deputies who submitted $30 with their ballot to vote does not undermine this conclusion. Deputies were not informed of their option to do so, and it is not clear how many would have availed themselves of this right if so informed.
". . . [B]oth parties agree that the ADDA's longstanding practice was to permit deputies to join and vote at the same time.
"In short, the ballot procedure unfairly discriminated against deputies who were not ADDA members but who would have paid [the] $30 annual membership fee in order to vote on the proposed Amended Bylaws. It is impossible to discern what [effect] this discrimination had on the election. Burke's argument that the dues authorization ballots should have been excluded makes little sense. Those deputies who signed the dues deduction card were within the scope of those notified that their vote would count.
"Burke raises other claimed errors with the election procedure, both as violations of law and of the 1998 Bylaws.
"With respect to violations of law, Corp. Code section 7513 requires that the `ballot shall . . . provide a reasonable time within which to return the ballot to the corporation.' Burke contends that the ballot did not provide a reasonable time within which to return the ballot. He argues that the 10-day window between October 8-18 was not enough time to address the many substantive changes in the Amended Bylaws because deputies are spread out in the County and communication between them for purposes of advocacy is difficult.
"This argument assumes that the reasonable period required by section 7513 is for members to caucus and campaign for or against the Amended Bylaws, as opposed to simply time to return the ballot by mail. Assuming that it is, the 10-day period was unreasonable. Members may be entitled to a membership list (Corp. Code § 8330), but that does not mean that an election must await a member's request for the list and effort to contact the existing members. Nonetheless, the scope of the Amended Bylaws required a greater period of evaluation by members before they were asked to vote. The 10-day period was unreasonable.
"Burke also contends that the ballot information did not indicate the number of responses necessary for a quorum and for approval. Corp. Code section 7513(c) provides that when ballots are solicited, the solicitation must indicate the number of votes needed for a quorum and for passage of the measure submitted.
"The ADDA solicitation contained no such information. This information is important because it gives the member an indication as to how important his or her vote will be. For the ADDA, the number of votes for a quorum and for passage of the measure was impossible to provide because the ADDA would accept votes from deputies who were not members, but who were willing to sign up and vote at the same time. The ADDA would have no way of knowing ahead of time how many deputies would sign up and vote, and could not provide a `number' for the quorum or for passage. It could, however, have informed the deputies that a quorum would be 20% (1998 Bylaws, Art. Ill, § 8) and that passage required a 2/3 vote.
"The ADDA acknowledges the violation, but argues that these were technical failures and Corp. Code section [751J](g) provides that `[a] court may find that notice not given in conformity with this section is still valid, if it is given in a fair and reasonable manner.' While the failure to provide the quorum information does not affect the fair and reasonable nature of the procedure, the failure to notify the members that a 2/3 vote was required does. This is not a technical failure.
"Article XIII of the 1998 Bylaws requires that the Board approve the election procedure, a copy of the proposed Amended Bylaws be issued to each member, and a change in the number of directors may not occur without a vote of the majority of actual members. In fact, the Board did not determine the election procedures, including the date, ballot information, and form of the ballot. This violated the 1998 Bylaws.
"The members did not receive a copy of the proposed Amended Bylaws either. The ADDA points out that the 1998 Bylaws only require that a copy of the proposed Amended Bylaws be `issued' to each member, not delivered and received. The Board posted the proposed amendments online, and gave members a copy that could be picked up on election day at a Saturday seminar of deputies. It felt that this was sufficient given the ADDA's desire to reach all deputies and the prohibitive cost of doing so.
"The court agrees that this was a reasonable procedure consistent with the term `issue,' and therefore did not violate the 1998 Bylaws. However, it did violate Corp. Code section 7513(a), which permits transmission of materials by email if the bylaws so permit and the board so approves and the recipient consents. (See Corp. Code § 20.) The 1998 Bylaws did not permit transmission by email, and posting on a website is not a transmission anyway. The ADDA should have transmitted the proposed Amended Bylaws to existing members, posting them on the website for any deputies who were not members but wanted to join. This failure violated Corp. Code section 7513(a).
"In sum, the ballot procedure unfairly discriminated against deputies who were not ADDA members but who would have paid [the] $30 annual membership fee in order to vote on the proposed Amended Bylaws. The procedure also did not provide a sufficient period to evaluate the ballot, failed to notify members that a 20% quorum and 2/3 vote was required (the failure to notify the members of the quorum was not prejudicial), violated the 1998 Bylaws because the Board did not determine the election procedures, and violated Corp. Code section 7513(a) because the existing members did not receive a copy of the Proposed Bylaws. The Amended Bylaws must be set aside and a new election for them required. [¶] . . . [¶]
"The ADDA extended the terms of existing directors in violation of law. The remedy is to conduct the 2008 election in the manner most consistent with the procedures in effect at that time. That means an election under the 1998 Bylaws with deputies voting who were members in October 2008 or were eligible for membership by paying $30 dues for that year." (Fns. omitted, italics added.)
Thus, as made clear by the trial court's decision, Burke filed the petition based on violations of the Corporations Code and the ADDA's 1998 bylaws in an attempt to resolve purely internal union matters: the adoption of amended bylaws and the resulting cancellation of elections and an increase in dues. Those matters did not have a substantial effect on the employer-employee relationship. Rather, they involved procedural irregularities that occurred within the ADDA.
We cannot say the trial court would have benefitted from the Commission's alleged "expertise" in these circumstances. (See Rojo v. Kliger, supra, 52 Cal.3d at p. 83 [one purpose of administrative exhaustion is to maximize use of administrative agency's expertise].) Nor did Burke's claims involve ADDA conduct that was "arguably protected or prohibited" by the Ordinance. ( El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 950, 953-957 [ 192 Cal.Rptr. 123, 663 P.2d 893].) The ADDA's actions were definitely prohibited by the Corporations Code and the 1998 bylaws. It follows that Burke did not have to present his claims to the Commission before seeking relief from the trial court.
The ADDA's reliance on our decision in Anderson v. Los Angeles County Employee Relations Com. (1991) 229 Cal.App.3d 817 [ 280 Cal.Rptr. 415] ( Anderson) is misplaced. There, David Anderson, a member of the Professional Peace Officers Association (PPOA), became an organizer for a rival union, the Lieutenant and Sergeants Organization (LASO), which was formed to replace the PPOA as the bargaining representative. In accordance with its bylaws, the PPOA board of directors terminated Anderson's membership for engaging in "`acts inimical to the welfare of [the PPOA].'" ( Id. at p. 821.) Anderson did not contest his expulsion but continued his efforts to replace the PPOA with the LASO. Eventually, a decertification election was held, the PPOA prevailed, and the LASO voted to dissolve. Soon thereafter, Anderson applied to be reinstated as a member of the PPOA. The board voted unanimously to deny his application.
Anderson filed an unfair practice charge with the Commission, alleging the PPOA had interfered with his right under the Ordinance to participate in the activities of the employee organization of his choice. (See L.A. County Code, §§ 5.04.070, 5.04.240, subd. B.1.) An administrative hearing officer found in favor of the PPOA. The Commission adopted the hearing officer's recommendation and dismissed the unfair practice charge. Anderson filed a petition for a writ of administrative mandate seeking to set aside the Commission's decision and to be reinstated as a member of the PPOA with full membership rights.
The trial court denied the petition, and Anderson appealed. We affirmed, stating: "Although the MMBA was designed to protect public employees in the exercise of their rights under the act, the MMBA also provides that `[e]mployee organizations may establish reasonable restrictions regarding who may join and may make reasonable provisions for the dismissal of individuals from membership. . . .' (Gov. Code, § 3503.) [¶] . . . [¶] . . . [Anderson's] expulsion was clearly justified by his efforts to organize a rival union and to decertify PPOA, which are certainly acts inimical to the welfare of PPOA in violation of . . . PPOA's bylaws." ( Anderson, supra, 229 Cal.App.3d at pp. 825-826.) "`An organization has the natural right of self preservation, and may with propriety expel members who show their disloyalty by joining a rival organization. . . .'. . .
"There is no question concerning the propriety of the procedures followed by PPOA in this case. When a disloyal member is expelled for his considerable efforts to form a rival union and later becomes its president and urges his fellow workers to vote to decertify the union in favor of his rival union, and then applies for readmission only four months after the unsuccessful decertification election and only days after disbanding the rival union, the denial of his reinstatement application by a unanimous vote of the board of directors is entirely reasonable. . . . In the ` "treason" cases in which an individual's acts are patently antagonistic to the continued existence of the union as a collective bargaining agent[,] . . . [t]he courts lose no time in such cases upholding union discipline.'" ( Anderson, supra, 229 Cal.App.3d at p. 826, citation omitted.)
The ADDA relies on Anderson for the proposition that in this case, Burke had to submit his claims to the Commission before resorting to the courts. But in Anderson, the expelled union member voluntarily presented his claims to the Commission, and, consequently, there was no question as to whether any "administrative remedies" even existed, much less whether they had to be exhausted. Indeed, there was no discussion of the exhaustion doctrine at all. "`"It is axiomatic that cases are not authority for propositions not considered."`" ( Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 127 [ 92 Cal.Rptr.3d 595, 205 P.3d 1047].) Nor did Anderson rest primarily on an interpretation of the Corporations Code.
In addition, the PERB has interpreted the state's labor laws as granting it authority over disputes involving a union's membership rules and the procedures used for suspending members. (See California State Employees Association (Hard et al.) (2002) PERB Dec. No. 1479-S, pp. 14-17 [26 PERC ¶ 33065, p. 212].) The PERB "has reviewed internal union affairs to consider the reasonableness of a union's membership restrictions or dismissals." ( Hutchinson and Laosantos, supra, PERB Dec. No. 1304-S, p. 5 [23 PERC ¶ 30028, p. 98].)
The ADDA analogizes the expulsion of a union member, as in Anderson, to its increase in dues under the amended bylaws, contending that the increase prevented some deputy district attorneys from joining the organization. This analogy fails. Burke did not claim that the dues increase precluded potential members from joining the union or forced existing members to leave. Rather, he claimed that the dues increase, like the cancellation of the pending election, was accomplished through an unlawful amendment of the bylaws. The writ petition challenged the procedure used to amend the bylaws, not a de facto expulsion of ADDA members. Common sense dictates that an increase in dues is not sufficiently similar to the expulsion of a union member to warrant that they be treated alike under labor relations laws. Simply put, in this case, the Ordinance did not regulate the bylaw amendments, the scheduling of union elections, or the dues increase, all of which were solely internal union affairs that did not substantially affect the employer-employee relationship
Further, the ADDA argues that the analysis of the exhaustion issue is governed by the factors set forth in Coachella Valley, supra, 35 Cal.4th at pages 1081-1082. But Coachella Valley concerned an "exception" to the exhaustion doctrine ( id. at p. 1081), namely, "[when] exhaustion . . . may be excused" (ibid., italics added). As the Supreme Court stated: "Under another exception, exhaustion of administrative remedies may be excused when a party claims that `the agency lacks authority, statutory or otherwise, to resolve the underlying dispute between the parties.'" ( Id. at pp. 1081-1082, italics added; accord, Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520-521 [ 205 Cal.Rptr. 6] [discussing exceptions to administrative exhaustion]; County of Alpine v. County of Tuolumne (1958) 49 Cal.2d 787, 798 [ 322 P.2d 449] [exhaustion necessary where agency must decide issue in first instance].) For example, the exception in Coachella Valley applies where an agency's enabling statute is ambiguous as to whether the agency has authority to hear the parties' dispute and where exhaustion might avoid judicial resolution of a constitutional issue. (See Public Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4th 1816, 1819, 1830 [ 17 Cal.Rptr.2d 323].) But the Coachella Valley exception is "inapplicable where, as here, the agency is given no jurisdiction to make a judicial determination of the type involved." ( County of Alpine, at p. 798; accord, Public Employment Relations Bd., at p. 1829.) We have concluded the Ordinance is not ambiguous: It does not encompass the internal union affairs at issue here. There are no special circumstances making the Coachella Valley exception applicable.
Assuming for the sake of argument that Coachella Valley's factors apply, exhaustion was not required because (1) a judicial remedy — as opposed to initial proceedings before the Commission followed by judicial review — was an immediate necessity given that the ADDA was operating day to day with an unlawfully constituted board of directors; (2) under the Ordinance, the Commission definitely lacked authority over the internal union affairs raised in the writ petition; and (3) the Commission had no expertise in applying the Corporations Code to determine whether the amended bylaws were properly adopted. (See Coachella Valley, supra, 35 Cal.4th at pp. 1081-1083.)
Last, the ADDA points to language in the MMBA that the Commission "shall have the power and responsibility to take actions on recognition, unit determinations, elections, and all unfair practices" (§ 3509, subd. (d), italics added), contending that "elections" includes the election of union officers and directors. Not so. The MMBA is concerned with representation and union shop elections — with whether and how employees want to be organized and represented — not with a union's amendment of its bylaws or the election of its leaders. (See §§ 3502.5, subd. (b), 3507.1; compare § 3509, subd. (a) with § 3541.3, subd. (c).) Nothing in the Ordinance suggests that union elections are subject to the Commission's authority. As the PERB has recognized, voting on internal union affairs is not within the scope of the state's labor relations laws, including the MMBA. (See Kimmett, supra, PERB Dec. No. 106, pp. 15-17 [3 PERC [¶] 10134, pp. 422-423]; California State Employees Association (Hutchinson), supra, PERB Decision No. 1369-S, pp. 2-A [24 PERC [¶] 31032, pp. 275-277]; Marriott, supra, PERB Dec. No. 1956-M, pp. 8-10, 16 [32 PERC [¶] 78, pp. 275-277]; California State Employees Association (Garcia), supra, PERB Dec. No. 1014-S, pp. 5-6 [17 PERC [¶] 24153, p. 465].) In short, "`[p]articipation in union elections is an internal union affair.'" ( Marriott, supra, PERB Dec. No. 1956-M, p. 16 [32 PERC [¶] 78, p. 277].) It is outside the scope of the Commission's authority.
Accordingly, we reject the ADDA's contention that Burke had to exhaust administrative remedies.
B. Burke's Status as a Confidential Employee
The ADDA contends that because Burke was a "confidential employee" within the meaning of the Ordinance, he could not join the organization and therefore had no standing to file the writ petition. Of course, this contention ignores the trial court's finding that Burke had paid the annual $30 dues prior to the 2008 vote amending the bylaws. The ADDA also asserts the trial court made inconsistent findings as to whether Burke was a confidential employee. Under the codified version of the Ordinance, a "confidential employee" is "an employee who is privy to decisions of county management affecting employee relations." (L.A. County Code, § 5.04.030, subd. C.)
Whether Burke was a confidential employee is of no consequence. The Ordinance prohibits confidential employees from being in the same bargaining unit as nonconfidential employees. (See L.A. County Code, § 5.04.200, subd. C.3.) It did not prohibit Burke from being a member of the union regardless of his job classification. (See id., § 5.04.200, subd. C.) He therefore had standing to file the petition as a member of the ADDA.
C. Award of Attorney Fees
"[T]he Legislature adopted [Code of Civil Procedure] section 1021.5 as a codification of the `private attorney general' attorney fee doctrine that had been developed in numerous prior judicial decisions. . . . The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible." ( Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933 [ 154 Cal.Rptr. 503, 593 P.2d 200].)
In determining whether to award attorney fees under Code of Civil Procedure section 1021.5, a trial court "must consider whether: (1) plaintiffs' action `has resulted in the enforcement of an important right affecting the public interest,' (2) `a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons' and (3) `the necessity and financial burden of private enforcement are such as to make the award appropriate.'" ( Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 935.) We conclude the trial court did not err in finding that all three factors were satisfied.
As to the first two factors, "[flair and reasonable election procedures are fundamental to the proper governance of not only `for profit' corporations but `nonprofit' corporations, including labor unions. The members of such bodies should have a reasonable opportunity to be nominated and elected to the board of such an entity. These rights are important rights affecting the public interest." ( Braude v. Automobile Club of Southern Cal. (1986) 178 Cal.App.3d 994, 1012 [ 223 Cal.Rptr. 914].) "A modern labor union, both in structure and in function, bears little resemblance to other voluntary associations. . . . Unions can be distinguished from other voluntary organizations in many respects. Most importantly, a large part of [a union's] power and authority is derived from [the] government[,] which makes it [the employees'] exclusive bargaining agent. . . . The union's power, when considered together with its source, imposes upon it reciprocal responsibilities toward its membership and the public generally that other voluntary organizations do not bear." ( Mitchell v. Internat. Assn. of Machinists (1961) 196 Cal.App.2d 796, 799 [ 16 Cal.Rptr. 813], italics added, citation omitted.) Because "industrial democracy is important to the community," there is an "interest of the community and the individual in the [union's] membership." ( Id. at p. 804.) Here, the relief granted by the trial court will directly affect almost 1,000 actual or potential members of the ADDA. (See Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 16-17 [ 64 Cal.Rptr.3d 327] [plaintiff's success in obtaining relief for 209 employees satisfied "large class of persons" factor].)
With respect to the third factor, "`"[a]n award on the `private attorney general' theory is appropriate when the cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff `out of proportion to his individual stake in the matter.' . . ."`" ( Adoption of Joshua S. (2008) 42 Cal.4th 945, 952 [ 70 Cal.Rptr.3d 372, 174 P.3d 192].) In this case, Burke bore the expense of bringing the petition, and there was no monetary award to offset the attorney fees he incurred. Burke's interest in the litigation was no greater than that of other nonofficers and nondirectors who wanted the ADDA to comply with the law. It would be inequitable for him to pay for litigation that resulted in an outcome of equal benefit to all ADDA members.
On appeal, the ADDA does not dispute that Burke satisfied the three factors under Code of Civil Procedure section 1021.5. It does not even discuss them. Instead, the ADDA contends that the benefits of the litigation were outweighed by the harm Burke caused when he filed an exhibit listing the names of the deputy district attorneys who had signed union authorization cards. Burke used the list to support the allegations in the petition that 950 deputy district attorneys were eligible for ADDA membership. The ADDA asserts that Burke thereby violated the privacy rights of the listed employees, diminishing the benefits achieved by the litigation. (See Maderia Nursing, etc. v. N.L.R.B., Region No. 9 (6th Cir. 1980) 615 F.2d 728, 730-731 [employees have important privacy interest in their personal attitudes toward union representation].) But the ADDA ignores that the Commission gave Burke the list as part of a public file it maintained on the ADDA's certification as a union, and Burke did not know the list should have been kept confidential. When the Commission's mistake was discovered, the parties sealed the exhibit, and Burke agreed to substitute a redacted version in the court file, not to distribute the list any further, and to retrieve the copies of the petition that included the list. The ADDA acknowledged that the disclosure was inadvertent and that Burke's representations to remedy the situation were "acceptable." Thus, the Commission's disclosure of the names as part of a public file, and Burke's use of it, did not affect his entitlement to attorney fees under section 1021.5.
The ADDA also seeks to overturn the award of attorney fees on the ground that the litigation undermined the ADDA's bargaining position with the county. This contention is based on the theory that (1) the writ petition questioned the authority of the ADDA's officers and directors to hold office under the amended bylaws, and (2) Burke should have presented his claims to the Commission instead of airing them in "open court." If, in fact, the ADDA's negotiating power was compromised, the union has only itself to blame. As the trial court correctly ruled, the officers and directors had unlawfully remained in office, and Burke did not have to exhaust administrative remedies. Burke's entitlement to attorney fees should not be denied on the ground that the ADDA's wrongful conduct, and the litigation Burke undertook to correct it, tarnished the ADDA's reputation.
Finally, Burke's request for appellate attorney fees should be presented to the trial court on remand. (See Cal. Rules of Court, rule 3.1702(a), (c).)
D. Burke's Motion for Sanctions
We deny Burke's motion to impose sanctions for a frivolous appeal. "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit." ( In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [ 183 Cal.Rptr. 508, 646 P.2d 179].) Applying that standard, we cannot say the appeal is frivolous.
III DISPOSITION
The judgment granting the petition for a writ of mandate and the order awarding attorney fees to respondent Peter A. Burke are affirmed. Respondent Peter A. Burke is entitled to costs on appeal.
Rothschild, J., and Chaney, J., concurred.