Filed 5/9/16

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GERAWAN FARMING, INC.,

Plaintiff and Appellant,

v.

AGRICULTURAL LABOR RELATIONS 

BOARD et al.,

Defendants and Respondents.

F069896

(Super. Ct. No. 13CECG03374)

LUPE GARCIA,

Intervener and Appellant,

v.

AGRICULTURAL LABOR RELATIONS 

BOARD et al.,

Defendant and Respondents.

F070287

(Super. Ct. No. 13CECG03374)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Mark W. 

Snauffer, Judge.

 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts IV., V. and VI.
2.

Georgeson and Belardinelli, C. Russell Georgeson; Irell & Manella, David A. 

Schwarz, Bruce A. Wessel and Josh Geller for Plaintiff and Appellant.

Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Eugene 

Volokh for The Reporters Committee for Freedom of the Press, The First Amendment 

Coalition, and The California Newspaper Publishers‘ Association as Amici Curiae on 

behalf of Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney 

General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for 

Defendants and Respondents.

Walter & Wilhelm Law Group and Paul J. Bauer for Intervener and Appellant.

-ooOooPursuant to Labor Code section 1164 et seq., if an agricultural employer and a 

union certified to represent the agricultural employees of that employer have failed to 

reach an initial collective bargaining agreement (CBA), the Agricultural Labor Relations 

Board (the Board) may, if requested by one of the parties and certain statutory conditions 

are met, order them to undergo a binding process referred to in the statute as ―mandatory 

mediation and conciliation‖ (MMC).1 (§ 1164, subd. (a).) In the MMC process, after an 

initial 30-day period of voluntary mediation is exhausted, a decision-maker (the 

mediator) takes evidence and hears argument from the parties on all disputed issues (the 

―on the record‖ phase of the MMC process) and then submits a ―report‖ to the Board 

stating the mediator‘s findings on what he or she believes the terms of the CBA should 

be. The grounds for the mediator‘s determinations must be stated in the report and 

supported by the factual record. (§ 1164, subd. (d).) When the report becomes the final 

 

1 Unless otherwise indicated, all further statutory references are to the Labor Code. 

Section 1164 et seq. is often referred to herein as the MMC statute. The MMC statute is one 

chapter (i.e., ch. 6.5) of division 2, part 3.5, of the Labor Code, a comprehensive statutory 

framework entitled the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 

1975 (Lab. Code, § 1140 et seq.; the ALRA).
3.

order of the Board, it establishes the terms of an imposed CBA to which the parties are 

bound. (§ 1164.3, subds. (a)–(e).)

In this case, Lupe Garcia (Garcia), an employee of agricultural employer, Gerawan 

Farming, Inc. (Gerawan), requested the Board‘s permission to attend and peaceably 

observe the MMC process that had been ordered between Gerawan and United Farm 

Workers (UFW). Specifically, Garcia wished to observe the on-the-record phase of the 

MMC process, where evidence and argument would be presented by the parties to the 

mediator on all disputed issues. In his request to the Board, Garcia argued that he and 

other members of the public had a constitutional right of access to the on-the-record 

portion of the MMC process. The Board rejected Garcia‘s request and proceeded to issue 

a broad policy decision that members of the public have no right to attend MMC 

proceedings. (See Gerawan Farming, Inc. v. United Farm Workers of America (Aug. 21, 

2013) 39 ALRB No. 13.)2

In response to the Board‘s no-public-access ruling, Gerawan filed a declaratory 

relief action in the trial court, seeking a judicial declaration that the Board‘s ruling 

violated a right of public access protected under both the federal and state Constitutions. 

Garcia intervened in the same action and filed a similar pleading in the form of a 

complaint-in-intervention. The Board demurred to both complaints on the ground that 

the trial court lacked jurisdiction because section 1164.9 limited all judicial review of the 

Board‘s rulings in such cases to the Court of Appeal or Supreme Court. The trial court 

agreed with the Board and sustained the demurrers without leave to amend. Gerawan and 

Garcia have separately appealed from the resulting judgments3 of dismissal, arguing that 

(1) section 1164.9 did not preclude the trial court from exercising jurisdiction because 

 

2 We have generally referred to this ruling in 39 ALRB No. 13 as the Board‘s ―no-publicaccess‖ ruling or policy.

3 Separate judgments were entered by the trial court against Gerawan and Garcia, 

respectively, and thus we use the plural.
4.

that section is unconstitutional and (2) the Board‘s no-public-access policy violates a 

right of public access to civil proceedings protected under the federal or state 

Constitution, or both.4

We agree with Gerawan and Garcia on the first point, and we remand the action to 

the trial court on the second. As to section 1164.9, we hold that its absolute preclusion of 

superior court jurisdiction, even in exceptional circumstances where (as with Garcia) the 

sole statutory mechanism for judicial review was unavailable and constitutional rights 

were assertedly at stake, impermissibly divested the superior court of its original 

jurisdiction without an adequate constitutional foundation for doing so. Therefore, 

section 1164.9 is unconstitutional.

It follows that the judgments of dismissal must be reversed. The trial court had 

jurisdiction to reach the constitutional issues raised in the several causes of action. 

Accordingly, we will reverse and remand the case back to the trial court for further 

proceedings consistent with this opinion.5

FACTS AND PROCEDURAL HISTORY

Gerawan is a family owned farming business based in the Fresno area that grows, 

harvests and packs stone fruit and table grapes. It provides employment to several 

thousand agricultural employees. In 1992, following a contested run-off election, the 

UFW was certified by the Board as the exclusive bargaining representative of Gerawan‘s 

 

4 Garcia filed a separate appeal in case No. F070287. Because the appeals by Gerawan and 

Garcia are virtually identical as to the issues raised, we have ordered the two appeals 

consolidated for purposes of this opinion.

5 Our resolution of the discrete issue of section 1164.9‘s invalidity should not affect the 

related case before the California Supreme Court addressing other aspects of the MMC statute. 

(See Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., review granted Aug. 19, 2015, 

S227243.) In that case, the issues being considered by the court are whether the MMC statute 

unconstitutionally violates equal protection principles or improperly delegates legislative power, 

as well as whether an employer may raise the defense of union abandonment.
5.

agricultural employees. Although some initial bargaining discussions took place at that 

time, Gerawan and UFW never entered into a CBA.

After an absence of contact for nearly two decades, UFW reappeared in late 2012 

and demanded a resumption of negotiations with Gerawan. In early 2013, following 

several bargaining sessions with Gerawan, UFW filed a request to the Board to have the 

parties ordered into the MMC process pursuant to section 1164 et seq. On April 16, 

2013, the Board granted UFW‘s request and ordered Gerawan and UFW to commence 

the MMC process. A mediator, Matthew Goldberg, was appointed in May 2013.

On June 10, 2013, Garcia, a longtime agricultural employee of Gerawan, appeared 

at an early MMC meeting (along with other Gerawan employees) and asked the mediator 

for permission to intervene and participate in the proceedings. At that point in time, the 

initial voluntary mediation phase of the MMC process had not yet been exhausted. 

Gerawan supported the idea of allowing employee participation, but UFW did not. The 

mediator denied Garcia‘s request, explaining that the mediation proceedings were 

confidential and that he (Garcia) was not a party to those proceedings.

On July 10, 2013, Garcia filed a petition with the Board as an alleged interested 

party, seeking the Board‘s permission to formally intervene and participate in the MMC 

process. Garcia wanted to participate as an intervening party because the proceedings 

would likely impact terms and conditions of his employment. He believed that UFW had 

abandoned him, did not represent him and could not adequately represent his interests. 

Gerawan filed points and authorities supporting Garcia‘s petition to intervene. Among 

other things, Gerawan argued that employees (such as Garcia) and other members of the 

public were entitled to attend the on-the-record phase of the MMC process based on a 

qualified First Amendment right-of-access. On July 29, 2013, the Board denied Garcia‘s 

petition to intervene. The Board declined to reach Gerawan‘s public access argument 

because Gerawan allegedly did not have standing to raise Garcia‘s rights, and Garcia‘s 

petition had not raised the argument.
6.

On August 2, 2013, Garcia filed a modified request to the Board, asking for 

permission to simply attend and quietly observe the on-the-record portion of the MMC 

process. This time, the request was expressly based on an asserted constitutionally 

protected right of public access to such proceedings. On August 21, 2013, the Board 

denied Garcia‘s access request. The Board stated it was willing to address the issue 

because of its importance: ―[T]he issue raised by Garcia—whether Garcia and the public 

have a right of public access to MMC proceedings under the federal and state 

constitutions—presents an issue of first impression which, if left unresolved, could 

potentially result in the deprivation of constitutionally protected rights.‖ The Board 

discussed the relevant Supreme Court and other precedents and held that the MMC 

process was distinguishable from civil trials or civil proceedings in which the public has a 

right of access. The Board reasoned that the MMC process is ―more akin to a labor 

contract negotiation,‖ and expressed that it could ―not see how public access would play 

a significant positive role in the functioning of MMC or any type of labor contract 

negotiation for that matter.‖ Therefore, the Board concluded that there was no First 

Amendment right of access to the Board‘s ―quasi-legislative proceeding known as 

MMC.‖ The Board also ruled that the public had no right of access to MMC proceedings 

under the California Constitution.

Gerawan filed its complaint for declaratory relief in Fresno County Superior Court 

on October 28, 2013. Gerawan‘s complaint sought a judicial declaration that the Board‘s 

no-public-access ruling violated the federal and state Constitutions by denying to 

members of the public and the press a right of access to the on-the-record phase of the 

MMC process. Gerawan‘s complaint also sought damages, attorney fees and injunctive 

relief under title 42 United States Code section 1983 (42 U.S.C. section 1983) against 

individual Board members or officials, premised on the alleged violation of access rights 

under the federal Constitution.
7.

On December 23, 2013, Garcia filed a motion to intervene in the action in order to 

file a proposed complaint-in-intervention. On February 11, 2014, the trial court granted 

Garcia‘s motion. Garcia‘s complaint-in-intervention was filed on April 1, 2014. Like 

Gerawan‘s complaint, Garcia‘s complaint-in-intervention sought declaratory relief that 

the Board‘s no-public-access ruling violated federal and state constitutional protections of 

a right of public access to such proceedings. Garcia also sought damages, attorney fees 

and injunctive relief under 42 U.S.C. section 1983 against individual Board members.

The Board demurred to both the complaint and complaint-in-intervention, arguing 

primarily that the trial court lacked jurisdiction to hear any challenge to the Board‘s 

rulings or decisions, based on section 1164.9. In relevant part, that section provides: ―No 

court of this state, except the court of appeal or the Supreme Court, to the extent specified

in this article, shall have jurisdiction to review, reverse, correct, or annul any order or 

decision of the board ....‖ (Italics added.) The Board also argued that even if 

section 1164.9 did not divest the trial court of jurisdiction, no cause of action under

42 U.S.C. section 1983 was available against the individual Board members. 

Additionally, in its demurrer to Garcia‘s complaint-in-intervention, the Board argued that 

Garcia‘s pleading was untimely under the 30-day deadline for seeking judicial review set 

forth in section 1164.5, and also that declaratory relief was not a proper means for 

challenging the Board‘s rulings.

A hearing on the demurrer to Gerawan‘s complaint was held on March 13, 2014. 

The trial court‘s tentative ruling was to sustain the demurrer without leave to amend 

because of the jurisdictional bar of section 1164.9, and also because (as to the cause of 

action under 42 U.S.C. section 1983) immunity defenses would shield the individual 

Board members or officials. Following the hearing, the trial court took the matter under 

submission and also allowed additional letter briefs to be submitted. On May 15, 2014, 

the trial court issued an order affirming its tentative ruling to sustain the demurrer without 

leave to amend, stating that ―section 1164.9 is dispositive in this matter and is not an 
8.

unconstitutional interference with the trial court‘s original jurisdiction.‖ A judgment of 

dismissal was entered against Gerawan on June 6, 2014.

A hearing was held on the Board‘s demurrer to Garcia‘s complaint-in-intervention 

on June 4, 2014. By order issued on July 7, 2014, the court‘s tentative ruling was 

adopted as the court‘s order. The trial court sustained the demurrer without leave to 

amend, based on the jurisdictional bar of section 1164.9. Additionally, the demurrer was 

sustained based on Garcia‘s failure to seek judicial review within the 30-day deadline of 

section 1164.5, and because the 42 U.S.C. section 1983 cause of action was not available 

against individual Board members or officials sued in their official capacities. A 

judgment of dismissal was entered against Garcia on July 25, 2014.

Gerawan and Garcia timely filed their separate appeals, raising substantially the 

same issues. We ordered the two appeals consolidated for purposes of this opinion.

DISCUSSION

I. Standard of Review

On appeal from a judgment dismissing an action after sustaining a demurrer, we 

review de novo whether the complaint states facts sufficient to constitute a cause of 

action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Where a 

demurrer is sustained without leave to amend, we decide whether there is a reasonable 

possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 

Cal.3d 311, 318.)

An issue of statutory interpretation is reviewed de novo (People ex rel. Lockyer v. 

Shamrock Foods Co. (2000) 24 Cal.4th 415, 432), as is the issue of whether a statute is 

constitutional (People v. Superior Court (Mudge) (1997) 54 Cal.App.4th 407, 411). On 

the latter question, ― ̳We do not consider or weigh the economic or social wisdom or 

general propriety‘‖ of the challenged statute; but rather, ― ̳our sole function is to evaluate 

[it] legally in the light of established constitutional standards.‘‖ (Calfarm Ins. Co. v. 

Deukmejian (1989) 48 Cal.3d 805, 814.) We do so while also recognizing that 
9.

― ̳[s]tatutes must be upheld unless their unconstitutionality clearly, positively and 

unmistakably appears.‘‖ (Ibid.)

II. Judicial Review Provisions of MMC Statute

As alluded to above, if the parties to the MMC process are unable to enter a CBA 

during the initial 30-day voluntary mediation, the mediator certifies that ―the mediation 

process has been exhausted.‖ (§ 1164, subd. (c).) At that point, the on-the-record phase 

of the MMC process commences, in which evidence is received and an official record is 

maintained: ―Within 21 days, the mediator shall file a report with the board that resolves 

all of the issues between the parties and establishes the final terms of a collective 

bargaining agreement .... [T]he report shall include the basis for the mediator‘s 

determination. The mediator‘s determination shall be supported by the record.‖ (§ 1164, 

subd. (d); see Cal. Code of Regs., tit. 8, § 20407, subds. (c) & (d).) Within seven days of 

the filing of the report by the mediator, either party may petition the Board for review of 

the report. Subject to any relief granted in the Board‘s review, the report becomes the 

final order of the Board. (§ 1164.3.)

Judicial review of a final order of the Board in the MMC process is described in 

sections 1164.5, 1164.7 and 1164.9. Section 1164.5, subdivision (a), states that ―[w]ithin 

30 days after the order of the board takes effect, a party may petition for a writ of review 

in the court of appeal or the California Supreme Court.‖ The same section provides that 

such review by the Court of Appeal or the Supreme Court is limited to (or ―shall not 

extend further than‖) certain grounds, including whether (1) the Board acted in excess of

its jurisdiction, (2) the Board has not proceeded in a manner required by law, and (3) the 

order or decision of the Board violated any right of the petitioner under the state or 

federal Constitution. (§ 1164.5, subd. (b).) Section 1164.7, subdivision (a), states that 

―[t]he board and each party to the action or proceeding before the mediator‖ may appear 

in such a review proceeding in the Court of Appeal or Supreme Court. Upon the review 
10.

hearing taking place, ―the court of appeal or the Supreme Court shall enter judgment 

either affirming or setting aside the order of the board.‖ (Ibid.)

Finally, section 1164.9 sets forth the following jurisdictional restriction on the 

judicial review process: ―No court of this state, except the court of appeal or the 

Supreme Court, to the extent specified in this article, shall have jurisdiction to review, 

reverse, correct, or annul any order or decision of the board [or] to suspend or delay the 

execution or operation thereof, or to enjoin, restrain, or interfere with the board in the 

performance of its official duties, as provided by law and the rules of court.‖

III. Section 1164.9 is Unconstitutional

Based on the plain terms of section 1164.9, the trial court sustained the demurrer 

on the ground that it had no jurisdiction over the causes of action challenging the Board‘s 

no-public-access ruling. In the present appeal, Gerawan and Garcia argue the trial court 

erred because section 1164.9 is invalid in that it unconstitutionally divests the superior 

court of original jurisdiction. For the reasons set forth below, we agree.

A. Framing the Constitutional Issue

Article VI, section 10 of the California Constitution provides that ―[t]he Supreme 

Court, courts of appeal, superior courts, and their judges have original jurisdiction in 

habeas corpus proceedings‖ and ―in proceedings for extraordinary relief in the nature of 

mandamus, certiorari, and prohibition.‖ ―Superior courts have original jurisdiction in all 

other causes.‖ (Ibid.) Because original jurisdiction has been vested in these courts by the 

California Constitution, the Legislature is not free to defeat or impair that jurisdiction. 

(California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 252–253; Chinn 

v. Superior Court (1909) 156 Cal. 478, 480 [―where the judicial power of courts, either 

original or appellate, is fixed by constitutional provisions, the legislature cannot either 

limit or extend that jurisdiction‖].) Nevertheless, statutes barring judicial review of 

certain administrative decisions except in the courts of appeal and/or Supreme Court have 

been upheld, but only where the Legislature‘s authority to enact such laws was found to 
11.

be expressly or impliedly granted by other constitutional provisions. (County of Sonoma 

v. State Energy Resources Conservation etc. Com. (1985) 40 Cal.3d 361, 369–370 

(County of Sonoma).)

Here, section 1164.9 patently seeks to eliminate all superior court jurisdiction to 

review the Board‘s rulings or decisions in connection with the MMC process, even while 

it exclusively confines such review to the Court of Appeal or the Supreme Court. Does 

section 1164.9 unconstitutionally divest the superior court of its original jurisdiction 

granted under article VI, section 10 of the California Constitution? As already noted, the 

answer to that question depends on whether there is any other constitutional provision 

that would expressly or impliedly grant to the Legislature the power to divest the superior 

court of its original jurisdiction in such matters.

B. The Precedents Establish Our Approach

Although the approach we follow is articulated in the preceding sentence, we have 

not yet explained why we believe it represents the correct legal standard for analyzing the 

constitutional issue before us. That is our present task, which is made simpler by the fact 

that the wording of section 1164.9 is not unique and the question of how to resolve the 

constitutional issue before us is not new. On several prior occasions, the Legislature has 

enacted statutes virtually identical to section 1164.9.6 Indeed, it seems certain that 

section 1164.9 was modeled after these prior statutes. Because these prior enactments 

were challenged on the same constitutional ground as here, a number of relevant 

precedents exist (including opinions of the California Supreme Court) that highlight the 

correct legal test to be applied. We now examine these key precedents.

In Pacific Telephone etc. Co. v. Eshleman (1913) 166 Cal. 640 (Eshleman), the 

Supreme Court addressed the constitutionality of a statute that conferred exclusive 

 

6 See, e.g., Labor Code section 5955, Public Utilities Code section 1759 (formerly § 67 of 

the Public Utilities Act), and Business and Professions Code section 23090.5, each of which 

contain substantially the same wording as Labor Code section 1164.9.
12.

jurisdiction on the Supreme Court to review the decisions of the Railroad Commission. 

The statute under consideration was section 67 of the former Public Utilities Act,7 which 

section stated in relevant part that ― ̳[n]o court of this state (except the supreme court to 

the extent herein specified) shall have jurisdiction to reverse, correct, or annul any order 

or decision of the commission or to suspend or delay the execution or operation thereof, 

or to enjoin, restrain, or interfere with the commission in the performance of its official 

duties.‘‖ (Eshleman, supra, at p. 649.) As in our present appeal, the petitioner in 

Eshleman argued that by conferring exclusive jurisdiction on the Supreme Court, the 

Legislature violated the Constitution by impairing the original jurisdiction of the superior 

court. (Ibid.) The Supreme Court declared it was a fact ―which cannot be blinked [at] 

and must be faced‖ that ―the legislature has with deliberation restricted and curtailed the 

jurisdiction vested in the superior courts of this state by the constitution. And upon this 

but one thing can be said. If there be not in the constitution itself warrant and power to 

the legislature to do this thing, its effort must be declared illegal.‖ (Id. at p. 652, italics 

added.) As will be seen, this rule pronounced by the Supreme Court in Eshleman

established the basic test to be applied in such cases.

In ascertaining whether any provision of the Constitution would permit the 

Legislature to divest the superior court of jurisdiction to review Railroad Commission 

decisions, Eshleman examined the provisions of former article XII, sections 22 and 23 of 

the California Constitution, which had established and empowered a Railroad 

 

7 With minor modifications, this jurisdictional statute is now codified in Public Utilities 

Code section 1759. (See Hickey v. Roby (1969) 273 Cal.App.2d 752, 763–764.) Section 1759, 

subdivision (a), of the Public Utilities Code states: ―No court of this state, except the Supreme 

Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to 

review, reverse, correct, or annul any order or decision of the commission or to suspend or delay 

the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the 

performance of its official duties, as provided by law and the rules of court.‖ Subdivision (b) of 

Public Utilities Code section 1759 states: ―The writ of mandamus shall lie from the Supreme 

Court and from the court of appeal to the commission in all proper cases as prescribed in Section 

1085 of the Code of Civil Procedure.‖
13.

Commission.8 (Eshleman, supra, 166 Cal. at pp. 652–654.) We briefly reiterate the 

relevant constitutional provisions considered by the court. Under former article XII, 

section 22, of the California Constitution, the Railroad Commission was granted power to 

establish rates charged by railroads and other transportation companies, to hear and 

determine complaints, administer oaths, subpoena witnesses, examine records, take 

testimony and punish for contempt in the same manner as courts of record. (Cal. Const., 

reprinted at vol. 3, Deering Ann. Cal. Codes (1974 ed.) at pp. 201–202 [former Cal. 

Const., art. XII, § 22, as amended in 1911].) Former article XII, section 22, further 

provided: ― ̳No provision of this constitution shall be construed as a limitation upon the 

authority of the legislature to confer upon the railroad commission additional powers of 

the same kind or different from those conferred herein which are not inconsistent with the 

powers conferred upon the railroad commission in this constitution, and the authority of 

the legislature to confer such additional powers is expressly declared to be plenary and 

unlimited by any provision of this constitution.‘‖ (Eshleman, supra, 166 Cal. at p. 653.) 

Additionally, as summarized by the court in Eshleman: ―Section 23 of the same article 

defined  ̳public utilities‘ and brought all such utilities under the control of the railroad 

commission. Section 23 then declared:  ̳The railroad commission shall have and 

exercise such power and jurisdiction to supervise and regulate public utilities, in the state 

of California, and to fix the rates to be charged for commodities furnished, or services 

rendered by public utilities as shall be conferred upon it by the legislature, and the right 

of the legislature to confer powers upon the railroad commission respecting public 

 

8 Under subsequent amendments to article XII of the California Constitution, the Railroad 

Commission became the present Public Utilities Commission (PUC). (See Cal. Const., art. XII, 

§§ 1–9.) The current article XII, section 5, states the Legislature‘s authority more succinctly 

than the earlier versions, as follows: ―The Legislature has plenary power, unlimited by the other 

provisions of this constitution but consistent with this article, to confer additional authority and 

jurisdiction upon the commission, to establish the manner and scope of review of commission 

action in a court of record, and to enable it to fix just compensation for utility property taken by 

eminent domain.‖
14.

utilities is hereby declared to be plenary and to be unlimited by any provision of this 

constitution.‘‖ (Eshleman, supra, at p. 653.)

Based on the above constitutional provisions, which not only created the Railroad 

Commission with broadly defined powers to regulate railroads, but also expressly granted 

to the Legislature a ― ̳plenary‘‖ authority to confer other powers on the commission 

― ̳unlimited by any provision of this constitution‘‖ (Eshleman, supra, 166 Cal. at p. 653, 

italics added), Eshleman concluded that there was constitutional authority for the 

Legislature to restrict the superior court‘s jurisdiction (id. at pp. 658–660). In other 

words, no infringement was found of the constitutional grant of original jurisdiction to 

the superior courts because other constitutional language gave the Legislature plenary 

authority to add to the powers expressly conferred on the commission unhindered by any 

other provisions of the California Constitution. (See Pickens v. Johnson (1954) 42 Cal.2d 

399, 404 [citing Eshleman for proposition that ―The [PUC] has been established under a 

constitutional enabling act with full power conferred on the Legislature to enact 

legislation even contrary to any other provisions of the Constitution provided it be 

cognate and germane to the regulation and control of public utilities.‖].)

In Loustalot v. Superior Court (1947) 30 Cal.2d 905 (Loustalot), the Supreme 

Court reviewed the constitutionality of a statute permitting only appellate courts to 

review the rulings of the Industrial Accident Commission founded under former 

article XX, section 21 of the California Constitution (now art. XIV, § 4 [workers‘

compensation system].) The subject statute, former section 5955, stated in relevant part 

as follows: ― ̳No court of this State, except the supreme court and the district courts of 

appeal to the extent herein specified, has jurisdiction to review, reverse, correct, or annul 

any order, rule, decision, or award of the commission, or to suspend or delay the 

operation or execution thereof, or to restrain, enjoin, or interfere with the commission in
15.

the performance of its duties....‘‖ (Loustalot, supra, at p. 910, italics omitted.)

9

 

Preliminarily, the Supreme Court noted it was ―without question‖ that Labor Code 

section 5955 was modeled after section 67 of the Public Utilities Act upheld in Eshleman

and, therefore, ―the decisions interpreting section 67‖ would apply, including Eshleman

and its progeny. (Loustalot, supra, at p. 911.)

In concluding the Legislature had authority to enact section 5955, the court in 

Loustalot emphasized that former article XX, section 21 of the California Constitution 

expressly conferred ―plenary power of the Legislature to control the review of Industrial 

Accident Commission decisions subject to the condition that decisions may be reviewed 

by the appellate courts.‖ (Loustalot, supra, 30 Cal.2d at p. 911.) That constitutional 

provision gave plenary power to the Legislature that was ― ̳unlimited by any provisions of 

this constitution‘‖ to create and enforce ― ̳a complete system of workmen‘s 

compensation,‘‖ including the creation of a tribunal vested with the requisite 

governmental functions to determine any dispute or matter arising under such legislation 

― ̳expeditiously, inexpensively, and without encumbrance of any character....‘‖ (Id. at 

p. 912.) The only limitation in article XX, section 21 on the Legislature‘s power with 

respect to the tribunal in question was ―the provision for review of its decisions by this 

court and the District Courts of Appeal.‖ (Loustalot, supra, at p. 912.) Thus, ―[i]n 

restricting any interference with the commission‘s decisions or orders to proceedings in 

the appellate courts, the Legislature has carried out the declared policy of the 

constitutional provision that the commission be unencumbered by any but proceedings in 

the appellate courts.‖ (Id. at pp. 912–913.)

 

9 The current section 5955 refers to the ―appeals board‖ rather than the commission, but is 

otherwise substantially the same. Section 5955 states: ―No court of this state, except the 

Supreme Court and the courts of appeal to the extent herein specified, has jurisdiction to review, 

reverse, correct, or annul any order, rule, decision, or award of the appeals board, or to suspend 

or delay the operation or execution thereof, or to restrain, enjoin, or interfere with the appeals 

board in the performance of its duties but a writ of mandate shall lie from the Supreme Court or a 

court of appeal in all proper cases.‖
16.

Similarly, in Dept. of Alcoholic Bev. Control v. Superior Court (1968) 268 

Cal.App.2d 67 (Dept. of Alcoholic Bev. Control), the Court of Appeal considered the 

constitutionality of a statute that restricts judicial review of decisions of the Department 

of Alcoholic Beverage Control to the appellate courts. The statute in question, Business 

and Professions Code section 23090.5, states as follows: ― ̳No court of this state, except 

the Supreme Court and the courts of appeal to the extent specified in this article,

[10]

shall 

have jurisdiction to review, affirm, reverse, correct, or annul any order, rule, or decision 

of the department or to suspend, stay[,] or delay the operation or execution thereof, or to 

restrain, enjoin, or interfere with the department in the performance of its duties, but a 

writ of mandate shall lie from the Supreme Court or the courts of appeal in any proper 

case.‘‖ (Dept. of Alcoholic Bev. Control, supra, at p. 69.) The court observed that 

Business and Professions Code section 23090.5 was plainly ―modeled after section 5955 

of the Labor Code, which in turn was modeled after section 67 of the Public Utilities Act 

of 1911 [now section 1759 of the Public Utilities Code].‖ (Dept. of Alcoholic Bev. 

Control, supra, at p. 70.)

The issue presented in Dept. of Alcoholic Bev. Control was whether the law‘s 

denial of superior court jurisdiction to review the department‘s decisions was authorized 

by article XX, section 22 of the California Constitution, the provisions addressing the 

state‘s regulation of alcoholic beverages. Among other things, article XX, section 22

expressly establishes and empowers the Department of Alcoholic Beverage Control, 

creates an appeals board, and grants to the Legislature broad powers over the 

implementation of the matters explicitly provided therein. (Cal. Const., art. XX, § 22.) 

In its consideration of the issue before it, the court found it significant that the powers 

conferred upon the Legislature in article XX, section 22 were ―comprehensive‖ in 

 

10 Section 23090.5 is a part of article 5, division 9, chapter 1.5 of the Business and 

Professions Code, which contains the judicial review provisions relating to the decisions of the 

department made by the Alcoholic Beverage Control Appeals Board.
17.

character (Dept. of Alcoholic Bev. Control, supra, 268 Cal.App.2d at p. 73, italics added), 

as indicated by the following summary: ―The first paragraph of section 22 provides that 

the state, and hence the Legislature,  ̳shall have the exclusive right and power to license 

and regulate the manufacture, sale, purchase, possession and transportation of alcoholic 

beverages within the State ...‘ subject to the limitations therein provided. The second 

paragraph provides that  ̳[all] alcoholic beverages may be bought, sold, served, consumed 

and otherwise disposed of in premises which shall be licensed as provided by the 

Legislature‘ and authorizes the Legislature to provide for the issuance of licenses to 

certain types of premises. The fifth paragraph provides that the Department  ̳shall have 

the exclusive power, except as herein provided and in accordance with laws enacted by 

the Legislature‘ to license the manufacture, importation and sale of alcoholic beverages 

in this state. The seventh paragraph relating to appeals to the Board from a decision of 

the Department provides that  ̳the board shall review the decision subject to such 

limitations as may be imposed by the Legislature,‘ prescribes the  ̳scope of review‘ by the 

Board, and concludes with the sentence:  ̳Orders of the board shall be subject to judicial 

review upon petition of the director or any party aggrieved by such order.‘ The thirteenth 

paragraph provides that  ̳[all] constitutional provisions and laws inconsistent‘ with the 

section are repealed and the fourteenth paragraph that the provisions of the section are 

self-executing,  ̳but nothing herein shall prohibit the Legislature from enacting laws 

implementing and not inconsistent‘ with the section.‖ (Id. at pp. 73–74.)

In light of such comprehensive powers conferred on the Legislature in article XX, 

section 22 of the California Constitution, which included the express power to enact laws 

to implement the provisions of section 22 in a manner not inconsistent therewith, the 

court concluded that the Legislature had authority to enact Business and Professions 

Code section 23090.5. (Dept. of Alcoholic Bev. Control, supra, 268 Cal.App.2d at 

pp. 72–75.) The court explained: ―While article XX, section 22, provides that  ̳orders of 

the board shall be subject to judicial review upon petition of the director or any party 
18.

aggrieved,‘ it does not specify the court in which review is to be obtained nor the 

procedure therefor. The enactment of the amendments in question[, i.e., Business and

Professions Code section 23090.5,] merely constitutes a reasonable exercise of the 

express legislative authority to implement or carry out the constitutional provision.‖ (Id.

at pp. 74–75.)

Finally, in County of Sonoma, the county challenged the constitutionality of 

former Public Resources Code section 25531,11 which confined judicial review of a 

narrow class of Energy Commission decisions to the Supreme Court. The issue raised by 

the county was whether the statute infringed on the original jurisdiction of the superior 

courts granted by article VI, section 10 of the California Constitution. (County of 

Sonoma, supra, 40 Cal.3d at p. 367.) The Supreme Court noted that former Public 

Resources Code section 25531 was a means of implementing and facilitating the PUC‘s 

licensing of thermoelectric power facilities in cases in which an Energy Commission 

certificate was required as a prerequisite to PUC approval. (County of Sonoma, supra, at 

pp. 364–366, 371.) Because of this ―close relationship between the functions of the PUC 

and the narrow class of Energy Commission decisions affected by [former Public 

Resources Code] section 25531,‖ the Supreme Court held that the section‘s judicial 

review provisions came ―within the broad legislative authority over PUC matters 

conferred by article XII‖ of the California Constitution. (County of Sonoma, supra, at 

p. 367.) In so holding, the Supreme Court emphasized the broad plenary authority 

granted in article XII, which provides in section 5 that ― ̳[t]he Legislature has plenary 

power, unlimited by the other provisions of this constitution but consistent with this 

article, to confer additional authority and jurisdiction upon the [PUC and] to establish the 

 

11 In relevant part, former Public Resources Code section 25531, subdivision (a), provided 

that certain Energy Commission decisions ― ̳shall be subject to judicial review in the same 

manner as the decisions of the [PUC] ....‘‖ (County of Sonoma, supra, 40 Cal.3d at p. 366, 

fn. 6.)
19.

manner and scope of review of commission action in a court of record ....‘‖ (County of 

Sonoma, supra, at p. 367.) Although article XII referred only to the PUC and not to the 

Energy Commission, the Supreme Court found ―[e]specially pertinent‖ the ―decisions 

which hold that statutes confining judicial review of administrative decisions to the 

appellate courts are within legislative powers implied, but not specified, by the 

Constitution.‖ (County of Sonoma, supra, at pp. 369–370, italics added, citing Loustalot, 

supra, 30 Cal.2d at pp. 912–913 & Dept. of Alcoholic Bev. Control, supra, 268 

Cal.App.2d at p. 74, among other cases.) In light of the strong presumption of the 

constitutionality of legislative acts and the close relationship between the PUC and the 

narrow class of Energy Commission decisions at issue in the statute, the Supreme Court 

concluded that ―the Legislature‘s power to enact the judicial review provisions of [former 

Public Resources Code] section 25531 is implied by the comprehensive authority given 

the Legislature by article XII over the operations of the PUC.‖ (County of Sonoma,

supra, at p. 370.)12

Conspicuously running through the above cases is a common test or standard that 

was applied to determine the constitutionality of the enactment at issue. Each decision 

upholding a statutory elimination of the superior court‘s original jurisdiction to review 

certain administrative decisions was premised explicitly on provisions in the Constitution 

empowering the Legislature to enact the statute in question. In other words, a statute that 

divests the superior court of its original jurisdiction granted under article VI, section 10 

of the California Constitution will be upheld only if the authority to enact such a law is 

expressly or impliedly conferred on the Legislature by other constitutional provisions. 

 

12 A dissenting opinion by Justice Mosk, with whom Justice Lucas concurred, disagreed 

with this conclusion because there was no language in the Constitution referring to the Energy 

Commission by name upon which to premise the restriction on superior court jurisdiction. 

(County of Sonoma, supra, 40 Cal.3d at p. 373 (dis. opn. of Mosk, J.).) The majority opinion and 

the dissenting opinion did not disagree on the test to be applied, but only on the question of 

whether it was satisfied.
20.

As the above summary of the case law demonstrates, this approach is well established by 

longstanding precedent, including decisions of the Supreme Court beginning with 

Eshleman. Thus, we are required to follow and apply that same approach here.

C. No Constitutional Basis to Divest Court of Jurisdiction

Applying the approach necessitated by the above authorities to the present case, 

we are presented with the following question: Is there any provision in the California 

Constitution empowering the Legislature to eliminate the superior court‘s original 

jurisdiction to review the Board‘s decisions relating to MMC matters? The Board claims 

that article XIV, section 1, of the California Constitution supplies what is needed. That 

provision states: ―The Legislature may provide for minimum wages and for the general 

welfare of employees and for those purposes may confer on a commission legislative, 

executive, and judicial powers.‖ We cannot agree with the Board‘s position. There is 

nothing in article XIV, section 1, to even arguably indicate the Legislature was granted 

power to divest the superior court of jurisdiction to review decisions of the Board. While 

that provision does authorize the Legislature to create a commission and to grant judicial 

and other governmental functions to it, the ability to create a commission and endow it 

with certain functions does not imply the power to eliminate the superior courts‘ original 

jurisdiction concerning the Board‘s decisions.

Nor do the relevant precedents assist the Board‘s effort to salvage section 1164.9. 

Unlike the constitutional provisions in the Eshleman and Loustalot cases, article XIV, 

section 1 of the California Constitution does not expressly confer upon the Legislature 

plenary power unlimited by other provisions in the Constitution. Unlike the County of 

Sonoma case, here there is no basis to conclude that the subject matter of the Board‘s 

decisions would come within the broad constitutional authority to restrict judicial review 

of another entity‘s (e.g., the PUC‘s) decisions. Finally, unlike the unique situation in the 

Dept. of Alcoholic Bev.Control case, here there is no comparable and similarly 

comprehensive constitutional scheme in place from which a power to restrict judicial 
21.

review might reasonably be implied from the express provisions. (Dept. of Alcoholic 

Bev. Control, supra, 268 Cal.App.2d at p. 73.) In that case, the constitutional provision 

at issue (1) conferred extensive and detailed powers upon the Legislature over all aspects 

of the subject matter being regulated (i.e., alcoholic beverages in the state), 

(2) established an agency with broadly stated regulatory powers, including the creation of 

an appeals board and a requirement of some form of judicial review, and (3) explicitly 

gave to the Legislature power to implement such provisions in any manner not 

inconsistent therewith. (Id. at pp. 73–74.) Nothing close to that exists here.

Although the Board argues that article XIV, section 1 of the California 

Constitution is comprehensive, we disagree that the legislative power conferred in that 

provision reasonably extends to the elimination of superior court jurisdiction to review 

Board decisions, which is what section 1164.9 clearly purports to do. Article XIV, 

section 1 makes no mention of judicial review and provides no hint that the Legislature 

was being empowered to negate or impair what the Constitution elsewhere ordains on 

that subject. As we have labored to explain herein, article XIV, section 1 simply 

describes a general grant of authority to create and empower a commission such as the 

Board; it reveals no basis for finding an implied power to enact laws defeating the 

superior court‘s original jurisdiction.

We would add that, if mere constitutional permission to create and empower a 

board or commission to exercise certain adjudicative or other governmental functions in a 

particular regulatory field were enough, by itself, to allow a finding that implied power 

was granted to the Legislature to disregard the express grant of original jurisdiction to 

superior courts, virtually any claim of implied power might be similarly rationalized as a 

means of trumping express constitutional provisions in such administrative contexts. 

Since we have a written Constitution, we cannot countenance such an easy-come, easy-go 

approach to its express provisions. Rather, we follow (as we must) the longstanding rule 

announced by the California Supreme Court in Eshleman that says: ―If there be not in the 
22.

constitution itself warrant and power to the legislature to do this thing, its effort must be 

declared illegal.‖ (Eshleman, supra, 166 Cal. at p. 652, italics added.)

Based on all of the foregoing discussion, we conclude that section 1164.9 is 

unconstitutional because it divests the superior court of its original jurisdiction granted 

under article VI, section 10 of the California Constitution without any constitutional 

warrant for doing so.

D. Comparison to Section 1160.8

One final issue must be put to rest in our analysis of section 1164.9. In its order 

sustaining the demurrer to Gerawan‘s complaint, the trial court reasoned that 

section 1164.9 must be constitutional because a similar statute in the ALRA (i.e., 

§ 1160.8) was found to be constitutional by the California Supreme Court in the case of 

Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 

335 (Tex-Cal). In the present appeal, the Board similarly suggests that since 

section 1160.8 is constitutional, so too is section 1164.9. We reject the reasoning of the 

trial court and the Board on this issue because sections 1160.8 and 1164.9 are not parallel 

statutes; they are materially distinguishable provisions. While section 1160.8 initially 

directs or channels judicial review of the Board‘s unlawful labor practice decisions to the 

appellate courts, it does not purport to strip the superior court of jurisdiction. On the 

other hand, section 1164.9 (which begins with the imperative command ―[n]o court of 

this state‖) on its face has but one objective: to eliminate superior court jurisdiction with 

respect to the matters described therein. In light of these basic differences between the 

two statutes, it should come as no surprise that the Tex-Cal decision (approving 

§ 1160.8), when properly understood, does not indicate that section 1164.9 is 

constitutional. We proceed to explain.

In relevant part, section 1160.8 provides that in unfair labor practice matters, 

―[a]ny person aggrieved by the final order of the board granting or denying in whole or in 

part the relief sought may obtain a review of such order in the court of appeal having 
23.

jurisdiction over the county wherein the unfair labor practice in question was alleged to 

have been engaged in, ... by filing in such court a written petition requesting that the 

order of the board be modified or set aside.‖ The same section provides that the Court of 

Appeal reviewing the matter may ―enter a decree enforcing, modifying, ... or setting 

aside in whole or in part, the order of the board,‖ and adds that ―[t]he findings of the 

board with respect to questions of fact if supported by substantial evidence on the record 

considered as a whole shall ... be conclusive.‖

In Tex-Cal, the Supreme Court considered several constitutional issues relating to 

the original jurisdiction of appellate courts. The issues arose because section 1160.8 

provides for ―initial review of board orders by an appellate rather than a superior court‖ 

(Tex-Cal, supra, 24 Cal.3d at p. 342), imposes a standard of review on the appellate court 

reviewing the Board‘s factual findings and authorizes the appellate court to enforce the 

Board‘s order to the extent it is affirmed (id. at p. 347). After resolving the standard of 

review issue,13 the Supreme Court turned to the question of whether section 1160.8 

impermissibly conferred jurisdiction on the appellate courts greater than that which was 

granted under article VI, sections 10 and 11 of the California Constitution. The rule to be 

applied was that ―[t]he Legislature may not give to courts a jurisdiction beyond that 

conferred or authorized by the Constitution. [Citation.]‖ (Tex-Cal, supra, at p. 347.) 

After reciting the text of article VI, sections 10 and 11, the court expressly acknowledged 

at the outset of its discussion that ―[t]he jurisdiction conferred by section 1160.8 is 

subject to those limitations.‖ (Ibid.)

 

13 Regarding the standard of review issue, the court stated: ―We ... hold that the 

Legislature may accord finality to the findings of a statewide agency that are supported by 

substantial evidence on the record considered as a whole and are made under safeguards 

equivalent to those provided by the ALRA for unfair labor practice proceedings, whether or not 

the California Constitution provides for that agency‘s exercising  ̳judicial power.‘‖ (Tex-Cal,

supra, 24 Cal.3d at p. 346.)
24.

The Supreme Court ultimately upheld section 1160.8‘s provision for appellate 

court review of the Board‘s final orders because such review was consistent with the 

original jurisdiction of appellate courts to hear extraordinary writs of mandate. (Tex-Cal, 

supra, 24 Cal.3d at p. 350.) Since the review described in section 1160.8 was essentially 

that of an extraordinary writ of mandate, it could be directed in the first instance to the 

Court of Appeal rather than to the superior court: ―The Constitution ... grants superior 

courts no broader extraordinary writ jurisdiction than it grants this court and the Courts of 

Appeal. [Citations.] Though appellate courts often decline for nonconstitutional reasons 

to assume jurisdiction in extraordinary writ matters deemed more appropriate for the 

superior court [citations], a mandate proceeding initiated in an appellate court is a 

constitutionally permitted vehicle for reviewing an administrative determination 

[citations].‖ (Tex-Cal, supra, at pp. 350–351.) However, to avoid any conflict with the 

nature of the appellate courts‘ original jurisdiction to entertain such writ relief, the 

Supreme Court refused to construe section 1160.8 as automatically requiring a plenary 

hearing ―as a matter of right.‖ Instead, in accordance with the basic characteristics of 

extraordinary writ proceedings, section 1160.8 was construed to permit summary denials 

of such writ petitions. (Tex-Cal, supra, at pp. 350–351.)14

As should be apparent from the above summary of the Tex-Cal case, the issue of 

whether an ALRA statute may divest the superior court of original jurisdiction was not 

before the court. Rather, Tex-Cal merely considered whether an ALRA statutory 

provision (§ 1160.8) initially directing judicial review to the appellate courts violated the 

grant of original jurisdiction to appellate courts by impermissibly expanding on that 

jurisdiction. The court held it did not do so. Moreover, as noted above, the court 

 

14 Likewise, Tex-Cal found the provision in section 1160.8 allocating responsibility to 

Courts of Appeal to enforce orders that they sustained on review was constitutional because it 

was consistent with the appellate court‘s original jurisdiction in proceedings in the nature of 

mandamus, since a writ of mandate may issue to compel the performance of an act that the law 

specifically enjoins. (Tex-Cal, supra, 24 Cal.3d at pp. 351–352.)
25.

prefaced its discussion of that issue by affirming the foundational principle that ―[t]he 

jurisdiction conferred by section 1160.8 is subject to‖ the grant of original jurisdiction set 

forth in article VI, sections 10 and 11 of the California Constitution. (Tex-Cal, supra, 24 

Cal.3d at p. 347, italics added.) It also explained that to construe section 1160.8 as 

creating an appeal of right ―would put it in conflict with Article VI, section 10.‖ (TexCal, supra, at p. 350, italics added.) By using such terms, the court explicitly 

acknowledged the proposition that section 1160.8 had to fully comport with article VI, 

section 10 of the California Constitution. (Tex-Cal, supra, at pp. 351–352.) If there were 

some other constitutional provision (e.g., Cal. Const., art. XIV, § 1) that conferred on the 

Legislature the power to expand or alter original jurisdiction in regard to judicial review 

of the Board‘s orders, we do not think the Supreme Court would have expressly 

recognized that article VI, section 10 was supreme over the ALRA‘s judicial review 

provisions. For this reason, Tex-Cal appears to support the position advanced by 

Gerawan and Garcia that no constitutional provision gave the Legislature authority to 

enact section 1164.9. In any event, it is clear that the trial court‘s assumption that 

because Tex-Cal upheld the constitutionality of section 1160.8, the same result follows 

for section 1164.9, was plainly mistaken.

There is yet another reason to distinguish section 1160.8 from section 1164.9: 

Section 1160.8 has never been construed as barring all recourse to the superior court. 

Instead, such recourse has been permitted in exceptional circumstances where the 

prescribed judicial review process was unavailable or patently inadequate and a 

significant statutory or constitutional violation was asserted that warranted such redress. 

(See Yamada Brothers v. Agricultural Labor Relations Bd. (1979) 99 Cal.App.3d 112, 

118–124, 129 [exception applied; trial court had jurisdiction to hear writ of mandate 

petition; demurrer ruling based on lack of jurisdiction per § 1160.8 reversed]; see also 

Agricultural Labor Relations Bd. v. Superior Court (1996) 48 Cal.App.4th 1489, 1498–

1510 [noting exceptions exist permitting superior court jurisdiction, but concluding that 
26.

such exceptions did not apply in that case]; United Farm Workers v. Superior Court

(1977) 72 Cal.App.3d 268, 273–275 [same]; Nishikawa Farms, Inc. v. Mahony (1977) 66 

Cal.App.3d 781, 788–789 [same].)

To illustrate this point—i.e., that section 1160.8 does not bar superior court 

jurisdiction in certain exceptional cases—it may be helpful to consider an example in 

which the exception has been applied. One notable example is the situation where the 

general counsel of the ALRB refuses a request to issue an unfair labor practice complaint. 

In that situation, there is no final order of the Board from which to seek review under the 

statutory procedure set forth in section 1160.8. Thus, the specified method of judicial 

review cannot be utilized. In Belridge Farms v. Agricultural Labor Relations Bd. (1978) 

21 Cal.3d 551 (Belridge), the Supreme Court considered whether judicial review was 

nevertheless available by other means, looking to analogous federal cases under the 

National Labor Relations Act (29 U.S.C. § 151 et seq.; the NLRA). The court in 

Belridge noted that, while a refusal to issue a complaint under the NLRA is generally not 

reviewable, nevertheless ―federal courts have exercised their equitable powers to review 

such determinations when the complaining party [(1)] raises a colorable claim that the 

decision violates [a] constitutional right [citations] or [(2)] exceeds a specific grant of 

authority [citations] [or (3) is] based on an erroneous construction of an applicable 

statute.‖ (Belridge, supra, at p. 556.) The Supreme Court concluded that the Legislature, 

in enacting section 1160.8, intended to adopt the federal rule. (Belridge, supra, at 

pp. 556–557.)

More recently, in the case of International Assn. of Fire Fighters, Local 188, AFLCIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259 (Fire Fighters), which 

also involved the decision of the Public Employment Relations Board (PERB) not to file 

a complaint for unfair labor practices, the Supreme Court applied the interpretation 
27.

articulated in Belridge to a similar judicial review statute (Gov. Code, § 3509.5)15 and 

expressly approved superior court jurisdiction in Belridge-like situations. (Fire Fighters,

supra, at pp. 268–271.) In so holding, the Supreme Court emphasized that, in light of the 

original jurisdiction granted to superior courts under article VI, section 10 of the 

California Constitution, a presumption existed in favor of judicial review and the court 

would not ―infer a legislative intent to entirely deprive the superior courts of judicial 

authority in a particular area.‖ (Fire Fighters, supra, at p. 270.) Since the statutory 

language did not expressly foreclose such jurisdiction, it was construed as permitting 

judicial review in the superior court for the category of exceptional cases under 

consideration. (Id. at p. 271.)

16

As the above cases serve to illustrate, judicial review provisions of the type set 

forth in section 1160.8 have not been construed as precluding all superior court 

jurisdiction relating to the administrative decisions or issues described in the statute. 

Exceptions have been allowed, particularly where judicial review under the prescribed 

statutory process would not be available and substantial statutory or constitutional 

violations are alleged.

 

15 Government Code section 3509.5 directs judicial review of PERB decisions to the Courts 

of Appeal by means of petition for writ of mandate.

16 The Supreme Court further concluded: ―In section 3509.5, the Legislature has not 

expressly provided or otherwise clearly indicated that under California‘s [Meyers-Miller-Brown 

Act (MMBA) (Gov. Code, § 3500 et seq.),] superior courts are prohibited in all circumstances 

from exercising traditional mandamus jurisdiction to review a PERB decision refusing to issue a 

complaint. In particular, the Legislature has not explicitly barred superior court traditional 

mandamus review in the limited circumstances in which such review is available for similar 

agency decisions under the federal NLRA and the state ALRA. Accordingly, we agree with the 

Court of Appeal here that 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.‖ (Fire Fighters, supra, 51 Cal.4th at p. 271.)
28.

In summary, compelling reasons exist for concluding that section 1164.9 is not 

analogous to section 1160.8.17 Statutes such as section 1160.8 simply direct judicial 

review to the appellate courts; they do not eliminate all superior court jurisdiction and, in 

fact, such jurisdiction continues with respect to certain exceptional cases. In contrast, 

section 1164.9 seeks to altogether divest the superior court of jurisdiction over the 

matters described therein. Because the two statutes differ in these material ways, the fact 

that section 1160.8 has been found constitutional in Tex-Cal does not indicate the same 

result should follow with respect to section 1164.9. If anything, as we have pointed out 

above, the Supreme Court‘s analysis in Tex-Cal tends to support the conclusion we have 

reached that section 1164.9 is unconstitutional.18

E. Conclusions on Jurisdiction

To recapitulate our constitutional holding: Based on longstanding Supreme Court 

authority (Eshleman, supra, 166 Cal. 640; Loustalot, supra, 30 Cal.2d 905; County of 

Sonoma, supra, 40 Cal.3d 361), a statute such as section 1164.9 is sustainable only if 

authorized by constitutional language that expressly or impliedly confers power on the 

Legislature to enact a law divesting the superior court of original jurisdiction. Because 

no constitutional provision warranted the enactment of section 1164.9, we have declared 

that section to be unconstitutional. This holding leads us to a follow-up question bearing 

on the outcome of the present appeal: With section 1164.9 removed from the equation, 

does the trial court have jurisdiction to consider the pleadings filed by Gerawan and 

Garcia below?

 

17 As will be seen, the section of the MMC statute that parallels section 1160.8 is actually 

section 1164.5.

18 That is so because, as discussed above, Tex-Cal presupposes that the judicial review 

provisions of the ALRA were subject to the grant of original jurisdiction set forth in article VI, 

section 10 of the California Constitution.
29.

We answer that question in the affirmative. Superior court jurisdiction exists 

because section 1164.5, one of the remaining provisions of the MMC statute addressing 

judicial review, is nearly identical to section 1160.8 in directing review to the Courts of 

Appeal in the first instance. Accordingly, the same exceptions would apply for allowing 

judicial review in the superior court. We believe Garcia‘s invocation of superior court 

jurisdiction came within the purview of the permitted exceptions. As to Garcia‘s causes 

of action challenging the Board‘s no-public-access ruling, the method of judicial review 

specified in section 1164.5 was unavailable to Garcia since he was not a party to the 

MMC process. (See § 1164.5, subd. (a) [after the Board‘s final order, ―a party‖ to MMC 

proceedings ―may petition for a writ of review in the court of appeal‖ on certain 

grounds]; see also Yamada Brothers v. Agricultural Labor Relations Bd., supra, 99 

Cal.App.3d at p. 121 [a ―prerequisite‖ of the exceptions to statutory judicial review 

procedure is the unavailability of an ultimate judicial remedy in conjunction with that 

procedure].) Not only was Garcia shut out from the statutory judicial review mechanism, 

but he alleged a colorable claim that the Board committed a substantial constitutional

violation by denying public access to Garcia and other members of the public. (See, e.g., 

United Farm Workers v. Superior Court, supra, 72 Cal.App.3d at p. 274 [―a further 

exception has been recognized ... when the constitutional rights of the complaining party 

have been violated‖].) For these reasons, we conclude that Garcia‘s claims came within 

the scope of the exceptional cases noted above that allow for superior court review.

Gerawan‘s claims allege the identical constitutional violation that Garcia‘s did, 

and we believe those claims likewise may be heard in the superior court. Gerawan 

previously filed a petition for writ of review to this court in case No. F068526, 

challenging the Board‘s final MMC order on multiple statutory and constitutional 

grounds, including the same constitutional right-of-access claim argued in the present 
30.

appeal.19 In our decision in that case, which is presently before the Supreme Court 

(Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., review granted Aug. 19, 

2015, S227243), we held that the MMC statute was unconstitutional for violating equal 

protection principles and impermissibly delegating legislative authority. In light of those 

conclusions, we found it unnecessary to address other constitutional issues. Thus, 

Gerawan followed section 1164.5 and fully exhausted the prescribed procedure20 to 

obtain judicial review of the constitutional public access issue, but through no fault of its

own we declined to reach it. Meanwhile, the alleged constitutional violation committed 

by the Board persists and the purported need for declaratory relief has not abated, 

because the Board‘s no-public-access ruling was plainly a broad policy statement that 

will be applied in future MMC proceedings. In these unique circumstances, particularly 

where Gerawan‘s causes of action challenge the same no-public-access ruling on the 

same constitutional grounds as Garcia‘s, we see no reason to deny Gerawan from having 

its declaratory relief claims heard with Garcia‘s in the superior court.

For these reasons, the superior court had jurisdiction to hear and consider the 

causes of action set forth in Garcia‘s and Gerawan‘s pleadings filed below, and the trial 

court erred by sustaining the demurrers on the ground that it lacked jurisdiction under 

section 1164.9. Not only is section 1164.9 unconstitutional (as we have held), but the 

other judicial review provisions of the MMC statute did not create a jurisdictional 

impediment to hearing the case in the superior court, as we have explained above.

 

19 We grant Gerawan‘s request for judicial notice of court records and filings in this related 

case.

20 Regarding exhaustion of remedies, we note the parallel ALRA statute providing for 

judicial review to an appellate court after a final order of the Board (i.e., § 1160.8) has been 

treated as establishing an ―exclusive primary jurisdiction‖ in the Board, and principles of 

exhaustion of remedies have been applied to such provisions. (See California Coastal Farms, 

Inc. v. Doctoroff (1981) 117 Cal.App.3d 156, 160–162; see also United Farm Workers v. 

Superior Court, supra, 72 Cal.App.3d at pp. 276–277 [―[w]ith limited exceptions not applicable 

to the facts of this case,‖ the § 1160.8 process must run its course and cannot be bypassed].)
31.

IV. Related Issues Regarding Causes of Action Against the Board*

In the Board‘s demurrer to Garcia‘s complaint-in-intervention, it asserted as an 

additional ground for demurrer that Garcia‘s claims were untimely under the 30-day 

deadline set forth in section 1164.5, subdivision (a). In relevant part, that section 

provides that a party to the MMC procedure may, ―[w]ithin 30 days after the order of the 

board takes effect‖ file a petition for writ of review in the appellate court. The trial court 

accepted the Board‘s argument and made the 30-day deadline an alternative ground for 

its ruling sustaining the demurrer. We disagree with the Board and the trial court. 

Section 1164.5 describes the judicial review procedure for parties to the MMC process. 

Since Garcia was not a party to those proceedings, he could not avail himself of the 

review mechanism set forth in section 1164.5. Accordingly, the timing provision set 

forth in that section was inapplicable to Garcia‘s claims.

Another potential issue concerns the fact that the relief sought in the pleadings was 

declaratory relief. In their briefing on appeal, Gerawan and Garcia argue that even if 

section 1164.9 is not unconstitutional, it would still be permissible for them to seek 

declaratory relief in the trial court. They point to a number of cases allowing declaratory 

relief as a vehicle to challenge the legal validity of an overarching policy of an agency 

where there was an actual and present controversy regarding the policy. (See e.g., K.G. v. 

Meredith (2012) 204 Cal.App.4th 164, 177; Californians for Native Salmon etc. Assn. v. 

Department of Forestry (1990) 221 Cal.App.3d 1419, 1429 [―overarching, quasilegislative policy set by an administrative agency‖ subject to review in an action for 

declaratory relief].) Referring to such precedents, Gerawan and Garcia emphasize that 

their causes of action were not challenging a mere discretionary administrative decision 

or adjudication by the Board, but a broad and overarching quasi-legislative policy that 

unconstitutionally denies all public access to MMC proceedings. Although the policy is 

 

* See footnote, ante, page 1.
32.

reflected in the Board‘s no-public-access ruling, they argue the policy is broader and 

more pervasive than that one ruling because it will continue to have an ongoing effect on 

all future MMC proceedings and will prospectively defeat constitutional rights of public 

access by its erroneous misinterpretation of constitutional law.

In response to this line of argument, the Board insists that declaratory relief cannot 

slip through the net of section 1164.9, which, by its clear terms, bars all forms of relief in 

the superior court challenging the Board‘s MMC decisions or rulings. Since none of the 

cases referred to by Gerawan and Garcia involved such an absolute jurisdictional ban, the 

Board argues they are distinguishable. The Board adds, in a brief footnote, that ―[e]ven 

if‖ section 1164.9 does not bar the filing of such actions in the superior court, the proper 

vehicle for challenging a decision of an administrative agency is by petition for writ of 

mandate. 

We observe that nearly all of the discussion by the parties on this matter concerns 

the hypothetical question of whether a declaratory relief cause of action may proceed in 

the superior court even if section 1164.9 were upheld. We need not go down that road. 

Since we have not upheld section 1164.9, but have declared it to be unconstitutional, that 

section is removed from the picture and creates no impediment to the declaratory relief 

causes of action. Therefore, we refrain from addressing the abstract issues presented by 

the parties that are rendered purely academic by our decision invaliding section 1164.9.

As to the Board‘s perfunctory footnote that the proper means to challenge its 

decision was by petition for writ of mandate rather than declaratory relief, that point was 

not adequately raised with sufficient legal discussion and, therefore, we disregard it and 

deem it forfeited for purposes of the instant appeal. (Tilbury Constructors, Inc. v. State 

Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482; Nelson v. Avondale Homeowners 

Assn. (2009) 172 Cal.App.4th 857, 862; People v. Stanley (1995) 10 Cal.4th 764, 793.) 

But even assuming for the sake of argument that the point was adequately raised, we 

would agree with Gerawan and Garcia that this case presents circumstances in which it 
33.

was appropriate to pursue their challenge by means of a declaratory relief claim, whether 

or not a petition for writ of mandate might also have been maintained. The crux of the 

matter being challenged in the action below was not a discretionary administrative 

decision or an application of existing regulatory law to particular facts or circumstances, 

but an overarching policy declaration premised upon an (allegedly) erroneous 

interpretation of constitutional law that will be carried out to deny public access rights in 

future cases. In other words, it is not so much a particular contextual decision that is 

being placed at issue, but rather the broad policy that is reflected therein and will 

continue to be enforced. Under the circumstances, we believe that declaratory relief 

claim was a proper vehicle to raise such claims. (See, e.g., Venice Town Council, Inc. v. 

City of Los Angeles (1996) 47 Cal.App.4th 1547, 1565–1567 [although specific agency 

decisions on permit applications were involved, they were symptomatic of a broad policy 

that was contrary to law; therefore, declaratory relief permitted]; Clovis Unified School 

Dist. v. Chiang (2010) 188 Cal.App.4th 794, 808–809 [declaratory relief directed to 

policy of administrative agency is not an unwarranted control of discretionary agency 

decisions]; K.G. v. Meredith, supra, 204 Cal.App.4th at p. 177; Californians for Native 

Salmon etc. Assn. v. Department of Forestry, supra, 221 Cal.App.3d at p. 1429 

[―overarching, quasi-legislative policy set by an administrative agency‖ is subject to 

review in an action for declaratory relief].)21

V. Causes of Action Against Individuals Sued in Official Capacities*

Both the complaint by Gerawan and the complaint-in-intervention by Garcia 

included causes of action under 42 U.S.C. section 1983 against the individual Board 

 

21 We note further that, but for the trial court‘s mistaken belief that the entire action was 

jurisdictionally barred by section 1164.9, it might have reached this issue in the context of its 

demurrer ruling. Had that happened, even if the trial court agreed with the Board‘s position that 

a writ of mandate was the proper vehicle for this challenge of Board policy, we see no reason the 

trial court could not have granted leave to amend.

* See footnote, ante, page 1.
34.

members and the Board‘s executive secretary in their official capacities.22 In relevant 

part, 42 U.S.C. section 1983 creates liability against every ―person‖ who, under color of 

state law, deprives another of ―rights ... secured by the Constitution.‖ The Board 

demurred to the 42 U.S.C. section 1983 claims. In its demurrer to Gerawan‘s complaint, 

the Board argued there could be no liability under 42 U.S.C. section 1983 because in 

adopting the no-public-access ruling, the Board was performing a function comparable to 

a court and, as a result, its members were entitled to absolute judicial or quasi-judicial 

immunity. Although the trial court sustained the demurrer primarily on the jurisdictional 

ground under section 1164.9, the court also stated in its tentative ruling (later confirmed 

as the court‘s order) that some form of absolute immunity would apparently apply to the 

42 U.S.C. section 1983 claims, albeit the court characterized the immunity as being 

legislative rather than judicial immunity.

In its subsequent demurrer to Garcia‘s complaint-in-intervention, the Board 

challenged the 42 U.S.C. section 1983 claims on a different ground than in the demurrer 

to Gerawan‘s complaint, even though the two pleadings were virtually identical. The 

difference was this: In the later demurrer, the Board maintained that no 42 U.S.C. 

section 1983 cause of action could be stated against the individual officials because 

neither a state nor its officials acting in their official capacities are ―person[s]‖ who can 

be sued under 42 U.S.C. section 1983 (citing Will v. Michigan Dept. of State Police

(1989) 491 U.S. 58, 70–71). This shift in the Board‘s approach was evidently founded on 

a recognition that the 42 U.S.C. section 1983 causes of action named the individual 

defendants solely in their official capacities.23 The trial court fully agreed with the 

 

22 The individual officials were expressly sued in their official capacities, and the 

allegations describing their conduct further reflect that was the case.

23 This shift may also explain why the Board no longer focused attention on personal 

immunity defenses. ―As long as the government entity receives notice and an opportunity to 

respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against 

the entity.‖ (Kentucky v. Graham (1985) 473 U.S. 159, 166.) Generally speaking, ―[t]he only 
35.

Board‘s position and sustained the demurrer to Garcia‘s 42 U.S.C. section 1983 claims on 

that ground.

In their opening briefs on appeal relating to their 42 U.S.C. section 1983 claims, 

Gerawan and Garcia present argument to the effect that no absolute legislative immunity 

or absolute judicial immunity was available to the individual Board members or officials 

in this case. Among other things, they assert that procedural safeguards were not present 

to make the no-public-access decision functionally comparable to a judicial ruling, and 

that established rulemaking procedures were not followed to show that the action was 

functionally comparable to a legislative act. (See, e.g., Harlow v. Fitzgerald (1982) 457 

U.S. 800, 810 [functional approach followed in questions of immunity].) The Board‘s 

respondent briefs make no response to this argument by Gerawan and Garcia, apparently 

abandoning the issue for purposes of the present appeal.

Instead, the Board relies solely on its contention that state officials sued in their 

official capacities (as here) are not ―person[s]‖ under 42 U.S.C. section 1983 and cannot 

be liable for damages under that statute. The Board‘s position is clearly correct. As the 

United States Supreme Court held in Will v. Michigan Dept. of State Police, supra, 491 

U.S. at page 71: ―[A] suit against a state official in his or her official capacity is not a 

suit against the official but rather is a suit against the official‘s office. [Citation.] As 

such, it is no different from a suit against the State itself. [¶] ... [¶] We hold that neither 

a State nor its officials acting in their official capacities are ‘persons’ under [42 U.S.C.]

§ 1983.‖ (Italics added; see Hafer v. Melo (1991) 502 U.S. 21, 27 [same]; Venegas v. 

County of Los Angeles (2004) 32 Cal.4th 820, 829 [―states and state officers sued in their 

official capacity are not considered persons under [42 U.S.C.] section 1983 and are 

 

immunities that can be claimed in an official-capacity action are forms of sovereign immunity 

that the entity, qua entity, may possess ....‖ (Id. at p. 167.) In personal capacity actions, 

personal immunity defenses apply, such as various forms of absolute and qualified immunity. 

(Id. at pp. 166–167; see Pierce v. San Mateo County Sheriff’s Dept. (2014) 232 Cal.App.4th 995, 

1018.)
36.

immune from liability under the statute by virtue of the Eleventh Amendment and the 

doctrine of sovereign immunity‖]; Pierce v. San Mateo County Sheriff’s Dept., supra,

232 Cal.App.4th at pp. 1008–1019 [the rule is essentially one of statutory intent; i.e., in 

enacting 42 U.S.C. section 1983, Congress sought to honor boundaries of the states‘ 

sovereign immunity].) Here, because the pleadings by Gerawan and Garcia reflect that 

this is an official-capacity case, the trial court correctly dismissed the 42 U.S.C. 

section 1983 damage claims. (See Arizonans for Official English v. Arizona (1997) 520 

U.S. 43, 69, fn. 24 [―State officers in their official capacities, like States themselves, are 

not amenable to suit for damages under [42 U.S.C.] § 1983.‖].)

However, as accurately noted by Gerawan in its reply brief, an exception to the 

above stated rule exists with respect to prospective injunctive relief. Footnote 10 in Will 

v. Michigan Dept. of State Police, supra, at 491 U.S. at page 71 reaffirmed this limited 

exception, which is sometimes referred to in the cases as the Ex parte Young doctrine: 

―Of course, a state official in his or her official capacity, when sued for injunctive relief, 

would be a person under [42 U.S.C. section] 1983 because  ̳official-capacity actions for 

prospective relief are not treated as actions against the State.‘ [Citations.]‖ (See Va. 

Office for Prot. & Advocacy v. Stewart (2011) 563 U.S. 247, 254 [explaining Ex parte 

Young exception]; Pennhurst State School & Hosp. v. Halderman (1984) 465 U.S. 89, 

101–103 [same]; Ex parte Young (1908) 209 U.S. 123, 159–160; see also Pierce v. San 

Mateo County Sheriff’s Dept., supra, 232 Cal.App.4th at p. 1009, fn. 4.) In this case, 

Gerawan and Garcia have each included a request for injunctive relief in their respective 

complaints. By this pleading request, they presumably will be able to seek an order or 

injunction directing compliance prospectively with federal constitutional law, which of 

course could only be issued in the event that the trial court concludes in the declaratory 

relief causes of action that public access is mandated under the federal Constitution.24 

 

24 Obviously, any such injunctive relief would be dependent upon the trial court first 

concluding there is an ongoing violation of federal constitutional law concerning public access. 
37.

Subject to that prerequisite for relief, we conclude that Gerawan and Garcia have 

adequately stated causes of action under 42 U.S.C. section 1983 for prospective 

injunctive relief against the Board‘s officials in their official capacity.

To summarize our disposition with respect to the 42 U.S.C. section 1983 causes of 

action, we affirm the trial court‘s ruling to the extent it eliminated any damage claims 

against the Board or its individual officials or members, but we reverse because a limited 

basis for relief under 42 U.S.C. section 1983 exists for prospective injunctive relief 

against the individual officials or members in their official capacities.

VI. Summary of Reasons for Remand*

In light of the trial court‘s erroneous conclusion that section 1164.9 was a valid 

jurisdictional bar, it never reached the underlying question of whether the Board‘s nopublic-access policy violated rights of public access protected under the federal or state 

Constitutions. Gerawan and Garcia have asked that we proceed to rule on the public 

access issue directly since it is ultimately an issue of law, even though the trial court has 

not yet heard or addressed that matter. We decline that request. Instead, we remand the 

matter to the trial court for further proceedings consistent with this opinion. We do so for 

three reasons.

First, in response to our request for supplemental briefing on the proper 

disposition of this matter in the event section 1164.9 was found to be unconstitutional, the 

Board asserted that remand for further proceedings in the trial court should be ordered 

because, among other reasons, the Board would then have the opportunity to assert 

procedural and other defenses that, if successful, may defeat the causes of action without 

the necessity of reaching the constitutional issues. We agree that the Board should be 

given that opportunity. (See Santa Clara County Local Transportation Authority v. 

 

Additionally, to the extent there are other prerequisites to such injunctive relief, they also would 

have to be shown.

* See footnote, ante, page 1.
38.

Guardino (1995) 11 Cal.4th 220, 230 [as a principle of ― ̳judicial self-restraint,‘‖ we do 

not reach constitutional questions unless absolutely required to do so to dispose of the 

matter before us].)

Second, as an appellate court, our task is ordinarily reserved to correcting errors 

committed in the trial court, which we have done. (Code Civ. Proc., § 906.; see, e.g., 

Leone v. Medical Board (2000) 22 Cal.4th 660, 666; Sanborn v. Pacific Mut. Life Ins. Co. 

(1940) 42 Cal.App.2d 99, 105.)

Third, assuming the trial court does ultimately address the merits of the 

constitutional questions raised in the declaratory relief causes of action, we believe a 

more fully developed record may be necessary or helpful to the trial court, and may be 

requested and obtained from the parties, including additional factual, historical and/or 

contextual information relating to the nature of the civil proceeding at issue. We say that 

because, in addressing whether a First Amendment right of public access applies to a 

particular proceeding, courts are to consider two factors: (1) the historic tradition of 

public access or openness with respect to the type of proceedings at issue and (2) the 

utility or positive role of public access to the functioning of the particular process in 

question. (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 8; NBC Subsidiary 

(KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1218–1219; Sorenson v. 

Superior Court (2013) 219 Cal.App.4th 409, 430; In re Marriage of Burkle (2006) 135 

Cal.App.4th 1045, 1054.) These factors and any relevant matters bearing upon them 

would have to be carefully evaluated in deciding whether a First Amendment access right 

exists with respect to the on-the-record phase of the MMC process. There may be a 

similar need for a careful consideration of factors or other contextual information with 

respect to the other declaratory relief claims as well. For all of these reasons, we believe 

it is best to remand the matter to the trial court.
39.

DISPOSITION

The judgments of the trial court are reversed. The matters are remanded to the 

trial court for further proceedings consistent with this opinion. Costs on appeal are 

awarded to Garcia and Gerawan.

___________________________

KANE, J.

WE CONCUR:

___________________________

HILL, P.J.

___________________________

LEVY, J.