Filed 12/30/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

CITY OF LOS ANGELES,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES EMPLOYEE 

RELATIONS BOARD, 

Defendant and Respondent;

DEPARTMENT OF WATER AND 

POWER MANAGEMENT 

EMPLOYEES ASSOCIATION,

Real Party in Interest and 

Respondent.

B261246

(Los Angeles County

Super. Ct. No. BS148148)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, James C. Chalfant, Judge. Reversed and 

remanded.

Mike N. Feuer, City Attorney and Wendy K. Genz, Deputy 

City Attorney for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

The Myers Law Group, Adam Stern and D. Smith for Real 

Party in Interest and Respondent.

_____________________
2

The City of Los Angeles (City), acting by and through its 

Department of Water and Power (DWP), appeals the judgment of 

dismissal entered after the superior court sustained the demurrer 

of real party in interest Department of Water and Power 

Management Employees Association (MEA) to the DWP’s petition 

for writ of mandate. The sole issue before us is whether 

Government Code section 3509.51 controls review of a decision of 

the City’s Employee Relations Board (ERB), or whether the 

ERB’s decisions are reviewable on a writ petition brought in the 

superior court. We conclude section 3509.5 does not apply to 

ERB decisions, and therefore reverse the superior court’s order 

and remand for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The parties

The DWP is a municipal utility and a proprietary 

department of the City. Labor relations between the City and its 

employees are governed by the City’s Employee Relations 

Ordinance (ERO), codified in the Los Angeles Administrative 

Code section 4.800 et seq. The ERB, which was established by 

the ERO, is charged with, among other things, certifying 

employee bargaining units and investigating and determining the 

validity of unfair employee relations practices, including 

resolving disputes about wages, hours, and other terms and 

conditions of City employees’ employment. Real party in interest 

MEA is the certified bargaining representative for DWP 

management employees. 

 

1 All further undesignated statutory references are to the 

Government Code.
3

2. The dispute

According to the allegations of the DWP’s petition, which 

we accept as true for purposes of reviewing the superior court’s 

ruling on MEA’s demurrer (Weiss v. City of Los Angeles (2016) 

2 Cal.App.5th 194, 205; Vitkievicz v. Valverde (2012) 202 

Cal.App.4th 1306, 1311), in approximately 1994 DWP 

Transmission and Distribution District Supervisor Dennis Barr 

and Transmission and Distribution Manager Robert Spease, both 

members of the MEA and employees of the DWP, entered into a 

“ ‘handshake agreement’ ” regarding compensation for 

transmission supervisors’ weekend standby duties. Barr and 

Spease agreed that DWP supervisors who were assigned to 

weekend standby duty, but not actually called in to work, would

be compensated for their time. Although a payroll code for such 

standby duty existed, it was never used; instead, standby time 

was reported to payroll as overtime, and supervisors were 

compensated for their hours. 

In June 2012 the DWP’s executive management learned of 

this arrangement and ordered the cessation of standby duty 

payments to MEA members unless and until a standby provision 

was negotiated in a Memorandum of Understanding (MOU) or 

other formal agreement. 

On September 12, 2012, the MEA filed with the ERB an 

unfair employee relations practices claim (UERP 1885) alleging 

that the DWP had violated the ERO, Los Angeles Administrative 

Code section 4.860, by unilaterally changing MEA members’

terms and conditions of employment in regard to standby pay 

without giving MEA notice or the opportunity to bargain. The 

DWP took the position that it had not violated the ERO because 

pay for standby duties had never been incorporated into the 
4

MOU between the DWP and the MEA, had never been ratified or 

approved by a final policymaking authority, and was therefore 

not a binding past practice. 

On May 1 and 2, 2013, an ERB hearing officer heard the 

unfair practices claim at a hearing at which evidence was taken.

On October 9, 2013, the hearing officer issued a report and 

recommendation in favor of MEA, finding that MEA had 

established the existence of a binding past practice of providing 

compensation for standby duties to certain MEA members, and 

that the DWP had discontinued the practice without first giving 

MEA notice and an opportunity to meet and confer. The DWP 

filed exceptions to the report and recommendation. On 

January 27, 2014, the ERB adopted the hearing officer’s written 

decision and issued a final order in favor of the MEA. 

3. The petition for writ of mandate

The DWP challenged the ERB’s decision by means of a 

petition for writ of administrative mandate (Code Civ. Proc.,

§ 1094.5) filed in the superior court on April 10, 2014, within 90 

days of the ERB’s order. The DWP argued the ERB’s decision 

exceeded its authority; violated the City Charter and public 

policy; was not supported by findings of fact or law; and was not 

supported by the evidence. 

In response, the MEA filed a demurrer asserting that the 

petition was untimely and the superior court lacked subject 

matter jurisdiction over it. Relying primarily on Singletary v. 

International Brotherhood of Electrical Workers, Local 18 (2012) 

212 Cal.App.4th 34 (Singletary), MEA argued that review of ERB 

decisions is governed by section 3509.5, which requires that a 

challenge to a final decision be filed with the Court of Appeal 

within 30 days of its issuance. In the MEA’s view, the DWP had 
5

“simply filed its writ in the wrong court,” and because over 30 

days had elapsed since issuance of the ERB’s final order, the 

DWP was time-barred from filing its petition in the Court of 

Appeal. 

The DWP opposed the demurrer. It argued that section 

3509.5 applied only to the Public Employment Relations Board 

(PERB), not the ERB, and contrary language in Singletary was 

nonbinding dicta and was incorrect in any event. The DWP

urged that a petition for writ of administrative mandamus filed 

in the superior court was the appropriate mechanism for review 

of the ERB’s decisions. The DWP alternatively urged that, if the 

procedural requirements of section 3509.5 applied to ERB, then 

section 3509, subdivision (f) – which excludes designated 

management employees from PERB’s jurisdiction – applied to 

exclude MEA members from ERB’s jurisdiction as well. 

Therefore, DWP argued that if the superior court concluded 

section 3509.5 applied to ERB, it should grant DWP leave to 

amend the petition to argue that no ERB hearing should have 

been held at all. 

On September 30, 2014, the superior court sustained the 

MEA’s demurrer to the DWP’s petition with leave to amend. The 

court found persuasive the DWP’s arguments that the plain 

language and relevant legislative history indicated section 3509.5 

was inapplicable to the ERB. However, the court concluded 

statements to the contrary in Singletary were not dicta and were

binding upon it. (Auto Equity Sales, Inc. v. Superior Court (1962) 

57 Cal.2d 450, 455.) In light of the DWP’s alternative argument 

regarding management employees, the court granted leave to 

amend. The DWP declined to amend the petition and on 

November 13, 2014, the court entered a signed order dismissing 
6

it. Notice of entry of dismissal was filed and served on 

January 6, 2015. 

On January 9, 2015, the DWP filed a timely notice of 

appeal. 

DISCUSSION

The dispositive question before us is whether section 3509.5 

applies to decisions of the ERB. The DWP argues that based on 

the plain language of the relevant statutory provisions and 

legislative history, it does not. The MEA argues to the contrary. 

We conclude the DWP has the better argument, and section 

3509.5 is inapplicable to ERB decisions. Before reaching the 

merits, we first consider three preliminary issues raised by the 

MEA. 

1. Preliminary issues

a. Appeal from minute order dismissing the case

The MEA argues the DWP’s appeal should be dismissed 

because the DWP has “appealed a non-appealable minute order.” 

It contends that a minute order dismissing a case is not 

appealable, and an order sustaining or overruling a demurrer is 

reviewable on appeal only from a judgment of dismissal. 

The MEA’s contentions lack merit. On September 30, 2014 

the superior court issued a minute order sustaining MEA’s 

demurrer with 30 days leave to amend. The minute order stated 

that if the DWP “has not amended by the above date, the Court 

will dismiss the matter.” On November 13, 2014, the court issued 

a signed minute order stating: “There being no amended Petition 

filed, the case is hereby dismissed.” The DWP subsequently filed 

and served a notice of entry of the order of dismissal. 

Code of Civil Procedure section 581d provides that “All 

dismissals ordered by the court shall be in the form of a written 
7

order signed by the court and filed in the action and those orders 

when so filed shall constitute judgments and be effective for all 

purposes . . . .” (Italics added.) As the dismissal here met these 

requirements, the DWP’s appeal is proper. (See, e.g., Vitkievicz v. 

Valverde, supra, 202 Cal.App.4th at p. 1310 & fn. 1; Sisemore v. 

Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396

[although “[a]n order sustaining a demurrer without leave to 

amend is not appealable,” an “appeal is proper . . . after entry of a 

dismissal on such an order”]; Morgan Creek Residential v. Kemp 

(2007) 153 Cal.App.4th 675, 683 [trial court sustained demurrer 

without leave to amend; the “ensuing order of dismissal” 

constituted “a judgment subject to appeal”]; Alexander v. Exxon 

Mobil (2013) 219 Cal.App.4th 1236, 1249.) 

b. Mootness 

MEA next argues the appeal should be dismissed as moot.

It contends no justiciable controversy exists because the parties 

have come to an agreement regarding the standby pay issue. In 

support of this contention, MEA requests that we take judicial 

notice of a MOU covering the period October 1, 2012 through 

December 31, 2016, providing that certain DWP employees shall 

receive specified amounts of weekday and weekend standby pay. 

(See Evid. Code, §§ 459, subd. (a), 452, subd. (h)).

The DWP opposes the request for judicial notice on the 

ground the MOU is irrelevant and does not demonstrate the 

issues presented in the appeal are moot. DWP urges that the 

parties’ agreement on standby pay resolves neither the question 

of the superior court’s jurisdiction over a petition for writ of 

administrative mandate challenging an ERB decision, nor the 

underlying issue of whether MEA members have sufficient 

authority to create a past practice binding on the DWP. 
8

Moreover, the DWP contends that the controversy over the 

jurisdictional issue still exists and is likely to arise between the 

parties in the future. 

“ ‘ “[T]here are three discretionary exceptions to the rules 

regarding mootness: (1) when the case presents an issue of broad 

public interest that is likely to recur [citation]; (2) when there 

may be a recurrence of the controversy between the parties 

[citation]; and (3) when a material question remains for the 

court’s determination [citation].” ’ ” (Harris v. Stampolis (2016) 

248 Cal.App.4th 484, 495-496.) Here, even if the parties’ 

agreement on the question of standby pay renders the appeal 

technically moot, it seems likely the controversy will arise 

between the parties in the future, and the issue is of continuing 

public interest. (See People v. Morales (2016) 63 Cal.4th 399, 

409; Coachella Valley Mosquito & Vector Control Dist. v. 

California Public Employment Relations Bd. (2005) 35 Cal.4th 

1072, 1079, fn. 3 (Coachella).) We therefore exercise our 

discretion to address the merits of the DWP’s contentions.2 

(Coachella, supra, at p. 1079 & fn. 3; City and County of San 

Francisco v. International Union of Operating Engineers, Local 

39 (2007) 151 Cal.App.4th 938, 943 & fn. 3.) 

 

2 Because the fact the parties have come to an agreement on 

the standby pay issue is therefore irrelevant to our decision, we 

decline MEA’s request that we take judicial notice of the MOU. 

(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.) 
9

c. Amendment of the petition

MEA next contends that the “DWP has waived review of 

any possible amendment to its petition.” However, as noted, the 

superior court granted the DWP leave to amend and the DWP 

opted not to do so. The DWP reiterates in its briefs on appeal

that it does not seek further leave to amend and has not 

requested review of any issue related to possible amendment of 

the petition. The question of amendment to the petition is 

therefore not before us. 

2. Section 3509.5 does not apply to decisions of the ERB

a. Standard of review

A demurrer tests the legal sufficiency of the factual 

allegations in a complaint and will be sustained when the 

pleading is defective on its face. (Mitchell v. State Dept. of Public 

Health (2016) 1 Cal.App.5th 1000, 1007; Vitkievicz v. Valverde, 

supra, 202 Cal.App.4th at pp. 1310-1311.) A demurrer may 

properly be sustained on the ground the court lacks subject 

matter jurisdiction (Code Civ. Proc., § 430.10, subd. (a)) and on 

statute of limitations grounds if the defect is clear on the face of 

the complaint. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.) We 

independently review the trial court’s ruling. (Vitkievicz v. 

Valverde, supra, at pp. 1310-1311.) De novo review is 

additionally proper here because the question presented is purely 

one of law. (John v. Superior Court (2016) 63 Cal.4th 91, 95; 

Singletary, supra, 212 Cal.App.4th at p. 41.) 

b. The PERB, the ERB, the ERCOM, and the MMBA 

To properly frame the issue at hand, a review of the 

development of California’s labor law as it pertains to local public 

employment is necessary. The National Labor Relations Act 

governs collective bargaining in private sector employment, but 
10

leaves states free to regulate labor relationships with their public 

employees. (County of Los Angeles v. Los Angeles County 

Employee Relations Com. (2013) 56 Cal.4th 905, 915 (County of 

Los Angeles).) “Public employees in California do not have the 

right to bargain collectively absent enabling legislation.” (Ibid.) 

In 1961, the Legislature enacted the George Brown Act, 

which for the first time recognized the rights of state and local 

public employees to organize and have their representatives 

“meet and confer” with their public agency employers over wages 

and working conditions. (Coachella, supra, 35 Cal.4th at p. 1083; 

City of San Jose v. Operating Engineers Local Union No. 3 (2010) 

49 Cal.4th 597, 603 (City of San Jose).) Those rights were 

expanded in 1968 with enactment of the Meyers-Milias-Brown 

Act (MMBA) (§ 3500 et seq.), which authorized public entities 

and labor representatives to not only confer, but to reach binding 

agreements regarding wages, hours, and working conditions. 

(Coachella, supra, at p. 1083; City of San Jose, supra, at p. 603; 

County of Los Angeles, supra, 56 Cal.4th at p. 915.) Section 3507 

of the MMBA provides that a public agency may adopt reasonable 

rules and regulations after consultation in good faith with 

representatives of a recognized employee organization or 

organizations for the administration of employer-employee 

relations. (§ 3507, subd. (a).) 

The Legislature created the PERB, an expert, quasi-judicial 

administrative agency modeled after the National Labor 

Relations Board, in 1975. (County of Los Angeles, supra, 

56 Cal.4th at p. 916; City of San Jose, supra, 49 Cal.4th at 

pp. 603-604; Coachella, supra, 35 Cal.4th at pp. 1084-1085.) 

PERB was initially created to administer and enforce a different 

employment relations statute, the Educational Employment 
11

Relations Act. (City of San Jose, supra, at pp. 603-604; 

Coachella, supra, at pp. 1084-1085.) Over time, the Legislature 

expanded PERB’s jurisdiction “as the Legislature passed new 

laws addressing specific realms of public employment.” (County 

of Los Angeles, supra, at p. 916.) Both the City and the County of 

Los Angeles have established their own administrative bodies to 

administer the MMBA and resolve employment disputes 

involving City or County employees. In 1968, the year the 

MMBA was enacted, the County created the Los Angeles County 

Employee Relations Commission (ERCOM) for such purposes. 

(Ibid.) In 1971, the City enacted the ERO which, as noted ante, 

created the ERB and authorized it to, among other things, 

investigate, hold public hearings, and determine the validity of 

charges of unfair employee relations practices. (See L.A. Admin. 

Code, §§ 4.800 et seq., 4.810, 4.860; Singletary, supra, 

212 Cal.App.4th at pp. 43-44.) 

“When the Legislature enacted the MMBA in 1968, it had 

not yet created the PERB, and it did not include in the MMBA 

any provisions expressly authorizing either administrative or 

judicial proceedings to enforce its provisions. Resolving the 

resulting uncertainty regarding methods of enforcement, [our 

Supreme Court] in 1994 concluded that MMBA-created rights 

and duties were enforceable by a traditional mandate action 

under Code of Civil Procedure section 1085.” (Coachella, supra, 

35 Cal.4th at p. 1084.) Thus, prior to July 2001, a party claiming 

a violation of the MMBA could bring an action in superior court. 

(City and County of San Francisco v. International Union of 

Operating Engineers, Local 39, supra, 151 Cal.App.4th at p. 943.) 

The Legislature remedied the MMBA’s lack of an 

administrative enforcement mechanism in 2000 by enacting 
12

section 3509, which brought the MMBA within PERB’s authority. 

Effective July 1, 2001, section 3509 expressly gave PERB 

“exclusive initial jurisdiction over complaints alleging unfair 

labor practices violating the MMBA.”3 (County of Los Angeles, 

 

3 Section 3509 currently provides: “(a) The powers and 

duties of the board described in Section 3541.3 shall also apply, 

as appropriate, to this chapter and shall include the authority as 

set forth in subdivisions (b) and (c). Included among the 

appropriate powers of the board are the power to order elections, 

to conduct any election the board orders, and to adopt rules to 

apply in areas where a public agency has no rule.

“(b) A complaint alleging any violation of this chapter or of any 

rules and regulations adopted by a public agency pursuant to 

Section 3507 or 3507.5 shall be processed as an unfair practice 

charge by the board. The initial determination as to whether the 

charge of unfair practice is justified and, if so, the appropriate 

remedy necessary to effectuate the purposes of this chapter, shall 

be a matter within the exclusive jurisdiction of the board, except 

that in an action to recover damages due to an unlawful strike, 

the board shall have no authority to award strike-preparation 

expenses as damages, and shall have no authority to award 

damages for costs, expenses, or revenue losses incurred during, or 

as a consequence of, an unlawful strike. The board shall apply 

and interpret unfair labor practices consistent with existing 

judicial interpretations of this chapter.

“(c) The board shall enforce and apply rules adopted by a public 

agency concerning unit determinations, representation, 

recognition, and elections.

“(d) Notwithstanding subdivisions (a) to (c), inclusive, the 

employee relations commissions established by, and in effect for, 

the County of Los Angeles and the City of Los Angeles pursuant 

to Section 3507 shall have the power and responsibility to take 
13

supra, 56 Cal.4th at p. 916; Coachella, supra, 35 Cal.4th at 

p. 1077; City of San Jose, supra, 49 Cal.4th at p. 605.) Section 

3509 thus removed “from the courts their initial jurisdiction over 

MMBA unfair practice charges” and vested such jurisdiction in 

PERB. (Coachella, supra, at p. 1089; City of San Jose, supra, at 

p. 605; Singletary, supra, 212 Cal.App.4th at p. 43.) 

At the same time, section 3509 expressly exempted the City 

and County of Los Angeles from PERB’s jurisdiction. (§ 3509, 

subd. (d); County of Los Angeles, supra, 56 Cal.4th at p. 916; 

Coachella, supra, 35 Cal.4th at p. 1077, fn. 1.) Section 3509, 

subdivision (d) provides: “Notwithstanding subdivisions (a) to (c), 

 

actions on recognition, unit determinations, elections, and all 

unfair practices, and to issue determinations and orders as the 

employee relations commissions deem necessary, consistent with 

and pursuant to the policies of this chapter.

“(e) Notwithstanding subdivisions (a) to (c), inclusive, consistent 

with, and pursuant to, the provisions of Sections 3500 and 

3505.4, superior courts shall have exclusive jurisdiction over 

actions involving interest arbitration, as governed by Title 9 

(commencing with Section 1280) of Part 3 of the Code of Civil 

Procedure, when the action involves an employee organization 

that represents firefighters, as defined in Section 3251.

“(f) This section shall not apply to employees designated as 

management employees under Section 3507.5.

“(g) The board shall not find it an unfair practice for an employee 

organization to violate a rule or regulation adopted by a public 

agency if that rule or regulation is itself in violation of this 

chapter. This subdivision shall not be construed to restrict or 

expand the board’s jurisdiction or authority as set forth in 

subdivisions (a) to (c), inclusive.”
14

inclusive, the employee relations commissions established by, and 

in effect for, the County of Los Angeles and the City of 

Los Angeles pursuant to Section 3507 shall have the power and 

responsibility to take actions on recognition, unit determinations, 

elections, and all unfair practices, and to issue determinations 

and orders as the employee relations commissions deem 

necessary, consistent with and pursuant to the policies of this 

chapter.” (§ 3509, subd. (d); County of Los Angeles, supra, at 

p. 916.) Thus, allegations of unfair practices by the County or 

City must be brought before ERCOM or ERB, respectively, not 

PERB. (County of Los Angeles, supra, at p. 916.) ERCOM and 

ERB are thus “separate agenc[ies] empowered to resolve public 

employment labor disputes” in the County and City of 

Los Angeles, respectively, “just as PERB does for all other 

counties in California.” (Ibid.) 

In 2002, the Legislature enacted section 3509.5, which 

provides for judicial review of PERB decisions.

4 (International 

 

4 Section 3509.5 provides in full: “(a) Any charging party, 

respondent, or intervenor aggrieved by a final decision or order of 

the board in an unfair practice case, except a decision of the 

board not to issue a complaint in such a case, and any party to a 

final decision or order of the board in a unit determination, 

representation, recognition, or election matter that is not brought 

as an unfair practice case, may petition for a writ of 

extraordinary relief from that decision or order. A board order 

directing an election may not be stayed pending judicial review.

“(b) A petition for a writ of extraordinary relief shall be filed in 

the district court of appeal having jurisdiction over the county 

where the events giving rise to the decision or order occurred.

The petition shall be filed within 30 days from the date of the 

issuance of the board’s final decision or order, or order denying 
15

 

reconsideration, as applicable. Upon the filing of the petition, the 

court shall cause notice to be served upon the board and 

thereafter shall have jurisdiction of the proceeding. The board 

shall file in the court the record of the proceeding, certified by the 

board, within 10 days after the clerk’s notice unless that time is 

extended by the court for good cause shown. The court shall have 

jurisdiction to grant any temporary relief or restraining order it 

deems just and proper, and in like manner to make and enter a 

decree enforcing, modifying, and enforcing as modified, or setting 

aside in whole or in part the decision or order of the board. The 

findings of the board with respect to questions of fact, including 

ultimate facts, if supported by substantial evidence on the record 

considered as a whole, shall be conclusive. Title 1 (commencing 

with Section 1067) of Part 3 of the Code of Civil Procedure 

relating to writs shall, except where specifically superseded by 

this section, apply to proceedings pursuant to this section.

“(c) If the time to petition for extraordinary relief from a board 

decision or order has expired, the board may seek enforcement of 

any final decision or order in a district court of appeal or superior 

court having jurisdiction over the county where the events giving 

rise to the decision or order occurred. The board shall respond 

within 10 days to any inquiry from a party to the action as to why 

the board has not sought court enforcement of the final decision 

or order. If the response does not indicate that there has been 

compliance with the board’s final decision or order, the board 

shall seek enforcement of the final decision or order upon the 

request of the party. The board shall file in the court the record 

of the proceeding, certified by the board, and appropriate 

evidence disclosing the failure to comply with the decision or 

order. If, after hearing, the court determines that the order was 

issued pursuant to the procedures established by the board and 

that the person or entity refuses to comply with the order, the 

court shall enforce the order by writ of mandamus or other proper 

process. The court may not review the merits of the order.”
16

Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment 

Relations Bd. (2011) 51 Cal.4th 259, 267 (International Assn. of 

Fire Fighters).) Section 3509.5, subdivision (a) states that a party 

“aggrieved by a final decision or order of the board in an unfair 

practice case, except a decision of the board not to issue a 

complaint in such a case, . . . may petition for a writ of 

extraordinary relief from that decision or order.” Subdivision (b) 

provides in pertinent part: “A petition for a writ of extraordinary 

relief shall be filed in the district court of appeal having 

jurisdiction over the county where the events giving rise to the 

decision or order occurred. The petition shall be filed within 30 

days from the date of the issuance of the board’s final decision or 

order, or order denying reconsideration, as applicable. Upon the 

filing of the petition, the court shall cause notice to be served 

upon the board and thereafter shall have jurisdiction of the 

proceeding.” As a result of section 3509.5’s enactment, “[f]inal 

decisions of the PERB are now reviewable by a writ petition filed 

directly in the Court of Appeal, rather than in the superior court.” 

(Coachella, supra, 35 Cal.4th at p. 1078, fn. 2.)5

 

5 A narrow exception exists to section 3509.5’s requirement 

that review of a PERB decision lies with the court of appeal. 

Notwithstanding section 3509.5, when “PERB refuses to issue a 

complaint under the MMBA, a superior court may exercise 

mandamus jurisdiction to determine whether PERB’s decision 

violates a constitutional right, exceeds a specific grant of 

authority, or is based on an erroneous statutory construction.” 

(International Assn. of Fire Fighters, supra, 51 Cal.4th at pp. 264, 

271.) However, PERB’s refusal to issue a complaint under the 

MMBA “is not subject to judicial review for ordinary error, 

including insufficiency of the evidence to support the agency’s 
17

c. Application here

When interpreting a statute, our goal is to effectuate the 

Legislature’s intent. (Riverside County Sheriff’s Dept. v. Stiglitz

(2014) 60 Cal.4th 624, 630; John v. Superior Court, supra, 

63 Cal.4th at pp. 95-96.) We begin by examining the statutory 

language, giving the words their usual and ordinary meaning, 

because this is usually the most reliable indicator of legislative 

intent. (Lee v. Hanley, supra, 61 Cal.4th at pp. 1232-1233; Poole 

v. Orange County Fire Authority (2015) 61 Cal.4th 1378, 1384-

1385.) “ ‘ “ If the plain, commonsense meaning of a statute’s 

words is unambiguous, the plain meaning controls.” [Citation.]’ ” 

(Catlin v. Superior Court (2011) 51 Cal.4th 300, 304; Poole v. 

Orange County Fire Authority, supra, at p. 1385.) If the statutory 

language is ambiguous or subject to more than one 

interpretation, we may look to extrinsic aids, including the 

legislative history or statutory purpose, to inform our views. 

(John v. Superior Court, supra, at p. 96; Holland v. Assessment 

Appeals Bd. No. 1 (2014) 58 Cal.4th 482, 490.) 

We conclude section 3509.5 does not govern judicial review 

of ERB decisions for several reasons. First, the plain language of 

the relevant statutory provisions indicates section 3509.5 does 

not apply to ERB decisions. Section 3501 defines various terms 

as used in the MMBA, Chapter 10 of Division 4 of Title 1 of the 

Government Code. Subdivision (f) of section 3501 states that, 

“[a]s used in this chapter,” “ ‘[b]oard’ means the Public 

Employment Relations Board established pursuant to Section 

3541.” Section 3509.5 is contained in Chapter 10 and the 

 

factual findings and misapplication of the law to the facts, or for 

abuse of discretion.” (Id. at p. 271.) 
18

definition in section 3501, subdivision (f) therefore applies to it.

Section 3509.5 states that a party aggrieved by “a final decision 

or order of the board in an unfair practice case” may “petition for 

a writ of extraordinary relief from that decision or order.”

(§ 3509.5, subd. (a), italics added.) Subdivision (b) states that a 

“petition for a writ of extraordinary relief shall be filed in the 

district court of appeal having jurisdiction over the county where 

the events giving rise to the decision or order occurred. The 

petition shall be filed within 30 days from the date of the 

issuance of the board’s final decision or order . . . .” (§ 3509.5, 

subd. (b), italics added.) Other portions of section 3509.5 

repeatedly reference “the board,” but nowhere does section 3509.5 

mention the ERB or the ERCOM or indicate the provision applies 

to entities other than PERB. In other words, “the board” in 

section 3509.5 is the PERB, not the ERB. “The Legislature has 

power to prescribe legal definitions of its own language, and 

when an act passed by the Legislature embodies a defined term, 

its statutory definition is ordinarily binding on the courts.” 

(Faulder v. Mendocino County Bd. of Supervisors (2006) 

144 Cal.App.4th 1362, 1371; State ex rel. Dept. of California 

Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1011; 

Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) Thus, on 

its face section 3509.5 unambiguously applies only to PERB. The 

omission of any mention of ERB or ERCOM in section 3509.5 

suggests the Legislature did not intend its provisions to apply to 

them. (See People v. Arriaga (2014) 58 Cal.4th 950, 960 [“It is a 

settled principle of statutory interpretation that if a statute 

contains a provision regarding one subject, that provision’s

omission in the same or another statute regarding a related 

subject is evidence of a different legislative intent”]; Slocum v. 
19

State Bd. of Equalization (2005) 134 Cal.App.4th 969, 978 

[“Where the Legislature carefully uses a term or phrase in one 

place but excludes it in another, we will not imply the term or 

phrase where excluded”]; Suarez v. Pacific Northstar Mechanical, 

Inc. (2009) 180 Cal.App.4th 430, 443 [under standard rules of 

statutory construction, courts “ ‘will not read into the statute a 

limitation that is not there’ ”]; Doe v. City of Los Angeles, supra, 

42 Cal.4th at p. 545; Code Civ. Proc., § 1858.) 

Second, we do not readily infer the Legislature has acted to 

deprive a court of jurisdiction in the absence of an express 

indication it intended to do so. Our Supreme Court’s analysis in 

International Assn. of Fire Fighters is instructive. There, the 

court considered whether the PERB’s decision not to issue a 

complaint was ever subject to judicial review, in light of section 

3509.5’s provision that an aggrieved party may seek writ relief to 

challenge “ ‘a final decision or order of the board in an unfair 

practice case, except a decision of the board not to issue a 

complaint in such a case . . . .’ ” (International Assn. of Fire 

Fighters, supra, 51 Cal.4th at pp. 264, 267; § 3509.5, subd. (a).) 

Concluding that limited review in the superior court was 

permissible, the court reasoned as follows. “The California 

Constitution gives rise to a presumption in favor of at least 

limited judicial review of state administrative agency actions. It 

does so through section 10 of article VI, which, as relevant here, 

gives superior courts ‘original jurisdiction in proceedings for 

extraordinary relief in the nature of mandamus, certiorari, and 

prohibition.’ Traditional mandamus review is available ‘to 

compel the performance of an act which the law specially enjoins, 

as a duty resulting from an office, trust, or station.’ (Code Civ. 

Proc., § 1085, subd. (a).) Recognizing that ‘[t]he power of superior 
20

courts to perform mandamus review of administrative decisions 

derives in part’ from this constitutional provision, [our Supreme 

Court] has said that ‘ “[t]he jurisdiction thus vested may not 

lightly be deemed to have been destroyed.” ’ [Citations.]” (Id. at 

p. 270.) A court “will not infer a legislative intent to entirely 

deprive the superior courts of judicial authority in a particular 

area; the Legislature must have expressly so provided or 

otherwise clearly indicated such an intent. [Citations.]” (Ibid.) 

Despite section 3509.5’s language, International Assn. of Fire 

Fighters concluded “[i]n section 3509.5, the Legislature has not 

expressly provided or otherwise clearly indicated that under 

California’s MMBA superior courts are prohibited in all 

circumstances from exercising traditional mandamus jurisdiction 

to review a PERB decision refusing to issue a complaint.” 

(International Assn. of Fire Fighters, supra, at p. 271.) Similarly, 

there is no indication in section 3509.5 that the Legislature 

intended to divest the superior courts of jurisdiction to entertain 

administrative mandamus proceedings challenging a final ERB 

order. 

Third, the legislative history of sections 3509.5 and 3509

supports the conclusion that section 3509.5 was not intended to 

apply to the ERB.6 (See Diamond v. Superior Court (2013) 

217 Cal.App.4th 1172, 1189 [even where the plain language of 

the statute dictates the result, the legislative history may provide 

additional authority confirming the court’s interpretation]; Doe v. 

 

6 We take judicial notice of the cited legislative history 

materials relating to sections 3509 and 3509.5. (Evid. Code, 

§ 452, subd. (c); see Ennabe v. Manosa (2014) 58 Cal.4th 697, 709, 

fn. 9.) 
21

City of Los Angeles, supra, 42 Cal.4th at p. 544.) Section 3509.5 

was enacted during the 2001-2002 legislative session by 

Assembly Bill No. 2908. The Legislature’s uncodified statement 

of intent provides that by enacting section 3509.5, the legislature 

intended “to establish procedures for judicial review of 

determinations by the Public Employment Relations Board.” 

(Stats. 2002, ch. 1137, § 1(c), italics added.) The Legislature did 

not state it intended to establish procedures for judicial review of 

decisions of the ERB or ERCOM, separate agencies which the 

Legislature had expressly exempted from PERB’s jurisdiction two 

years earlier in section 3509, subdivision (d). 

Analyses prepared for the Assembly and Senate repeatedly 

stated that the bill would provide “that the Court of Appeal[] has 

jurisdiction to review decisions or orders of the Public 

Employment Relations Board (PERB).” (See, e.g., Assem. Com. 

on Public Employees, Retirement and Social Security, analysis of 

Assem. Bill No. 2908 (2001-2002 Reg. Sess.) as amended Apr. 29, 

2002, p. 1; Assem. Com. on Appropriations, analysis of Assem. 

Bill No. 2908 (2001-2002 Reg. Sess.) as amended Apr. 29, 2002, 

p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading 

analysis of Assem. Bill No. 2908 (2001-2002 Reg. Sess.) as 

amended Aug. 5, 2002, p. 1 [“This bill . . . provides that the Court 

of Appeal[ ] has jurisdiction to review decisions or orders of the 

Public Employment Relations Board”].) Bill analyses repeatedly 

explained that the bill was “ ‘a necessary clean-up measure’ ” to 

Senate Bill No. 739, which had enacted section 3509 in 2000. It 

had become “ ‘apparent that there was the need for some 

clarification with respect to the Court of Appeal[ ] having 

jurisdiction to review PERB decisions; and on unfair practice 

charges over local rules that are in violation [of] the statute. 
22

Currently, the other collective bargaining laws for school, state 

and higher education employees all clearly state that the Court of 

Appeal[ ] has jurisdiction to review decisions or orders by PERB if 

an aggrieved person or entity makes a petition for a writ of 

extraordinary relief.’ ” (Assem. Com. on Public Employees, 

Retirement and Social Security, analysis of Assem. Bill No. 2908, 

supra, at p. 1.) 

Likewise, a bill analysis prepared by the Department of 

Finance explained that when section 3509 was enacted, 

“jurisdiction for the resolution of unfair labor practice charges 

and representation disputes under the MMBA” was transferred 

“from the courts to PERB. Prior to [Senate Bill No. 739, which 

enacted section 3509], PERB administered only three statutes: 

the Higher Education Employment Relations Act, the Education

Employment Relations Act, and the Ralph C. [Dills] Act. All 

three statutes provide that the Court of Appeal[ ] shall review the 

decisions made by PERB. However, provisions within [Senate 

Bill No. 739] failed to change jurisdiction of the review process for 

MMBA-related decisions by PERB from the Superior Court (as 

was practiced by the court system) to the Courts of Appeal[ ] (as 

is practiced by other statutes administered by PERB). [¶] 

[Assembly Bill No.] 2908 place[s] the review of MMBA decisions 

by PERB with the Court of Appeal[ ].” (Dept. of Finance, Bill 

Analysis of Assem. Bill No. 2908 (2001-2002 Reg. Sess.) as 

amended Aug. 5, 2002.) 

The upshot of the foregoing is that the Legislature, in 

enacting section 3509.5, intended to make sure the review 

procedure for PERB decisions was consistent, regardless of which 

statute was at issue. There is no reason to assume the 

Legislature thought such uniformity was desirable for decisions 
23

issued by ERB and ERCOM, administrative bodies which are 

separate from the PERB. Certainly, nothing in the committee 

reports or legislative history indicates an intent that section 

3509.5 apply to ERB decisions. 

Additionally, the history of section 3509 suggests the 

Legislature did not intend to divest the superior courts of 

jurisdiction to entertain mandate proceedings in regard to ERB, 

as opposed to PERB, decisions. Section 3509 was enacted by 

Senate Bill No. 739, which was introduced on February 24, 1999 

and amended nine times before it became law. An August 16, 

1999 amendment to the bill renumbered former section 3509 and 

added the provision that eventually became current section 3509. 

(Sen. Bill No. 739 (1999-2000 Reg. Sess.) §§ 6, 9, as amended 

Aug. 16, 1999.) As originally drafted, subdivision (d) provided: 

“Notwithstanding subdivisions (a) to (c), inclusive, the employee 

relations commissions established by, and in effect for, the 

County of Los Angeles and the City of Los Angeles pursuant to 

Section 3507 shall have the power and responsibility to take 

actions on recognition, unit determinations, elections, and unfair 

practices, and to issue determinations and orders as the employee

relations commissions deem necessary, consistent with and 

pursuant to the policies of this chapter. Any judicial review 

applicable to a superior court or municipal court shall be filed 

directly with the Court of Appeal.” (Sen. Bill No. 739 (1999-2000 

Reg. Sess.) § 9, as amended Aug. 16, 1999, italics added.) The 

italicized language was subsequently removed in a June 6, 2000 

amendment. (Sen. Bill No. 739 (1999-2000 Reg. Sess.) as 

amended June 6, 2000.) The Legislature’s consideration and 

subsequent rejection of the language requiring judicial review of 

ERB decisions in the Court of Appeal is strong evidence it did not 
24

intend section 3509.5 to apply to review of ERB decisions. “ ‘The 

rejection by the Legislature of a specific provision contained in an 

act as originally introduced is most persuasive to the conclusion 

that the act should not be construed to include the omitted 

provision.’ ” (People v. Soto (2011) 51 Cal.4th 229, 245; O.W.L. 

Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568, 

590-591 [the “ ‘Legislature’s rejection of specific language 

constitutes persuasive evidence a statute should not be 

interpreted to include the omitted language’ ”]; People v. Goodloe 

(1995) 37 Cal.App.4th 485, 491; Wilson v. City of Laguna Beach

(1992) 6 Cal.App.4th 543, 555; Central Delta Water Agency v. 

State Water Resources Control Bd. (1993) 17 Cal.App.4th 621, 

634.)

7

To sum up, the legislative history supports our conclusion 

based on the plain language of the statutes. Neither the plain 

language of the relevant statutes nor their legislative history 

suggest that section 3509.5 applies to the review of ERB 

decisions. 

As noted, the superior court agreed that the foregoing 

considerations supported the conclusion that section 3509.5 did 

not apply to ERB decisions, but understandably felt constrained

by contrary language in Singletary. In Singletary, plaintiffs, 

DWP security guards, claimed that their union had breached its 

duty of fair representation, as well as the collective bargaining 

 

7 MEA argues that the subsequent rejection of the language 

contained in the August 16, 1999 amendment to Senate Bill 

No. 739 is irrelevant because the Legislature’s action pertained to 

the enactment of section 3509 in 2000, rather than the enactment 

of section 3509.5 in 2002. We disagree that this circumstance 

renders the legislative history irrelevant. 
25

agreement, by failing to ensure overtime was fairly allotted. 

(Singletary, supra, 212 Cal.App.4th at p. 37.) They filed a 

complaint in the superior court against the union and the City 

without first obtaining a formal adjudication of the issue by the 

ERB. (Id. at pp. 38-39.) The union demurred on the ground that, 

inter alia, under section 3509 the superior court lacked subject 

matter jurisdiction to initially adjudicate the charge. (Singletary,

at pp. 39-40.) The superior court agreed that ERB had exclusive

initial jurisdiction over the claims and dismissed the complaint. 

(Id. at pp. 37, 40.) On appeal, plaintiffs argued that ERB did not 

have exclusive initial subject matter jurisdiction because, 

although subdivision (d) of section 3509 granted ERB authority to 

conduct proceedings, the statute did not state that such authority 

was exclusive. Plaintiffs also contended they had exhausted their 

administrative remedies, permitting them to proceed to superior 

court. (Singletary, at p. 41.) 

Our colleagues in Division One affirmed. The court 

reasoned that when remedies are available before an 

administrative body, a party must generally exhaust those 

remedies before seeking judicial relief. (Singletary, supra, 

212 Cal.App.4th at p. 45.) Citing an Assembly analysis of Senate 

Bill No. 739, Singletary observed that when the Legislature 

extended PERB’s jurisdiction in 2000, it recognized that the 

MMBA had “ ‘no effective enforcement procedures except for 

court action, which is time-consuming and expensive. One of the 

basic principles of an effective collective bargaining law should be

to provide for enforcement by an administrative agency with 

expertise in labor relations. The appropriate role for the courts is 

to serve as an appellate body.’ ” (Id. at p. 42, quoting Assem. 

Com. on Appropriations, analysis of Sen. Bill No. 739 (1999-2000 
26

Reg. Sess.) as amended June 6, 2000, p. 2.) The court reasoned 

that interpreting section 3509, subdivision (d) to allow an unfair 

labor practice charge to be filed in the superior court in the first 

instance “would nullify the stated legislative purpose of providing 

primary jurisdiction in personnel boards for review of violations 

of the MMBA. Given that the City’s ERB was created in 1971, 

before the establishment of PERB in 1975, when the Legislature 

acted in 2000 to expressly specify the means of review of 

decisions of PERB, the Legislature did not want to appear to 

nullify the powers of ERB. Consistent with this purpose, the 

word ‘[n]otwithstanding’ that prefaces subdivision (d) of section 

3509 does not operate to exempt ERB from the review provisions 

of section 3509, but is merely a recognition of ERB’s continued 

autonomy as an employee relations board. This fact is recognized 

in the closing clause of subdivision (d), which states that ERB has 

the power to ‘issue determinations and orders as the employee 

relations commissions deem necessary, consistent with and 

pursuant to the policies of this chapter.’ [Citation.] Thus, the 

provisions of section 3509, subdivisions (a) through (c), to the 

extent they delimit the jurisdiction of the courts vis-à-vis review 

of the actions of employee relations boards, apply equally to ERB 

except that those sections do nothing in derogation of ERB’s 

powers. [¶] For this reason, even if plaintiffs had exhausted their 

administrative remedies by pursuing their claims before ERB, 

plaintiffs could not have commenced their action in superior court 

to challenge ERB’s ruling. Instead, pursuant to section 3509.5, 

subdivisions (b) and (c), they were required to commence a writ 

petition in the Court of Appeal within 30 days of the adverse 

decision. As a result, the trial court did not err in dismissing the 
27

action for lack of jurisdiction.” (Singletary, at p. 46, second italics 

added.) 

The DWP argues that the second italicized portion of 

Singletary was dicta, in that the primary issue before the court 

was whether the ERB had exclusive initial jurisdiction over the 

plaintiffs’ claims, not whether section 3509.5 applied. It points 

out that an appellate decision is not authority for everything 

stated in the opinion, but only for the points actually involved 

and actually decided. “Mere observations by an appellate court 

are dicta and not precedent, unless a statement of law was 

‘necessary to the decision . . . .’ ” (Areso v. CarMax, Inc. (2011) 

195 Cal.App.4th 996, 1006.) The superior court, on the other 

hand, carefully parsed the Singletary decision and concluded 

Singletary’s observations were not dicta, but were necessary to 

resolve the plaintiffs’ contention that they had exhausted their 

administrative remedies, a point that was actually involved and 

actually decided in the decision. 

Whether dicta or not, in light of the plain language of 

section 3509.5 and the legislative history discussed ante, we 

respectfully part company with Singletary insofar as it concluded 

that a party challenging an ERB decision must commence a writ 

petition in the Court of Appeal within 30 days of the decision 

pursuant to section 3509.5.8 On this point, Singletary’s 

conclusion appears to be based on the language in section 3509, 

subdivision (d), that ERB and ERCOM have “the power and 

responsibility to take actions on . . . all unfair practices, and to 

 

8 Although the MEA’s demurrer below relied primarily on 

the Singletary decision, on appeal the MEA makes little attempt 

to argue the case was correctly decided. 
28

issue determinations and orders as [they] deem necessary, 

consistent with and pursuant to the policies of this chapter.” 

(§ 3509, subd. (d), italics added.) Singletary appears to have 

assumed that this language required that the jurisdictional rule 

contained in section 3509.5, subdivision (b), applied to the ERB 

as well as to the PERB. In our view, this conclusion does not 

follow from the statutory language. As the DWP argues and the 

superior court suggested, as used in section 3509, subdivision (d), 

the word “policies” is substantive and requires that the ERB 

adhere to the guiding principles of the MMBA when enforcing the

ERO. (See County of Los Angeles, supra, 56 Cal.4th at p. 917

[ERCOM must exercise its authority in a manner consistent with 

and pursuant to the policies of the MMBA as interpreted and 

administered by PERB; accordingly, the County’s ordinance must 

be construed to avoid any conflict with the MMBA].) Black’s Law 

Dictionary defines “policy” as, inter alia, “[t]he general principles 

by which a government is guided in its management of public 

affairs.” (Black’s Law Dict. (9th ed. 2009) p. 1278, col. 1.) In 

other words, “policies,” as used in section 3509, subdivision (d), 

does not compel a conclusion that every procedural rule 

applicable to PERB must likewise apply to ERB. Given the 

absence of any clear indication the Legislature intended section 

3509.5, subdivision (b)’s jurisdictional rule to apply to ERB, the 

reference in section 3509 to consistency with the policies of the 

chapter neither creates ambiguity nor compels the conclusion 

that section 3509.5, subdivision (b) applies to ERB decisions.

Nor do we think that our conclusion undercuts Singletary’s 

primary holding that the ERB has exclusive initial jurisdiction 

over unfair practices charges. As Singletary pointed out, when 

remedies are available before an administrative body – such as 
29

the ERB here – a party generally must exhaust those remedies 

before seeking judicial relief. (Singletary, supra, 212 Cal.App.4th 

at p. 45.) Furthermore, the legislative history cited by 

Singletary, expressing the Legislature’s intent to effectuate the 

broad policy of providing for enforcement by an administrative 

agency with expertise in labor relations, with the courts serving 

an appellate function, also supports the conclusion that the ERB 

has exclusive initial jurisdiction over alleged MMBA violations. 

(Id. at p. 42.) These points amply support Singletary’s conclusion 

that the ERB has exclusive initial jurisdiction over unfair 

practices charges involving the City and its employees. Further, 

the City’s ERO provides that claims of unfair employee relations 

practices “shall be processed by the Board [the ERB] in 

accordance with its rules.” (L.A. Admin. Code, §§ 4.860, subd. (c); 

4.801.) Here, of course, the ERB did exercise initial jurisdiction 

over the MEA’s unfair practice charge, and excluding ERB 

decisions from section 3509.5’s reach does not conflict with the 

legislative intent that expert administrative bodies, rather than 

the courts, exercise initial jurisdiction over MMBA charges. 
30

DISPOSITION

The judgment is reversed and the matter is remanded for

further proceedings consistent with the opinions expressed 

herein. Each party shall bear its own costs.

CERTIFIED FOR PUBLICATION

ALDRICH, J.

We concur:

EDMON, P. J.

STRATTON, J.

 

 Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.