BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARD

Petitioners’ Petition for Review

Cal.May 19, 2017

3 FILED Vii! PERMISSION $242034 Case No. SUPREME COURT FILED IN THE SUPREME COURT FOR Fg 2017 THE STATE OF CALIFORNIA MAY 19 Jorge Navarrete Clerk CATHERINEA. BOLING, T.J. ZANE and STEPHEN B. WILLIAMS Petitioners Deputy Vv. CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO LOCAL 127; and SAN DIEGO CITY FIREFIGHTERS LOCAL 145 RealParties in Interest PETITION FOR REVIEW OF THE ORDER REJECTING PETITIONERS’ MOTION FOR ATTORNEYS’ FEES of the Court of Appeal, Fourth Appellate District, Division One, Case No. D069626 Consolidated With Case No. D069630 Kenneth H. Lounsbery (SBN 38055) James P. Lough (SBN 91198) Alena Shamos (SBN 216548) Yana L. Ridge (SBN 306532) LOUNSBERY FERGUSON ALTONA & PEAK, LLP 960 Canterbury Place, Ste. 300 Escondido, CA 92025 Phone: 760-743-1201; Fax: 760-743-9926 Attorneys for Petitioners CATHERINEA. BOLING,T.J. ZANE and STEPHEN B. WILLIAMS J Case No. IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA CATHERINEA. BOLING,T.J. ZANE and STEPHEN B. WILLIAMS Petitioners Vv. CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO LOCAL127; and SAN DIEGO CITY FIREFIGHTERS LOCAL 145 RealParties in Interest PETITION FOR REVIEW OF THE ORDER REJECTING PETITIONERS’ MOTION FOR ATTORNEYS’ FEES of the Court of Appeal, Fourth Appellate District, Division One, Case No. D069626 Consolidated With Case No. D069630 Kenneth H. Lounsbery (SBN 38055) James P. Lough (SBN 91198) Alena Shamos (SBN 216548) YanaL. Ridge (SBN 306532) LOUNSBERY FERGUSON ALTONA & PEAK, LLP 960 Canterbury Place, Ste. 300 Escondido, CA 92025 Phone: 760-743-1201; Fax: 760-743-9926 Attorneys for Petitioners CATHERINEA. BOLING,T.J. ZANE and STEPHEN B. WILLIAMS 1 TABLE OF CONTENTS TABLE OF CONTENTS......cccssscssssscssessssssssssessesscsssesescasacacarassecessssesaveeeees 2 TABLE OF AUTHORITIES.0.......cccssssssssesssssssssssesssscesecesesessesassessssesees 4 PETITION FOR REVIEW........cccsscsssscsssssssossessessesssssssscesssesesesassecsessssonsees 7 IT. THMELINESS...0..cececssssscecssssecosecssssesesssssssssssseseseseseacsssesecsessvscsssees 10 I. TSSUES PRESENTED...........sscscsssscssssssssssessssscssssscesececescsssecesessees 11 III. NECESSITY FOR REVIEW.......cccsscsssssssscssesssssssssssssesossesscsssesees 11 IV. REQUESTED DISPOSITION..........ccccsscssscsssssssccsssssssesessesessssesees 12 Vi ARGUMENT........ccscsssssssssssssssscssesscssesssssssssssessessseesscasscsesetessssessssesees 13 A. ISSUE 1: DID THE COURT OF APPEAL ERR IN FAILING TO ACCEPT PETITIONERS’ MOTION FOR ATTORNEYS’ FEES WHICH WAS SUBMITTEDADAY BEFORE THE OPINION BECAMEFINAL?ou...ccsscssssscscssesccssccsssssscsssesscsccnsencasececssssssesesscoeece 13 1) THIS COURT HAS THE POWER TO REVIEW ANY ORDER ISSUED BY THE COURT OF APPEALL......ccsssssssscsessssssssssrssssseconsessassacasssesscssasecees 13 2) THE MOTION FOR ATTORNEYS’ FEES WAS TIMELY....cscccsoeoee-e 13 3) THE MOTION WAS PROPERLY BEFORE THE COURTOF APPFAL. 15 B. ISSUE 2: ARE PETITIONERS PREVAILING PARTIES ENTITLED TO ATTORNEYS’ FEES UNDERCOMMON LAW OR CODE OF CIVIL PROCEDURESEC.1021.5? ...cccccssscscesesssssssscseseeee 16 1) PETITIONERS ARE SUCCESSFUL PARTIES IN THIS ACTION..... 17 2) PETITIONERS’ VICTORY ENFORCED AN IMPORTANT RIGHT AFFECTING THE PUBLIC INTEREST AND CONFERRED SIGNIFICANT BENEFITS ON THE PUBLIC........ssscsssscsssessssssosscecsssecesssssosescececsceceeses 18 3) THE NECESSITY AND FINANCIAL BURDEN OF PRIVATE ENFORCEMENT MAKE THE AWARD APPROPRIATE. esssccssesesosoeeeeeeees 20 i. Throughtheir participation, Petitioners were vindicating a different right than the City.............ccccssssscssssecssesessccesesessesssesseseses 20 ii. Petitioners contributed significantly to the successofthis matter by providing valuable services and arguments.............. 23 iii. Petitioners satisfy the financial burdens of private ENFOrceMeNt PONG. .......cscccecssccceecsssessscsecsssscssscceccceessssssasescesseccers 24 4) THE AMOUNT OF FEES REQUESTED IS REASONABLE.........0002 25 5) IN THE ALTERNATIVE, PETITIONERS ARE ENTITLED TO ATTORNEYS’ FEES UNDER THE EQUITABLE PRIVATE ATTORNEY GENERAL DOCTRINE.....ccccscsssssssscsssesccessssscsssssssesstsscsssecsesscssscssasecsense 30 VI. CONCLUSION a...cescsssessssccnccecssssssssssssscssesscecssssscssssacscsarecess 30 CERTIFICATE OF WORD COUNT..........ccccscsssssssssssssesssesssssesssseseeceees 33 EXHIBIT LIST .csssssssssssssssssssssssssssscsssssscccccecessseesesseccesssssssnsssssssssssssssssssee 34 TABLE OF AUTHORITIES CASES Adoption ofJoshuaS. (2008) 42 Cal.4th 945 .oocccccccsccsecccsscssesseessersesses 18 Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243voce 22 Boling v. Public Employment Relations Bad. (2017) 10 Cal.App.Sth 853.00. ceecccsssssssessseesssessecsseneees 8,9, 12, 14, 15 Building Industry Association v. City ofCamarillo (1986) 41 Cal.3d 810...cesessssesessesesesssesecsseeseecsesscsscssssessscasens 20, 21 Butler-Rupp v. Lourdeaux (2007) 154 Cal.App4th 918.00. 16 Cedars-Sinai v. Sup. Ct. (1998) 18 Cal.4th Laceccscsssssssseceseseeeeees 13 City ofSanta Monica v. Stewart (2005) 126 Cal.App.4th 43.00.00... 23, 25 Coalitionfor Economic Survival v. Deukmejian (1985) 171 Cal.App.3d 954... eccssssesscsscesssesssesssesssesscssssssssecssessseees 30 Galante Vineyard v. Monterey Peninsula Wat. Mgmt. Dist. (1977) 60 CalApp.4th 1109.0... eescsssesssesscssesssesssessssrssssessscscssessenes 24 Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499 oo... 23 Lindelli v. Town ofSan Anselmo (2006) 139 Cal.App.4th 1499 oo... 18 Los Angeles Police Protective League v. City ofLos Angeles (1986) 188 Cal.App.3d Locecccecccsesssessssseeecessessecsessesssssssscsecsccsvesees 18 Marini v. Municipal Courtfor Santa Cruz Judicial Dist. (1979) 99 CalApp.3d 829oicecccsssssssssscsssssscssesescsssessscscsscsasseceetetsees 30 Mejia v. Los Angeles (2007) 156 Cal.App.4th 151.0...cesses 17 Nestande v. Watson (2003) 111 Cal.App.4th 232.000... ccccccccesseseeceseeeees 23 Perry v. Brown (2011) 52 Cal.4th 1116 ....cccccccccsecssessssereeseeees 20, 21 Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 31] w...cccccceeessseseeseseeeees 18, 25 Rich v. Benicia (1979) 98 Cal.App.3d 428 0... ccccccccssscssscsessesessecessesens 18 San Diego Municipal Employees Association v. City ofSan Diego (2016) 244 CalApp.4th 906.00... ccccsssssssesssseesssssseccsesssscssesvsseresesetseees 20 Serrano v. Priest (1977) 20 Cal.3d 25 vo.ccccccceccsscessesceseesecsseeees 25, 29, 30 4 Serrano v. Unruh (1982) 32 Cal.3d 621 ......ccccccsccccesseeeseeessteeeees 17, 25, 27 Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146.0...eeeeeeeeees 22 Wal-Mart Real Estate Business Trust v. City Council ofSan Marcos (2005) 132 CalApp.4th 614... ccccecccecsneeesseeseeceseeseeeseeeeeeeessaeeeseeeas 18 Woodland Hills Residents Ass’n, Inc. v. City Council (1979) 23 Cal.3d 917eee cceeseseseccsceesneesrcenecssesseecsecscenecseeeseseeseesseatensens 17 STATUTES Code Civ. Proc. § 1021.5 occ cccccetccecessseeeessseeeeesteeees 7,9, 12, 16, 18, 23 Gov. Code § 3509.5(b)..... ccc cccccsssscsesseesssssecessnececeesseesesseeessseeceseseeeeesseeseess 12 STATE CONSTITUTION Cal. Const., art. VI, § 12(D)..... ccc ceccscccesstscssecesseseeseeeesseesnseessscseeeesseaeeesees 13 RULES OF COURT Cal. Rules of Court, Rule 3.1702...cscescsssceccescsssecssssssscsesssnrecceeeeees 15 Cal. Rules of Court, Rule 8.25(D)(1)..... eee eeecccseceseeeersesseesneeesseenneeees 8, 15 Cal. Rules of Court, Rule 8.264(b)(1)......ececccssseeseeeeseeens 8, 10, 11, 14 Cal. Rules of Court, Rule 8.278(d)(2)..........ccccsssescceecsseessecessecsssescesscsssseeees 16 Cal. Rules of Court, Rule 8.498...ccccsssscccesesseeeeeeees peteeeceseeecceaees 14 Cal. Rules of Court, Rule 8.499(C)(2) 0... cesssccssseceseesreeeseees 8, 10, 11, 14 Cal. Rules of Court, Rule 8.500.000... eccesssssscccccsesecccesseceeecessssreceeeeesees 13 Cal. Rules of Court, Rule 8.500(a)(1)........ccccsscccsccessecssssesssecssessssecsseveneces 10 Cal. Rules of Court, Rule 8.500(b)(2).........ccceccccssssessessssesssssssoesssenes 7,11 Cal. Rules of Court, Rule 8.S500(b)(4)......cceeceesccescereeeeees 7,11, 12,31 Cal. Rules of Court, Rule 8.500(e)(1)........cccecccscssecessessssecsecsetssesescssessnenes 10 Cal. Rules of Court, Rule 8.504(b)(5) 00... cccssesssessesscsscssessssssessecseeseeess 7 Cal. Rules of Court, Rule 8.504(e)(1)(A) on.sessseessceesssesereeeees 7 Cal. Rules of Court, Rule 8.504(e)(1)(B) ou... cececcccscssssssscssecssssscseesseseecees 8 Cal. Rules of Court, Rule 8.528(a)0...ccccsessssecssesseeesssceneees 7,11, 12 Cal. Rules of Court, Rule 8.528(C)uciccsesceesseseeeeseeees 7, 11, 12, 31 Cal. Rules of Court, Rule 8.528(d)..........cccccsccsneeeeeseeeeeeeeeerereseaees 7,11, 12 Cal. Rules of Court, Rule 8.77(8) ........ccccccccccsncecenneceeeeeseeeeeeeeeeeeeesnneeees 8,15 Cal. Rules of Court, Rule 8.77(d) .........cccccccccssscsteeeseneceseneeeeeeeeseeeesaeeeaees 15 FEDERAL CASES Richards S. v. Dep’t ofDev. Servs. (9th Cir. 2003) 317 F.3d 1080............ 26 Welch v. Metro. Life Ins. Co. (9th Cir. 2007) 480 F.3d 942oo.27 PETITION FOR REVIEW TO THE HONORABLECHIEF JUSTICE TANI G. CANTIL- SAKAUYE AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Petitioners, Catherine A. Boling, T.J. Zane and Stephen B. Williams (“Proponents/Petitioners”) respectfully submit this Petition for Review seeking a disposition by this Court, pursuant to California Rules of Court, Rule 8.528(a) granting Petitioners’ Motion for Attorneys’ Fees, pursuant to Code of Civil Procedure section 1021.5, or in the alternative a disposition ordering remandortransfer to the Court of Appeal, pursuant to Rules 8.500(b)(4), 8.528(c) or 8.528(d) to hear, and/or grant, Petitioners’ Motion for Attorneys’ Fees, against Respondent California Public Employment Relations Board (“PERB”) and Real Parties in Interest San Diego Municipal Employees Association (“SDMEA”), Deputy City Attorneys Association (““DCAA”), American Federation of State, County and Municipal Employees, AFL-CIO, Local 127 (“AFSCME”), and San Diego City Firefighters Local 145 (“Local 145”) (collectively “Charging Parties”). _This Petition for Review, filed pursuant to California Rules of Court, Rule 8.500(b)(2) and (b)(4), follows the Court of Appeal’s May 12, 2017 decision to reject Petitioners’ Motion for Attorneys’ Fees, submitted to the Court of Appeal on May 10, 2017, on the basis of no longer having jurisdiction. A true and correct copy of the May 12, 2017 letter from the Court of Appeal is attached hereto as Exhibit A, in accordance with California Rules of Court, Rule 8.504(b)(5) and (e)(1)(A). Petitioners timely submitted their Motion for Attorneys’ Fees, and supporting documents, on May 10, 2017', less than thirty-days after the April 11, 2017 decision of the Court of Appeal, Fourth Appellate District, Division One, was published in Case No. D069626 (consolidated with D069630), hereinafter referred to as Boling v. Public Employment Relations Bd. (2017) 10 Cal.App.5th 853 (“Opinion”). The Court ofAppeal confirmed receipt of the Motion on May 10, 2017, and should have accepted the Motion asfiled on that date. (Cal. Rules of Court, Rules 8.25(b)(1) and 8.77(a).) Petitioners do not challenge the Opinion, in which the Court of Appeal decided in favor of Petitioners and the City of San Diego. Petitioners challenge the Court’s May 12, 2017 decision to reject Petitioners’ timely Motion for Attorneys’ Fees, and supporting papers, submitted on May 10, 2017, for reason of no longer having jurisdiction, at a time when the Opinion was not yet final under California Rules of Court, Rules 8.499(c)(2) and 8.264(b)(1). (See, Exhibit A: Court of Appeal, Fourth Appellate District, Division One Letter, dated May 12, 2017 — Rejection due to Court no longer having jurisdiction, attached hereto.) The Court of Appeal was the only forum available to Petitioners to bring a Motion for Attorneys’ Fees because Petitioners’ Writ to the Court of Appeal challenged a PERB decision, so notrial court is involved in this ! True and correct copies of the Truefiling e-mail confirmations, dated May 10, 2017, showing that the Motion for Attorneys’ Fees, and accompanying papers, were received by the Court on May 10, 2017, before the April 11, 2017 Opinion becamefinal, are attached hereto as Exhibit B, pursuant to California Rules of Court, Rule 8.504(e)(1)(B). (See, Declaration of Kathleen Day in Support of Application for Leave to File Oversized Exhibits to Petition for Review.) 8 action. (Boling, supra.) Code of Civil Procedure section 1021.5 requires that a “private attorney general” make its request to a “court”. (Code Civ. Proc. § 1021.5.) The Court of Appeal’s rejection of Petitioners’ Motion without consideration, for the sole reason of having no jurisdiction, deprives Petitioners of that only forum they had available to bring the Motion. Petitioners seek attorneys’ fees for opposinga series of related actions in which PERB and the Charging Parties sought to keep Proponents’ Charter Proposition B off the June 2012 ballot and ultimately invalidate its adoption in contravention of Proponents’ reserved rights guaranteed by the California Constitution. At each stage of the multiple proceedings culminatingin this . Court’s judgment vindicating the right of the citizens to proposelegislation, PERB and the Charging Parties have failed and refused to recognize the constitutional, statutory and Charter rights of Proponents and the people. Proponents have conferred a significant benefit, both pecuniary and nonpecuniary, on the citizens of the City of San Diego and the State of California by defending the public’s right to vote and to control public employee compensation. The necessity and financial burden of private enforcement placed on Proponents, as the representatives of the electorate, are such as to make the award appropriate. The interests ofjustice require that the fees be borne by the governmental entity, PERB, and those Charging Parties who made false claims of a “sham”initiative while providing no evidence of a sham or any legal connection between Proponents and the City Council of the City of San Diego. Specifically, Petitioners successfully provided the following | substantial benefits to the citizens and voters of San Diego and the State of California: E R E P E o i 1) 2) 3) 4) 5) 6) Affirmation that a state administrative body cannot take away the right of Proponents of a citizen-circulated measure to defend their measure in the judicial system. Affirmation that the reserved power of the People to propose legislation cannot be limited by an administrative body in contravention of constitutional rights. Affirmation that an administrative body cannot delay placementof a citizen-circulated measure on the ballot while procedural steps only applicable to a “governing body” are exhausted. Affirmation that an administrative body cannot create an “agency” relationship between elected officials who politically support a citizen-circulated ballot measure and the proponents of the measure. Proponents, through their legal and administrative actions, before and after the June 2012 election, ensured that the City of San Diego defendedthe ballot placement and enforced a validly adopted Charter measurewith vigor. Proponents, through their legal and administrative actions, before and after the June 2012 election, ensured that the City of San Diego allowed the election to not be delayed and, upon approval, fully implemented a validly adopted Charter measureinsteadofsettling the matter through compromise with PERB and/or the Charging Parties. TIMELINESS. This Petition is timely pursuant to California Rules of Court, Rule 8.500 (a)(1) and (e)(1), because it was submitted within 10 days of May 11, 2017, the date on which the Court’s April 11, 2017 opinion becamefinal (California Rules of Court, Rules 8.499(c)(2) and 8.264(b)(1)), and within 10 days of the Court’s May 12, 2017 rejection of Proponents/Petitioners’ Motion for Attorneys’ Fees. 10 Il. ISSUES PRESENTED. 1. Did the Court of Appeal err in failing to accept Petitioners’ Motion for Attorneys’ Fees which was submitted a day before the Opinion becamefinal? 2. Are Petitioners prevailing parties entitled to attorneys’ fees under commonlaw or Codeof Civil Procedure section 1021.5? Ill. NECESSITY FOR REVIEW. Petitioners bring this Petition for Review pursuant to California Rules of Court, Rule 8.500(b)(2), on the groundsthat the Court of Appeal wrongfully asserted lack of jurisdiction as the basis for rejecting Proponents’ timely submitted Motion for Attorneys’ Fees. Petitioners further bring this Petition pursuant to Rule 8.500(b)(4), for the purposes of transferring and/or remanding the matter to the Appellate Court for hearing. (Cal. Rules of Court, Rule 8.500(b)(2) and (4); 8.528(a), (c), (d).) This case presents grounds for review by this Court because Petitioners, as a successful party in this matter who enforced an important right affecting the public interest and conferred a significant benefit on the general public, properly and timely submitted their Motion for Attorneys’ Fees with the Court ofAppeal, on May 10, 2017, before the Opinion became final. However, due to clerical error, the Court of Appeals did not process the Motion until May 12, 2017, after its jurisdiction expired. (See, Exhibit A.) Once the Court of Appeal’s Opinion became final, it no longer had jurisdiction to hear the timely Motion. (Cal. Rules of Court, Rules 8.499(c)(2) and 8.264(b)(1).) The Motion was brought before the Court of Appeal based on the unavailability of any other forum for Proponents to make this “private _ attorney general”request to a “court” as required by CodeofCivil Procedure 11 section 1021.5. This matter is a case offirst impression in that there was no Trial Court to remand this matter for final disposition. Code of Civil Procedure section 1021.5 requires that a “court” hear an attorney’ fee motion. Since this case falls under Government Code section 3509.5(b), it was remandeddirectly back to an administrative body, PERB,rather than Trial Court. (Boling, supra, at 95.) IV. REQUESTED DISPOSITION Petitioners request one of three potential remedies, as provided under the California Rules of Court. First, this Court can accept review of this request and issue a Normal Disposition determining whether Petitioners’ Motion for Attorneys’ Fees should be granted because Petitioners were a prevailing party on an election issue that was the subject of multiple proceedings overthe last five years. (Cal. Rules of Court, Rule 8.528(a).) Second, in the event the Court disposes of a portion of the issues presented in this Petition, Petitioners request that the Court remand this matter back to the Court ofAppeal to hear any remaining issues. (Cal. Rules ofCourt Rules 8.500(b)(4) and 8.528(c).) Third, this Court could transfer the matter to the Court of Appeal, with directions, for resolution of Petitioners’ Motion for Attorneys’ Fees, submitted on May 10, 2017. (Cal. Rules of Court, Rules 8.500(b)(4) and 8.528(d); Exhibit C: Petitioners’ Motion for Attorney’s Fees and Memorandum of Points and Authorities in Support thereof; Exhibit D: Declaration of Kenneth H. Lounsbery in Support of Petitioners’ Motion Exhibit E: Declaration of James P. Lough in Support of Petitioners Motion for Attorneys’ Fees; and Exhibit F: Petitioners Motion for Judicial Notice; Memorandum of Points and Authorities; Declaration of Yana L. Ridge; and [Proposed] Order in Support of Petitioners’ Motion for Attorneys’ Fees.) 12 VV. ARGUMENT A. ISSUE 1: DID THE COURT OF APPEAL ERR IN FAILING TO ACCEPT PETITIONERS’ MOTION FOR ATTORNEYS’ FEES WHICH WAS SUBMITTED A DAY BEFORE THE OPINION BECAMEFINAL? 1) THIS COURT HAS THE POWER TO REVIEW ANY ORDER ISSUED BY THE COURT OF APPEAL. This Court’s “review” poweris broad. It is the power to review in the Court’s discretion any decision or order rendered by the Court of Appeal. (See, Cal. Const., art. VI, § 12(b); Cal. Rules of Court, Rule 8.500 [emphasis added].) This Court’s power of review extends to any orall issues in the case, whether or not raised in the court below, if this Court deemsit appropriate. (Cedars-Sinai v. Sup. Ct. (1998) 18 Cal.4th 1, 5-7 n.2.) This Court should extend its review powerto the Court of Appeal’s rejection of Petitioners’ timely Motion for Attorneys’ Fees due to the Court’s lack of jurisdiction because it is appropriate for this Court to review the rejection and/or the Motion in light of unavailability of any other forum in which Petitioners can seek redress. The Court of Appeal’s error of failing to process Petitioners’ Motion substantially affects Petitioners’ rights by depriving Petitioners of an opportunity to be heard on their Motion. Without review by this Court, Petitioners will bear the disproportionate financial burden ofprotecting the rights of the voters of San Diego in a case ridden with unreasonable and harassing litigation tactics by PERB and the unions. Petitioners’ Motion for Attorneys’ Fees in an election caseis a significant issue of widespread importance, andit is in the public interest to decide the issueat this time. (See, Cedars-Sinai, supra.) 2) THE MOTION FOR ATTORNEYS’ FEES WASTIMELY. Petitioners received written confirmation of receipt by the Court on May 10, 2017. (See, Exhibit B hereto.) In addition, the staff at the 13 Court of Appeal acknowledged that the Motion was timely received on May 10, 2017, and that as a result of clerical error, the Court failed to consider it before it lost jurisdiction at 5:00 pm on May 11, 20177. This Petition for Review is Proponents’ only remaining remedy. Petitioners filed the underlying Writ of Review in the Court of Appeal, seeking review of a Public Employment Relations Board decision, pursuant to Chapter 8 of the California Rules of Court, “Miscellaneous Writs” and more specifically Rule 8.498. Thus, pursuant to California Rules of Court, Rule 8.499(c)(2) the Opinion in that writ proceeding “is final in that court 30 days after the decisionis filed.” (Cal. Rules of Court, Rules 8.499(c)(2) and 8.264(b)(1).) The Court of Appeal filed and published the Opinion on April 11, 2017. (See, Boling, supra.) Thus, the Opinion becamefinal 30 dayslater, at close of business on May11, 2017. Proponents submitted the Motion for Attorneys’ Fees, and supporting papers, on May 10, 2017 before the Opinion wasfinal, and while the Court had jurisdiction to hear the matter. (See, Exhibit B hereto- May 10, 2017 Truefiling email notices: Fourth District Court of Appeal, First Division - Document Received — Case No. D069626.) Upon receiving the Motion, on May 10, 2017, the Court of Appeal confirmed receipt and provided no indication that the Motion submittal was defective. (See, Exhibit B hereto.) The Court of Appeal was therefore required to accept the Motionasfiled on that date. (Cal. Rules 2 On May 15, 2017, Counsel for Petitioners spoke with the Court of Appeal Deputy Clerk, and the Clerk informed Counsel that the Motion “fell through the cracks and wasnotbroughtto the clerk’s attention until Friday morning on May 12”and that the appropriate remedyis a Petition for Review. (See, Declaration of Yana Ridge in support of Application for Leave To File Oversized Exhibits To Petition For Review.) 14 of Court, Rule 8.25(b)(1)[“A document is deemed filed on the date the clerk receives it.”]; see also Rule 8.77(a).) The Appellate Court’s failure to timely accept the Motion on May 10, 2017, and its subsequentdelay, resulted in the improperrejection of the Motion on May 12, 2017. The Court’s delay also extinguished any opportunity for Petitioners to apply to have the Motion deemed timely filed (see, Cal. Rules of Court, Rule 8.77(d)), as the Appellate Court no longer had jurisdiction. Court of Appeal staff subsequently confirmed that a Petition for Review was the only available remedy. The Motion was timely submitted, and would have been considered but for clerical error on the part of the Appellate Court. Proponents must not be penalized by such error. Their constitutional rights need to be restored by this Court. 3) THE MOTION WAS PROPERLY BEFORE THE COURT OF APPEAL. Normally, a motion for attorney’s fees to a prevailing party is decided by a trial court on remand. (See Cal. Rules of Court, Rule 3.1702.) Here, the procedural posture of this case is such that there was no trial court proceeding. The Charging Parties initiated an unfair practice charge with PERB after Petitioners, the proponents of Proposition B, submitted Proposition B with the sufficient numberofsignatures to the City and before the voters of San Diego approved Proposition B on June 5, 2012. PERB held an administrative hearing, at which Proponents were excluded, and ultimately issued its decision. Petitioners, and the City, then petitioned to the Court ofAppeal for Writ ofExtraordinary Relieffrom PERB’s decision. The Court heard the oral arguments on March 17, 2017 andissuedits decision on April 11, 2017. (Boling, supra.) Code of Civil Procedure section 1021.5 provides that upon motion a court may award attorneys’ fees. The Court ofAppeal and this Court are the 15 only courts that can hear this Motion. While the Court of Appeal remanded the case to PERB to nullify its orders, this Motion cannot be heard by PERB for several reasons. First, PERB is not a court and has no jurisdiction over the Motion. Second, PERB has no expertise in motions for attorneys’ fees under Code of Civil Procedure section 1021.5. Third, at every stage of administrative and writ proceedings, PERB sought to exclude Petitioners claiming Petitioners had no standing. Further, despite the Court of Appeal’s directive that each party shall bear its own costs of this proceeding, this Motion for Attorneys’ Fees was properly before the Court of Appeal because attorneys’ fees are treated as separate from and not included in costs. (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 923; see also Cal. Rules of Court, Rule 8.278(d)(2).) B. ISSUE 2: ARE PETITIONERS PREVAILING PARTIES ENTITLED TO ATTORNEYS’ FEES UNDER COMMON LAW OR CODE OF CIVIL PROCEDURESEC. 1021.5? Code of Civil Procedure section 1021.5 provides in pertinentpart: Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interestif: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or ofenforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest ofjustice be paid out of the recovery,if any. With respect to actions involving public entities, this section applies to allowances against, but not in favorof, public entities, and no claim shall be required to be filed 16 therefor, unless one or more successful parties and one or more opposingparties are public entities, in which case no claim shall be required to be filed therefor... . This section is also knownas“private attorney general doctrine,” the purpose of whichis to encourage private enforcement of importantrights affecting the public interest. (Woodland Hills Residents Ass’n, Inc. v. City Council (1979) 23 Cal.3d 917, 933-42.) Attorneys’ fees should be awardedif the statutory criteria of section 1021.5 are met, unless the award wouldbe unjust. (Serrano v. Unruh (1982) 32 Cal.3d 621, 623-33 and n.17.) 1) PETITIONERS ARE SUCCESSFUL PARTIESIN THIS ACTION. Petitioners are successful parties in this action because they were a catalyst in the Court’s award, successfully defendingthe citizens’ right of initiative in their writ action, and because the Court of Appeal ruled that Petitioners had a real party status in the City’s writ action, which was successful. First, Petitioners’ writ action was successful because as proponents, Petitioners successfully defended the right ofthe people to legislate directly without procedural hurdles when the Court ruled that the City was not obligated to meet and confer prior to placing Proposition B, a citizen’s initiative, on the ballot. Petitioners’ writ action was successful with respect to this key dispositive argument, which entitles Petitioners to attorney’s fees in their writ proceeding. Second, Petitioners are also entitled to attorney’s fees as real parties in interest in the City’s successful writ proceeding. A real party in interest in a mandamusproceeding is properly considered a partyto thelitigation. (Mejia v. Los Angeles (2007) 156 Cal.App.4th 151, 160.) Asa real party in interest, Petitioners are entitled to attorneys’ fees under Section 1021.5 17 because the City prevailed in its action. (See Wal-Mart Real Estate Business Trust v. City Council ofSan Marcos (2005) 132 Cal.App.4th 614.) 2) PETITIONERS’ VICTORY ENFORCED AN IMPORTANT RIGHT AFFECTING THE PUBLIC INTEREST AND CONFERRED SIGNIFICANT BENEFITS ON THE PUBLIC. Under Code of Civil Procedure section 1021.5, Petitioners may recover attorneys’ fees because they enforced an importantrightofthe public — the right to legislate by initiative without procedural hurdles such as the meet and confer requirement, and conferred a significant benefit on the public — judicial affirmation that the reserved powerofthe People to propose legislation cannot be limited by an administrative body in contravention of constitutional rights. (See Wal-Mart, supra; Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311; Rich v. Benicia (1979) 98 Cal.App.3d 428.) The published appellate decision in this case provides strong evidencethat this case vindicated an important public right. (Los Angeles Police Protective | League v. City ofLos Angeles (1986) 188 Cal.App.3d 1, 12.) Courts have repeatedly held that the state constitutional right of initiative is “one of the most precious rights of our democratic process,” reserved to the people, and which the courts have a duty to “jealously guard.” (Walmart, supra.) Just like the constitutional right to a referendum vote, the right of initiative is an important right under section 1021.5, vindication of which entitles Petitioners to an award ofattorneys’ fees. (See Jd.; see also Lindelli v. Town ofSan Anselmo (2006) 139 Cal.App.4th 1499; Adoption of Joshua S. (2008) 42 Cal.4th 945, 957 n.4 [“[E]lection law litigation inherently implicates public rights.”].) In this case, Petitioners’ successful defense of this action and the people’s right of initiative prevented the City of San Diego from settling or negotiating with the Charging Parties, delaying the defense ofProposition B, 18 or defending the measure less than vigorously. This case is of benefitto all citizens of California because it preserved the citizens’ right to defend their initiative even if the State uses the administrative process to review their measure. Petitioners’ active defense of Proposition B conferred numerous benefits upon the citizens and voters of San Diego andtheresidents ofcities and counties statewide. The benefits that flowed specifically from the Petitioners’ instrumental participation in this action include, but are not limited to: 1) The termsofa citizen’s initiative measure, amending a City’s pension fundobligations, are not subject to the meet and confer process of the MMBA. | 2) An administrative agency, such as PERB, cannot impose limitations on, or in any way interfere with, the opportunity of citizens to exercise their Constitutional right to enact legislation through theinitiative process. 3) An administrative agency, such as PERB, cannot delay the placementonthe ballot of a citizen’s initiative measure. 4) An elected official has the right to exercise his/her First amendment freedoms, in the course of an election, without his/her actions being imputed, based upon an agencytheory,to the public agency which he/she serves. 5) A public agency’s decisions cannot be inferred, either by imputation or supposed acquiescence bysilence, as aresult of the political activities of one of its elected officials. Petitioners achieved significant success in protecting the right of citizens and voters, statewide, to draft, circulate, submit, and later defend their initiatives. Without their participation, the Court would not have seen 19 we y this case from the perspective of the private citizens who receive no pecuniary benefit except that experienced byall other taxpayers. 3) THE NECESSITY AND FINANCIAL BURDEN OF PRIVATE ENFORCEMENT MAKE THE AWARD APPROPRIATE. Petitioners’ participation in the administrative and judicial proceedings in this case were necessary for several reasons. Their actions “enhance[d] both the substantive fairness and completeness of the judicial evaluation of the initiative’s validity and the appearance of procedural fairness that is essential if a court decision adjudicating the validity of a voter-approved initiative measure is to be perceived as legitimate by the initiative’s supporters.” (Perry v. Brown (2011) 52 Cal.4th 1116, 1151.) Further, the risk that the City would not proceed with the defenseis too great: The Petitioners could notsit back and hopetheir constitutional and reserved rights would be protected without their participation. Lastly, Petitioners contributed significantly to the defense of Proposition B throughout this action by presenting, highlighting and defending key dispositive arguments. t. Through their participation, Petitioners were vindicating a different right than the City. Petitioners have always been necessary to the prosecution of this matter. Despite the City’s defense of Proposition B, through their actions Petitioners were vindicating a different right than the City. Necessity in an election case differs from other cases where the private party enters a case on the same side as the government. (See, cf San Diego Municipal Employees Association v. City ofSan Diego (2016) 244 Cal.App.4th 906.) Election cases are unique because of the reserved power and constitutional interests at stake. (Perry, supra, at 1148-49; Building Industry Association v. City ofCamarillo (1986) 41 Cal.3d 810, 822.) 20 In the pre-election context, Petitioners’ role was to vindicate their own right, and the right of all citizens, under the California Constitution and statutory provisions, to have their measure submitted, circulated, and put to a vote of the people. (Perry, supra, at 1146-47, citing Building Industry Ass’n, supra.) The City had nointerest or duty to defend the validity of a law that had not been enacted. (/d.) In post-election cases, although public officials ordinarily have the obligation to defend a challenged law,there is a realistic risk that the public officials may not defend the approvedinitiative measure with vigor. According to this Court in Perry, “this enhancedrisk is attributable to the unique nature and purposeofthe initiative power, which gives the people the right to adopt into law measures that their elected officials have not adopted and may often oppose.” (/d. at 1149.) Petitioners here were acting “in an analogous and complementary capacity to those public officials” and participated in this action on behalf of the people’s interests. (Id.) Anyclaim that the City defended Proposition B, making Petitioners’ defense was unnecessary, would be an attemptto re-write history. Petitioners could not sit back and wait to see how the City would handle the defense. The record and the Court of Appeal’s decision are replete with references to the fact that a majority of the San Diego City Council did not support Proposition B. At the PERB administrative hearing, there was no precedent on whether the City’s “duty to defend” an adopted initiative extends to administrative proceedings. There was alwaysa risk that the City could settle with the Charging Parties as was done in the City of San Jose Pension Quo Warranto litigation, jeopardizing the. citizens’ right of initiative. (Declaration of James P. Lough in Support of Petitioners’ Motion for Attorney’s Fees (Exh. E: “Lough Decl.”p. 10 4 24); Declaration of Kenneth H. Lounsbery in Support of Proponents’ Motion for Attorney’s Fees (Exh. 21 D: “Lounsbery Decl.” p. 8 § 17), see also Exh. F: “Motion for Judicial Notice,” Exhs. A-C pp. 9-24).) After the PERB Decision was issued, the City did not file its Writ of Review until days before the deadline. Had Petitioners failed to file their Writ, the City Council could have ordered the City Attorney to notfile its Writ at the last minute. Then there was always a risk that even though the City proceeded with the defense the City would defend Proposition B with less than vigor. (Exh. E: “Lough Decl.” p. 10 9 24-25.) Even now when PERB and/or the Charging Parties may petition to this Court for review of the Court of Appeal’s decision,there is a possibility that the City may not proceed with the defense of Proposition B. Further, if Petitioners were not actively defending the constitutional rights of the people, it is possible that the Court of Appeal could have determined that their constitutional rights were not importantinterests. If Petitioners had not participated in this action and the Court had deferred to PERB,Petitioners would have no ability to defend these important rights. The procedural posture here is unusual in that the matter was not in frontof a trial court where Petitioners could sit back and let the government defend the matter. In such a case, Petitioners would have hadthe ability to intervene and obtain an automatic appeal to the Court of Appeal. (See, e.g., Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1250; Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) Here, the Petitioners were barred from participating in the administrative hearing. except as a witness. (Exh. D: “Lounsbery Decl.” p. 5 ¥ 8; Exh. E: “Lough Decl.”pp.3- 449 5-6; p. 5 J 10-12.) Ifthe Petitioners took no legal action and relied on the City, Petitioners would have no right of automatic appeal to cure any defect in the administrative process. Petitioners’ rights would be at the mercy of a petition for review that is not guaranteed. The value ofthose guaranteed 22 rights is too great to force Petitioners to waitit out or pay the freight to defend the rights of their fellow citizens. ii. Petitioners contributed significantly to the success ofthis matter by providing valuable services and arguments. Second, Petitioners are appropriately entitled to attorneys’ fees although they were defending Proposition B alongside the City, because Petitioners’ actions were not “duplicative, unnecessary, and valueless services,” or “opportunistic or collusive and undertaken simply to generate such attorney fees.” (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 545 and n.31; City ofSanta Monica v. Stewart (2005) 126 Cal.App.4th 43, 85-86.) The ultimate success of the defense of Proposition B wassubstantially attributable to Petitioners’ participation as real parties in interest in the City’s case and as petitioners in the Petitioners’ writ. California courts have expressly held that “private parties who cooperate with governmental officials in successful public interest litigation, and who contribute significantly to the result, may recover attorney fees under section 1021.5.” (Nestande v. Watson (2003) 111 Cal.App.4th 232, 240.) Throughout multiple administrative and court proceedings, Petitioners raised and defended the constitutional protections that permeated this case — the right of Petitioners to submit legislation under content neutral election rules and the right to associate with elected officials who supported the measure. Petitioners took on the disproportionate burden of defending their measure against attack by four bargaining groups who would receive a pecuniary benefit from invalidation of Proposition B and a state agency that used its resources for five years to silence the Petitioners. Private enforcement by Petitioners was necessary because the City was primarily defending the enacted law and the mayor’s speechrights to participate as a private citizen and not as an agent of the City. The constitutional rights of Petitioners and the people were not at the forefront of the City’s defense. 23 Petitioners provided expertise not only on the background leading to the enactment of Proposition B into law but also expertise on the constitutional issuesrelating to the people’s right ofinitiative. (Exh. D: “Lounsbery Decl.” pp. 2-4 Ff 2-5; Exh. E: “Lough Decl.” p. § 2, p. 11 99 27-28.) In particular, with the support of Amici, the City argued the speech rights of the Mayorto participate as a private citizen and not as an agent of the City while Petitioners argued the unique rights held by citizen proponents. Petitioners also argued, as noted in the Court’s Opinion at footnote 18, that the PERB Decision never made a link between the Petitioners and the City. No agencyrelationship could be established without this link as argued by Petitioners. The failure to link the Mayor to the Petitioners’ action broke the “agency”chain at its supposed source. Indeed, it was the sworn testimony of Petitioners’ counsel at the PERB hearing, which confirmed the authorship of Proposition B by the Petitioners and separated the Mayor from the preparation of Proposition B. Also, the participation of Petitioners highlighted the fundamental problem with PERB’sdecision to require the meet and confer processforall future citizen- circulated measuresandrolled back this ambitious effort to limit the reserved powerofinitiative to protect a state statutory priority. Thus, Petitioners’ arguments and participation were instrumental in the ultimate successofthis action. iii. Petitioners satisfy thefinancial burdensofprivate enforcementprong. Before filing this Petition for Review, Petitioners incurred $635,740 in attorneys’ fees to defend Proposition B,but there is no “direct pecuniary benefits [to Petitioners] in the judgment.” (Galante Vineyard v. Monterey Peninsula Wat. Mgmt. Dist. (1977) 60 Cal.App.4th 1109, 1127.) Rather, Petitioners defended Proposition B to vindicate non-pecuniary interest in the good governance of California. Numerous cases have concludedthat ballot 24 R G R P S g e measure proponents with no financial or personal interests at stake, qualified for section 1021.5 awards in actions brought to enforce those measures or qualify them forthe ballot. (Stewart, supra, at 90.) 4) THE AMOUNT OF FEES REQUESTED IS REASONABLE. Petitioners’ fee request is reasonable and appropriate considering the complex nature ofthe issues in this case andthe extensive briefing required by the unreasonable way PERB andthe Charging Parties repeatedly excluded Petitioners and movedto dismiss the case. Petitioners are not seeking fees for counsel’s draftsmanship of Proposition B and counsel’s guidance and support ofPetitioners in their efforts to circulate and submit the measure, and ultimately take it through a successful election. Although such seminal efforts by Petitioners’ counsel were key to the landmark decision in this case, Petitioners’ fee request is focused on thelitigation part of the case, which litigation was made overwhelmingly unreasonable by PERB andthe unions, and therefore costly for Petitioners. As discussed more fully below, neither do Petitioners seek a multiplier since their fee request represents a reasonable and fair lodestar calculation. (See also Exh. D: “Lounsbery Decl.”pp. 3-4 {7 4-5, pp. 8-9 4 17-20.) Once the attorneys’ fees are found to be warranted under section 1021.5, the amount of the award is calculated by the lodestar adjustment method. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.) The lodestar calculation is the product of the numberofhours reasonably expendedin the litigation multiplied by the reasonable hourly rate for each attorney. (Press, supra, at 322.) Fees are to be awarded forall hours reasonably spent on the litigation. (Serrano v. Unruh, supra, at 639.) This case involved a substantial number of hours of extensive research, drafting, preparation andarguing bya total of seven attorneys for Petitioners throughoutthe five years ofits journey through the administrative 25 and judicial proceedings, initiated and prosecuted by PERB andthe unions to chill constitutional rights of the people. Even before PERB issued its decision, PERB andthe unionsinitiated Superior Court proceedingsto halt the election, and vehemently opposed Petitioners’ request for intervention to defend Proposition B and constitutional rights of the people. PERB andthe unions’ Superior Court actions, which led to a published appellate court decision, were intended to drain Petitioners’ resources and prevent Petitioners from pursuing the defense of their measure. At the PERB level, the case was first heard by the administrative law judge, then the parties submitted the exceptions to the proposed decision, then PERB issued its decision. Further, the writ actions in the Court of Appeal required a review of the PERB administrative record which was thousands of pages long; so long that even PERB itself and the Charging Parties requested an oversized brief and an extension ofbriefing at this Court to allow them time to review the record. Next, PERB soughtto dismiss the action and exclude Proponents on more than one occasion, which motions required research and drafting of opposition briefs. (Richards S. v. Dep’t ofDev. Servs. (9th Cir. 2003) 317 F.3d 1080, 1089 [fees incurred in successfully opposing intervention are compensable].) Over 200 pages of briefs, containing over 50,000 words, have been prepared and filed by Proponents in the writ actions alone. Petitioners’ counsel has devoted 1,378.7 hours to assist Petitioners in this case over a period of nearly five years. It is undisputable that the briefing costs were increased by PERB andthe Charging Parties’ unreasonablelitigation tactics undertakento chill constitutional rights of the people. (Exh. D: “Lounsbery Decl.”pp. 4-7 {if 6-14; p. 8 4916-17; Exh. E: “Lough Decl.” pp. 5-8 9§ 12- 19; p. 9 F¥ 22-23.) 26 Petitioners are entitled to be compensated for attorneys’ fees at rates that reflect the reasonable market value of attorneys’ services in the community. (Serrano v. Unruh, supra, at 642.) Billing rates are established by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity. (Welch v. Metro. Life Ins. Co. (9th Cir. 2007) 480 F.3d 942, 946.) However, because this case is a matter offirst impressionin the state, involving complex issues that have notbeenlitigated in San Diego County, the rates claimed in this case are not based onrates that private firms charge in the San Diego area for the kind of work done in similar cases. No similar cases have beenlitigated in San Diego County, thus there are no rates in San Diego County for the kind of work to use as the benchmark here. (Exh. E: “Lough Decl.” pp. 10-11 4] 24-26.) The closest case in complexity, importance of issues involved, and constitutional rights at stake is the San Jose matter in Santa Clara Superior Court Case No. 1-13-CV-245503titled the People ofthe State ofCalifornia ex rel. San Jose Police Officers’ Association v. City of San Jose and City Council ofSan Jose as well as the appeal (No. H043727) and writ ofmandate (No. H043450) that followed in the Court ofAppeal, Sixth District. (Exh. E: “Lough Decl.” pp. 10-11 4 24-26.) This firm represents Steven Haug and Silicon Valley Taxpayers’ Association, proposed intervenors in the San Jose matter. The San Jose matter involves MeasureB,a pension reform in a form of an amendmentto the San Jose City Charter, which was judicially invalidated without any hearing on the merits, without judicial review or voter approval, or defense by the local government or proposed intervenors. In that case, the local unions attempted to circumventthe people’s charter amendmentauthority by obtaining a stipulated judgment. The issues on appeal and the writ of 27 mandate involve the local government’s failure to defend Measure B andits ability to stipulate to the invalidation of Measure B, a measure overwhelmingly enacted by San Jose voters, as well as the trial court’s refusal to allow intervention by proposed intervenors. Both the San Jose matter and this case involve similar complex and important issues — the people’s unobstructed right to legislate directly, without the MMBA procedural hurdles and without the local government’s ability to stipulate away the people’s constitutional rights. (Exh. E: “Lough Decl.” pp. 10-11 99 24-26; see also Exh. F: Motion for Judicial Notice, Exhs. A-C, pp. 9-24.) Based on the lack of similar cases in the community, and the similarities between this case and the San Jose matter, Petitioners are seeking the reasonable marketvalue of the services providedby their attorneys, at a rate that reflects a reasonableandfair lodestar calculation without application of a multiplier. For Attorneys Lounsbery and Lough,Petitioners seek a rate charged by this firm and co-counsel firm in the San Jose matter. For five other attorneys involved in this case throughoutthelast five years, Petitioners seek a lower rate. This lodestar formula is utilized in recognition of three factors. First, the legal effort was unique, undertaken in the face of an extraordinarily powerful and rigid collection of opponents. Second, the outcome marked an important milestone in the increasingly vital field of public agency pension reform;cities will be facing bankruptcyif they are unable to more effectively manage their exposure to pensionliability. This case offers a glimmer of hope in that regard. Third, in mid-2016, the Petitioners ran out of moneyandthis firm wasleft to completethe litigation fully aware that its compensation was capped;yet, it persevered. Petitioners are also entitled to and are seeking attorneys’ fees for bringing this fee motion. (Exh. D: “Lounsbery Decl.” pp. 7-8 94 17-20.) 28 Case law undersection 1021.5 provides that successful parties may be awarded a “multiplier” of their fees based on the excellent results obtained,the significant benefit to the public ofthe victory, and the particular skill and expertise brought to the case by Petitioners’ counsel. (Serrano v. Priest, supra, at 49.) Petitioners’ participation, as discussed more fully herein, brought about the judicial affirmation of the important constitutional rights of the people,resulting in a published appellate opinion, and conferred many significant benefits to the public. Petitioners’ counsel’s skills and expertise in the election and constitutional matters contributed substantially to the successful result of this action. However, despite the excellentresults, the significant benefit, and counsel’s unique expertise in this legal area, Petitioners are not seeking a multiplier because the fee amount requested by Petitioners represents a reasonable andfair lodestar calculation. (Exh. D: “Lounsbery Decl.” pp. 8-9 {ff 17-20.) Asdiscussedin the Declarations attached to the Motion for Attorneys’ fees (Exh. C: Petitioners’ Motion for Attorneys’ Fees and Memorandum of Points and Authorities in Support Thereof, p. 21), the time requested is based on contemporaneousbilling records that were preparedforthe clients. (Exh. E: “Lough Decl.” 11 29.) The actual time and description of each entry were prepared at the time the work was performed and submitted to the clients in the same mannerasotherlegal matters handled by the Firm. Each bill was reviewed bythe Senior Partner before it was submittedto the clients. Time spent on this motion includes estimated time from the date of the preparation of this motion. (Exh. D: “Lounsbery Decl.” pp. 8-9 9 17-19.) Asfurther discussed in the supporting Declarations, the attorneys who handled this matter are expert in the unique combination of issues found in the legal and administrative matters at issue. Both Senior Partner Kenneth H. Lounsbery and Of Counsel James P. Lough have extensive experience in 29 election law; public pensioninitiatives; charter city rights; and the MMBA. It is highly unlikely that any other two attorneys have comparable experience in San Diego County to handle this matter, which contained numerousissues of first impression. (Exh. D: “Lounsbery Decl.” p. § 2; Exh. E: “Lough Decl.” p. 2 J 2; p. 11 § 27-28.) 5) IN THE ALTERNATIVE, PETITIONERS ARE ENTITLED TO ATTORNEYS’ FEES UNDER THE EQUITABLE PRIVATE ATTORNEY GENERAL DOCTRINE. The equitable private attorney generaldoctrine is also a separate basis for awarding Petitioners their fees in this case. (Serrano v. Priest, supra, at 43; Coalition for Economic Survival v. Deukmejian (1985) 171 Cal.App.3d 954, 960[codification of the California private attorney general doctrine did not eliminate the judiciary’s equitable authority to award fees].) The Court of Appeal and this Court have equitable authority to award fees underthis doctrine to Petitioners because they successfully pursued public interest litigation that vindicated important constitutional right. (Serrano v. Priest, supra.) VI. CONCLUSION Although Petitioners/Proponents’ Motion for Attorney’s Fees was timely, the Court of Appeal failed to accept the Motion before the Opinion becamefinal. This Petition is necessary to ensure that the Petitioners do not bear the disproportionate financial burden of protecting the rights of the voters of San Diego and that the cost of enforcing important public rights is transferred to the losing parties - PERB and the Charging Parties. (Marini v. Municipal Courtfor Santa Cruz Judicial Dist. (1979) 99 Cal.App.3d 829.) Thefinancial burden should rightfully be borne by those whointerfered with the electoral rights that have been guaranteed to the citizens of California since 1911. An award will also protect future groups that wish to initiate legislation. It will protect their right to associate with those elected officials 30 whoshare their concernsandto circulate measures withoutinterference by state administrators who attempt to elevate state statutory provisions over constitutional rights. Thefailure of the courts to allow an attorneys’ fee motion in this case would undermine the purpose of the private attorney general common law and statutory laws. It would meanthat the State of California could avoid attorneys’ fee awards by bypassingtrial court review after an administrative hearing process, even if initiative proponents could not participate in the administrative process. The failure to allow private attorney general awards would have negative impacts on the citizen initiative process because initiative proponents would be burdened with the cost of enforcing important public rights and public sector labor unions could gain a competitive advantage by merely filing an Unfair Practice Charge with PERB. /// /// //] /// //1 /// //] 31 Petitioners respectfully request the Court grant this Petition for Review, and pursuant to California Rules of Court, Rule 8.528(a) issue a disposition granting Petitioners’ request for attorneys’ fees against PERB and the Charging Parties in the amount of $635,740, plus the cost of bringing this Petition. In the alternative, pursuant to California Rules of Court, Rule 8.528(c) and (d), Petitioners request that this Court remand this matter back to the Court of Appeal to hear any issues not decided by this Court or transfer the matter to the Court of Appeal, with directions, for resolution of the Attorneys’ Fee Motion submitted to the Court of Appeal on May 10, 2017 by Petitioners/Proponents. (Cal. Rules of Court Rules 8.500(b)(4) and 8.528(c).) Date: May 18, 2017 LOUNSBERY FERGUSON ALTONA & PEAK By: @ A t t o m e y s at L a w C R P R N HW B® ow D P m Y YP Y Y w w w Bw ~ e w ~ n e F P R P C S S C S A R T R E R O B I Ss WHEREAS,the parties have reached this Stipulation in order to: (1) conserve resources; and (2) address the costs, time, and risks ofcontinued litigation, both in this forum and in others; and (3) resolve betweenthese parties the question of whether a decision in this matter would be universally applicable with respectto the requirements ofthe ballot measure known as “Measure B,”as applied to bargaining units and employees outside of SIPOA should SIPOA’s quo warranto proceedings succeed in invalidating Measure B based onthe bargaining history that took place betweenthe City and SIPOA. WHEREAS,the Parties make this agreementin the interest of identifying a collaborative solution which addresses the financial challenges facing the City with respect to funding retirement obligations, as well as a mutual desire on the part of employees,retirees and City to make suchbenefits sustainable, IT IS THEREFORE STIPULATED AND AGREED by and between the Parties to the above- referenced action, through their respective attorneys ofrecord, that (he following be adapted asthe findings and Order of this Court. Stipulated Facts 1. OnJune 3, 2011, SIPOA andthe City entered into a tentative agreemententitled “Side Letter Agreement Between the City of San José and San José Police Officers’ Association — Retirement Reform.” 2. On June 9, 2011, George Beattie, then-President ofSIPOA,and RobertSapien, then- President of the Intemational Association ofFirefighters, Local 230 (“LAFF”) wrote to Alex Gurza, then-Director ofEmployee Relations for the City, requesting to commencejoint bargaining over retirement reform. 3. On June 20, 2011, the Parties entered into a Pledge of Cooperation and Agreement Upon a Framework for Retirement Reformand Related Ballot Measure Negotiations(“Pledge and Agreement”). The Pledge and Agreement essentially provided a set of groundrulesfor the Parties to negotiate concurrently on the issues ofretirement reform andrelated ballot measure(s). In addition to SJPOAand the City, IAFF was 4 signatory to the Pledge and Agreementand negotiations occurred -2- STIPULATED FACTS AND PROPOSED FINDINGS, JUDGMENTAND ORDER; CASE NO.4-13-CV-245503 15 R E N N E S L O A N H O L T Z M A N SA KA , _ _ ? A t t o m e y s at L a w N BD we NM LH WH Ww S a n s G O S ©§ S E S U E ST n N o o betweenthe City and both ofthose public safety Unionsat the sametable. A true and correct copy of the Pledge and Agreementis attached hereto as Exhibit 1. 4. Duringthe period spanning June 20, 201! through October 28, 2011, SJPOA, IAFF and - the City met and conferred overretirement reform issues and/or related ballot measures on June 20, July 13, August 1, August 20, August 31, September 13, September15, October 4, October 12, October14, October20, October 24, and October 28, 2021. 5. SJPOAand IAFFissued a joint Retirement Reform Proposal on September27, 2011. 6. Duringthe period spanning June 20, 2011 through October 28, 2011, the CITY proposed five (5) separate draft ballot measures to SIPOA and IAFF, which were provided on July 6, September 9, October 5, October 20, and October 27, 2011, respectively. 7. On October 31, 2011, having not reached an agreement on retirement reform and/or related ballot measures, the Parties reached impasse pursuantto the termsof the Pledge and Agreement. 8. On November 1], 2011, SIPOA and LAFFissued a revised SJPOA/Fire Fighter retirementreform proposal. 9, Pursuantto the terms ofthe Pledge and Agreement, which provided that the Parties would proceed to impasse procedures ifunable to reach agreement by October 31, 2011, SIPOA, IAFF and the City participated in joint mediation sessions on November 15 and 16, 2011 before Mediator Paul Roose ofthe California State Mediation and Conciliation Service. 10. At the conclusion of the November 15 and 16 mediation sessions, the Parties still had not reached agreement onretirement reform and/orrelated ballot measures. 11. On November 18, 2011, SIPOA and IAFF issued new Proposals significantly amending their prior proposals. The Unionsasked to resume bargaining based on their revised proposals. 12. Following SIPOA and JAFF’s revised retirement reform proposal, the City issued a sixth draft ballot measure proposal on November 22, 201 1, whichit provided to SJPOA and JAFF,informing those bargaining units that the revised ballot measure would be presented to City Council for consideration and possible adoption at the December6, 2011 Council meeting. The November22 ballot measure made significant revisions fromprior versions. -3- STIPULATED FACTS AND PROPOSED FINDINGS, JUOGMENT AND ORDER; CASE NO.1-13-CV-245503 16 At to rn ey s at L a w R E N N E S L O A N H O L T Z M A N Sa ta , — P oO F P N RD HW wm wD wD Ee S b R x R R R P P R P R e e e e e e e e L e e 7 7 7 " F P N K F S E R U A R E B H E a s 13. On December1, 2011, SIPOA and IAFFsentthe City another revised proposal and asked to meet and confer aboutit. 14. On December5, 2011, the City issued a seventh draft ballot measure, which was presented to City Council for consideration and possible adoptionat the December 6, 2011 Council meeting. While the December5 ballot measure was publically available before the December 6, 201! City Council meeting,it was not provided to SYPOA and IAFFaspartofthe bargaining process. The December 5 version of the ballot measure made additional concessions as compared to the November 22 version. 15. On December 6, 2011, the City Council adopted Resolution No. 76087, which approved the City’s last proposed ballot measure (i.e., December5 version) for placement on the June 2012 ballot. 16. OnDecember 13, 2011, SIPOA and TAFF wrote to the City asking to resume negotiations or in the alterative engaging in further mediation. 17. Thereafter, SIPOA, IAFF and the City participated in a second joint mediation, before mediator Douglas Collins, on January 17, January 18, February 6, and February 10, 2012, in an effort to reach agreementon retirement reform and/orrelated ballot measures priorto the proposed ballot measure previously adapted by the City Council being placed before the voters. 18. At the conclusionofthe January 18 through February 10 mediation sessions, the Parties still had not reached agreementon retirement reforn: and/orrelated ballot measures. 19. On February 21, 2012, the City proposed an eighth draft ballot measure to SIPOA and TAFF, and informed those bargainingunits that the revised ballot measure would be presented to the City Councilfor consideration and possible adoption at the Council meeting scheduled for March6, 2012. Ifapproved,the revised ballot measure would replace the version previously adopted by the City Council on December 6, 2012. 20. On February 24, 2012, the SIPOA requested to bargain about the February 21, 2012 ballot measure. The City responded to the SIPOA’s letter on February 27, 2012, but the City and Unions did not engage in further negotiations. ade STIPULATED FACTS AND PROPOSED FINDINGS, JUDGMENT AND ORDER; CASE NO. 1-13-CV-245503 17 0 R E N N E S L O A N H O L T Z M A N SA KA , . At to rn ey s at L a w ‘ © C f M O N O H m B w e w D e r a v e B R T S S a e n t a R E a E o s al. On March 3, 2012, SIPOA andIAFFissued a further revised SIPOA/Fire Fighter retirement reform proposal. 22. On March5, 2012, the City tesponded to SJPOA and IAFF’s March 3 proposal vialetter, but the parties did not engage in further negotiations. 23. On March6, 2012, the San José City Council adapted Resolution No. 76158, which repealed Resolution No. 76087, and instead approved the February 21, 2012 proposed ballot measure for placement on the June 5, 2012 ballot. 24. On June 5, 2012, that ballot measure, which had become known as Measure B, was passed bythe voters. Stipulated Findings 1, The Califomia Supreme Court has held that a charter city (suchas the City ofSan José) must comply with the meet and confer requirements ofthe Meyers-Milias-Brown Act (“MMBA") — which govern relations between local public agency employers andlocal public employee organizations ~ before placing an initiative measure ontheballot that would affect matters within the scope ofthe Act. 2. It is clear from the Parties' submissions and recitations ofthe relevant facts that the Parties did, in fact, meet and exchange proposals over a period ofseveral months, reaching an agreed- upon impasse on October 31, 2011. 3. The MMBA's "duty to bargain requires the public agency to refrain from making unilateral changes in employees’ wages and warking conditions until the employer and employee assaciation have bargained to impasse ...." [fan impasse exists, however, it may be broken,and the duty to bargain revived, by a change in circumstances that suggests that bargaining may nolongerbe futile. 4. In this case, the issue is whether impasse existed and,if it did, whetherit had been broken by post-impasse ballot changes madeby the City and whether the City Council should have negotiated further with SJPOA prior to placing the matter before the voters. -5- STIPULATED FACTS AND PROPOSED FINDINGS, JUDGMENT AND ORDER; CASE NO.1-13-CV-245503 18 o F Y N A W B ® w D w p © r e t e e e e R n A F F B H B E S F R E N N E S L O A N H O L T Z M A N Sa ka .. . 7 At to me ys at L a w Y B YP NY NY Y N WD KH ww we Go ~~ D M FF YW OS FE S G& G w e JF n N C o Stipulated Conclusions lL Here, both Parties met and conferred in good faith before reaching an agreed-upon impasse on October 31, 2011. 2. However, continued modification of the proposedballot languageafter impasse — including concessions made bythe City — created a further obligation to meet and confer before placing Measure B onthe ballot. 3. The City’s failure to do so is deemed to be a procedural defect significant enough to declare nul! and void Resolution 76158, which placed Measure B on ballot. rEBrenosed} Stipulated Judgment and Order In light ofthe Stipulated Facts, Findings and Conclusions set forth above, and pursuantto the Parties’ desire to settle and resolve the disputes betweenthem through the termsofthis Stipulation, the Parties respectfully subinit the attached Proposed Stipulated Judgment and Order(Exhibit A), which is incorporatedherein. -6- STIPULATED FACTS AND PROPOSED FINDINGS, JUDGMENTAND ORDER; CASE NO. |-13-CV-245503 19 o e N N D H m B w D B w w e — e t wv = S Dated: March £.2016 Dated: March 2, 2016 APPROVED AS TO FORM: Dated: March 2, 2016 RENNE SLOAN HOLTZMAN SAKAI LLP Charles D. Sakai Steven P. Shaw Attorneys for Defendants CITY OF SAN JOSE and CITY COUNCIL OF SAN JOSB By: F SAN JOSE POLICE OFFICERS’ ASSOCIATION ATTORNEY GENERAL FORTHE STATE OF By: Marc J. Nolan Deputy Attomey General +7. STIPULATED FACTS AND PROPOSED FINDINGS, JUDGMENT AND ORDER; CASE NO.I-13-C¥-245503 20 EXHIBIT C 21 Gregg McLean Adam, Bar No. 203436 erepe@majlabor.com— Jonathan Yank, Bar No. 215495 2 jonathan@majlabor.com Jennifer S, Stoughton, Bar No, 238309 3|| jennifer@majlabor.com MESSING ADAM & JASMINE LLP 4 11580 California Street, Suite 1600 San Francisco, California 94104 5}/ Telephone: 415.266.1800 6 Facsimile: 415.266.1128 Attorneys for Relator-Plaintiff 7 1} San Jose Police Officers’ Association 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 . COUNTYOF SANTA CLARA 10| 1 || THEPEOPLE OF THE STATE OF Case No, 1-13-CV-245503 CALIFORNIA ex rel, SAN JOSE POLICE 12] OFFICERS’ ASSOCIATION, -fPRepaseD] WRIT IN QUO IVARRANTO 13 Plaintiff, 14 Vv. 15 1] CITY OF SAN JOSE,and CITY COUNCIL Is OF SAN JOSE, Defendants. 17 18 19 To the City ofSan José and City Council of San José (“City”), Defendants: 20 WHEREAS,Plaintiff San José Police Officers’ Association (“SJPOA”) filed a Verified 21 || Complaint in Quo Warranto (“Complaint”) against Defendants City ofSan José and City Council 22 ofSan José (“City”) (collectively, “the Part ies”) on April 29, 2013, alleging various defects in 23 || bargaining over the pension reform ballot measure (Resolution No. 76158) that subsequently 24 | became known as Measure B; 25 WHEREAS,theparties subsequently engaged in extensive settlement negotiations and 26 |) entered into the attached Stipulated Facts and Proposed Findings, Judgmentand Order which 27 concluded that the continued modification ofthe proposed ballot languageafter impasse created a 28 WRIT IN Quo WARRANTO 22 o o F e 4 K DB D H W B R Ww W W Y M m re) Ny o S = 8 6 F a e A B E B S E I S 24 25 26 27 28 | further obligation to meet and confer before placing Measure B on the ballot and thatthe City’s failure to do so is deemed to be a procedural defect significant enough to declare null and void Resolution 76158, which placed Measure B onballot. WHEREAS,the Court, having considered the Stipulated Facts and Proposed Findings, Judgment and Order, and the other papers and pleadingsfiled, under the authority vested in the judiciary via California Code of Civil Procedure section 803 has determined that Resolution 76158, which placed Measure B onthe ballot, was null and void due to a procedural defectin bargaining. THEREFORE, YOU-ARE HEREBY COMMANDED, uponreceipt ofthis Writ in Quo Warranto,to take all necessary steps to comply with the attached Stipulated Facts and Proposed Findings, Judgment and Order, and declare Resolution 76158 null and void due to a procedural defect. YOU ARE FURTHER COMMANDEDto declare that Measure B wasnotproperly placed before the electorate andit andall ofits provisions amending the City of San Jose Charter ate therefore invalid and are stricken. Subsequentordinances amending the Municipal Codeto conform with Measure B shall be replaced. Dated: 9.45 ,2016 | pyMeo Hon, Judgeofthe Superior Court Judge Beth McGowen™ -2- Writ In QUO WaRRANTO 23 i APPROVED AS TO FORM 2} Dated: Haven 2 _,2016 MESSING ADAM & JASMINELLP 3 4 5 6 ‘an Jose Police Officers’ Association 7 gliDatea: 777ae ¢ $P°2016 CITY OF SAN JOSE and CITY COUNCIL oll: OFSAN JOSE. To ri ByZe—— Charles Sakai 12 Attomeys for City ofSan Jose Parah &Dated: ‘ave 5 2016 ATTORNEYGENERALOF THE STATE 14 OF CALIFORNIA 15 16 By Nid 17 Mare J. Nolan 18 Deputy Attomey General 19 20 21 22 23 24 25 26 27 28 3- Warr In QUO WARRANTO 24 EXHIBIT G CASE NO. D069626 IN THE CALIFORNIA COURT OF APPEAL FOURTH APPELLATEDISTRICT, DIVISION ONE CATHERINEA. BOLING; T. J. ZANE AND STEPHEN B. WILLIAMS Petitioners, V. CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD Respondent. CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127 AND SAN DIEGO CITY FIREFIGHTERS LOCAL145 Real Parties in Interest. PROOF OF SERVICE I, Kathleen Day, declare as follows: Jam a residentofthe State of California and over the age of eighteen years, and am not a party to the above-referenced action. Mybusiness address is 960 Canterbury Place, Ste. 300, Escondido, California 92025. On May10, 2017, I caused the following documents: Petitioners’ Motion For Attorneys’ Fees and Memorandum of Points and Authorities In Support Thereof [CCP § 1021.5] Petitioners’ Motion for Judicial Notice; Memorandum ofPoints and Authorities; Declaration of Yana L. Ridge; and [Proposed] Order in Supportof Petitioners’ Motion for Attorneys’ Fees 24 Declaration of Kenneth H. Lounsbery in Supportof Petitioners’ Motion for Attorneys’ Fees Declaration of James P. Lough in Supportof Petitioners’ Motion for Attorneys’ Fees to be served to the followingparties listed below, in the mannerindicated: SERVICE LIST J. Felix De la Torre, General Counsel Wendi Ross, Deputy General Counsel Mary Weiss, Sr. Regional Attorney Joseph W.Eckhart, Regional Attorney Public Employment Relations Board 1031 18th Street Sacramento, CA 95811-4124 PERBLitigation(@perb.ca.gov Mara W.Elliott, City Attorney Walter Chung, Deputy City Attorney M.Travis Phelps, Deputy City Attorney City of San Diego 1200 Third Avenue, Ste. 1100 San Diego, CA 92101 melliott@sandiego.gov cityattornev@sandiego. gov wehung@sandiego.gov mphelps@sandiego.goy Fern M.Steiner Smith Steiner Vanderpool & Wax 401 West A Street, Ste. 320 San Diego, CA 92101 fsteiner@ssvwlaw.com Ann M.Smith Smith, Steiner Vanderpool & Wax 401 West A. Street, Ste. 320 San Diego, CA 92101 asmith@ssvwlaw.com 25 Attorneysfor Public Employment Relations Board \ Via mail and email Attorneysfor City ofSan Diego Via mail and email Attorneysfor San Diego City Firefighters, Local 145 Via mail and email Attorneysfor, and Agent of Service ofProcessfor, San Diego Municipal Employees Association Via mail and Email James J. Cunningham Attorneysfor Deputy City Law Offices ofJames J. Cunningham Attorneys Association ofSan 4141 Avenida De La Plata Diego Oceanside, CA 92056 jimcunninghamlaw@email.com Via mail and email Ellen Greenstone Attorneysfor AFSCME, Rothner, Segal & Greenstone AFL-CIO, Local 127 510 S. Marengo Avenue Pasadena, CA 91101 Via mail and email egreenstone(@rsglabor.com [X] [X] (BY EMAIL)Pursuantto California Rules of Court, Rule 8.71 and Court of Appeals, Fourth District Rule 5(g). I sent the documents via email addressed to the e-mail address listed above and in accordance with the Code of Civil Procedure and the California Rules of Court. I am readily familiar with the firm’s practice of preparing and serving documentsby e-mail, whichpractice is that when documents are to be served by e-mail, they are scanned in a -_pdf format and sent to the addresses onthat same dayand in the ordinary course of business. (BY MAIL)I placed each such sealed envelope, with postage thereon fully prepaid for first-class mail for collection and mailing at Lounsbery Ferguson Altona & Peak LLP, Escondido, California, following ordinary businesspractices. I am familiar with the practice of Lounsbery Ferguson Altona & Peak LLP for collection and processing of correspondence,said practice being thatin the ordinary course of business, correspondence is deposited in the United States Postal Service the samedayasit is placed for collection. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May10, 2017 at Escondido, California. Kathleen Day 26 EXHIBIT H CASE NO. D069626 IN THE CALIFORNIA COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION ONE CATHERINEA. BOLING;T. J. ZANE AND STEPHENB. WILLIAMS Petitioners, v. CALIFORNIAPUBLIC EMPLOYMENT RELATIONS BOARD Respondent. CITY OFSAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTYCITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127AND SAN DIEGO CITY FIREFIGHTERS LOCAL 145 Real Parties in Interest. AMENDED; PROOF OF SERVICE I, Kathleen Day, declare as follows: [ama residentofthe State of California and overthe age ofeighteen years, and amnot a party to the above-referenced action. Mybusiness address is 960 CanterburyPlace, Ste. 300, Escondido, California92025. This Proof of Service is Amended to reflect that on May 11, 2017, 1caused the. following documents, which were servedvia email onMay 10, 2017 to also be-mailed to the parties listed per the original Proofof Service: Petitioners’ MotionFor Attorneys’ Fees and Memorandum of Pointsand Authorities In Support Thereof [CCP § 1021.5] Petitioners’ Motion for Judicial Notice; Memorandum ofPoints and Authorities; Declaration of Yana L. Ridge; and [Proposed] Orderin Supportof Petitioners’ Motion for Attorneys’ Fees o u d UO TS IA Iq ‘T es dd y Jo y m o _ jo mn si q y o y Aq PO AI N0 90 y Declaration of Kenneth H. Lounsberyin Support ofPetitioners’ Motion for Attorneys’ Fees Declaration of James P. Lough in Support of Petitioners’ Motionfor Attorneys’ Fees SERVICE LIST J. Felix De la Torre, General Counsel Wendi Ross, Deputy General Counsel Mary Weiss, Sr. Regional Attorney Joseph W. Eckhart, Regional Attorney Public Employment Relations Board 1031 18th Street Sacramento, CA. 95811-4124 PERBLitigation@perb.ca.gov Walter Chung, Deputy CityAttorney M.Travis Phelps, Deputy City Attorney Cityof San Diego 1200 Third Avenue, Ste..1100 San Diego, CA 92101 mnellioftcésandiego.gov cityattorney(@)sandiego.gov wehune @sandiego.gov mphelps@sandiego.zov Fern M.Steiner SmithSteiner Vanderpool & Wax 401 West A Street, Ste. 320 San Diego, CA 92101 fsteiner’@ssvwlaw.com Ann M. Smith Smith, Steiner Vanderpool & Wax 401 West A. Street, Ste. 320 San Diego, CA 92101 asmith(dssvwlaw.com Attorneysfor Public Employment Relations Board Via mail Attorneysfor City ofSan Diego Via mail Attorneysfor San Diego City Firefighters, Local 145 Via mail Attorneysfor, andAgent of Service ofProcessfor, San Diego Municipal Employees Association Via mail James J. Cunningham Attorneysfor Deputy City Law Offices of James J. Cunningham Attorneys Association ofSan 4141 Avenida De La Plata Diego Oceanside, CA 92056 jimcunninghamlaw@gmail.com Via mail Ellen Greenstone Attorneysfor AFSCME, Rothner, Segal & Greenstone AFL-CIO, Local 127 510 S. Marengo Avenue Pasadena, CA 91101 Via mail egreenstone/@rsglabor.com {] (BY EMAIL) Pursuant to CaliforniaRules of Court, Rule 8.71 and Courtof Appeals, Fourth District Rule5(g). I sent the documents via email addressed to the e-mail addresslisted above and in accordance with theCode ofCivil Procedureand theCaliforniaRulesofCourt. | am readily familiar with the firm’s practice of preparing andserving documents by e-mail, which practiceis that when documentsaretobe served by e-mail, they are scannedin a .pdf format and sent to the addresses on that same day and in the ordinary course ofbusiness. [X] (BY MAIL)I placed each such sealedenvelope, with postage thereon fully prepaid for first-class mail for collection and mailing at Lounsbery Ferguson Altona & Peak LLP,. Escondido, California, following ordinary business practices. am familiar with the practice of Lounsbery Ferguson Altona & Peak LLP for collection and processing ofcorrespondence, said practice being that in the ordinary course of business, correspondence is deposited in the United States Postal Service the same dayas it is placed for collection. I declare under penalty of perjury under the laws of the State of California that the foregoingis true andcorrect. Executed on May 11, 2017 at Escondido, California. cableDay SUPREME COURTNO. IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PROOF OF SERVICE Catherine Boling, et al, Petitioner v. Public EmploymentRelations Board Respondent; City of San Diego, Real Parties in Interest California Fourth District Court of Appeals Case No. D069626 I, Kathleen Day, declare that I am over 18 years of age, employed in the City ofEscondido, and am nota party to theinstant action. Mybusiness address is 960 Canterbury Place, Ste. 300, Escondido, California. On May 18, 2017, Iserved PETITION FOR REVIEWto the recipients listed below via the following methods: VIA EMAIL: Pursuant to California Rules of Court, Rule 8.71, I sent the documents via email addressed to the email addresslisted for each recipient, and in accordance with the Code of Civil Procedure andthe California Rules of Court. I am readily familiar with the firm’s practice of preparing and serving documents via email, which practice is that when documentsare to be served by email, they are a scanned into a -pdf format and sent to the addresses on that same day andin the ordinary course of business. VIA FEDERAL EXPRESS: I caused each such envelope to be placed in the Federal Express depository at Escondido, California. I am readily familiar with the firm’s practice of collection and processing of correspondence for Federal Express delivery. Underthat practice it would be deposited in a box or other facility regularly maintained by Federal Express, in an envelope or package designed by Federal Express with delivery fees prepaid. Clerk of the Court California Fourth District Court of Appeal, Division 1 750 B Street, Ste. 300 San Diego, CA 92101 J. Felix De la Torre, General Counsel Wendi Ross, Deputy General Counsel Mary Weiss, Sr. Regional Attorney Joseph W. Eckhart, Regional Attorney Public EmploymentRelations Board 1031 18th Street Sacramento, CA 95811-4124 PERBLitigation@perb.ca.gov Walter Chung, Deputy City Attorney M.Travis Phelps, Deputy City Attorney City of San Diego 1200 Third Avenue,Ste. 1100 San Diego, CA 92101 citvattorney@sandiego.gov wchung(@sandiego.gov mphelps@sandiego.gov Fern M. Steiner Smith Steiner Vanderpool & Wax 401 West A Street, Ste. 320 San Diego, CA 92101 fsteiner(@ssvwlaw.com Ann M. Smith Smith, Steiner Vanderpool & Wax 401 West A. Street, Ste. 320 San Diego, CA 92101 asmith@ssvwlaw.com James J. Cunningham Law Offices of James J. Cunningham 4141 Avenida De LaPlata Oceanside, CA 92056 jimcunninghamlaw(@egmail.com Via Truefiling Attorneysfor Public Employment Relations Board Via FedEx and email Attorneysfor City ofSan Diego Via FedEx and email Attorneysfor San Diego City Firefighters, Local 145 Via FedEx and email Attorneysfor, and Agent of Service ofProcessfor, San Diego Municipal Employees Association Via FedEx and Email Attorneysfor Deputy City Attorneys Association ofSan Diego Via FedEx and email Ellen Greenstone Attorneysfor AFSCME, Rothner, Segal & Greenstone AFL-CIO, Local 127 510 S. Marengo Avenue Pasadena, CA 91101 Via FedEx and email egreenstone(@rsglabor.com I declare under penalty of perjury under the laws of the State of California that the foregoingis true andcorrect. Executed on May 18, 2017 at Escondido, California. Kdthleen Day mo Filed 4/11/17 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA CATHERINE A. BOLINGetal., Petitioners, V. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; CITY OF SAN DIEGOetal., Real Parties in Interest. CITY OF SAN DIEGO, Petitioner, OV. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATIONetal., Real Parties in Interest. D069626 D069630 Petition for extraordinary relief from a decision of the Public Employment Relations Board. Decision annulled. Lounsbery Ferguson Altona & Peak, Kenneth H. Lounsbery, James P. Lough and Alena Shamosfor Petitioners and Real Parties in Interest Catherine A. Boling, T. J. Zane and Stephen B. Williams in No. D069626 and No. D069630. Jan I. Goldsmith and MaraElliott, City Attorneys, Daniel F. Bamberg, Assistant City Attorney, Walter C. Chung and M.Travis Phelps, Deputy City Attorneys, for Petitioner and Real Party in Interest City of San Diego in No. D069630 and No. D069626. JONES DAY,Gregory G. Katsas, G. Ryan Snyder, Karen P. Hewitt and Brian L. Hazen for San Diego Taxpayers Education Foundation as Amicus Curiae on behalf of Petitioner in No. D069630. Renne Sloan Holtzman Sakai and Arthur A. Hartinger for League of California Cities as Amicus Curiae on behalf of Petitioner in No. D069630. Meriem L. Hubbard and Harold E. Johnsonfor Pacific Legal Foundation, Howard Jarvis Taxpayers Association and National Tax Limitation Committee as Amici Curiae on behalf of Petitioner in No. D069630. J. Felix de la Torre, Wendi L. Ross, Mary Weiss, and Joseph W.Eckhart for Respondent. Smith, Steiner, Vanderpool & Wax and Ann M. Smith for Real Party in Interest San Diego Municipal Employees Association in No. D069626. Smith, Steiner, Vanderpool & Wax and Fern M.Steiner for Real Party in Interest San Diego City Firefighters Local 145 in No. D069626. Rothner, Segall and Greenstone, Ellen Greenstone and Connie Hsiao for Real Party in Interest AFCSMELocal 127 in No. D069626. Law Offices of James J. Cunningham and James J. Cunningham for Real Party in Interest Deputy City Attorneys Association of San Diego in No. D069626. In June 2012 the voters of City of San Diego (City) approveda citizen-sponsored initiative, the "Citizens Pension Reform Initiative" (hereafter, CPRI), which adopted a charter amendment mandating changesin the pension plan for certain employees of City of San Diego (City). In the proceedings below, the Public Employment Relations Board (PERB)determined City was obliged to "meet and confer" pursuant to the provisions of the Meyers-Milias-Brown Act (MMBA)(Gov. Code,! § 3500 et seq.) over the CPRI before placing it on the ballot and further determined that, because City violated this purported obligation, PERB could order "make whole" remedies that de facto compelled City to disregard the CPRI. Weconclude, for the reasons stated below,that under relevant California law the meet-and-confer obligations under the MMBAhaveno application when a proposed charter amendmentis placed onthe ballot by citizen proponents through the initiative process, but instead apply only to proposed charter amendmentsplaced on the ballot by the governing body of a charter city. We also concludethat, althoughit is undisputed 1 All statutory references are to the Government Code unless otherwise specified. 3 that Jerry Sanders (City's Mayor during the relevant period) and others in City's government provided support to the proponents to develop and campaign for the CPRI, PERB erred when it applied agency principles to transform the CPRI from citizen- sponsoredinitiative, for which no meet-and-confer obligations exist, into a governing- body-sponsoredballot proposal within the ambit of People ex rel. Seal Beach Police Officers Assn. v City ofSeal Beach (1984) 36 Cal.3d 591 (Seal Beach). Accordingly, we hold PERB erred whenit concluded City was required to satisfy the concomitant "meet- and-confer" obligations imposed by Seal Beach for governing-body-sponsored charter amendmentballot proposals, and therefore PERB erred when it found Sanders andthe San Diego City Council (City Council) committed an unfair labor practice by declining to meet and confer over the CPRI before placing it on the ballot. I OVERVIEW The San Diego Municipal Employees Association and other unionsrepresenting the prospectively affected employees (Unions) made repeated demands on Sanders and the City Council for City to meet and confer pursuant to the MMBAover the CPRI before placing it on the ballot. (San Diego Municipal Employees Assn. v. Superior Court (2012) 206 Cal.App.4th 1447, 1451-1452 (San Diego Municipal Employees).) However, there was no dispute the proponents of the CPRI had gathered sufficient signatures to qualify the CPRI for the ballot, and the City Council declined Unions' meet-and-confer demandsand placedit on the ballot. (/d. at pp. 1452-1453.) The citizens of San Diego ultimately voted to approve the CPRI. Unionsfiled unfair practice claims with the Public Employment Relations Board (PERB), asserting the rejection by Sanders and the City Council of their meet-and-confer demandsconstituted an unfair practice under the MMBA. PERB commenced proceedings against City and ultimately ruled City violated the MMBA by refusing to meet and confer over the CPRI before placing it on the June 2012 ballot. PERB ordered, among other remedies, that City in effect refuse to comply with the CPRI. City filed this petition for extraordinary review challenging PERB's conclusion that, because highlevel officials and other individuals within City's government publicly and privately supported the campaign to adoptthe citizen-sponsored charter amendment embodiedin the CPRI, City committed an unfair labor practice under the MMBA by placing the CPRI on the ballot without complying with the MMBA's meet-and-confer requirements. In Seal Beach, supra, 36 Cal.3d 591, our high court was required to harmonize the provisions of the meet-and-confer requirements of the MMBAwith the constitutional grant of power to a "governing body"to place a charter amendment onthe ballot that would impact the terms and conditions of employment for employeesofthat city. The Seal Beach court concluded that, before a governing body mayplace such a charter amendmentonthe ballot, it must first comply with the meet-and-confer obligations under the MMBA. (Seal Beach,at pp. 597-601.) The Seal Beach court cautioned, however, that the case before it "[did] not involve the question whether the meet-and-confer requirement was intended to apply to charter amendmentsproposedbyinitiative." (/d. at p. 599, fn. 8.) The present proceeding requires that we first determine the issue left open in Seal Beach: does the meet-and-confer requirement apply when the charter amendmentis proposedbya citizen-sponsoredinitiative rather than a governing-body-sponsored ballot proposal? Weconclude the meet-and-confer obligations under the MMBAapplyonly to a proposed charter amendmentplaced on the ballot by the governing body of a charter city, but has no application when such proposed charter amendmentis placed on the ballot by citizen proponents through theinitiative process. With that predicate determination, we must then decide whether PERB properly concluded City nevertheless violated its meet-and-confer obligations because the CPRI was not a citizen-sponsored initiative outside of Seal Beach's holding, but was instead a "City"-sponsoredballot proposal within the ambit of Seal Beach. Although several people occupying elected and nonelected positions in City's governmentdid provide support for the CPRI, we conclude PERB erred whenit applied agencyprinciples to transform the CPRI into a governing- body-sponsoredballot proposal. Because we conclude that, notwithstanding the support given to the CPRI by Sanders andothers, there is no evidence the CPRI wasever approved by City's governing body (the City Council), we hold PERB erred when it concluded City was required to satisfy the concomitant "meet-and-confer" obligations imposed by Seal Beach for governing-body-sponsored charter amendmentballot proposals. Il FACTUAL AND PROCEDURAL BACKGROUND A. DeMaio's Pension Reform Proposal In early November 2010, City Councilmember Carl DeMaio announcedhis comprehensiveplan to reform the City's finances. His wide-ranging plan to reform the City's finances included, amongits many proposals, a proposal to replace defined benefit pensions with 401(k)-style plans for newly hired employees. B. Sanders's Pension Reform Proposal In late November 2010, Sanders also announced that he would attempt to develop and placea citizen's initiative on the ballot to eliminate traditional pensionsfor newhires at City and to replace them with a 401(k)-style plan for nonsafety new hires. Sanders believed replacing the old system with the new 401(k)-style plan was necessary to solve what he viewedto be the unsustainable cost to City of the defined benefit pension for ' City employees. Sanders, after discussions with various membersofhis staff, decided to pursuehis pension reform proposalasa citizens' initiative, rather than to pursueit by a City Council-sponsored ballot measure. Sanders chose to pursue his pension reform proposal as a citizen-sponsoredinitiative, rather than a City Council-sponsoredballot proposal, because he did not believe the City Council would put his proposal on the ballot "under any circumstances," and he also believed pursuing a City Council-sponsoredballot proposal (which would also require negotiating with the unions) could require unacceptable compromisesto his proposal.2 Sanders held a "kick-off" press conference to announcehis intent to pursuehis pension reform plans through a private initiative. This event, which washeld at City Hall and at which Sanders wasjoined by others,3 was covered by the local media and included media statements informing the public that "San Diego voters will soon be seeing signature-gatherers for a ballot measure that would end guaranteed pensions for new [C]ity employees."4 Sanders's office also issued a news release—styled as a "Mayor Jerry Sanders Fact Sheet"—-to announcehis decision. Faulconer disseminated Sanders's press release by an e-mail stating Sanders and Faulconer "would craft a groundbreaking [pension] reform ballot measure andleadthe signature-gathering effort to place the measure before voters," and Sanders sent a similar e-mail announcing he waspartnering 2 Sanders, in a tape-recorded interview with a local magazine, explained he pursued a citizen-sponsoredinitiative rather than other avenuesto achieve his pension reform objectives because: "[W]hen you go out and signature gather andit costs a tremendous amount of money, it takes a tremendous amountoftime and effort .... But you do that so that you get the ballot initiative on that you actually want. [A]ndthat's what we did. Otherwise, we'd have gone through the meet and confer and you don't know what's going to go on at that point... ." 3 Also in attendance were City Attorney Jan Goldsmith, City Councilmember Kevin Faulconer, and City's Chief Operating Officer Jay Goldstone). 4 NBC San Diego newscoverage of Sanders's press conference included a photograph of Sanders standing in front of the City seal to make his initiative announcement. with Faulconerto "craft language and gather signatures" for a ballot initiative to reform public pensions. Overthe ensuing months, Sanders continued developing and publicizing his pension reform proposal, and in early January 2011 a committee was formed (San Diegans for Pension Reform (SDPR)) to raise money to support his proposedinitiative. At his January 2011 State of the City address,° Sanders vowed to "complete ourfinancial reforms and eliminate our structural budgetdeficit." He stated he was "proposing a bold step" of "creating a 401(k)-style plan for future employees . . . [to] contain pension costs and restore sanity to a situation confronting every big city" and that, "acting in the public interest, but as private citizens," Sanders announcedthat he, Faulconer, and the San Diego City Attorney (City Attorney) "will soon bring to voters an initiative to enact a 401(k)-style plan." That same day, Sanders's office issued a press release publicizing his vow "to push forwardhis ballot initiative" for pension reform.6 Sanders believed he had madeit clear to the public that he undertook his efforts as a private citizen even though he wasidentified as "Mayor" when speaking in public about his proposal. 5 Article XV, section 265(c) of the City Charter requires the address as a message from the Mayorto the City Council that includes "a statement of the conditions and affairs of the City" and "recommendations on such matters as he or she may deem expedient and proper." Members of Sanders's staff helped write the speech. 6 After his speech, Sanders continuedhis publicity efforts for his proposal, and he was aided in those efforts by individuals who were also membersofhis staff. C. DeMaio's Competing Pension Reform Initiative The plan announced by DeMaioin early November 2010 for pension reform differed in some respects from Sanders's proposal. For example, DeMaio's proposed plan for a 401(k)-style plan for new hires did not exemptpolice, firefighters and lifeguards. DeMaio's proposed plan also included a "cap" on pensionable pay.’ Two local organizations, the Lincoln Club and the San Diego County Taxpayers Association (SDCTA), supported DeMaio's competing plan as a plan that was "tougher" than Sanders's proposal. D. The CPRI In the aftermath of Sanders's January 2011 State of the City address, people in the business and development community informed Sanders they believed two competing initiative proposals—the DeMaio proposal and the Sanders proposal—would be 7 By mid-March 2011, SDPR (the committee formed to support Sanders's proposed plan) hired an attorney to provide advice related to Sanders's proposedplan,and the attorneyhad opinedthe "cap" on pensionable pay as proposed by DeMaio's plan would make such a plan more vulnerable to legal challenges. -SDPRalso independently hired Buck Consultants, then serving as City's actuary for City's existing pension plan (and therefore with access to the data on City's pension system database), to provide fiscal analysis of the impacts of 401(k) plans for new employees. Apparently, during the transition period to a 401(k)-style plan for new employees,there would be an immediate shorter term cost to City (because the change in the actuarial methodused in doing the calculation would increase City's payments into the pension plan inthefirst three or four years), and a proposal for a "hard cap" on total payroll expenses could have mitigated the short-term impacts on City from the pension reform proposal. At his March 24, 2011, press conference, Sanders (along with Faulconer and the co-chairman for SDPR) reiterated their intent to move forwardas private citizens with their pension reform proposal, and stated it would include caps andrestrictions (including a five-year cap on City's payroll expenses) to produce greater savingsforCity. 10 confusing and there would be inadequate money to fund two competing citizen initiatives. Shortly after a March 24, 2011, press conference at which Sanders presented his refined proposal, people within either the Lincoln Club or SDCTAtold Sanders they were "moving forward" with DeMaio's plan becauseit had sufficient money and was going to go onto the ballot, and that Sanders couldeither join them or go off on his own. This apparently triggered a series of meetings between supporters of the competing proposals,8 and they reached an accord on the parameters of a single initiative. Thefinal initiative proposal, which ultimately became the CPRI, melded elements of both Sanders's and DeMaio's proposals: newly hired police would still continue with a defined benefit pension plan for newly-hired police officers, but newly-hired firefighters would be placed into the 401(k)-style plan. The pensionable pay freeze would be subject to the meet-and-confer process and could be overridden by a two-thirds majority ofthe City Council, but there would be no cap on total payroll. Sanderscalled the negotiations "difficult," and testified he did not like every part of the new proposal, but he nonetheless supported it because he believed it was "important for the City in the long run." A law firm (Lounsbery, Ferguson, Altona & Peak (hereafter Lounsbery)) was hired by SDCTAto draft the language of the CPRI. SDCTA gave Lounsbery the DeMaiodraft ofthe initiative as the starting point for Lounsbery's drafting of the final 8 Among those whoattended one or more of the meetings were Sanders, Goldstone and Dubick (Sanders's chief ofstaff). 11 language for the initiative.? Lounsbery maderelatively few revisionstoit to finalize the language that became the CPRI. Lounsbery was paid by SDCTAforits services. 10 On April 4, 2011, the City Clerk received a notice of intent to circulate a petition seeking to place the CPRI on the ballot, seeking to amend City's Charter pursuant to section 3 ofarticle XI of the California Constitution. The ballot proponents were Catherine A. Boling (Boling), T.J. Zane (Zane), and Stephen Williams (Williams) (collectively, Proponents). 1] To qualify the CPRI for the ballot, the Proponents neededto obtain verified signatures from at least 15 percent (94,346) of the City's registered voters. On September 30, 2011, Zane delivered to the City Clerk a petition containing over 145,000 signatures, and the City Clerk forwardedthepetition to the San Diego County Registrar of Voters (SDROV)to officially verify the signatures. The SDROV determinedthe initiative 9 Goldstonetestified SDCTA sought his feedback on its proposed language, and he reviewed and respondedto twoorthree drafts in the evening or weekendsat his home. Dubick and Goldsmith also reviewed and provided feedback on the proposed language. 10 Lounsbery filed a quarterly disclosure form indicating San Diego Taxpayers Association paid $18,000 to Lounsbery for its services in connection with its work on the CPRI forthe first quarter of 2011. Amongthe people listed as being "lobbied"in connection with Lounsbery's work on the CPRI were Sanders, Goldstone, Goldsmith, Dubick and Faulconer. 11 Williams and Zane were leaders in the Lincoln Club, and the Lincoln Club (along with SDPR, the committee formed to raise money in support of Sanders's proposed initiative) was a major contributor to the committee formed to promote the campaign for the CPRI. Although Sanders would have preferred that SDPR's head (Shephard)run the campaign, Sanders was persuaded bya vice chairman of the Lincoln Club that Zane was perfectly capable of running the ballot initiative campaign from the Lincoln Club. 12 petition contained sufficient valid signatures and, accordingly, on November8, 2011, the SDROVissued a Certification that the CPRI petition had received a "SUFFICIENT" numberofvalid signatures requiring it to be presented to the votersasa citizens’ initiative. The City Clerk submitted the SDROV's Certification to the City Council on December5, 2011, and that same day the City Council passed Resolution R-307155, a resolution of intention to place the CPRI onthe June 5, 2012, Presidential primary election ballot, as required by law. E. Sanders Campaignsfor the CPRI The day after the proponents filed their notice of intent to circulate, Sanders, DeMaio, Goldsmith, Faulconer, Boling, and Zane held a press conference on the City Concourse at which they announcedthefiling of the CPRI petition. 12 A news media outlet reported that proponents of the dueling ballot measuresto curtail San Diego City pensions had reached a compromise to combineforces behind a single initiative for the June ballot. Sanders thereafter supported the campaign to gather signatures and promote the CPRI. Hetouted its importance by providing interviews and quotes to the media and by discussing it at his speaking appearances!3, Additionally, campaign disclosure 12 Sanders testified he appeared as a private citizen, and assumed the same wastrue for Goldsmith, althoughthere is no evidence whether they communicated this fact to the press or the public at the press conference. !(XIII:3427-3428)! 13 For example, he included the CPRI in the "bullet points” prepared for his speaking engagements before various groups. Healso approved issuing a "message from Mayor Jerry Sanders"for circulation to membersofthe San Diego Regional Chamberof Commercethat solicited financial and other support for the signature gathering effort, although he did not know whether the language of that message wasdrafted by the 13 statements indicated SDPR (the committee formed to promote Sanders's original initiative proposal) contributed $89,000 in cash and nonmonetary support to the committee supporting the CPRI from January 1, 2011, through June 1, 2011. F, The Meet-and-Confer Demands On July 15, 2011, the San Diego Municipal Employees Association (MEA) wrote to Sanders asserting City had the obligation under the MMBAto meet and confer over the CPRI. When Sanders did not respond, MEA wrote a secondletter demanding City satisfy its meet-and-confer obligations concerning the CPRL. . City Attorney Goldsmith respondedbystating, amongother things, the City Council was required (underthe California Constitution and state elections law) to place the CPRI without modification on the ballot as long as the proponents submitted the requisite signatures and otherwise met the procedural requirements fora citizen initiative to amend the Charter. Goldsmith explainedthat, "[a]ssuming the proponents of the [CPRI] obtain the requisite number of signatures on their petition and meetall other legal requirements, there will be no determination of policy or course of action by the City Council, within the meaningof the MMBA,triggering a duty to meet andconferin the act of placingthe citizen initiative on the ballot." MEA,in its September 9, 2011, response to Goldsmith's explanation,asserted City was obligated to meet and confer because Sanders wasacting as the Mayor to promote campaign or byhis staff. Members of Sanders's staff facilitated his promoting ofthe CPRI by, for example, responding to requests from the media for quotes. 14 the CPRI and hence "has clearly made a determination of policyfor this City related to mandatory subjects of bargaining ...." MEA asserted Sanders was "using the pretense that [the CPRI] is a 'citizens' initiative’ whenitis, in fact, this City’s initiative" as a deliberate tactic to "dodge the City's obligations under the MMBA." The City Attorney's office reiterated City had no meet-and-confer obligations"at this point in the process" because "there is no legal basis upon which the City Council can modify the [CPRI], if it qualifies for the ballot,” but instead the City Council "must comply with California Elections Code . . . section 9255" and place the CPRI on the ballot if it meets the signature and other procedural requirements set forth in the Elections Code. Accordingly, City declined MEA's demand to meet and confer over the CPRI.14 G. TheInitial Proceedings and San Diego Municipal Employees MEAfiledits unfair practice charge (UPC) on January 20, 2012, asserting City refused to meet and confer over the CPRI because "City claimsthatit is a ‘citizen's initiative! not 'City's initiative,'" and MEA alleged this refusal violated the MMBA because the CPRI "is merely a sham device which City's 'Strong Mayor' has used for the express purpose ofavoiding City's MMBA obligations to meet and confer." However, on January 30, 2012, the City Council, after recognizing the petitions for the CPRI contained the requisite numberof signatures, enacted an ordinance placing the CPRI on the June 2012 ballot. 14 Subsequent demands by MEA(aswellas other employee unions) to meet and confer were rejected by City for similar reasons. 15 On February 10, 2012, PERB issued a complaint against City, alleging City's failure to meet and confer violated sections 3505 and 3506, and was an unfair practice within the meaningofsection 3509, subdivision (b) and California Code of Regulations, title 8, section 32603, subdivisions (a) through (c). 15 PERB also ordered an expedited administrative hearing and appointed an administrative law judge (ALJ) to hold an evidentiary hearing on the complaints. (San Diego Municipal Employees, supra, 206 Cal.App.4th at p. 1453.) PERB alsofiled a superior court action seeking, among otherrelief, an order temporarily enjoining presentation of the CPRI to the voters on the June 2012 ballot, but the trial court rejected PERB's motion for a preliminary injunction. (San Diego Municipal Employees, supra, 206 Cal.App.4th at pp. 1453-1454.) After the ALJ scheduled an administrative hearing for early April 2012 on the complaints, City moved in the superior court action for an order staying the administrative hearing and quashing the subpoenas issued by the ALJ. Thetrial court granted City's motionto stay the administrative proceedings, and MEA pursued writrelief. (Id. at pp. 1454-1455.) In San Diego Municipal Employees, this court concluded the stay was improper because "[a]s the expert administrative agency established by the Legislature to administer collective bargaining for covered governmental employees, PERB hasexclusiveinitial jurisdiction over conductthat arguably violates the MMBA"(id.at p. 1458), and PERB's "initial 15 Other unionsalso filed UPC's and PERB issued complaints on those claims. All of the claims and complaints were ultimately consolidated for hearing. 16 exclusive jurisdiction extendsto activities ' "arguably .. . prohibited" by public employment labor law....'" (/d. at p. 1460, quoting City ofSan Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 606, italics added by San Diego Municipal Employees).) This court noted that, had City directly placed the CPRI on the ballot without satisfying the meet-and-confer procedures, it would have engaged in conductprohibited by the MMBA,and weultimately concluded that because "MEA's UPCalleges (and provides some evidence to support the allegations) that the CPRI (while nominally a citizen initiative) was actually placed on the ballot by City using straw men to avoid its MMBAobligations, the UPC does allege City engagedin activity arguably prohibited by public employmentlaborlaw, giving rise to PERB's initial exclusive jurisdiction." (Jd. at p. 1460.) This court ultimately concludedit waserror to stay PERB's exclusiveinitial jurisdiction over the UPC claims, and vacatedthe stay. (/d. at pp. 1465-1466.) H. PERB Proceedings and Determination The ALJProposed Decision The ALJ held an administrative hearing and, after taking evidence, issued a proposed decision. The proposed decision found Sanders choseto pursue citizens’ initiative measure, rather than invoke the City Council's authority to place his plan on the ballot as a City Council-sponsored ballot proposal, because he doubted the City Council's willingness to agree with him and because he sought to avoid concessionsto the unions. The ALJ found the CPRI, which embodied a compromise between Sanders's proposal 17 and the proposal championed by DeMaio, wasthen carried forwardas a citizens’ initiative and was adopted bythe electorate. The ALJ found that, because Sanders occupied the office of Mayorin a city that uses the "strong mayor" form of governance, and in that role has certain responsibilities when conducting collective bargaining with represented employee organizations on behalf of City (including the responsibility to develop City's initial bargaining proposals, to map out a strategy for negotiations, and to brief the City Council on the proposals andstrategies and to obtain the City Council's agreement to proceed), Sanders "was not legally privileged to pursue implementation of [pension reform] as a private citizen." The ALJ concluded that because Sanders,acting "under the color of his elected office" and with the support of two City Councilmembers and the City Attorney,!© launched andpursued the pension reform initiative campaign, Sanders made "a policy determination that [City] propose[d] for adoption by the . electorate" on a negotiable matter but denied the unions "an opportunity to meet and 16 The ALJ's decision also cited evidence that "[q]uantifiable time and resources derived from the City... were devoted to the Mayor's promotionofhis initiative, notwithstanding the views of someorall of the City's witnessesthat their activities were on personal time." However, the ALJ appearedto find that, even if all of the support work done by individual members of Sanders's staff had been "done on non-worktime, their defense that these activities were done for private purposesis no stronger than the Mayor's...." We notethis finding because the PERB decision, as well as PERB's arguments in this writ proceeding, devotes substantial analysis to explaining that City- owned resources(as well as time spent by individuals who were members of Sanders's staff) were employed to support the CPRI. Although there is some evidentiary support for these factual findings, neither PERB's decision nor PERB's briefsin this proceeding articulates the legal relevance of these findings on the central issue raisedin this proceeding—whether Sanders's acts in supporting the CPRI wereas agentfor the City Council—and wetherefore limit our remaining discussion of thosefacts. 18 confer over his policy determination in the form of [the CPRI]," in violation of the meet- and-confer obligations under Seal Beach. The ALJ further concludedthat, because of Sanders's "status as a statutorily defined agent of the public agency and common law principles of agency, the same obligation to meet and confer applie[d] to the City because it has ratified the policy decision resulting in the unilateral change." The PERB Decision After PERB considered supplemental briefing concerning the ALJ's proposed decision from City, Unions and the ballot proponents, PERB issued the decision challengedin this writ proceeding that largely affirmed the ALJ's decision. !7 Specifically, PERB rejected City's exceptions to the ALJ's conclusionsthat City was charged with Sanders's conduct under principles of statutory agency, common law principles of agency based on actual and apparent authority, and commonlaw ratification principles.18 Instead, PERB adopted the ALJ's findings that: (1) "under the City's Strong Mayorform of governance and commonlaw principles of agency, Sanders was a 17 PERB modified the remedies ordered by the ALJ's proposed decision (see fn. 20, post) but affirmed the core determination that the refusal to meet and confer over the CPRI before placing it on the ballot violated the MMBA. 18 Curiously, although PERB concluded commonlaw agencyprinciples permitted PERB to charge City with Sanders's conduct in promoting and campaigning for the CPRI, PERB also concluded the evidence showed the Proponents of the CPRI (who paid to have the CPRI drafted and whoran the signature effort and campaign for passage of the CPRI) were not Sanders's agents because they undertook their actions outside of Sanders's control. PERB nevertheless concluded commonlawprinciplesofratification and apparent authority applied "so as not to excuse the City's failure to meet and confer based onthe actions of private citizens involved in the passage of [the CPRI]." 19 statutory agent of the City with actual authority to speak for and bind the City with respectto initial proposals in collective bargaining with the Unions; (2) under common law principles of agency, [Sanders] acted with actual and apparent authority when publicly announcing and supporting a ballot measure to alter employee pension benefits; and (3) the City Council had knowledgeof [Sanders's conduct], by its action and inaction, and, by accepting the benefits of Proposition B, thereby ratified his conduct." PERB's decision also concludedthat, because City (through Sandersasits agent) decided to place the CPRI on the ballot while acquiescing in Sanders's rejection of the unions’ meet-and-confer demands, City violated the MMBA. 19 PERB modified the remedy ordered in the ALJ's proposed decision insofar as the proposed decision ordered City to vacate the results of the election adopting the CPRI.29 19 Specifically, PERB found the City Council "was on notice that, even if pursued as a private citizens’initiative, [Sanders's] public support for an initiative to alter employee pension benefits would be attributed to the City for purposes of MMBA....[%].-- [9] After it became aware of the Unions’ requests for bargaining, the City Council, like [Sanders], relied on the advice of Goldsmith that no meet-and-confer obligation arose because[the CPRI] was a purely ‘private'citizens’ initiative. The City Council failed to disavow the conductofits bargaining representative and may therefore be held responsible for [Sanders's] conduct. [Citation.] The City Council also accepted the benefits of [the CPRI] with prior knowledge of [Sanders's] conduct . . . . [§]] We agree with the ALJ's findingsthat, with knowledge of his conduct and, in large measure, notice of the potential legal consequences,the City Council acquiesced to [Sanders's] actions, including his repeated rejection of the Unions' requests for bargaining, and that, by accepting the considerable financial benefits resulting from passage and implementation of [the CPRI], the City Council thereby ratified [Sanders's] conduct." 20 The ALJ's Proposed Decision required, amongotheraffirmative actionsbyCity, that City "[rJescind the provisions of [the CPRI] adopted by the City and return to the status quo that existed at the timethe City refused to meet and confer... ." The PERB decision declined to adopt that aspect of the remedy posited in the ALJ's proposed 20 However, PERB's remedy, invoking its "make-whole" and "restoration" powersfor remedying violations of the MMBA,ordered (among other things) that City "pay employeesfor all lost compensation, including but notlimited to the value oflost pension benefits, resulting from the enactmentof [the CPRI], offset by the value of new benefits required from the City under [the CPRI]." Writ Proceedings Challenging PERB Decision City timely filed this writ petition challenging PERB's decision (§ 3509.5), and this court issued its writ of review. In City's writ proceeding, City named Proponents as additional real parties in interest and Proponentshavefiled briefs in that proceeding. Proponentsalsofiled a separate writ petition challenging PERB's decision, and this court issued a writ of review. We subsequently consolidated the two writ proceedings for consideration and disposition. In City's writ proceeding, PERB (joined by Unions) has moved to dismiss Proponents as realparties in interest, arguing Proponents lack standing to participate as real parties because they were not (and were indeed barred by PERB regulations from being) parties to the underlying PERB proceeding. PERB has separately moved to dismiss Proponents' writ proceeding on the same ground. We conclude official proponentsofa ballotinitiative have a sufficiently direct interest in the result of the proceeding (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1178) to join as real parties in interest in an action, either by intervention or because they are namedby other decision because PERB expressed doubtsit had the powerto rescind an initiative adopted by the voters. 21 parties as real parties in interest, which is directed at the evisceration ofthe ballot measure for which they were the official proponents. (See Perry v. Brown (2011) 52 Cal.4th 1116, 1125; see also Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1250.) Accordingly, we deny PERB's motion to dismiss Proponents asreal parties in interest from City's writ proceeding. Additionally, in light of our conclusion that PERB's decision must be annulled because City was not obligated to meet and conferpriorto placing the CPRI onthe ballot, PERB's motion to dismiss Proponents’ writ proceeding (and the additional argumentsraised in Proponents' writ proceeding) are moot and we need not address them. U STANDARDS OF REVIEW The standards applicable to our review of a PERB decision are governed by differing degrees of deference. First, insofar as PERB's decisionrests on its resolution of disputed factual questions, we apply the most deferential standard of review. Under this standard, PERB'sfactual findings are conclusive as long as there is any substantial evidencein the record to support its factual findings. (Trustees ofCal. State University v. Public Employment Relations Bd. (1992) 6 Cal.App.4th 1107, 1123; see, e.g., Regents of University ofCalifornia v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 618- 623 [affirming PERB determination that students were employees under Higher Education Employer-Employee Relations Act because substantial evidence supported 22 conclusion students' educational objectives were subordinate to the services students performedas housestaff].) The deference to be accorded PERB's resolution of questions of law, and PERB's application of that law to the facts found by PERB, presents a more complicated question, because "balancing the necessary respect for an agency's knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws can bea delicate matter ...." (Gonzales v. Oregon (2006) 546 U.S. 243, 255.) PERB asserts that we must follow its determinations of law unless clearly erroneous. Specifically, PERB arguesthat becauseit has been investedbythelegislative scheme with the "specialized and focused task"of protecting " 'both employees and the state employer from violations ot of the organizational andcollective bargaining rights guaranteed by [law]'" (Banning Teachers Assn. v. Public Employment Relations Bd. (1988) 44 Cal.3d 799, 804), PERB is " ‘one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.'" (/bid., quoting Universal Camera Corp. v. National Labor Relations Bd. (1951) 340 U.S. 474, 488.) Accordingly, PERB argues, "[T]he relationship of a reviewing court to an agency such as PERB,whose primary responsibility is to determine the scope ofthe statutory duty to bargain and resolve chargesof unfair refusal to bargain, is generally one of deference" (Ibid., citing Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 23 120 Cal.App.3d 1007, 1012), and PERB's interpretation will generally be followed unless it is clearly erroneous. However, in Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 19 Cal.4th 1 (Yamaha), our Supreme Court explained, " 'The standard for judicial review of agency interpretation of law is the independentjudgment ofthe court, giving deference to the determination of the agency appropriate to the circumstances of the agencyaction.’ " (Id. at p. 8.) Yamaha's conceptual framework noted that courts mustdistinguish between two classes ofinterpretive actions by the administrative body—those that are "quasi- legislative" in nature andthose that represent interpretations of the applicable law—and cautions that "because oftheir differing legal sources, [each] commandsignificantly different degrees of deference by the courts." (/d. at p. 10.) When examining the former type of action, an agency interpretation "represents an authentic form ofsubstantive lawmaking: Within its jurisdiction, the agency has been delegated the Legislature's lawmaking power. [Citations.] Because agencies granted such substantive rulemaking poweraretruly 'making law,' their quasi-legislative rules have the dignity ofstatutes. When a court assesses the validity of such rules, the scope ofits review is narrow. If satisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and that it is reasonably necessary to implementthe purposeofthestatute, judicial review is at an end.” (/d. at pp. 10-11.) However, "[t]he quasi-legislative standard of review ‘is inapplicable when the agency is not exercising a discretionary rule-making power, but merely construing a 24 controlling statute. The appropriate mode ofreview in such case is one in which the judiciary, although takingultimate responsibility for the construction ofthe statute, accords great weight and respect to the administrative construction.’ [(Quoting International Business Machines v. State Bd. ofEqualization (1980) 26 Cal.3d 923, 931, fn. 7.)|" (Yamaha, supra, 19 Cal.4th at p. 12, italics added by Yamaha.) Yamaha recognized that, unlike quasi-legislative rule making by the agency, an agency's interpretation of the law doesnot implicate the exercise of a delegated lawmaking power but “instead... . represents the agency's view ofthe statute's legal meaning andeffect, questions lying within the constitutional domain of the courts." (Ud. at p. 11.) Yamaha recognized that an agency mayoften be interpreting the legal principles within its administrative jurisdiction and, as such "maypossess special familiarity with satellite legal and regulatory issues. It is this 'expertise,' expressed as an interpretation. . . , thatis the source of the presumptive value of the agency's views. An important corollary of agency interpretations, however,is their diminished powerto bind. Because an interpretation is an agency's legal opinion, however‘expert,’ rather than the exercise of a delegated legislative power to make law, it commands a commensurablylesser degree of judicial deference." ([bid.) We construe Yamahaas recognizing that, in our tripartite system of government,it is the judiciary-——notthe legislative or executive branches—that is charged with the final responsibility to determine questions of law (Yamaha, supra, 19 Cal.4th at p. 11 & fn. 4), and "[w]hether judicial deference to an agency's interpretation is appropriate and,ifso,its 25 extent—the ‘weight’ it should be given—is thus fundamentally situational." (ld. at p. 12, italics added.) Thus, while some deference to an agency's resolution of questions of law may be warranted when the agency possesses a special expertise with the legal and regulatory milieu surrounding the disputed question (see New Cingular Wireless PCS, LLC v. Public Utilities Commission (2016) 246 Cal.App.4th 784, 809-810), the judiciary accords no deference to agency determinations on legal questions falling outside the parameters of the agency's peculiar expertise.2! (See, e.g., Overstreet ex rel. NLRB vy. United Brotherhood ofCarpenters and Joiners ofAmerica, Local Union No. 1506 (9th Cir. 2005) 409 F.3d 1199, 1208-1209 [no deference accorded to the NLRB's interpretation ofNLRA whenjudged against backdrop of competing constitutional issues]; accord, California State Teachers' Retirement System v. County ofLos Angeles (2013) 216 Cal.App.4th 41, 55 [under Yamaha "the degree of deference accorded should 21 Indeed, although a court may accept statutory constructions made by PERB that are “within PERB's legislatively designated field of expertise . . . unlessit is clearly erroneous" (San Mateo City SchoolDist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 854-856 [because PERB is empoweredto determine in disputed cases whether a particular item is within or without the scope of representation requiring bargaining, interpretation ofa statutory provision defining scope of representation falls squarely within PERB's legislatively designated field of expertise and will not be reversed unless clearly erroneous]), the courts in other contexts have declined to accord any deference when the PERB decision does not adequately evaluate and apply common law principles. (See, e.g., Los Angeles Unified School Dist. v. Public Employment Relations Bd. (1983) 191 Cal.App.3d 551, 556-557 [PERB determined twolocal public employee unions, both affiliated with same international, were not "same employee organization" within the meaningof section 3545, subdivision (b)(2), because actual conduct showedinternational did not exercise dominion and control over local unions; court reversed PERB ruling and concluded two local unions would qualify as the same employee organization within the meaning ofthe statute as long as international actually or potentially exercised the requisite dominion and control].) 26 be dependentin large part upon whetherthe agency has a ' "comparative interpretative advantage overthe courts" ' and on whetherit has probably arrivedat the correct interpretation"]; Azusa Land Partners v. DepartmentofIndus. Relations (2010) 191 Cal.App.4th 1, 14 [Where dispositive facts are undisputed and purely legal issues remain requiring interpretation of a statute an administrative agency is responsible for enforcing, courts exercise independent judgment, and "agency's interpretation is ' "one of several interpretive tools that may be helpful. In the end, however,'[the court] must... independently judge the text of the statute.’ "' "].) IV ANALYSIS A. Overview ofMMBA The MMBAcodifies California's recognition of the right of public employeesto collectively bargain with their government employers, andreflects a strong policy in California favoring peaceful resolution of employmentdisputes by negotiations. (§ 3500; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 622.) In furtherance ofthat goal, section 3504.5 of the MMBArequires that reasonable written notice be givento organizations such as the MEAofany action "proposed to be adopted by the governing body"that directly relates to matters within the scope of representation.22 It further 22 Section 3504.5, subdivision (a) provides that, "Except in cases of emergency as providedin this section, the governing body of a public agency. .. shall give reasonable written notice to each recognized employee organization affected of any ordinance,rule, resolution, or regulation directly relating to matters within the scope of representation 27 requires such governing body orits designated representative, "prior to arriving at a determination of policy or course of action," to "meet-and-confer in good faith" with representatives of the union concerning negotiable subjects.23 The duty to meet and confer, which "has been construed as a duty to bargain... [citation] [and] . . . requires the public agency to refrain from makingunilateral changes in employees’ wages and working conditions until the employer and employee association have bargained to impasse" (Santa Clara County CounselAttys. Assn. v. Woodside (1994) 7 Cal.4th 525, 537), thus places on the employerthe duties (1) to give reasonable written notice (to each recognized employee organization affected) of an ordinance directly relating to matters within the scope of representation "proposed to be adopted by the governing body" and provide such organization the opportunity to meet with the governing body, and (2) to meet and confer in goodfaith (and consider fully the presentations by the organization) prior to arriving at any determination on the governing body's course of action. (§§ 3504.5, subd. (a) & 3505.) Accordingly, absent emergency circumstances or other exceptions, a governing body that is subject to the MMBA may not adopt a legislative policy that unilaterally changes its employees’ wages and working proposed to be adopted by the governing body. . . and shall give the recognized employee organization the opportunity to meet with the governing body... ." 23 Section 3505 provides: "The governing body of a public agency .. . or other representatives as may be properly designated by law or by such governing body, shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employmentwith representatives of such recognized employee organizations. . . , and shall considerfully such presentations as are made by the employee organization on behalf of its membersprior to arriving at a determination of policy or course of action." 28 conditions without first complying with its meet-and-confer obligations imposed by the MMBA. In Seal Beach, the court was required to harmonize the provisions of the "meet- and-confer" requirements of the MMBA with the constitutional grant of powerto a city council, as governing bodyfor a charter city, to place a charter amendmenton the ballot that would (if adopted) impact the terms and conditions of employment for employees of that city. The Seal Beach court concludedthat, before such a governing body mayplace this type of charter amendmentonthe ballot, it must first comply with the meet-and- confer obligations under the MMBA. (Seal Beach, supra, 36 Cal.3d at pp. 597-601.) The Seal Beach court cautioned, however, that the case before it "[did] not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposedbyinitiative." (Ud. at p. 599, fn. 8.) B. Seal Beach's Meet-and-Confer Obligations Do Not Apply to Citizen Initiatives Wefirst address and resolve the issue expressly left open in Seal Beach: whether the meet-and-confer requirements of the MMBA,which Seal Beach concluded did apply to a city council's determination to place a charter amendmentontheballot, apply with equal force before the governing body of a charter city may comply withits statutory obligation to place on the ballot a duly qualified citizen's initiative proposing the same type of charter amendment.24 24 Webelieve it is both necessary and appropriate to resolvethis threshold issue. It is necessary because if we were to conclude the same meet-and-confer obligations are compelled, regardless of whether persons associated with city governmentare involved 29 Citizens Initiatives Do Not Trigger MMBA Procedural Requirements The charter amendmentprovisions contained in article XI, section 3, subdivision (b), of the California Constitution provide only two avenues by whicha charter amendment may be proposed: it "may be proposedbyinitiative or by the governing body." When an amendment is proposed byinitiative, and at least 15 percentof the registered voters of the chartercity sign the initiative petition, the governing body "shall ... [submit the initiative] to the voters" at an election notless than 88 days after the date of the order of election. (Elec. Code, 9255, subd.(c), italics added.) The "governing body" hasno discretion to do anything other than to place a properly qualified initiative on the ballot.25 (Farley v. Healey (1967) 67 Cal.2d 325, 327; Save Stanislaus Area Farm Economy v. Board ofSupervisors (1993) 13 Cal.App.4th 141, 148["local governments have the purely ministerial duty to place duly certified initiatives on the in drafting and/or campaigning fora citizen-sponsoredinitiative, we would have to affirm PERB'sprincipal determination that City violated the MMBAbyrefusing unions’ demands to meet and confer before placing the CPRI on the ballot, and all of PERB's subsidiary conclusions regarding Sanders's actual or ostensible agencyrelationship to City (even if legally erroneous) would becomesuperfluous. (Cf. Reed v. Gallagher (2016) 248 Cal.App.4th 841, 853 [when decisionis correct on any theory applicable to the case, appellate court will affirm the decision regardless of correctness of grounds relied on below to reach conclusion].) We believe resolution of the question left open in Seal Beachis also appropriate becauseit provides some illumination for our analysis of whether City violated its MMBAobligations whenit placed the CPRI onthe ballot without first meeting and conferring with the unions. 25 The governing body arguably has someflexibility as to at which election the initiative is presented to the voters (Jeffrey v. Superior Court (2002) 102 Cal.App.4th 1, 4-10), but PERB cites no authority that such flexibility would have permitted the City Council to refuse to place the CPRI on ballot without modification in contravention of the mandatory language contained in Elections Code section 9255. 30 ballot"].) Because "[p]rocedural requirements which govern council action . . . generally do not apply to initiatives" (Associated Home Builders etc., Inc. v. City ofLivermore (1976) 18 Cal.3d 582, 594), the courts have repeatedly noted "it is well established... that the existence of procedural requirements for the adoptions of local ordinances generally does not imply a restriction of the powerof [a citizen-sponsored] initiative ...." (DeVita v. County ofNapa (1995) 9 Cal.4th 763, 785; accord, Building Industry Assn. v. City ofCamarillo (1986) 41 Cal.3d 810, 823-824 [procedural requirements of § 65863.6, which must be met before local agency adopts no-growth ordinance, inapplicable to voter-sponsoredinitiative adopting no-growth ordinance].) In contrast, when a governing body of a city votes to adopt a proposal for submission to its voters, such action is a discretionary rather than ministerial determination by the governing body. (See, e.g., Friends ofSierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 187 (Friends ofSierra Madre).) Becauseof the "clear distinction between voter-sponsored andcity-council-generatedinitiatives" (id. at p. 189), the courts have repeatedly concluded the same procedural limitations that would otherwise apply to the samediscretionary determination by a governing body will apply to a city council-generated ballot proposal. Thus, in Friends ofSierra Madre, the court held that the procedural mandates of CEQA were required for a ballot measure, generated by a city council in exercise ofits discretion, which would removecertain structures from protection as historic landmarks. While similar citizen-sponsored measures do not require compliance with analogous regulatory procedural prerequisites(see, e.g., Stein v. 31 City ofSanta Monica (1980) 110 Cal.App.3d 458, 460-461; cf. Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1035-1037), Friendsof Sierra Madre concludeda city council-sponsoredballot proposal for a discretionary project could not evade compliance with CEQA. (Friends ofSierra Madre, at pp. 186- 191.) In this setting, Seal Beach concluded the procedural requirements of the MMBA did apply to a city council-sponsoredballot proposal amending the charter as to matters concerning the terms and conditions of public employment. The court reasoned the meet- and-confer requirements, imposed on public agencies as procedural requirements a public agency mustsatisfy before adopting its final budget for the ensuing year (Seal Beach, supra, 36 Cal.3d at pp. 596-597), were procedural requirements that could coexist with the constitutional powerof a city council to propose a substantive charter amendment. (Id. at p. 600, fn. 11 [noting "there is a clear distinction between the substance of a public employee labor issue and the procedure by whichit is resolved" and acknowledging that although salaries of local employeesofa charter city constitute municipal affairs not subject to general laws, the process by whichsalaries are fixed is matter of statewide concern].) Seal Beach notedthat "[a]lthough [section 3505] encourages binding agreementsresulting from the parties' bargaining, the governing body ofthe agency— here the city council—retains the ultimate power to refuse an agreement and to makeits own decision. [Citation.] This powerpreserves the council's rights underarticle XJ, section 3, subdivision (b)—it maystill propose a charter amendmentif the meet-and- 32 confer process does not persuade it otherwise. [§] We therefore conclude that the meet- and-confer requirement of section 3505 is compatible with the city council's constitutional power to propose charter amendments." (/d. at p. 601, fn. omitted.) The core tenets of Seal Beach werethat (1) the MMBAwasclearly intended to apply to regulate actions by the governing bodies of charter cities and (2) the MMBA mandatesthat those governing bodies satisfy the procedural prerequisites (the meet-and- confer process) before unilaterally imposing any changes to the matters within the scope of representation. (Seal Beach, supra, 36 Cal.3d at pp. 596-597.) From those tenets, Seal Beach concluded a governing body constrained by the procedural requirements of the MMBAcannotcircumvent the meet-and-confer requirement by using a charter amendmentto unilaterally implement the same changes that would otherwise be subjected to the meet-and-confer requirement. (Jd.at p. 602.)26 In contrast, the courts have refused to subject citizen-sponsoredinitiatives to the same procedural constraints that would apply if the same subject matter were embodied in a city council-sponsoredballot proposal (compare Stein v. City ofSanta Monica, 26 Indeed, Seal Beach specifically noted that "[t]he logical consequenceofthe city's position is, actually, that the MMBA cannotbe applied to chartercities at all. Ifa meet- and-confer session with the city council concerning contemplated charter amendments impinges on the council's constitutional power, what of salary ordinances? It is ‘firmly established that the mode and mannerof passing ordinances is a municipalaffair... and that there can be no implied limitations upon charter powers concerning municipal affairs.’ [(Quoting Adler v. City Council (1960) 184 Cal.App.2d 763, 776-777.)] If meeting and conferring on charter amendmentsis an illegal limitations [sic] on the city council's power, whyis the same nottrue of any ordinance whichaffects 'terms and conditions of public employment?'" (d. at p. 602, fn. 12.) 33 supra, 110 Cal.App.3dat pp. 460-461 with Friends ofSierra Madre, supra, 25 Cal.4th at pp. 186-191), which militates in favor of a conclusionthat the procedural meet-and- confer obligation cannot be superimposed on a citizen-sponsoredinitiative addressing matters within the "scope of representation" as that term is used in the MMBA. (Accord, Native American Sacred Site & Environmental Protection Assn. v. City ofSan Juan Capistrano (2004) 120 Cal.App.4th 961, 968 ["it is plain that voter-sponsoredinitiatives are not subject to the procedural requirements that might be imposed on statutes or ordinances proposed and adopted bya legislative body, regardless of the substantive law that might be involved"].) More importantly, the meet-and-confer requirements of the MMBAbyits express terms constrains only proposals by the "governing body" (§§ 3504.5, subd. (a) ["the governing body .. . shall give reasonable written notice ... of any ordinance,rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body"] & 3505 ["[t]he governing body. . . shall meet and confer. . . prior to arriving at a determination of policy or course of action].) Because a citizen-sponsoredinitiative does not involve a proposal by the "governing body," we are convinced there are no analogous meet-and- confer requirements for citizen-sponsored initiatives.2/ 27 Indeed, we are convincedthat imposing a "meet-and-confer” obligation on a city before it can place a citizen-sponsoredinitiative on the ballot wouldalso be inconsistent with the "the rule under the MMBA ‘that a public agency is bound to so "meet and confer" only in respect to "any agreementthat the public agency is authorized [by law] to make ...." [Citation.]' [Citation.] As a practical matter, it would be inappropriate to attribute to the Legislature a purpose of requiring the County to makevery substantial negotiating expenditures on subjects over which the County has no authority to act. 34 PERB's Contrary Analysis Is Unpersuasive The PERB decision ostensibly "decline[d] to decide" the "significant and difficult questions about the applicability of the MMBA's meet-and-confer requirement to a pure citizens’ initiative," which it appeared to deem unnecessary because it concluded the CPRI was not a "pure" citizen-sponsoredinitiative because of Sanders's involvementin promoting the CPRI. However, PERB nevertheless appeared to conclude the citizen's initiative rights enshrinedinarticle II, section 11, and article XI, section 3, subdivision (b), of the California Constitution would not obviate the meet-and-confer obligations imposed on City by the MMBA.28 In this writ proceeding, PERB and Unions appear to Nothingin the statutory language calls for this result. As in other areasofthe law, the MMBAisnot to be construed to require meaningless acts." (American Federation of State, etc. Employees v. County ofSan Diego (1992) 11 Cal.App.4th 506, 517.) Because a governing body lacks authority to make any changesto a duly qualified citizen's initiative (Elec. Code, § 9032), and instead must simply place it on the ballot without change (Save Stanislaus Area Farm Economy v. Board ofSupervisors, supra, 13 Cal.App.4th at pp. 148-149), imposing a meet-and-confer obligation on the governing body before it could place a duly qualified citizen's initiative on the ballot would require an idle act by the governing body. 28 Specifically, PERB's decision reasoned(1) the local electorate's right to legislate directly is generally co-extensive with the legislative power ofthe local governing body, (2) the constitutional right of a local electorate to legislate by initiative extends only to municipal affairs and (as such) is preempted by general laws affecting matters of statewide concern, and (3) "{l]egislation establishing a uniform system offair labor practices, including the collective bargaining process between local government agencies and employee organizations representing public employees, is 'an area of statewide concern that justifies . . . restriction’ on the local electorate's powerto legislate through the initiative or referendum process" (quoting and relying on Votersfor Responsible Retirement v. Board ofSupervisors (1994) 8 Cal.4th 765, 780 (Voters)). These authorities apparently led PERB to concludethat "[w]here local control implicates matters of statewide concern" and the two competing interests cannot be harmonized, 35 resurrect this argument, asserting the PERB decision does noviolenceto the citizen's initiative process. Specifically, they note the Legislature can limit (or entirely preempt) the local initiative power on matters of statewide (as opposed to purely local) concern, and contend that because the Supreme Court in Voters concludeda local referendum could not be used to reverse the adoption of a memorandum of understanding (MOU) following negotiations pursuant to the MMBAbecauseallowing such use of the referendum would harm the statewide interest underlying the MMBA,the same conclusion applies equally to the initiative process. Accordingly, PERB and Unions argue that whenthe electorate seeks to exercise control over matters (such as pension benefits) that would be negotiable subjects under the MMBA, the constitutional right of initiative must yield to the statewide objectives of the MMBA, including the procedural requirements of the MMBA imposing a meet-and-confer process before proposals impacting negotiable subjects may be adopted.29 "the constitutional right of local initiative is preempted by the general laws affecting statewide concerns." 29 PERB's decision did recognizethat at least one recent Supreme Courtcase (Tuolumne Jobs & Small Business Alliance v. Superior Court, supra, 59 Cal.4th 1029) concludedcertain procedural prerequisites under CEQA that would apply before a governing body may make a discretionary determination donot apply to adoption of initiatives seeking to enact that same determination. Moreover, PERB acknowledges numerous other courts have reached the same conclusion as to other procedural prerequisites. (See, e.g., AssociatedHome Builders, Inc. v. City ofLivermore, supra, 18 Cal.3d at p. 594 [holding that state law, which required any ordinance changing zoning or imposing specified land userestrictions can be enacted only after noticed hearing before the city's planning commission andlegislative body, does not apply to initiative enacting same type of ordinance]; Building Industry Assn. v. City ofCamarillo, supra, 41 Cal.3d at pp. 823-824 [procedural requirements of § 65863.6, which must be metbefore local 36 Webelieve PERB and Unions misconstrue, and hence overstate, the import of Voters. The Voters court addressed a distinct and limited issue: whether voters in a county were entitled to mount a referendum challenge to a county ordinance (which adopted an MOU impacting county employee pension benefits) under the relevant constitutional and statutory provisions. The court first concluded that article XI, section 1, subdivision (b), of the California Constitution neither authorized norrestricted voters from challenging the county ordinance by referendum. (Voters, supra, 8 Cal.4th at pp. 770-776.) The court, after recognizing courts should apply liberal construction to the initiative power, with any reasonable doubt resolved in favor of preserving it, opined that "we will presume, absent a clear showing ofthe Legislature's intent to the contrary, that legislative decisions of a city council or board of supervisors—including local employee compensation decisions [citation]—are subject to initiative and referendum. Jn this case, the legislative intent to bar the referendum poweroverthe ordinancein question is unmistakable." (Id. at p. 777, italics added.) Specifically, Voters determined the Legislature, by its enactment of section 25123, subdivision (€), evinced an unmistakable legislative intent to bar challenges by referendum to county ordinances agency adopts no-growth ordinance, inapplicableto citizen's initiative adopting no- growth ordinance]; Dwyer v. City Council ofBerkeley (1927) 200 Cal. 505; DeVita v. County ofNapa, supra, 9 Cal.4th at p. 785 ['"the existence of procedural requirements for the adoptions of local ordinances generally does not imply a restriction of the powerof[a citizen-sponsored]initiative"].) However, PERB peremptorily concluded (and argues here) the MMBA's meet-and-confer procedure is somehow "qualitatively different" from these other provisions, and thus exempted from the type of procedural rules that ordinarily do not apply to initiatives. 37 specifically related to the adoption or implementation of MOU's. (Voters, at pp. 777- 778.)39 The Voters court then rejected the petitioner's claim that section 25123, subdivision (e), was unconstitutional, reasoning the Legislature may properly restrict the right of referendum "if this is done as part of the exercise of its plenary powerto legislate in matters of statewide concern," and concludedit was required to uphold section 25123, subdivision (e)'s constitutionality if its referendum restriction, which was effectively an "implied delegation of exclusive decisionmakingauthority to the boards of supervisors to adopt and implement memoranda ofunderstanding between counties and their employee 30 The court explained the legislative procedures for county referendaare set forth in the Elections Code. Thosestatutes provide that all county ordinances, with certain enumerated exceptions, "shall becomeeffective 30 days from and after the date of final passage" by the board of supervisors (Elec. Code,§ 9141, subd. (b)), and Elections Code section 9144 provides that between the date of the adoption of the ordinance and the date the ordinance becomesfinally effective 30 dayslater, a petition signed by the requisite number of voters will suspend the ordinance and compel the board of supervisors to reconsiderit. If the board of supervisors fails to "entirely repeal" the ordinance,it must be submitted to a countywide referendum. (/d., § 9145.) However, Elections Code section 9141 excepts certain types of county ordinances from the 30-day effective date rule, providing insteadthat these ordinances go into effect immediately, including ordinances "specifically required by law to take immediate effect." (d., subd. (a)(2).) These provisions, when read together, "make[] clear that when the Legislature desired to denominatecertain types of ordinancesthat were not subject to county referendum procedures,it did so not by specifically declaring these ordinances ineligible for referendum, but rather by providingthat they go into effect immediately." (Voters, supra, 8 Cal.4th at p. 777.) The court then noted section 25123 (which parallels Elec. Code, § 9141 et seq. in providingall county ordinancesshall become effective 30 days from final passage except for certain classes of ordinances, which are to go into effect immediately), specifically provides at subdivision (e) that ordinancesrelated to the adoption or implementation of MOU's with employee organizationsare to take effect immediately. This statutory scheme convincedthe court that, by designating MOU ordinances as a class of ordinances specifically required by law to take effect immediately, the Legislature evinced an unmistakable intent to exempt suchordinances from the referendum procedures. (Voters, supra.) 38 associations" (Voters, at p. 780), could be construed as fulfilling somelegislative purpose of statewide import. The court inferred the legislative purpose of statewide import existed because of the MMBA,which was "a statutory schemein an area of statewide concern that justifies the referendumrestriction inherent in section 25123, subdivision (e)." Ud. at pp. 780, 778-784.) The distinct and limited issue examined in Voters—whether the Legislature clearly and unmistakably intended to delimit the electorate's referendum rights and(if so) whetherthat constraint was constitutionally permissible—has no applicable counterpart here. Although Voters would support the constitutionality of an enactment by the California Legislature barring citizen initiatives that seek to amenda city charter to limit employee compensation, we are unaware ofany statute clearly and unmistakably barring such citizen initiatives! (nor have PERB or Unionsidentified any such bar) and "we will presume, absent a clear showing ofthe Legislature's intent to the contrary, that... local employee compensation decisions [citation] . . . are subject to initiative and referendum." (Voters, supra, 8 Cal.4th at p. 777.) The courts have repeatedly upheld the ability of the electorate of a charter city to legislate on compensationissues byinitiative (see, e.g., Spencer v. City ofAlhambra (1941) 44 Cal.App.2d 75, 77-79; Kugler v. Yocum (1968) 69 Cal.2d 371, 374-377 (Kugler)), and the Voters court specifically declined to extendits holding to overrule another decision, United Public Employees v. City and 31 Indeed, the Voters court noted the statute it was considering "is applicable to counties only and has no counterpart for cities," and hence cautioned that "[w]e do not decide whethercity ordinances that adopt or implement memorandumsofunderstanding pursuant to the MMBAare subject to referendum." (8 Cal.4th at p. 784, fn. 6.) 39 County ofSan Francisco (1987) 190 Cal.App.3d 419, which concluded a charter provision requiring that all increases in employee benefits be subject to voter approval by referendum was compatible with the MMBA. (Voters, at pp. 781-782 & fn. 4.) Thus, contrary to PERB and Union's arguments, Voters does not support the conclusion that the MMBApreempts, or superimposes proceduralrestrictions on, the right of citizens to invoke theinitiative processto legislate on compensationissuesfor the employeesof a charter city. Conclusion Weconclude,in light of the language of the MMBAandthe "clear distinction between voter-sponsored and city-council-generated initiatives" (Friends ofSierra Madre, supra, 25 Cal.4th at p. 189), a city has no obligation under the MMBAto meet and confer before placing a duly qualified citizen-sponsoredinitiative on the ballot because such an initiative does not involve a proposal by the "governing body”nor could produce an agreementregarding suchaninitiative that the public agencyis authorized to make. C. PERB's Determination That City Was Obligated by the MMBAto Meet and Confer Before Placing the CPRI on the Ballot Is Erroneous PERB concluded City owed, but failed to discharge, the meet-and-confer obligations imposed by the MMBAon governing bodies by placing the CPRI on the ballot without first meeting and conferring with unions. We have already concluded, contrary to PERB's apparent opposing conclusion, a governing body hasnoobligation to 40 meet and confer before placing a duly qualified citizen-sponsoredinitiative on the ballot, but does have meet-and-confer obligations before placing on the ballot a proposal adopted by the governing body that falls within the parameters of sections 3504.5 and 3505.32 Wethusturn to the critical question: whether PERB correctly held the CPRI wasnot a duly qualified citizen-sponsored initiative exempted from the meet-and-confer requirements, but was instead a governing-body-sponsoredballot proposal within the ambit of Seal Beach and the meet-and-confer obligations the MMBA imposesonactions that constitute a "determination of policy" (§ 3505) that have been "proposed[for] adopt[ion] by the governing body" (§ 3504.5, subd. (a)) within the meaning ofthe MMBA. Webegin by noting the evidence was undisputed (and PERB did not concludeto the contrary) the charter amendment embodied in the CPRI wasplaced onthe ballot becauseit qualified for the ballot under the "citizen initiative" procedures for charter amendmentsas provided bythefirst clause ofarticle XI, section 3, subdivision (b), of the California Constitution (which provides that a charter amendment "may be proposed by initiative or by the governing body") and the governing provisions of Elections Code 32 The parties have broughtto our attention the recent decision in City ofPalo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, which evaluated whether the City of Palo Alto committed an unfair labor practice whenit failed to meet and consult with the unions before placing a ballot proposal on the ballot. We conclude that case provides no guidance here because it involved whether a governing body owed meet-and-consult obligations before it could place a city council-sponsored ballot proposalon the ballot (id. at p. 1284), and not whether a governing body owes meet-and- confer obligations for a citizen-sponsoredinitiative when somecity officials and city staff membersassisted in drafting and campaigningforthe initiative. 4] 9200 et seq. Wealso note there was no evidence, and PERB did notfind, that the charter amendment embodied in the CPRI was placed on the ballot because it qualified as a ballot measure sponsored or proposed by the governing body of City under the second clause ofarticle XI, section 3, subdivision (b), of the California Constitution.33 (See generally Hernandez v. County ofLos Angeles (2008) 167 Cal-App.4th 12, 21 ["Under the California Constitution there are only two methods for proposing an amendmentto a city charter: (1) an initiative qualified for the ballot through signed voterpetitions; or (2) a ballot measure sponsored by the governing bodyofthe city," and noting differing standards applicable to each].) Accordingly, we evaluate whether PERB's decision, which appearsto rest on the theory that the participation by a few government officials 33 Finally, we note the record is devoid of any evidence, and PERB did notfind,that the Proponents of the CPRI were merely straw men used by the City Council (as governing body for City) to achieve placement of a City Council-sponsored proposal onto the ballot as a ruse to circumvent the concomitant meet-and-confer obligations that would have been required for an overt City Council-sponsoredballot proposal. In San Diego Municipal Employees, supra, 206 Cal.App.4th 1447, this court noted the unions' UPC's alleged a significant factual claim—that the CPRI wasnota true citizen-sponsored initiative but was instead a sham device employed to circumvent the meet-and-confer obligations owed by City under the MMBA(id. at p. 1463)—whichin turn raised the question of whether "the CPRI (while nominally a citizen initiative) was actually placed on the ballot by City using straw men to avoid its MMBAobligations." (/d. at p. 1460.) It was because such activity was arguably prohibited by public employmentlabor law within PERB's initial exclusive jurisdiction (ibid.) that led us to concludeit waserror to divest PERB ofits ability to conduct proceedings on this issue. (/bid.) However, PERB's decision did not sustain this allegation; to the contrary, PERB's decision appeared to reject the Unions' claims that Proponents acted as agents for City in pursuing the CPRI. Accordingly, we have no occasion to addressthe distinct issue of whether anentity would violate its meet-and-confer obligations if its governing body soughtto avoid its meet-and-confer obligations by enlisting private citizens to recast a governing-body- sponsored ballot proposal into a citizen-sponsoredinitiative. 42 and employeesin drafting and campaigning for a citizen-sponsoredinitiative somehow converted the CPRI from citizen-sponsoredinitiative into a governing-body-sponsored ballot proposal, is erroneous under applicable law. Weconclude PERB's determination was error. As a preliminary matter, we believe that, under Yamaha, supra, 19 Cal.4th 1, we must apply de novo review of PERB's determination, rather than the more deferential standards of review advocated by PERB and Unions, because PERB's determination turned almost entirely uponits application of the interplay among City's charter provisions (and Sanders's powers and responsibilities thereunder), commonlaw principles of agency, and California's constitutional and statutory provisions governing charter amendments, and did not turn upon resolution of material factual disputes (to which the deferential "substantial evidence" standard would apply) or upon PERB's application of legal principles of which PERB's special expertise with the legal and regulatory milieu surrounding the disputed legal principles would warrant deference. Accordingly, we accord no deference to PERB's legal conclusions asto the constitutional or statutory scheme governing initiatives (Overstreet ex rel. NLRB v. United Brotherhood ofCarpenters and Joiners of America, Local Union No. 1506, supra, 409 F.3d 1199, 1208-1209; Azusa Land Partners v. Department ofIndus. Relations, supra, 191 Cal.App.4th at p. 14) or to PERB's application of commonlawprinciples of agency over which PERB hasnospecialized 43 expertise warranting deference.34 (Cf. Styrene Information and Research Centerv. Office ofEnvironmental Health Hazard Assessment (2012) 210 Cal.App.4th 1082, 1100 [no deference where agency in question has no particular interpretive advantage over the courts based on some expertise]; Sanchez v. UnemploymentIns. Appeals Bd. (1984) 36 Cal.3d 575, 584-585 [agency denied applicant unemploymentbenefits based on finding employee lacked "good cause" to leave employment; court reviewedlack of good cause finding de novo asissue of law].) 34 PERB,citing Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 965, argues on appeal that because the existence of an agencyrelationship is a question offact, we must defer to PERB's determination on appeal as long asit is supported by substantial evidence. Certainly, the existence of an agencyrelationship can present a question of fact. However, when the material facts are undisputed, the question of the existence of a principal-agent relationship is a matter of law for the courts (see, e.g., Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 745), of which PERB has no specialized expertise. Indeed, because we will conclude the relevant inquiry is not whether Sanders was an agent for City (at least in some capacities), but instead whether he wasthe actual or ostensible agentJor the governing body when hehelped draft and campaign for the CPRI, we will examine whether PERB correctly concluded Sanders's actions can be charged to a governing body under commonlaw principles. For example, under commonlaw principles, unless a party (the putative principal) has the legal right to control the action of the other person (the putative agent), the former ordinarily cannotbe held vicariously liable for the other person's acts on an agency theory. (See generally Edwards v. Freeman (1949) 34 Cal.2d 589, 592 [absentright of control, no true agency andtherefore no imputation of wrongdoer's negligence]; Kaplan, at p. 746 ["Absent a showing that Coldwell Banker controlled or had the right to control the day-to-day operations of Marsh's office, it was not liable for Marsh's acts or omissionsasa real estate broker on a true agency- respondeat superior theory."].) Thus, even if the appropriate inquiry was under a "substantial evidence"rubric, there is no evidence the City Council hadthe right to control Sanders's actions here, and hence there would be no substantial evidence to support the conclusion Sanders wasthe agentof the City Council in promulgating and promoting the CPRI. 44 It is clear that, apart from charter commission proposals (see generally §§ 34451- 34458), California recognizes only two avenues by which a proposed city charter amendment maybe placed before the electorate: an initiative that qualifies for the ballot through signed voter petitions, or a ballot proposal that qualifies for the ballot because the governing body(here, the City Council) adopts a resolution placing it on the ballot.35 (Hernandez v. County ofLos Angeles, supra, 167 Cal.App.4th at p. 21.) Whether PERB correctly concluded meet-and-confer obligations were triggered here rests on whetherit properly recast the CPRI from the formerinto the latter. Because PERB employed several variants of agency theory to reformulate the CPRI from citizen-sponsored proposalto a City Council-sponsored proposal, we examine PERB'stheories seriatim. Statutory Agency PERB's first theory, which it denominated as a statutory agency theory, focused on the fact that Sanders, both in his capacity as a so-called "strong mayor" andin hisrole as the lead negotiator for the City Council in labor-related matters,36 was empowered by the 35 Section 34458 et seq. prescribing the methods for a governing bodyto place a proposed charter amendmentbefore the voters, only appears to permit "the governing body" to make the proposal and submitit to the voters for approval. (/d., subd. (a).) 36 Sanders wasthe City's lead negotiator in collective bargaining with the City's nine represented bargaining units. In this role, Sanders developed proposals for the City's initial bargaining proposals, but the practice was for the Mayorto brief and obtain approval from the City Council on his proposals before he presented them to the Unions. If the negotiations between Sanders and a bargaining unit produceda tentative agreement, however, Council Policy 300-06 still required the agreement be presented to the City Council (or the Civil Service Commission) for determination and adoption. Thus,the ultimate authority to approve a proposal remained with the City Council. 45 City Charter to recommend "measures and ordinances"that he believed to be "necessary and expedient" (San Diego City Charter, art. XV, § 265(b)(3)), including recommendations encompassedin his "State of the City" address. (/d., art. XV, § 265(c).) From these predicates, PERB deemedtheactivities of Sanders in aiding in the drafting of and campaignfor the CPRI (both individually and insofar as additional actions were undertakenby the staff of his mayoraloffice at his direction) to have been the actions of the City Council because he was the "statutory agent" for the City Council in labor-related matters. Under this theory, PERB appeared torule that (1) the CPRI was sufficiently interwoven with Sanders's proposal such that the CPRI was as much Sanders's proposalas it was the Proponents' proposal, and (2) Sanders was statutorily empoweredto act on behalf of (and to make proposals on labor-related matters for) the City Council in labor-related matters, and therefore the CPRI became a City Council- sponsored(or at least co-sponsored) proposal carrying meet-and-confer obligations within the meaning of Seal Beach.37 37 PERB alsoappeared to concludethat, because section 3505 states (in relevant part) that "The governing bodyof a public agency,. . . or other representatives as may be properly designated by law or by such governing body, shall meet and confer," the Legislature contemplated that, in addition to the governing body of an agency, other designated representatives would makepolicy decisions on behalf of the agency and that such decisions would trigger meet-and-confer obligations. We reject this reading of the statutory scheme. Section 3504.5, subdivision (a) describes when meet-and-confer obligationsare triggered (i.e. when there is an "ordinance,rule, resolution, or regulation directly relating to matters within the scope of representation proposedto be adopted by the governing body"), and section 3505 describes how that process should be accomplished, including who(i.e. the "governing body. . . or other representatives as may be properly designated by law or by such governing body") shall participate on behalf of the governing body. The designation in section 3505 of whoshall conductthe 46 Weconclude reliance on this theory was error because it ignores fundamental principles governing the charter amendmentprocess and the conduct of municipal affairs. First, a charter amendment measure only becomes a "proposal" if it qualifies for the ballot under the citizen-sponsored-proposal provisions (for which no meet-and-confer obligation exists) or qualifies for the ballot as a governing-body-sponsoredballot measure (which would trigger meet-and-confer obligations) under section 34458 et seq. PERB's statutory agency theory essentially deemed Sanders's actions to have been those of the City Council, thereby treating the CPRI as a governing-body-sponsoredballot measure, even though the City Charter38 specifically providesall legislative powers of the City are vested in the City Council (San Diego City Charter,art. II, § 11) as City's legislative body(id., art. XV, § 270(a)), and provides suchlegislative power may not be delegated(id., art. III, § 11.1) but must be exercised by a majority vote ofthe elected councilmembers. (/d., art III, § 15 & art. XV, § 270(c).) PERB cites no law suggesting meet-and-confer process does not expand who owes the meet-and-confer obligations imposed by section 3405.5. 38 PERB asserts in this proceeding that, althoughit introduced portions of the San Diego City Charter to support its statutory agency claim,it is improperforthis court to consider the impact of City Charter provisions not introduced below and not presently the subject of a request for judicial notice. However, charter provisions are judicially noticeable materials (cf. Giles v. Horn (2002) 100 Cal.App.4th 206, 225, fn. 6), and we are aware of no impedimentto judicially noticing those provisions on our own motion (PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1204, fn. 25), particularly where it is necessary to examinethe entirety of a documentto construe the effect of individual portions contained therein. (See generally Dow v. Lassen Irrigation Co. (2013) 216 Cal.App.4th 766, 780-781.) Accordingly, we will take judicial notice of the provisions of the San Diego City Charter. 47 Sanders was in fact (or even could have been)statutorily delegated the powerto place a City Council-sponsoredballot proposal on the ballot without submitting it to (and obtaining approval from) the City Council (Kugler, supra, 69 Cal.2d at p. 375 [legislative power maynotbe delegated]; City ofRedwood City v. Moore (1965) 231 Cal.App.2d 563, 575-576, disapproved onother grounds by Bishop v City ofSan Jose (1969) 1 Cal.3d 56, 63, fn. 6 [recognizing "the general principle that the public powersortrusts devolved by law or charter upon a governing body cannotbe delegated to others"]), and because there was no evidence suggesting Sanders soughtor obtained such approval, PERB erred in concluding Sanders's actions in supporting the CPRI were in fact acts creating a City Council-sponsoredballot proposal. (Cf. First Street Plaza Partners v. City ofLos Angeles (1998) 65 Cal.App.4th 650, 667 [where city charter prescribes procedures for taking binding action, those requirements may not be deemedsatisfied by implication from use of proceduresdifferent from those specified in charter]; DynamicInd. Co.v. City ofLong Beach (1958) 159 Cal.App.2d 294, 299 ["When the charter provision has not been complied with, the city may not be heldliable in quasi contract, and it will not be estopped to deny thevalidity of the contract"].) PERB nevertheless arguesits agency theory was correct because employers (including governmentalentities) can be heldliable for unfair labor practices committed by their agent even when the agent's actions were not formally approved by the governing body. PERB also asserts its agency theory is supported by a 2008 opinion by a former City Attorney (the Aguirre Memo)that concluded, if the Mayor "initiate[d] or 48 sponsor[ed]" a voter petition drive to place a measure on the ballot to amend the City Charter provisions related to retirement pensions, City "would have the same meet-and- confer obligations with its unions over a voter-initiative sponsored by the Mayor as with any City proposal implicating wages, hours, or other terms and conditions of employment." Weare unconvinced the Aguirre Memo undermines our analysis, for several reasons. First, a later opinion from the City Attorney rejected the conclusionsof the Aguirre Memo,which it described as "overly broad and incomplete in its analysis," and explained why the City Attorney believed the conclusions reached by the Aguirre Memo were unsound.32 Second, PERB cites nothing to suggest the opinions expressed in the Aguirre Memoare somehow binding on City, much less that such opinionsare entitled to any deference by this court. (Yamaha, supra, 19 Cal.4th 1, 11 [{"an agency's legal opinion, however'expert,'. .. commands a commensurably lesser degree ofjudicial deference"].) Because the Aguirre Memoreached its conclusions without considering (or even mentioning) the limiting language of section 3404.5, which triggers meet-and- confer obligations only as to "any ordinance, rule, resolution, or regulation . . . proposed to be adopted by the governing body,"its conclusion that meet-and-confer obligations 39 Specifically, the later letter explained the Aguirre Memohadrelied on a misapplication ofInglewood Teachers Assn. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767 (Inglewood), and had been generated in a different context in which "Ti]t was contemplated the Mayor's proposal would be submitted to voters as a City Council proposal." The later letter explained the Aguirre Memo did not address whether any meet-and-confer obligation would exist when "there is no evidence .. . that the City Council is proposing the [CPRI], or authorizing the Mayor to propose or sponsorit." 49 exist for a Mayoral-initiated voter petition drive (which appears to haverested on the erroneous assumption that a measure supported by the Mayoris equivalent to a measure proposed to be adopted by the governing body)is unpersuasive. Weare equally unpersuaded that the cases cited by PERB that upheld unfair labor practices claims against governmentalentities for conductby their agents even whenthe agent's actions were undertaken without approval by the governing body have any relevance here. In the cases relied on by PERB,the agents' unapprovedactions involved statements or actions by the agents that are declared to be unfair labor practices without the necessity of any predicate involvement by the governing body. Specifically, the unapprovedactionsinterfered with, restrained, or coerced the employeesin violation of section 3506 of the MMBA(see Public Employees Assn. v. Bd. ofSupervisors (1985) 167 Cal.App.3d 797, 806-807 ["section 3506is patterned closely after section 8(a)(1) of the NLRA [citation], which providesit is an unfair labor practice for an employer to ‘interfere with, restrain, or coerce’ employeesin the exercise of rights to ‘bargain collectively’ "]) or in violation of section 3543.5, subdivision (a). However, both of those sections are distinct from section 3504.5, because both of those sections condemn specified conduct as unlawful laborpractices, regardless of whetherthat specified conduct was accompanied byactions of the governing body.40 In contrast, the unlawful 40 The PERB decisions cited by PERB and Unionsare ofa similar ilk. For example, in County ofRiverside (2010) PERB Decision No. 2119-M [34 PERC §[ 108], the alleged unlawfullabor practice includedallegations that the defendant interfered with employee rights becauseof the unauthorized actions of two countyofficials, who made separate statements to SEIU representatives (who were attempting to create a bargaining unit for 50 labor practice condemned by section 3504.5—the failure to meet and confer—is condemned only if preceded by specified conduct or actions of the governing body,i.e. whenthere is an "ordinance,rule, resolution, or regulation directly relating to matters within the scope of representation proposedto be adopted by the governing body." Because section 3504.5 requires predicate action by "the governing body" before the meet-and-confer obligations of section 3505 can be triggered, cases addressing statutes that do not contemplate similar predicate action by a governing body have nopersuasive value on the issues presented by the presentaction. Forall of these reasons, we agree with City that PERB erred in applying "statutory agency"principles to find the CPRI was a de facto governing-body-sponsoredballot proposalthat could havetriggered meet-and-confer obligations within the contemplation of section 3504.5. Common Law Agency: Actual Authority PERB's secondset of theories, which it denominated as a common law agency theory, focused on the common law doctrine of when a principal can be charged with the "TAP" employees) that such employees would get a union whenthe officials died, retired or the county went out of business, which PERB concludedviolated section 3506's proscription against interfering with, restraining, or coercing employees in the exercise of rights to bargain collectively. (County ofRiverside, at pp. 16-23.) Similarly, in San Diego Unified School Dist. (1980) PERB Decision No. 137E [4 PERC § 11115], PERB concluded the unauthorized action of two school board membersin placing letters of commendation into the personnelfiles of nonstriking teachers violated the proscription contained in section 3543.5, subdivision (a), which prohibits a public school employer from imposing or threatening to imposereprisals on employees because of their exercise of rights guaranteed under the Educational Employment Relations Act, section 3540 et seq. SI acts of its agent. PERB'sarticulatedrationale for attributing Sanders's support of the CPRI (as putative agent) to the City Council (as putative principal) under “actual authority" principles was that actual authority is the authority a principal either intentionally confers on the agent or "by wantof ordinary care" allows the agentto believe himself to possess (Civ. Code, § 2316), and a principal is responsible to third parties for the wrongful acts of an agent in transacting the principal's business regardless of whetherthe acts were authorized orratified by the principal. (Civ. Code, §§ 2330, 2338.) Under this theory, PERB noted (1) Sanders had broad authority as Mayorto recommendlegislation to the City Council, (2) he pursued pension reform as a goal for his remaining tenure as Mayorand for the announced purpose of improving the City's financial well-being, and (3) the City Council was aware of Sanders's desire for pension reform and ofhis efforts to implementit througha citizen-sponsoredinitiative. From these facts, PERB concluded Sanders's actions could be charged to the City Council because: "by wantof ordinary care, the City Council allowed Sanders to believe that he could pursue a citizens’initiative to alter employee pension benefits, and that no conflict existed between his duties as the City's chief executive officer and spokesperson for collective bargaining and his rights as a private citizen... . Sanders acted with actual authority because proposing necessary legislation and negotiating pension benefits with the Unions were within the scope of the Mayor's authority and because the City acquiescedto his public promotionoftheinitiative, [and] by placing the measure on the ballot, . .. while accepting the considerable financial benefits resulting from the passage and implementation of [the CPRI]." (Fn. omitted.) 52 Weconclude PERB's use of a commonlaw agency theory, which PERB appears to have used in orderto find Sanders's actions are to be charged to or deemedtheacts of the City Council, is erroneous.4! "Actual" authority is (1) the authority the principal intentionally gives the agent, or (2) the authority the principal intentionally or negligently allows the agent to believe he possesses. (Civ. Code, § 2316.) There is no evidence the City Council actually authorized Sanders to act on its behalf to formulate and campaign for the CPRI, nor any evidence Sanders believed he was acting or had the authority to act on behalfofthe City Council whenhe took those actions.42 4] Weaccord no deference to PERB's legal conclusions because, although PERB certainly evaluates and applies commonlaw principles of agency when makingits administrative adjudications (see, e.g., Chula Vista Elementary School Dist. (2004) PERB Decision No. 1647E [28 PERC 4 184] [applying agencyprinciples to hold school district liable for acts of school principal that constituted unlawful intimidation in violation of § 3543.5]; Inglewood Unified School Dist. (1990) PERB Decision 792E [14 PERC 4 21057] [concluding ALJ erroneously applied agencyprinciples to hold school district liable for acts of school principalthatallegedly constituted unlawful intimidation]), it has no comparative expertise in the common law that would warrant deference by this court (California State Teachers' Retirement System v. County ofLos Angeles, supra, 216 Cal.App.4th at p. 55), and we therefore accord no deference to PERB'slegal analysis. of commonlaw principles. 42 Indeed, PERB appears to have acknowledged it was not relying on any actual authorization when applying the actual agency theory, becauseit acknowledgedthat "Tulnder the circumstances, making liability dependent on whether the City Council expressly authorized Sanders . . . to pursue a pension reform ballot measure would underminethe principle ofbilateral negotiations by exploiting the problematic nature of the relationship between the MMBAandthelocal[initiative-referendum] power.' [(Citing Voters, supra, 8 Cal.4th 765, 782.)]". Moreover, when PERB evaluated whether the City Council had " ‘intentionally, or by want of ordinary care'" induced Sanders to believe he was acting on behalf of the City Council when he took those actions, PERB merely recited that Sanders "believed pension reform was needed to eliminate the City's $73 million structural budget deficit" and could be accomplished by the CPRI and therefore "believed himselfto be acting on behalfofthe City." However, PERB 53 PERB's "Apparent Agency" Theory43 PERB's decision also relied on common law agencyprinciples of "apparent authority” to support charging the City Council (as putative principal) with the acts of Sanders(as putative agent) in promulgating and supporting the CPRI. PERB's articulated rationale for attributing Sanders's support of the CPRI to the City Council under "apparent" authority principles wasthat the City Council intentionally or negligently caused or allowed the employees to reasonably believe Sanders was acting on behalf of the City Council in promulgating and supporting the CPRI within the meaning ofthe apparent authority principles codified in Civil Code section 2317. PERB,although acknowledging that Inglewood, supra, 227 Cal.App.3d 767 required the party asserting an agencyrelationship by way of apparent authority to satisfy the burden of proving the elements of that theory (id. at p. 780) and that "[m]ere surmise as to the authority of an agentis insufficient to imposeliability on the principal" (id. at p. 782), concluded Inglewood's test wassatisfied. PERB reasoned that, because employees knew Sanders erroneously transformed the only "belief" for which there was evidentiary support—that . Sanders believed his support for the CPRI wasin the City's best financial interests—into a finding for which there was no evidentiary support: that the City Council somehow induced Sandersto believe his actions in promoting the CPRI were on behalfofthe City Council. Althoughthe evidence supports the finding that Sanders believed his actions promoted the City's best financial interests, there is no evidentiary support he believed he was promoting the CPRI on behalfofthe City Council, and therefore this aspect of PERB's actual agency theory lacks support. 43 The courts have interchangeably used the nomenclature of "apparent" agency or "ostensible" agency to describe this principle of vicarious liability. (See, e.g., Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942.) Wewill refer to it, as did PERB,as "apparent" agency. 54 wasan elected official and City's chief executive officer, and knew Sanders touted the CPRI as a measure that wasin the best interests of City, employees "would reasonably conclude{] that the City Council had authorized or permitted [Sanders] to pursue his campaign for pension reform to avoid meeting and conferring with employee labor representatives." We conclude PERB's "apparent agency"rationale is erroneous, for several reasons. First, apparent agency focuses on whetherthe principal (either intentionally or by want of ordinary care) caused or alloweda third person to believe the agent possessed authority to act on behalf of the principal (Civ. Code, § 2317), and therefore must be established through the conduct ofthe principal and cannot be created merely by a purported agent's conductor representations.44 (Mosesian v. Bagdasarian (1968) 260 Cal.App.2d 361, 367; Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1132.) Thus, even assuming apparent agency could be applied to permit Sanders's actions to somehow "bind" the City Council into being a co-sponsor of the CPRI,45 PERB's 44 Wealso note that "[lJiability of the principal for the acts of an ostensible agent rests on the doctrine of 'estoppel,' the essential elements of which are representations madebythe principal, justifiable reliance by a third party, and a changeofposition from suchreliance resulting in injury." (Preis v. American Indemnity Co. (1990) 220 . Cal.App.3d 752, 761.) PERB's decision does not explain how thethird element necessary to application of the commonlaw principle wassatisfied, which further underminesthe propriety of invoking that doctrine in this case. 45 Wehave substantial doubt an "apparent agency" theory can even be applied here. In Boren v. State Personnel Bd. (1951) 37 Cal.2d 634, the court (although noting that "[e]ven in the field of private contracts, the doctrines of ostensible agency or agency by estoppel are not based uponthe representations of the agent but upon the representations of the principal" (id. at p. 643), rejected a plaintiff's effort to invoke "agency by 55 decision (and PERB's and Unions' briefs on appeal) cite only the actions of Sanders and his staff as the evidentiary foundation for application of "apparent" agency theory. Neither PERB's decision nor PERB's and Unions'brief's on appeal cite any evidencethat the putative principal (the City Council) affirmatively did or said anything that could have caused orallowed a reasonable employee to believe Sanders had been authorized to act on behalf of the City Council in promoting the CPRI, which undermines PERB's "apparent" agency theory.46 PERB's "apparent" agencytheory in the present decision eschewedanyreliance on affirmative manifestations by the City Council affirming Sanders's support for the CPRI was on its behalf.47 Instead, PERB relied solely on the fact that Sanders supported the estoppel," noting that "[t]o invoke estoppel in cases like the present would havethe effect of granting to the state's agents the power to bind the state merely by representing that they have the powerto do so. It [has been] held that the authority of a public officer cannot be expanded by estoppel. [Citations.]" (bid.) We need not decide that issue here because, even assumingit could apply, there appears to be no evidentiary support for that theory. 46 We recognize that apparent agency can be premised on inaction by the principal because "where the principal knowsthat the agent holds himself outas clothed with certain authority, and remainssilent, such conduct on the part of the principal may give rise to liability." (Preis v. American Indemnity Co., supra, 220 Cal.App.3d at p. 761.) However, even assuming this theory can apply here (but see fn. 45, ante), PERB recognized that Sanders repeatedly stated his efforts in promoting the CPRI were in his capacity as a private citizen, and there is no evidence Sanders ever claimedhis efforts were as the City Council's representative, which renders the City Council's inaction or silence incapable of supporting an "apparent" authority finding. 47 PERB's prior decisions have appeared to acknowledgethat " ‘apparent authority to act on behalf of the employer may be found where the manifestations ofthe employer create a reasonablebasis for employees to believe that the employer has authorizedthe alleged agent to perform the act in question’ "(Trustees ofthe California State University 56 CPRI while occupying an office the responsibilities of which included acting for the City Council as the labor relations point man and recommending measures on laborissues to the City Council, and based thereon concluded Sanders had apparentor actual discretionary authority to promote the CPRI on behalf of the City Council, and therefore the City Council can be charged with liability for Sanders's failure to meet and confer over the CPRI. Werecognize that "apparent" agency,like a respondeat superior theory (see Inglewood, supra, 227 Cal.App.3d at p. 779 [noting courts do not alwaysdistinguish between ostensible agency theory andtort doctrine of respondeat superior]), permits a third party to hold a principal liable for the wrongful conduct of his agent within the scope of his authority even where the agent was not operating with the express authorization of his principal when engaging in that conduct. (See generally Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1137-1139; JZ.v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 403 [noting ostensible agency principles can be usedto hold principalvicariously liable for agent's acts].)48 In the field (2014)PERB Decision No. 2384-H,p. 39, quoting West Contra Costa County Healthcare District (2011) PERB Dec. No. 2164-M,p. 7,italics added by Trustees), but PERB's decision here cites no such conduct by the City Council. 48 Many PERB decisions havealso held that an employer's officials, particularly those whose duties include employeeor laborrelations or collective bargaining matters, have been presumedto have acted on behalf of the employer suchthat their commission of acts constituting unfair labor practices were imputed to the employer. (San Diego Unified School Dist., supra, PERB Decision No. 137-E [unauthorized action oftwo school board membersin placing letters of commendation into the personnelfiles of nonstriking teachers violated the proscription violated "no reprisal" rule of § 3543.5, subd. (a)]; Trustees ofthe California State University, supra, PERB Decision No. 2384- H.) 57 of labor relations, some cases decided under the Agricultural Labor Relations Act (ALRA) have upheld imposing liability on an employer for an act by an agent that constituted an unfair labor practice, even when such act was not expressly authorized by the employer, as long as such act was within the scope of the agent's duties.49 (See Vista 49 _ PERB's brief in this writ proceeding also asserts it was appropriate for the PERB decision to charge the City Council with Sanders's actions because he "acted within the scope ofhis authority as lead labor negotiator" in supporting the CPRI, which can be sufficient under NLRA precedent(see H. J. Heinz Co. v. NLRB (1941) 311 U.S. 514, 520-521; International Assn. ofMachinists v. NLRB (1940) 311 U.S. 72, 80) to charge an employer with the wrongful conductofits supervisory personnel. However, the court in Inglewood recognized NLRA precedentis of limited value in the Education Employment Relations Act (EERA)arenabecause "there are significant differences between the two statutes" and "at times, PERB has even stated that not only is NLRA precedent not controlling, it may not even beinstructive." (Inglewood, supra, 227 Cal.App.3d at p. 777.) Wenote that, under the NLRA, an employer is specifically defined to include "any person acting as an agent of an employer, directly or indirectly" (29 U.S.C. § 152(2)), and explicitly states that "[i]n determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whetherthe specific acts performed were actually authorized or subsequently ratified shall not be controlling." (29 U.S.C. § 152(13).) In light of that statutory scheme, the Heinz court explained "[t]he question is not one of legal liability of the employer in-damagesor for penalties on principles of agency or respondeat superior, but only whether the [NLRA] condemnssuchactivities as unfair labor practices so far as the employer may gain from them any advantage in the bargaining process of a kind which the Act proscribes." (Heinz, at p. 521.) Although NLRA precedent can be relevantin some circumstances(see,e.g., International Assn. ofFire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272), it is too distinct from the issue presented here: whether the MMBAwasdesigned to permit the governing body to be charged with the unapproved conductofits agents (cf. Inglewood, at p. 778 [rejecting union argumentthat agent should beincludedin definition of employer under EERA,because "[s]ince the Legislature is deemed to be aware of the content of its own statutory enactments,it is a reasonable inference that the Legislature would have included the term agentin the definition of employer under the EERA if it wanted schooldistricts perpetually exposedto liability for any unfair labor practice committed by an agent of a school district"]), particularly when the specific conduct—compliance with the meet-and- confer mandate of section 3504.5—is triggered only whenthere is some action "proposed 58 Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307; Superior Farming Co. v. Agricultural Labor Relations Bd. (1984) 151 Cal.App.3d 100.) However, decisions under the ALRA providelittle guidance because "under the ALRA,application of the NLRA standardis statutorily mandated" (Inglewood, supra, 227 Cal.App.3dat p. 778), and those standards are not premised on commonlawprinciples (id. at pp. 776- 777; accord, Superior Farming Co., at p. 118 ["employer responsibility for acts of agents or quasi-agents .. . is not governed by commonlaw agencyprinciples"]; see also fn. 49, ante), nor have PERB or Unions demonstrated there are sufficient parallels between the relevant provisions of the MMBAand the ALRA to permit cases decided underthe latter schemeto provide persuasive guidance underthe distinct scheme of the MMBA. More importantly, affixing vicariousliability upon a principal under common law agency principles, regardless of whetherthe principal authorized the explicit conduct at issue, appears to presuppose the agent committed a wrongful actab initio. (Cf. Bayuky. Edson (1965) 236 Cal.App.2d 309, 320.) This theory may well justify charging a principal with liability for an agent's acts that are inherently wrongful and injurious, such as the act committed by the agent in Vista Verde Farms v. Agricultural Labor Relations Ba., supra, 29 Cal.3d at pp. 317-318 (in whichthe court noted the agent's acts violated Lab. Code, § 1153 and "would unquestionably constitute an unfair labor practice [citation] if engaged in directly by the employer"), regardless of whetherthe principal to be adopted by the governing body" (§ 3504.5, subd. (a)) rather than some action proposed by a putative agent of the governing body. 59 authorized those acts. However,the acts alleged here—an individual's advocacyfor a citizen-sponsoredinitiative effecting employee benefits—is not an inherently wrongful act,0 nor are we persuaded the MMBAexplicitly proscribes such conduct merely because that individual occupies public office. Instead, the MMBAonly requires compliance with the meet-and-confer mandate of section 3504.5 when there is some action "proposed to be adopted by the governing body" (id., subd. (a)), and has no apparent applicability when the "governing body" is not affirmatively involved with the proposal. Weconclude PERB's reliance on commonlawprinciples of "apparent" agency or respondeatsuperior, in order to charge the City Council (as putative principal) with the acts of Sanders(as putative agent) in promulgating and supporting the CPRI despite the 50 To the contrary, Sanders's advocacy for the CPRI is not inherently wrongful, but is instead protected underboth statutory law (see §§ 3203 ["[e]xcept as otherwise provided in this chapter, or as necessary to meet requirementsof federal law as it pertains to a particular employee or employees,norestriction shall be placed on the political activities of any officer or employee ofa state or local agency" and 3209 ["[nJothing in this chapter prevents anofficer . . . of a state or local agency from soliciting or receiving political funds or contributions to promote the passage or defeat of a ballot measure which would affect the rate of pay, hours of work, retirement, civil service, or other working conditions of officers or employees of suchstate or local agency, except that a state or local agency may prohibit or limit such activities by its employees during their working hours"}) and under the Constitution. (See generally Wood v. Georgia (1962) 370 U.S. 375, 394 ["petitioner was an elected official and hadtherightto enter the field of political controversy"); Bond v. Floyd (1966) 385 U.S. 116, 136-137.) Accordingly, commonlaw principles of "apparent" agency or respondeat superior, which permit a third party to hold a principalliable for the wrongful acts of his agent, have no application here. 60 absenceof any evidence the City Council actually authorized theseacts, is without legal support and waserroneous. PERB's "Ratification" Theory PERB's decision also relied on commonlaw principles of "ratification" to support charging the City Council (as putative principal) with the acts of Sanders (as putative agent) in promulgating and supporting the CPRI. Asarticulated by PERB,the City Council adopted Sanders's actions in promulgating and supporting the CPRI as their own measure because: "An agency relationship mayalso be established by adoption or subsequentratification of the acts of another. (Civ. Code, §§ 2307, 2310.) It is well established as a principal of labor law that where a party ratifies the conduct of another, the party adopting such conduct also accepts responsibility for any unfair practices implicated by that conduct. [Citing Compton Unified School District (2003) PERB Decision No. 1518-E at p. 5 and Dowdy. International Longshoremen's Assn., AFL-CIO (11th Cir. 1992) 975 F.2d 779, 785-786.] Thus, ratification may imposeliability for the acts of employees or representatives, even whenthe principal is not at fault and takes no active part in those acts. [Citation.] Ratification may be express or implied, and an implied ratification may be foundif an employerfails to investigate or respondto allegations of wrongdoing by its employee." PERB's decision, noting it was adequately shownthe City Council had actual or constructive knowledge of Sanders's actions in support of the CPRI, relied on two groundsfor applying "ratification" to convert Sanders's support forthe citizen-sponsored CPRI initiative into City Council support for that initiative: the City Council's inaction (because it was aware of Sanders's support but did not disavow or repudiate his conduct), and the City Council's actions in placing the CPRI on the ballot while rejecting Unions' 61 "meet-and-confer" demands and accepting the financial benefits accruingfrom its passage. We conclude noneofthese grounds support PERB's determination that the City Council can be deemed to have promulgated or supported the CPRI underratification principles.>! Thefirst basis for PERB's ratification theory appears to be that the City Council did not disavow orrepudiate his conduct. Although the failure to repudiate otherwise wrongful conduct can warrant charging a putative principal with responsibility for any unfair practices implicated by that conduct, as was the case in Compton Unified School District, supra, PERB Decision No. 1518E [27 PERC { 56] and Dowdv. International Longshoremen Assn., AFL-CIO, supra, 975 ¥.2d 779,this presupposes the issue to be 51 Wenotethat, in this writ proceeding, PERB's brief appears to focus almost exclusively on the foundational issue—whetherthere was substantial evidence the City Council was aware of Sanders's conductand "failed to disavow it"——with almost no discussion of whether(in light of that knowledge) the City Council's inaction (failure to disavow), or action (placing the CPRI on the ballot andrejecting Unions' "meet-and- confer" demands), or acceptanceofthe financial benefits supports the legal conclusion that the City Council adopted Sanders's support for the citizen-sponsored CPRI as its own underratification principles. Similarly, the Unions'brief is largely silent on this issue, arguing only that (by failing to meet and confer over the CPRI) "the City Council ratified [Sanders's] unlawful scheme... ." This argument—thatthe City Council's lawful rejection of Unions’ meet-and-confer demands (based on our conclusion there are no meet-and-conferobligations on citizen-sponsoredinitiatives, see part ITI.B., ante) converted such conductinto an unlawful rejection of those meet-and-confer demands underratification principles—amountsto a petitio principii argument (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 1005) and shedsno light on the propriety of PERB's conclusion. While this lacuna would permit us to deem this claim abandoned (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["[w]hen an issue is unsupported by pertinent or cognizable legal argumentit may be deemed abandoned and discussion by the reviewing court is unnecessary"]), we nevertheless examine PERB's stated basis for its "ratification" theory. 62 determined: whether Sanders's conduct was an unfair labor practice. (See fn. 50, ante.) Weare aware of no law holding that an electedofficial's support (however vigorous) for a citizen-sponsored ballot measure impacting a subject otherwise negotiable underthe MMBAviolates the meet-and-confer provisions (or any other provision) of the MMBA, and weare convinced Sanders was entitled to support the CPRI (either as an individual or through capitalizing on his office's bully pulpit) because he was not supporting the proposal as the "governing body," whichis the only entity constrained by the meet-and- confer obligations under the MMBA. Moreover,reliance on the City Council's inaction is incompatible with other commonlaw principles ofratification, which recognize that 'ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified... .' (Civ. Code, § 2310.) Thus, where the equal dignities rule applies,it requires formal, written ratification.” (van't Rood v. County ofSanta Clara (2003) 113 Cal.App.4th 549, 571; accord, John Paul Lumber Co. v. Agnew (1954) 125 Cal.App.2d 613, 622 [corporation's ratification of alleged agent's unauthorizedsale of its property can only be effected through a resolution of its board of directors when duly assembled].) Accordingly, absent a majority vote of the elected councilmembers (City Charter, art. III, § 15 & art. XV, § 270(c)), it is improper to find that Sanders's support fora citizen- sponsored initiative could convert the CPRI into a City Council-sponsored ballot proposal underratification principles. (Kugler, supra, 69 Cal.2d at p. 375; First Street Plaza Partners v. City ofLos Angeles, supra, 65 Cal.App.4th at p. 667 [wherecity charter 63 prescribes procedures for taking binding action, those requirements may notbe satisfied by implication from use of proceduresdifferent from those specified in charter]; cf. Stowe v. Maxey (1927) 84 Cal.App. 532, 547-549 [declining to apply ratification principles to validate act where act was one county board was incapable of delegating].) Finally, insofar as PERB premisedratification on the City Council's placing the CPRI onthe ballot, and the City Council's acceptanceofthe financial benefits accruing from its passage by the voters, we concludethat theory also lacks legal foundation. This aspect of PERB's legal analysis rests on the unstated predicate that the City Council could have declined to place the CPRI ontheballot or to accept the financial benefits accruing from its passage, and that its decision to act to the contrary adopted Sanders's otherwise unauthorized conductby ratification. However,ratification has no application when the principal is unable to decline the benefits of an agent's unauthorized actions. (See generally Pacific Bone, Coal & Fertilizer Co.v. Bleakmore (1927) 81 Cal.App. 659, 664- 665.) The City Council was required by the Elections Codeto place the CPRI before the voters (without alteration) becauseit qualified for the ballot (cf. Blotter v. Farrell (1954) 42 Cal.2d 804, 812-813), and PERB cites no authority suggesting the City Council could have electedto ignore the mandates of the CPRI (by refusing to accept the financial benefits accruing from its passage) once the CPRI was approved by the voters. Accordingly, the fact the City Council complied with its legal obligations cannot support PERB'sratification theory. 64 D. Conclusion Weconclude, for the reasons previously explained, a city has no obligation under the MMBAto meet and confer before placing a duly qualified citizen-sponsoredinitiative on the ballot, and only owessuch obligations before placing a governing-body-sponsored ballot proposal on the ballot. We further conclude PERB's fundamental premise—that under agency principles Sanders's support for the CPRI convertedit from a citizen- sponsoredinitiative on which no meet-and-confer obligations were imposed into a City Council-sponsored ballot proposal to which section 3504.5's meet-and-confer obligations becameapplicable—islegally erroneous. Because PERB's remaining determinations— that the City Council engaged in an unfair labor practice whenit defaulted on its obligations under section 3504.5 and that PERB's "make whole" remedies for that alleged unfair labor practice could order City to de facto refuse to comply with the CPRI— proceeded from this fundamental but legally erroneous premise, PERB's decision must be annulled and remandedfor further proceedings consistent with the views expressed in this opinion. (San Mateo City School Dist. v. Public Employment Relations Bd., supra, 33 Cal.3d at p. 867.) DISPOSITION The Public Employment Relations Board (PERB) decision is annulled, and the matter is remanded to PERB with directions to dismiss the complaints and to order any other appropriate relief consistent with the views expressed within this opinion. Each party shall bear its own costs of this proceeding. 65 McCONNELL,P.J. WE CONCUR: HUFFMAN,J. NARES,J. 66 |