REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS – Attorneys Fees and Costs

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Litigation sanctions: To obtain reimbursement of attorney’s fees or other litigation expenses incurred while litigating a matter in front of PERB, the moving party must demonstrate that the claim, defense, motion, or other action or tactic was “without arguable merit” and pursued in “bad faith.” To determine whether a claim, defense, motion, or other action is frivolous, the Board examines whether it is so manifestly erroneous that no prudent representative would have filed or maintained it. Even if a party requesting attorney’s fees can meet the “without arguable merit” prong, it must also show that the opposing party acted in bad faith. For the purposes of this test, the term “bad faith” includes conduct that is dilatory, vexatious, or otherwise an abuse of process. Showing that an action or tactic was undertaken in “bad faith,” does not require showing that the party and/or representative necessarily acted with an evil motive. Prosecution of a frivolous action or defense may itself be evidence supporting a finding of subjective bad faith, as might other conduct which a party or representative knows or reasonably should know will unreasonably or unnecessarily cause delay or harass or injure an opposing party or representative, or impede the tribunal’s own process. However, PERB follows California Code of Civil Procedure section 128.5 in requiring some showing of subjective bad faith, even if it must be inferred from circumstantial evidence.