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

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1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

Except in cases in which there is a statutory right to attorney fees (see Gov. Code, § 3551.5, subd. (b) & § 3558, subd. (d)(4)), PERB usually follows the “American Rule,” pursuant to which a successful party normally has no claim to fee shifting. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 12 (Sacramento City).) Rather, a party in a PERB case seeking to recover attorney fees and costs for litigation work done in relation to the same case must normally show that its opponent maintained a claim, defense, or motion, or engaged in another action or tactic, that was without arguable merit and pursued in bad faith. (Palomar Health (2024) PERB Decision No. 2895-M, p. 63 (Palomar) [judicial appeal pending].) However, PERB applies a different standard when deciding if a respondent found to have committed an unfair practice must pay attorney fees and costs related to a separate proceeding—whether the proceeding is in court, in arbitration, or in a separate PERB charge or representation matter. (City and County of San Francisco (2024) PERB Decision No. 2891-M, p. 24.) A charging party need not establish an egregious violation; instead, the charging party need only establish that it (or a party in privity with it) engaged in the separate proceeding in material part to remedy, lessen, make up for, or stave off the impacts of the unfair practice at issue. (Ibid., citing Victor Valley Union High School District (2022) PERB Decision No. 2822, pp. 23-24; Sacramento City, supra, PERB Decision No. 2749, pp. 11-12; City of San Diego (2019) PERB Decision No. 2464a-M, p. 4); Omnitrans (2009) PERB Decision No. 2030-M, p. 30; County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M, p. 3.) (pp. 27-28.)