All notes for Subtopic 1104.02000 – Motions

DecisionDescriptionPERC Vol.PERC IndexDate
2716E * * * JUDICIAL APPEAL PENDING * * * Alliance College-Ready Public Schools, et al.
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
PERB Regulations give ALJs the authority to entertain any motion regarding the record evidence, including a motion to reopen the record to receive additional evidence if warranted. A motion to reopen the record is governed by the same standard as applies to motions for reconsideration based on new evidence. (Page 18.) more or view all topics or full text.
05/18/20
2715M Eastern Municipal Water District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
A Board agent may reach a final decision on the merits without holding an evidentiary hearing if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing unnecessary. (PERB Reg. 32207; see, e.g., Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) PERB reversed the ALJ’s grant of partial summary judgment where there were facts in dispute that were material to the outcome. PERB noted that because discrimination and retaliation cases are inherently fact-specific, it is the rare case that can be decided on a dispositive motion. more or view all topics or full text.
05/13/20
2715M Eastern Municipal Water District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
There is no absolute bar to curing or otherwise amending a pleading while a dispositive motion is pending. The Board found that the ALJ erred by denying employer’s motion to amend answer despite pendency of charging party’s summary judgment motion. If charging party was prejudiced by employer’s proposed amendments, the ALJ could have granted a continuance to allow him to amend his summary judgment motion and/or prepare for the hearing. However, PERB’s liberal pleading and amendment rules do not permit gamesmanship. more or view all topics or full text.
05/13/20
2715M Eastern Municipal Water District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
The Board contrasted the lenient amendment standard which arises before or during a hearing with the stricter unalleged violations standard which attaches after all parties have rested and the hearing is closed. A motion to amend made at the halfway point in the hearing is less likely to cause prejudice which cannot be mitigated than a motion made at the close of a hearing. No matter at what point in the hearing a motion to amend is made, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? more or view all topics or full text.
05/13/20
2715M Eastern Municipal Water District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
PERB favors the liberal amendment of pleadings, “so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities.” (Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) PERB Regulations explicitly provide that a party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (PERB Reg. 32648; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8 (Contra Costa), citing Fresno County Superior Court (2017) PERB Decision No. 2517-C, p. 11, partially set aside on other grounds, Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Contra Costa, supra, PERB Decision No. 2669, p. 8.) Although PERB Regulations do not explicitly reference amendments to an answer, the Board holds that a Board agent’s broad powers under Regulation 32170 warrant treating motions to amend an answer on the same basis as motions to amend a complaint. more or view all topics or full text.
05/13/20
2669E Contra Costa Community College District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
The standard for amendments to the complaint during the hearing is more lenient than the unalleged violations standard. Motions to amend made during the hearing should granted unless there is undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance. more or view all topics or full text.
09/17/19
2669E Contra Costa Community College District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
The standard for amendments to the complaint during the hearing is more lenient than the unalleged violations standard. Motions to amend made during the hearing should granted unless there is undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance. more or view all topics or full text.
09/17/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
In a case submitted under PERB Regulation 32215 to the Board itself for a decision on the merits of the case, the administrative law judge correctly declined to rule on a motion at the hearing to dismiss the underlying complaint. (p. 13, fn. 14.) more or view all topics or full text.
09/20/19
A444M City of San Luis Obispo
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
Because the subject of reply briefs is not specifically set forth in or limited by PERB Regulations, it falls under the Board’s broad, statutory powers to “investigate unfair practice charges or alleged violations of [the MMBA], and [to] take any action and make any determinations in respect of these charges or alleged violations as the board deems necessary to effectuate the policies of [the MMBA].” Where a reply brief clarifies the issues by narrowing the scope of the dispute, the Board may consider a reply, as it would aid the Board in its review of the matter and, by narrowing the scope of issues in dispute, will not prejudice other parties. (pp. 4-5.) more or view all topics or full text.
4110812/13/16
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
PERB Regulation 32648 authorizes motions to amend the complaint made during the hearing and, absent a showing of undue prejudice, a timely amendment closely related to the allegations in a pending complaint should be allowed in order to serve the principles of economy and finality. However, PERB Regulation 32648 only governs proposed amendments to a complaint made “[d]uring [a] hearing.” Here, the Board reversed the ALJ’s ruling to grant a motion to amend the complaint to include a separate interference allegation closely related to the allegations of the initial charge, because the motion was not made until after the close of the hearing and was therefore not timely within the meaning of the Regulation. After the record has closed and briefs have been submitted, matters not included in the complaint may only be considered by meeting the stricter standard for consideration of unalleged violations. (pp. 12-13.) more or view all topics or full text.
4114002/27/17
2373M City of Fresno
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
PERB Regulation 32320 permits the Board to take an action it considers proper. The Board has considered the City’s request for withdrawal pursuant to its settlement agreement with the union and concurs that withdrawal is in the best interest of the parties and is consistent with the purposes of the MMBA. more or view all topics or full text.
3816605/16/14
2392C San Bernardino County Superior Court
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
PERB does not generally follow the summary judgment procedure utilized in California state courts. When facts are not in dispute, as they were not in this case, a matter may be deemed submitted on the record based on stipulated facts, briefs and responsive arguments. (PERB Reg. 32207.) Even if this matter were treated as a motion for summary judgment, a moving party bears the burden of proving that no disputed issue of fact exists and that it is entitled to judgment as a matter of law. more or view all topics or full text.
395209/26/14
2212E Santa Barbara Community College District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
Motion to strike party’s closing brief for failure to serve opposing party denied. By filing brief with PERB in a timely manner, party demonstrated a conscientious effort to comply with PERB’s filing regulations, and opposing party has not alleged any prejudice as a result of having been served approximately one week late. Considering that neither party was given the opportunity to file additional briefs, it is doubtful such a showing can be made. This ruling is consistent with California policy favoring resolution of disputes on their merits. more or view all topics or full text.
366710/26/11
1682E Desert Sands Unified School District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
CSEA’s motion to amend its charge at the hearing to add an allegation of retaliation was denied as untimely. The proposed amendment also did not fall within an exception to the limitations provision in that it did was not fully litigated during the hearing. It should be noted that since the issuance of the proposed decision and the submission of exceptions and responses, the Board issued Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach) in which it reexamined whether the statute of limitations is a jurisdictional bar and found it instead to be an affirmative defense. As neither party excepted to the ALJ’s ruling on this issue, the Board did not address the effect of Long Beach on this case. more or view all topics or full text.
2824108/25/04
1491S State of California (State Personnel Board)
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
Because of confusion in the conduct of PERB’s informal and formal hearing processes in this matter, IUOE did not file a timely response to SPB’s motion to dismiss. In these circumstances, the ALJ’s notice of dismissal without considering IUOE’s response does not yield a just result. more or view all topics or full text.
263310207/18/02
A304S California State Employees Association (Hard and Hackett)
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
Documents do not qualify for protection under the attorney-client privilege, as a trade secret, or under any other theory offered by CSEA because the memo does not involve or contain attorney advice. more or view all topics or full text.
243115809/15/00
A256E Santa Ana Unified School District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
The filings of any appeal of the ALJ's denial of the motion to defer to arbitration would not be complete before the hearing is scheduled to begin. Therefore, a stay of the hearing is appropriate since a hearing may be unnecessary should the Board reverse the ALJ's ruling; p. 2. more or view all topics or full text.
182507905/20/94
A090E Cabrillo Community College District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
Motion to dismiss a request for recognition made in the course of a representation hearing not appealable through the administrative appeal process described in PERB Regulation 32350; motion to dismiss should be ruled on by the hearing officer who should prepare proposed decision as required by PERB Regulation 32215; p. 2. PERB Regulation 32350 provides definition of administrative decision; motion to dismiss a request for recognition made during the course of a representation hearing not appealable through administrative appeal process; p. 2. PERB Regulation 32215 requires Board agent conducting hearing to submit proposed decision at the close of a formal hearing; motion to dismiss a request for recognition made during the course of a representation hearing must be addressed by the Board agent in a proposed decision under 32215; p. 2. representation hearing must be addressed by the Board agent in a proposed decision under 32215; p. 2. more or view all topics or full text.
41108805/19/80
0911E Cloverdale Unified School District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
The ALJ allowed the association to amend the complaint to reflect the evidence produced at the hearing. The theory of law upon which the violation was based was not affected by the amendment of the factual basis for the charge as such, no prejudice shown; p. 23. more or view all topics or full text.
152217911/20/91
0891H Regents of the University of California (American Federation of State, County and Municipal Employees)
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
On motion by AFSCME at the formal hearing, complaint was amended to delete reference to AFSCME seeking information solely on behalf of nonexclusively represented university employees. As a result of this motion, and fact that the issue was actually litigated at formal hearing, ALJ determined University was placed on notice that its conduct, vis-a-vis its exclusively represented employees, was at issue. Accordingly, the complaint was amended at the hearing to allege a violation of subdivision (c) of section 3571; ALJ Proposed Decision; pp. 3-4. more or view all topics or full text.
152211707/03/91
0792E Inglewood Unified School District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
Board affirmed ALJ's granting of motion to amend where new theory based on same set of facts as alleged in original complaint where no prejudice demonstrated; pp. 6-7. (Affirmed, Inglewood Teachers Association v. PERB/Inglewood Unified School District (1991) 227 Cal.App.3d 767.) more or view all topics or full text.
142105702/15/90
0733S California State Employees Association (Parisi)
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
A motion to dismiss is treated as a Motion for Summary Judgment, and will be granted where any issue proven is fatal to a complaint. CSEA had no duty to represent the charging party before the SPB; pp. 7-8. more or view all topics or full text.
132009305/03/89
0411E Los Angeles Community College District (Watts)
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
ALJ may properly dismiss public notice complaint before hearing upon motion from respondent. more or view all topics or full text.
81517810/04/84
0341E Service Employees International Union (Scates) (Pitts)
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
Motion to disqualify union's attorney on grounds of defense of union against failure to fairly represent denied. No showing of frivolous or bad faith defense. more or view all topics or full text.
71423908/29/83
0336E Los Angeles Unified School District
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
Offer, during hearing, of settlement agreement properly deferred to settlement conference setting. Use of settlement agreement, not a part of the record, for purposes of attempting to specify a remedy proper. Motion to correct transcript to identify voice on record properly denied where voice identification not possible and remarks not used in decision. Motion to reopen the record. Charging party's failure to pursue discrepancy in testimony of witness where such discrepancy known before the hearing forecloses affirmative grant of motion to reopen the record. Charging party's failure to pursue discrepancy in testimony of witness where such discrepancy known before the hearing forecloses affirmative grant of motion to reopen the record. Under section 3547(d), new subjects of negotiations need not be placed upon school board's agenda. Under section 3547(d), new subjects of negotiations need not be placed upon school board's agenda. more or view all topics or full text.
71422808/18/83
0331E Los Angeles Community College District (Watts) * * * OVERRULED IN PART by Santa Ana Unified School District (2017) PERB Decision No. 2514
1104.2000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
ALJ has authority to dismiss complaint in response to motion to dismiss. Motion to dismiss is likened to judgment on the pleadings. more or view all topics or full text.
71422308/15/83