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

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PERB employs two alternate standards for determining whether to award legal expenses. One standard applies when PERB must determine whether to award a party legal expenses because of the opposing party’s sanctionable conduct in litigating the same case before PERB. That standard, which is akin to Rule 11 of the Federal Rules of Civil Procedure, provides that PERB should make such an award if the offending party maintained a claim, defense or motion, or engaged in another action or tactic, that was without arguable merit and pursued in bad faith. (Bellflower Unified School District (2019) PERB Order No. Ad-475a, p. 4; City of Palo Alto (2019) PERB Decision No. 2664-M, p. 7; Lake Elsinore Unified School District (2018) PERB Order No. Ad-446a, p. 5; City of Alhambra (2009) PERB Decision No. 2036-M, p. 19; City of Alhambra (2009) PERB Decision No. 2037-M, p. 2.) A different standard applies when a party seeks to be made whole for legal expenses it reasonably incurred in a separate proceeding to remedy, lessen, or stave off the impacts of the other party’s unfair practice. The Board has not required a Rule 11-type showing in such cases and has instead treated legal expenses the same as medical expenses, lost pay, lost staff time, or any other loss. (See, e.g., Omnitrans (2009) PERB Decision No. 2030-M, p. 30; see also Palo Alto, supra, PERB Decision No. 2664-M, p. 8, fn. 6.) PERB has followed the same principles irrespective of whether the ancillary proceeding is civil or criminal. (See County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M, p. 3; City of San Diego (2015) PERB Decision No. 2464-M, pp. 46-47, affirmed sub nom. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898.)