Stanford Law School - Robert Crown Law Library

Filed 6/9/05

IN THE SUPREME COURT OF CALIFORNIA

COACHELLA VALLEY MOSQUITO
AND VECTOR CONTROL DISTRICT,
Plaintiff and Appellant,
S122060
v.
Ct.App. 4/2 E031527
CALIFORNIA PUBLIC EMPLOYMENT )
RELATIONS BOARD,
Riverside
County
Defendant and Respondent;
Super. Ct. No. INC 26814
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION et al.
Real Parties in Interest and
Respondents.

The Meyers-Milias-Brown Act (Gov. Code, §§ 3500-3511; hereafter the
MMBA) governs collective bargaining and employer-employee relations for most
California local public entities, including cities, counties, and special districts.
Before July 1, 2001, an employee association claiming a violation of the MMBA
could bring an action in superior court. (See Santa Clara County Counsel Attys.
Assn. v. Woodside (1994) 7 Cal.4th 525, 541-542.) Effective July 1, 2001,
however, the Legislature vested the California Public Employment Relations
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Board (PERB) with exclusive jurisdiction over alleged violations of the MMBA.1
(Gov. Code, § 3509, added by Stats. 2000, ch. 901, § 8.) In making this
fundamental change, the Legislature did not specify a limitations period for
making an MMBA unfair practice charge to the PERB. Under every other public
employment law subject to the PERB’s jurisdiction, however, the Legislature has
expressly designated six months as the limitations period for making an unfair
practice charge. (See Gov. Code, §§ 3514.5, subd. (a), 3541.5, subd. (a), 3563.2,
subd. (a), 71639.1, subd. (c), 71825, subd. (c); Pub. Util. Code, § 99561.2, subd.
(a).)
The main issue here is whether the limitations period for making an
MMBA unfair practice charge to the PERB is three years, which the PERB insists
was the generally accepted limitations period for an MMBA cause of action filed
in superior court (see Giffin v. United Transportation Union (1987) 190
Cal.App.3d 1359, 1365 [holding that three years is the statute of limitations for an
alleged violation of state labor law, without mentioning the MMBA]), or six
months, which is the limitations period for all other unfair practice charges subject
to the PERB’s jurisdiction. We conclude the limitations period is six months.
This case presents two additional issues. One issue, which we address first,
is whether this action is barred by the doctrine requiring exhaustion of
administrative remedies. On this issue, we conclude that the failure to exhaust
administrative remedies is excused because this action challenges the PERB’s
jurisdiction and raises issues of law with broad public importance. The other issue
concerns retroactive application of the shortened limitations period. On this issue,

1
Exempt from the PERB’s jurisdiction under the MMBA are peace officers,
management employees, the City of Los Angeles, and the County of Los Angeles.
(Gov. Code, §§ 3509, subds. (d)-(e), 3511.)
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we conclude that the shortened limitations period applies retroactively, but also
that when an unfair practice charge is based on conduct before the effective date of
the shortened limitations period, the charge is timely if filed within three years of
the alleged unfair practice or before January 1, 2002, whichever occurs sooner.
Because the Court of Appeal’s judgment is consistent with these
conclusions, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On July 6, 2001, the California School Employees Association (CSEA)
filed an MMBA unfair practice charge with the PERB against the Coachella
Valley Mosquito and Vector Control District (District), a special district (see
Health & Saf. Code, § 2000 et seq. [formerly § 2200 et seq.]) subject to the
MMBA. The CSEA amended the charge on August 29, 2001. In the amended
charge, the CSEA, as the exclusive employee representative of a bargaining unit
of the District’s employees, alleged that the District had discriminated against
several CSEA-represented employees for their participation in negotiations for a
memorandum of understanding, interfered with the rights of additional unit
members by threatening disciplinary action if they engaged in activity protected
under the MMBA, and unilaterally changed the means by which employees’
annual performance evaluations were prepared and administered. On October 23,
2001, the PERB issued a complaint against the District on these allegations,
alleging that the District had committed specified unfair practices on various dates
between December 1999 and July 2001.
On November 13, 2001, the District filed an answer to the complaint and a
motion to dismiss it. In the motion, the District argued that the PERB lacked
jurisdiction over alleged MMBA violations occurring before July 1, 2001, and that
six months was the limitations period for an MMBA unfair practice charge. On
December 5, 2001, the PERB’s board agent denied the motion to dismiss.
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The District objected to the board agent’s ruling and requested a ruling by
the PERB itself. Under a PERB regulation, however, the PERB does not review a
board agent’s interim ruling unless the agent joins in the party’s request for
review. (Cal. Code Regs., tit. 8, § 32200.) On January 3, 2002, the board agent
refused to join in the District’s request.
On January 9, 2002, the District petitioned the superior court for writs of
mandate and prohibition, naming the CSEA and certain District employees as real
parties in interest and arguing that the PERB lacked jurisdiction to issue the
complaint.2 After the PERB filed preliminary opposition, the superior court
issued an order to show cause. Both the CSEA and the PERB then filed formal
opposition in which they argued, among other things, that the District’s action was
barred because the administrative proceedings had not concluded and therefore the
District had not exhausted its administrative remedies. The superior court held a
brief hearing, after which it denied the petition, concluding that the District was
not required to exhaust its administrative remedies before challenging the PERB’s
jurisdiction, that the PERB had jurisdiction over alleged MMBA violations
occurring before July 1, 2001, that the limitations period for alleging these
violations was three years, and that the PERB therefore had jurisdiction over each
unfair practice alleged in the complaint.
The District appealed from the superior court’s judgment denying the
petition. In May 2002, while the appeal was pending, the District and the CSEA
executed a settlement agreement covering the merits of the unfair practices charge,
the CSEA withdrew the charge, and the PERB complaint was dismissed.

2
Final decisions of the PERB are now reviewable by a writ petition filed
directly in the Court of Appeal, rather than in the superior court. (Gov. Code,
§ 3509.5, subd. (b), added by Stats. 2002, ch. 1137, § 3.)
4

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Although the settlement had rendered it moot, the appeal nonetheless proceeded,
and all parties joined in urging the Court of Appeal to issue a decision on the
merits. The court granted requests for judicial notice of various legislative history
documents. On December 9, 2003, the court issued its decision.
The Court of Appeal held: (1) Because the appeal presented issues of
broad public interest that were likely to recur, the court could properly resolve
those issues even though the case had become moot;3 (2) the District’s action was
not barred by the rule requiring exhaustion of administrative remedies because
exhaustion would have been futile; (3) the PERB had jurisdiction to issue a
complaint based on unfair practices occurring before July 1, 2001;4 (4) the
limitations period for an MMBA unfair practice charge filed with the PERB is six
months; and (5) to prevent unfair retroactive application of the shortened
limitations period, charges based on unfair practices occurring before July 1, 2001,
were timely if filed with the PERB within three years of their occurrence or before
January 1, 2002, whichever occurred first. Applying these holdings to the facts,
the Court of Appeal concluded that the CSEA’s unfair practice charge was timely
filed as to all of the alleged unfair practices, and therefore it affirmed the trial
court’s judgment.
This court granted the PERB’s petition for review.

3
We agree with the Court of Appeal that this case poses issues of broad
public interest that are likely to recur, and we conclude that the Court of Appeal
did not abuse its discretion in deciding to resolve those issues even though this
case has become moot. (See Cadence Design Systems, Inc. v. Avant! Corp. (2002)
29 Cal.4th 215, 218, fn. 2; Edelstein v. City and County of San Francisco (2002)
29 Cal.4th 164, 172; People v. Cheek (2001) 25 Cal.4th 894, 897-898; Baluyut v.
Superior Court (1996) 12 Cal.4th 826, 829, fn. 4.)
4
No party has challenged this holding.
5

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II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
In general, a party must exhaust administrative remedies before resorting to
the courts. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292; see
California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10
Cal.4th 1133, 1148.) Under this rule, an administrative remedy is exhausted only
upon “termination of all available, nonduplicative administrative review
procedures.” (California Correctional Peace Officers Assn. v. State Personnel
Bd., supra, at p. 1151; see also Jonathan Neil & Assoc., Inc. v. Jones (2004) 33
Cal.4th 917, 933 [exhaustion requires agency decision of “ ‘entire controversy’ ”];
People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102,
124 [administrative process must “ ‘ “run its course” ’ ”]; Bleeck v. State Board of
Optometry (1971) 18 Cal.App.3d 415, 432 [exhaustion requires “a full
presentation to the administrative agency upon all issues of the case and at all
prescribed stages of the administrative proceedings”].)
“The exhaustion doctrine is principally grounded on concerns favoring
administrative autonomy (i.e., courts should not interfere with an agency
determination until the agency has reached a final decision) and judicial efficiency
(i.e., overworked courts should decline to intervene in an administrative dispute
unless absolutely necessary).” (Farmers Ins. Exchange v. Superior Court (1992) 2
Cal.4th 377, 391; accord, Jonathan Neil & Assoc., Inc. v. Jones, supra, 33 Cal.4th
at p. 932; see also Sierra Club v. San Joaquin Local Agency Formation Com.
(1999) 21 Cal.4th 489, 501.) The exhaustion requirement applies to defenses as
well as to claims for affirmative relief (Styne v. Stevens (2001) 26 Cal.4th 42, 57;
see Top Hat Liquors v. Department of Alcoholic Beverage Control (1974) 13
Cal.3d 107, 110), and we have described exhaustion of administrative remedies as
“a jurisdictional prerequisite to resort to the courts” (Abelleira v. District Court of
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Appeal, supra, 17 Cal.2d at p. 293; accord, Styne v. Stevens, supra, at p. 56;
Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70).
The doctrine requiring exhaustion of administrative remedies is subject to
exceptions. (Public Employment Relations Bd. v. Superior Court (1993) 13
Cal.App.4th 1816, 1827.) Under one of these exceptions, “[f]ailure to exhaust
administrative remedies is excused if it is clear that exhaustion would be futile.”
(Jonathan Neil & Assoc., Inc. v. Jones, supra, 33 Cal.4th at p. 936; see also Honig
v. Doe (1988) 484 U.S. 305, 327.) “The futility exception requires that the party
invoking the exception ‘can positively state that the [agency] has declared what its
ruling will be on a particular case.’ ” (Jonathan Neil & Assoc., Inc. v. Jones,
supra, at p. 936; see also County of San Diego v. State of California (1997) 15
Cal.4th 68, 89; Economic Empowerment Foundation v. Quackenbush (1997) 57
Cal.App.4th 677, 691.)
Here, the Court of Appeal concluded that the futility exception excused the
District’s failure to exhaust its administrative remedies because the PERB had
held, in other cases, that all MMBA unfair practice charges filed with the PERB
on and after July 1, 2001, are subject to the three-year limitations period in Code
of Civil Procedure section 338. Therefore, the PERB had declared what its ruling
would be on the limitations issue, even though it had not reviewed the board
agent’s ruling in this particular matter.
That analysis is flawed. For the futility exception to apply, it is not
sufficient that a party can show what the agency’s ruling would be on a particular
issue or defense. Rather, the party must show what the agency’s ruling would be
“ ‘on a particular case.’ ” (Jonathan Neil & Assoc., Inc. v. Jones, supra, 33
Cal.4th at p. 936, italics added.) This follows from the exhaustion doctrine itself,
which “precludes review of an intermediate or interlocutory action of an
administrative agency.” (Alta Loma School Dist. v. San Bernardino County Com.
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on School Dist. Reorganization (1981) 124 Cal.App.3d 542, 554; see also
McHugh v. County of Santa Cruz (1973) 33 Cal.App.3d 533, 538-539 [exhaustion
doctrine “requires that a party must not only initially raise the issue in the
administrative forum, but he must proceed through the entire proceeding to a final
decision on the merits of the entire controversy”].)
Here, it is not sufficient that we know what the PERB’s final ruling would
have been on the District’s limitations defense. For the futility exception to apply,
the District must show how the PERB would have ruled on the CSEA’s unfair
practices charge. Had the administrative proceeding run its course, the District
might have prevailed on some procedural ground other than expiration of the
limitations period, or it might have prevailed on the merits. Thus, the District did
not show that further administrative proceedings would have been futile because
the outcome of those proceedings was known in advance.
Although we do not agree with the Court of Appeal’s reasoning, we agree
with its conclusion that the District was excused from exhausting its
administrative remedies with the PERB. Under another exception, exhaustion of
administrative remedies may be excused when a party claims that “the agency
lacks authority, statutory or otherwise, to resolve the underlying dispute between
the parties.” (Edgren v. Regents of University of California (1984) 158
Cal.App.3d 515, 521; see also County of Alpine v. County of Tuolumne (1958) 49
Cal.2d 787, 798; City of Lodi v. Randtron (2004) 118 Cal.App.4th 337, 360;
Buckley v. California Coastal Com. (1998) 68 Cal.App.4th 178, 191; People ex
rel. Dept. of Conservation v. Triplett (1996) 48 Cal.App.4th 233, 258.)
Here, the limitations issue implicates the PERB’s administrative authority
or jurisdiction because the District contends that the applicable limitations period
for MMBA unfair practice charges is found in Government Code section 3541.5,
subdivision (a), which states that the PERB “shall not . . . [¶] . . . [i]ssue a
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complaint in respect of any charge based upon an alleged unfair practice occurring
more than six months prior to the filing of the charge.” Under this provision,
expiration of the six-month limitation period deprives the PERB of authority to
issue a complaint.
In deciding whether to entertain a claim that an agency lacks jurisdiction
before the agency proceedings have run their course, a court considers three
factors: the injury or burden that exhaustion will impose, the strength of the legal
argument that the agency lacks jurisdiction, and the extent to which administrative
expertise may aid in resolving the jurisdictional issue. (Public Employment
Relations Bd. v. Superior Court, supra, 13 Cal.App.4th at p. 1830.)
Here, in regard to the first factor, the District did not show that it would
suffer any unusual or irreparable injury if it were required to litigate the CSEA’s
unfair practices charge to completion before obtaining a judicial resolution of the
jurisdictional limitations issues. (See Omaha Indemnity Co. v. Superior Court
(1989) 209 Cal.App.3d 1266, 1269 [administrative remedy not inadequate “merely
because additional time and effort would be consumed by its being pursued
through the ordinary course of the law”].) But the District is not the only party
affected by this issue, and there is a significant public interest in obtaining a
definitive resolution of this fundamental legal question. (See Department of
Personnel Administration v. Superior Court (1992) 5 Cal.App.4th 155, 170-171
[exhaustion excused because of urgent need of judicial determination]; see also
Lindeleaf v. Agricultural Labor Relations Bd. (1986) 41 Cal.3d 861, 871
[exhaustion excused when case raises “important questions of public policy”];
Action Apartment Assn. v. Santa Monica Rent Control Bd. (2001) 94 Cal.App.4th
587, 615 [same].) So the first factor weighs in favor of judicial intervention.
In regard to the second factor, as explained more fully in the next part of
this opinion, the District makes a strong and ultimately persuasive argument that
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the proper limitations period is six months and not, as the PERB has ruled, three
years. Thus, the second factor also weighs in favor of excusing exhaustion.
Finally, in regard to the third factor, judicial intervention at this stage will not
deny us the benefit of the PERB’s administrative expertise; the issues are purely
legal and of a kind within the expertise of courts, and we have received the benefit
of the PERB’s views on the issues through its briefs in this court. Accordingly,
we conclude that all three factors favor judicial intervention. Thus, the
administrative jurisdiction exception to the exhaustion doctrine applies, and the
District’s failure to exhaust administrative remedies is excused.
III. STATUTE OF LIMITATIONS
To determine the limitations period for an unfair practice charge to the
PERB alleging an MMBA violation, we begin by reviewing the history of the
MMBA and of the PERB.
A. The MMBA
In 1961, the Legislature enacted the George Brown Act (Stats. 1961, ch.
1964, pp. 4141-4143), which for the first time recognized the rights of state and
local public employees to organize and to have their representatives meet and
confer with their public agency employers over wages and working conditions. In
1968, the Legislature went a step further by enacting the MMBA (Stats. 1968, ch.
1390, pp. 2725-2729), which “authorized labor and management representatives
not only to confer but to enter into written agreements for presentation to the
governing body of a municipal government or other local agency.” (Glendale City
Employees’ Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 331, fn. omitted;
see also Voters for Responsible Retirement v. Board of Supervisors (1994) 8
Cal.4th 765, 780-781.) Although the MMBA covered most employees of local
public entities, it did not include school districts’ employees. (Stats. 1968, ch.
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1390, § 2, p. 2726; see Glendale City Employees’ Assn., Inc. v. City of Glendale,
supra, at p. 331, fn. 1.) State employees were excluded from the MMBA in 1971.
(Stats. 1971, ch. 254, § 2, p. 402.)
The MMBA imposes on local public entities a duty to meet and confer in
good faith with representatives of recognized employee organizations, in order to
reach binding agreements governing wages, hours, and working conditions of the
agencies’ employees. (Gov. Code, § 3505.) “The duty to bargain requires the
public agency to refrain from making unilateral changes in employees’ wages and
working conditions until the employer and employee association have bargained
to impasse . . . .” (Santa Clara County Counsel Attys. Assn. v. Woodside, supra, 7
Cal.4th at p. 537.)
This court has observed that the MMBA was “[a] product of political
compromise,” that its provisions “are confusing, and, at times, contradictory,” and
that it “furnishes only a ‘sketchy and frequently vague framework of employer-
employee relations for California’s local governmental agencies.’ ” (International
Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 197.)
In Glendale City Employees’ Assn., Inc. v. City of Glendale, supra, 15 Cal.3d 328,
this court resolved one of the MMBA’s ambiguities by holding that a written
agreement (commonly termed a memorandum of understanding) entered into
under the MMBA becomes binding and enforceable when the public agency
employer ratifies it. (At p. 332.) Answering another important question, we held
that counties with civil service systems are not exempt from the MMBA’s meet-
and-confer requirement. (Los Angeles County Civil Service Com. v. Superior
Court (1978) 23 Cal.3d 55, 62-65.)
When the Legislature enacted the MMBA in 1968, it had not yet created
the PERB, and it did not include in the MMBA any provisions expressly
authorizing either administrative or judicial proceedings to enforce its provisions.
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Resolving the resulting uncertainty regarding methods of enforcement, this court
in 1994 concluded that MMBA-created rights and duties were enforceable by a
traditional mandate action under Code of Civil Procedure section 1085. (Santa
Clara County Counsel Attys. Assn. v. Woodside, supra, 7 Cal.4th at p. 539.)
Although no published appellate decision ever expressly determined what
statute of limitations applied to a mandate action to enforce MMBA-created rights
and duties, a Court of Appeal held that the three-year statute of limitations in
subdivision (a) of Code of Civil Procedure section 338 (hereafter section 338(a))
applied to an action to enforce a “state labor law.” (Giffin v. United
Transportation Union, supra, 190 Cal.App.3d at p. 1364.) The parties here appear
to agree that, before the Legislature vested the PERB with exclusive jurisdiction
over MMBA unfair practice charges, the three-year period specified in section
338(a) applied to a traditional mandate action brought in superior court alleging an
unfair practice under the MMBA.
B. The PERB
The history of the PERB begins in 1975, when the Legislature adopted the
Educational Employment Relations Act (Gov. Code, §§ 3540-3549.3; hereafter
the EERA), which governs employer-employee relations for public schools
(kindergarten through high school) and community colleges. (Stats. 1975, ch.
961, § 2, pp. 2247-2263.) As part of this new statutory scheme, the Legislature
created the Educational Employment Relations Board (EERB), “an expert, quasi-
judicial administrative agency modeled after the National Labor Relations Board,
to enforce the act.” (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168,
177.) The Legislature vested the EERB with authority to adjudicate unfair labor
practice charges under the EERA. (See Stats. 1975, ch. 961, § 2, pp. 2249-2252.)
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The Legislature structured the EERA with the intention that it would
eventually be expanded to incorporate other public employees. Thus, the EERA
contains a declaration of purpose that includes this paragraph: “It is the further
intention of the Legislature that any legislation enacted by the Legislature
governing employer-employee relations of other public employees shall be
incorporated into this chapter to the extent possible. The Legislature also finds
and declares that it is an advantageous and desirable state policy to expand the
jurisdiction of the board created pursuant to this chapter to cover other public
employers and their employees, in the event that this legislation is enacted, and if
this policy is carried out, the name of the Educational Employment Relations
Board shall be changed to the ‘Public Employment Relations Board.’ ” (Gov.
Code, § 3540.)5
Two years later, in 1977, the Legislature enacted the State Employer-
Employee Relations Act (Gov. Code, §§ 3512-3524) to govern relations between
the state government and certain of its employees. (Stats. 1977, ch. 1159, § 4,
pp. 3751-3760.) It was later renamed, and its official name is now the Ralph C.
Dills Act (hereafter the Dills Act). (Stats. 1986, ch. 103, § 1, p. 237.) Despite the
declaration of purpose two years earlier in the EERA, the Legislature did not
incorporate the Dills Act into the EERA, instead enacting it as a separate chapter
in the Government Code preceding the EERA. The Legislature did, however,
expand the jurisdiction of the EERB to include adjudication of unfair practice
charges under the Dills Act, and as a result the EERB was renamed the PERB.

5
The chapter referred to in the quoted portion of the statute is chapter 10.7 of
division 4 of title 1 of the Government Code. It includes Government Code
sections 3540 to 3549.3.
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(See Gov. Code, §§ 3513, subd. (h), 3514.5, as added by Stats. 1977, ch. 1159,
§§ 6-7, pp. 3761-3763.)
Since 1977, the PERB’s jurisdiction has continued to expand as the
Legislature has enacted new employment relations laws covering additional
categories of public agencies and their employees. In 1978, the Legislature
enacted the Higher Education Employer-Employee Relations Act (Gov. Code,
§§ 3560-3599; hereafter the HEERA) to govern labor relations within the
University of California, the California State University, and Hastings College of
the Law. (Stats. 1978, ch. 744, § 3, pp. 2312-2333.) In 2000, the Legislature not
only brought the MMBA within the PERB’s jurisdiction (Stats. 2000, ch. 901,
§ 8), it also enacted the Trial Court Employment Protection and Governance Act
(Gov. Code, §§ 71600-71675; hereafter the TCEPGA) to govern labor relations
and other employment matters within the state’s trial courts. (Stats. 2000, ch.
1010, § 14.) In 2002, the Legislature enacted the Trial Court Interpreter
Employment and Labor Relations Act (Gov. Code, §§ 71800-71829; hereafter the
TCIERA) to govern labor relations and employment matters for trial court
interpreters. (Stats. 2002, ch. 1047, § 2.) In 2003, the Legislature enacted the Los
Angeles County Metropolitan Transit Authority Transit Employer-Employee
Relations Act (Pub. Util. Code, §§ 99560-99570.4; hereafter the TERA) to govern
labor relations for a public transit district. (Stats. 2003, ch. 833, § 1.)
In enacting the HEERA, the TCEPGA, the TCIERA, and the TERA, the
Legislature followed the pattern set by the Dills Act. It did not incorporate the
new laws’ substantive provisions into the EERA; instead, it enacted the HEERA,
the TCEPGA, and the TCIERA as separate chapters within the Government Code
and the TERA as a chapter within the Public Utilities Code. But the Legislature
expanded the PERB’s jurisdiction to cover unfair labor practices alleged under
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each of these labor relations laws. (Gov. Code, §§ 3563, 71639.1, 71825; Pub.
Util. Code, § 99561.)
In each of these six public employment relations laws—the Dills Act, the
EERA, the HEERA, the TCEPGA, the TCIERA, and the TERA—the Legislature
has expressly and separately specified a six-month limitations period for filing
unfair practice charges with the PERB.6 (Gov. Code, §§ 3514.5, subd. (a), 3541.5,
subd. (a), 3563.2, subd. (a), 71639.1, subd. (c), 71825, subd. (c); Pub. Util. Code,
§ 99561.2, subd. (a).) Thus, the EERA provides: “Any employee, employee
organization, or employer shall have the right to file an unfair practice charge,
except that the board shall not . . . [¶] . . . [i]ssue a complaint in respect of any
charge based upon an alleged unfair practice occurring more than six months prior
to the filing of the charge.” (Gov. Code, § 3541.5, subd. (a).)7 The other
provisions express the six-month limitations period in identical words.8

6
Six months is also the limitations period for an unfair practice charge to the
Agricultural Labor Relations Board. (Lab. Code, § 1160.2.)
7
This language tracks the wording of the National Labor Relations Act.
(See 29 U.S.C. § 160(b) [“no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such
charge is made”].)
8
Although the six public employment relations laws all contain the same six-
month limitations period, they differ in regard to tolling provisions. The HEERA
and the TERA do not contain express tolling provisions. (Gov. Code, § 3563.2,
subd. (a); Pub. Util. Code, § 99561.2, subd. (a).) But the four other laws contain
variously worded provisions for tolling the six-month limitations period while a
party exhausts other remedies. Both the Dills Act and the EERA provide that
“[t]he board shall, in determining whether the charge was timely filed, consider
the six-month limitation set forth in this subdivision to have been tolled during the
time it took the charging party to exhaust the grievance machinery.” (Gov. Code,
§§ 3514.5, subd. (a), 3541.5, subd. (a).) The TCEPGA provides that “if the rules
and regulations adopted by a trial court require exhaustion of a remedy prior to
filing an unfair practice charge or the charging party chooses to exhaust a trial
(Footnote continued on next page.)
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C. Analysis
As the parties recognize, determining what limitations period applies to an
MMBA unfair practice charge requires construction of the relevant statutes. When
engaged in statutory construction, our goal is “to ascertain the intent of the
enacting legislative body so that we may adopt the construction that best
effectuates the purpose of the law.” (Hassan v. Mercy American River Hospital
(2003) 31 Cal.4th 709, 715.)
The Court of Appeal here concluded that the six-month limitations period
in Government Code section 3541.5, a provision of the EERA, applies also to
unfair practice charges filed with the PERB under the MMBA. The PERB argues,
instead, that because the Legislature did not specify a limitations period when it
vested the PERB with jurisdiction over MMBA unfair practice charges, it must
have intended to continue the existing three-year statute of limitations that had
applied to actions filed in superior court. The PERB invokes the rule of statutory
construction that when the Legislature amends a statute without altering parts of
the statute that have previously been judicially construed, the Legislature is

(Footnote continued from previous page.)

court’s remedy prior to filing an unfair practice charge, the six-month limitation
set forth in this subsection shall be tolled during such reasonable amount of time it
takes the charging party to exhaust the remedy, but nothing herein shall require a
charging party to exhaust a remedy when that remedy would be futile.” (Gov.
Code, § 71639.1, subd. (c).) The TCIERA similarly provides that “if the rules and
regulations adopted by a regional court interpreter employment relations
committee require exhaustion of a remedy prior to filing an unfair practice charge
or the charging party chooses to exhaust a regional court interpreter employment
relations committee’s remedy prior to filing an unfair practice charge, the six-
month limitation set forth in this subsection shall be tolled during such reasonable
amount of time it takes the charging party to exhaust the remedy, but nothing
herein shall require a charging party to exhaust a remedy when that remedy would
be futile.” (Gov. Code, § 71825, subd. (c).)
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deemed to have been aware of and to have acquiesced in the previous judicial
construction. (See Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 433;
People v. Masbruch (1996) 13 Cal.4th 1001, 1007.)
But “[t]he presumption of legislative acquiescence in prior judicial
decisions is not conclusive in determining legislative intent” (Harris v. Capital
Growth Investors XIV (1991) 52 Cal.3d 1142, 1156), and there are several reasons
not to apply the presumption here. First, as noted above, no published decision
had ever expressly held that an action alleging an MMBA unfair practice was
subject to the three-year statute of limitations in section 338(a). Although the
Court of Appeal in Giffin v. United Transportation Union, supra, 190 Cal.App.3d
1359, had held that three years was the statute of limitations for an alleged
violation of a state labor law, its opinion did not mention the MMBA, much less
construe it. The case did not concern an employer’s unfair labor practice, but an
alleged breach of the duty of fair representation. The employing public agency
was the Southern California Rapid Transit District, which was governed by its
own specific labor relations law (Pub. Util. Code, §§ 30750-30756), and thus not
subject to the MMBA. Therefore, this decision supports, at best, only a weak
inference that the Legislature understood there was an existing three-year
limitations period for an action alleging an MMBA unfair practice.9

9
The PERB directs our attention to Key v. Housing Authority of the City of
Oakland (N.D.Cal. Mar. 8, 1994, No. C 93-1880 BAC) 1994 WL 90182, a federal
district court order dismissing a complaint on the ground it was filed beyond the
applicable limitation date. The order does not mention the MMBA, and it was not
reported in the Federal Supplement. Therefore, it is unlikely that members of the
Legislature were aware of it or had it in mind when they voted in 2000 to bring the
MMBA within the PERB’s jurisdiction.
17

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Moreover, other MMBA actions filed in superior court were subject to
other statutes of limitation. In Anderson v. Los Angeles County Employee
Relations Com. (1991) 229 Cal.App.3d 817, for example, a county employee
asserted that an employee organization had violated the MMBA by denying him
reinstatement after it had expelled him from membership. (Id. at pp. 819-822.)
The employee first complained to the Los Angeles County Employee Relations
Commission; when it ruled against him, he petitioned the superior court for a writ
of administrative mandate. (Id. at pp. 822-823.) The statute of limitations for
filing an administrative mandate petition is 90 days, not three years. (Code Civ.
Proc., § 1094.6, subd. (b).) Therefore, the PERB is incorrect in asserting that all
MMBA violation cases filed in superior court were subject to a three-year statute
of limitations.
Second, the statutes of limitations set forth in the Code of Civil Procedure,
including the three-year period in section 338(a), do not apply to administrative
proceedings. (City of Oakland v. Public Employees’ Retirement System (2002) 95
Cal.App.4th 29, 47-48; Robert F. Kennedy Medical Center v. Department of
Health Services (1998) 61 Cal.App.4th 1357, 1361-1362; Little Company of Mary
Hospital v. Belshé (1997) 53 Cal.App.4th 325, 329; Bernd v. Eu (1979) 100
Cal.App.3d 511, 515.) The PERB concedes this point and does not argue that
section 338(a) applies to MMBA unfair practice charges filed with the PERB.
Instead, the PERB argues that the Legislature’s silence should be construed as
indicating its intent that the three-year limitations period should continue, even
though its statutory basis would no longer exist.
We view this suggested inference as implausible and unsupported. As we
have remarked, “[i]n the area of statutory construction, an examination of what the
Legislature has done (as opposed to what it has left undone) is generally the more
fruitful inquiry.” (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at
18

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p. 1156.) Here, what the Legislature did was to remove from the courts their
initial jurisdiction over MMBA unfair practice charges. Assuming the Legislature
was aware that a three-year limitations period had applied to traditional mandate
actions filed in superior court to enforce the MMBA, we assume also that the
Legislature was aware that section 338(a)’s three-year period was forum
specific—that is, it applied only to judicial proceedings. By changing the forum—
vesting an administrative agency (the PERB) rather than the courts with initial
jurisdiction over MMBA charges—the Legislature abrogated the three-year statute
of limitations under section 338(a), and we assume that this abrogation was
intentional and not inadvertent.
Finally, and perhaps most importantly, we do not construe statutes in
isolation; rather, we construe every statute with reference to the whole system of
law of which it is a part, so that all may be harmonized and anomalies avoided.
(In re Marriage of Harris (2004) 34 Cal.4th 210, 222; Mejia v. Reed (2003) 31
Cal.4th 657, 663.) The MMBA, which we construe here, is part of a larger system
of law for the regulation of public employment relations under the initial
jurisdiction of the PERB. The PERB suggests no way in which MMBA unfair
practice charges differ from unfair practice charges under the other six public
employment relations laws within the PERB’s jurisdiction—the Dills Act, the
EERA, the HEERA, the TCEPGA, the TCIERA, and the TERA—so as to justify a
limitations period that is six times longer than the six months allowed under each
of these other laws. The PERB suggests no rational ground upon which the
Legislature could have decided to treat MMBA unfair practices charges so
differently in regard to the limitations period. We find it reasonable to infer that
the Legislature intended no such anomaly, and that it intended, rather, a coherent
and harmonious system of public employment relations laws in which all unfair
19

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practice charges filed with the PERB are subject to the same six-month limitations
period.
The PERB relies also on the rule of statutory construction that when the
Legislature uses a critical word or phrase in one statute, the omission of that word
or phrase in another statute dealing with the same general subject generally shows
a different legislative intent. (See In re Young (2004) 32 Cal.4th 900, 907.) Thus,
the PERB argues that because the Legislature included an express six-month
limitation period in every other public employment relations law under the
PERB’s jurisdiction, the omission of an express six-month limitation period in the
MMBA is compelling evidence of a different legislative intent. We would agree if
there were any plausible ground for the Legislature to draw such a distinction, or,
in other words, if this line of reasoning did not lead to an inexplicable anomaly.
The rule that the PERB cites is merely one of several guides to statutory
construction; it applies generally but not universally, and we do not find it helpful
or controlling here.
The PERB argues that nothing in the language of the MMBA supports an
inference that the Legislature intended a six-month limitations period for an
MMBA unfair practice charge. But Government Code section 3509, which vests
the PERB with jurisdiction over MMBA matters, states in subdivision (b) that “[a]
complaint alleging any violation of this chapter or of any rules and regulations
adopted by a public agency pursuant to Section 3507 or 3507.5 shall be processed
as an unfair practice charge by the board.” (Italics added.) This language is
appropriately read as referring to and incorporating an existing body of law
concerning the manner in which the PERB processes unfair practice charges,
including the limitations period for unfair practices charged under the three other
then-existing public employment relations laws—the EERA, the Dills Act, and the
HEERA. The Legislature’s later adoption of a six-month limitations period for the
20

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TCEPGA, the TCIERA, and the TERA is further evidence that the Legislature
regards six months as an appropriate limit for bringing an unfair practice charge
under each of the various schemes governing employer-employee relations in state
and local government, all of which are now under the PERB’s jurisdiction.
The PERB argues that Government Code section 3509, subdivision (b),
which requires the PERB to “apply and interpret unfair labor practices consistent
with existing judicial interpretations of this chapter,” should be construed as
requiring the PERB to continue applying the three-year statute of limitations
previously applied to judicial proceedings to enforce the MMBA. (See also Gov.
Code, § 3510, subd. (a) [“The provisions of this chapter shall be interpreted and
applied by the board in a manner consistent with and in accordance with judicial
interpretations of this chapter.”].) This provision is most reasonably construed as
incorporating existing judicial interpretations of substantive provisions of the
MMBA, including what constitutes an unfair labor practice, but not as
incorporating judicial decisions prescribing the procedures that were deemed
suitable to judicial enforcement proceedings. In any event, there was no existing
judicial precedent on the appropriate limitations period for an MMBA unfair
practice charge to the PERB.
We have reviewed the documents judicially noticed by the Court of Appeal
relating to Senate Bill 739 (1999-2000 Reg. Sess.), the legislation that vested the
PERB with jurisdiction over MMBA unfair practice charges. (See Dowhal v.
SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 910, 922, fn. 4
[documents that the Court of Appeal has judicially noticed become part of the
record on appeal]; Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement
(1997) 16 Cal.4th 483, 502, fn. 22; Manufacturers Life Ins. Co. v. Superior Court
(1995) 10 Cal.4th 257, 274, fn. 7.) We find nothing in those documents to cause
us to alter our conclusion that the Legislature intended a six-month limitations
21

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period for an MMBA unfair practice charge to the PERB. The topic of a
limitations period for an unfair practice charge is not discussed in any of the
legislative documents, nor do the documents suggest that the Legislature regarded
the MMBA as differing from other public employment labor laws under the
PERB’s jurisdiction in a manner that would require or justify a substantially
longer limitations period.
IV. RETROACTIVITY
The PERB and the CSEA argue that if, as we have concluded, transfer of
initial jurisdiction over MMBA unfair practice charges from the superior courts to
the PERB shortened the limitations period from three years to six months, this
shortened period may not be applied retrospectively to unfair practices occurring
before July 1, 2001, the legislation’s effective date or, indeed, to any unfair
practice occurring before the Court of Appeal’s decision.
Legislation that shortens a limitations period is considered procedural and
is applied retroactively to preexisting causes of action, so long as parties are given
a reasonable time in which to sue. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 437;
Rosefield Packing Co. v. Superior Court (1935) 4 Cal.2d 120, 122-123; Carlson v.
Blatt (2001) 87 Cal.App.4th 646, 650-651.) When necessary to provide a
reasonable time to sue, a shortened limitations period may be applied
prospectively so that it commences on the effective date of the statute, rather than
on the date the cause of action accrued. (Rubenstein v. Barnes (1987) 195
Cal.App.3d 276, 281-282; Niagara Fire Ins. Co. v. Cole (1965) 235 Cal.App.2d
40, 42-43.)
Applying these legal principles, the Court of Appeal in this case concluded
that the legislation vesting PERB with jurisdiction over MMBA unfair practice
charges, effective July 1, 2001, shortened the applicable limitations period from
three years to six months. This shortened limitations period applies retroactively
22

---

to MMBA unfair practice charges based on conduct that occurred before July 1,
2001, provided that parties are given a reasonable time in which to file such
charges with the PERB. Concluding that six months was a reasonable time in this
context, the Court of Appeal held that for MMBA unfair practices occurring
before July 1, 2001, a charge filed with the PERB was timely if brought within
three years of the occurrence of the unfair practice, or within six months of July 1,
2001 (in other words, before January 1, 2002), whichever was sooner. We agree
that this is a correct application of the controlling legal principles.
The PERB and the CSEA argue in substance that the Court of Appeal’s
holding retroactively extinguishes existing unfair practice claims because parties
had no notice of the six-month limitations period until the Court of Appeal issued
its decision. This assertion erroneously assumes that the Court of Appeal, rather
than the Legislature, shortened the limitations period to six months and that this
shortened limitations period took effect only when the Court of Appeal issued its
decision. To the contrary, the Legislature established the six-month limitations
period, effective July 1, 2001. After that date, there was no valid legal basis for
any party, or for the PERB, to rely on the previous three-year limitations period,
which had applied to judicial actions to enforce the MMBA. In determining the
applicable limitations period, the Court of Appeal merely decided a legal question;
it did not change any settled rule on which parties could reasonably have relied.
(See Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 318.) Its holding, which we
adopt, did not constitute an unfair retroactive change in the law.
23

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V. DISPOSITION
The Court of Appeal’s judgment is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
24

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Coachella Valley Mosquito & Vector Control Dist. v. CA Public Employ. Relations Bd.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 114 Cal.App.4th 46
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S122060
Date Filed: June 9, 2005
__________________________________________________________________________________

Court:

Superior
County: Riverside
Judge: Charles Everett Stafford, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Lisa Garvin Copeland for Plaintiff and Appellant.

Jack L. White, City Attorney (Anaheim), and Carol J. Flynn, Assistant City Attorney for the Cities of
Anaheim, Carlsbad, Indian Wells, Monterey, Redlands, San Buenaventura, San Luis Obispo, San Pablo,
Santa Paula, Walnut Creek, the California Association of Sanitation Agencies, the Orange County Vector
Control District and the Sunline Transit Agency as Amici Curiae on behalf of Plaintiff and Appellant.

Ben Allamano for Mosquito and Vector Control Association of California as Amicus Curiae on behalf of
Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Robert Thompson and Kristin L. Rosi for Defendant and Respondent.

Rothner, Segall & Greenstone, Glenn Rothner, Emma Leheny and Jean Shin for American Federation for
State, County and Municipal Employees Union, AFL-CIO as Amicus Curiae on behalf of Defendant and
Respondent.

Michael R. Clancy, Madalyn J. Frazzini and Sonja J. Woodward for Real Party in Interest and Respondent
California School Employees Association.

No appearances for Real Parties in Interest and Respondents Ramon C. Gonzalez, Mike Martinez, Jeffrey
Garcia and Virginia Sanchez.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Lisa Garvin Copeland
74-040 Highway 111, Suite 225
Palm Desert, CA 92260
(760) 341-7773

Carol J. Flynn
Assistant City Attorney
200 S. Anaheim Blvd., #356
Anaheim, CA 92805
(714) 765-5169

Robert Thompson
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198

Sonja J. Woodward
California School Employees Association
2045 Lundy Avenue
San Jose, CA 95131
(408) 263-8000

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Opinion Information

Date:	Docket Number:
Thu, 06/09/2005	S122060

Disposition
Jun 9 2005	Opinion: Affirmed

Dockets
Jan 16 2004	Petition for review filed   in Sacramento by counsel for defendant/respondent [California Public Employment Relations Board]. (Superior Court not served. Counsel advised to submit amended proof of service.)
Jan 22 2004	Record requested
Jan 23 2004	Received document entitled:   Amended proof of service.
Jan 26 2004	Received Court of Appeal record   One box.
Mar 1 2004	Time extended to grant or deny review   to and including April 15, 2004, or the date upon which review is either granted or denied.
Mar 30 2004	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Brown, and Moreno, JJ.
Apr 14 2004	Certification of interested entities or persons filed   by counsel for Real Party in Int. and Resp. (Calif. Sch. Employees Assoc.)
Apr 16 2004	Certification of interested entities or persons filed   appellant Coachella Valley Mosquito & Vector Control District
Apr 19 2004	Request for extension of time filed   counsel for resp. (Public Employees Rel. Brd.) requests extension of time to May 17, 2004 to file the opening brief on merits.
Apr 21 2004	Extension of time granted   Defendant and Respondent's time to serve and file the opening brief on the merits is extended to and including May 17, 2004.
May 4 2004	Request for extension of time filed   answer brief/merits>>respondent Coachella Valley Mosquito etc.
May 5 2004	Extension of time granted   Respondent's time to serve and file the answer brief on the merits is extended to and including July 16, 2004.
May 12 2004	Opening brief on the merits filed   by counsel for resp. (Pub. Employment Rel. Brd.)
May 17 2004	Opening brief on the merits filed   by counsel for RPI and Resp. (Calif. School Employees Assoc.)
Jul 16 2004	Answer brief on the merits filed   appellant Coachella Valley Mosquito and Vector Control District
Jul 16 2004	Request for judicial notice filed (granted case)   appellant Coachella Valley Mosquito and Vector Control District
Aug 4 2004	Reply brief filed (case not yet fully briefed)   by counsel for (Public Employment Rels. Brd)
Aug 4 2004	Received:   from counsel for (Public Employees Rels. Brd.) Petition for Leave to File Annexed Materials
Aug 5 2004	Reply brief filed (case fully briefed)   by counsel for RPI (Calif. School Employees Assoc.)
Aug 16 2004	Request Denied   The petiton for respondent for leave to file annexed materials is denied without predjudice to a motion for judicial notice under rules 22 (a) and 29.1 (g).
Aug 19 2004	Request for judicial notice filed (granted case)   by counsel for petnr. (Pub. Employees Rel. Brd.)
Aug 24 2004	Received application to file Amicus Curiae Brief   California League of Cities, et al
Aug 31 2004	Permission to file amicus curiae brief granted   California League of Cities, et al., in support of appellant. (non-party)
Aug 31 2004	Amicus curiae brief filed   California League of Cities, et al., in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 3 2004	Received application to file Amicus Curiae Brief   from American Federation of State, County and Municipal Employees Union, AFL-CIO.
Sep 7 2004	Received application to file Amicus Curiae Brief   Laborers' International Union of No. America in support of petitioner. (40k)
Sep 8 2004	Permission to file amicus curiae brief granted   American Federation for State, County and Municipal Employees Union, AFL-CIO
Sep 8 2004	Amicus curiae brief filed   American Federation for State, County and Municipal Employees, Union, AFL-CIO in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 9 2004	Permission to file amicus curiae brief granted
Sep 9 2004	Permission to file amicus curiae brief granted   Laborers' International Union of North America in support of petitioner.
Sep 9 2004	Amicus curiae brief filed   Laborers's International Union of North America in support of petitioner. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 20 2004	Response to amicus curiae brief filed   by counsel for petnr. (Calif. Public Employment Rel. Brd.) to amicus curiae brief of Calif. League of Cities, et al.,
Apr 1 2005	Case ordered on calendar   5/4/05 @9am, S.F.
Apr 8 2005	Filed:   request of resp & RPI to divide oral argument time.
Apr 11 2005	Filed:   Aplt's request to allocate oral argument time to A/C League of Calif. Cities
Apr 15 2005	Order filed   Permission granted for two counsel to present oral argument on behalf of RPI and Resp.
Apr 15 2005	Order filed   Permission granted for counsel Robert Thompson to present 20 min of oral argument for resp P.E.R.B. and for Sonja Woodward to present 10 min of oral argument for RPI C.S.E.A.
Apr 15 2005	Order filed   Permission granted for two counsel to present oral argument on behalf of appellant.
Apr 15 2005	Order filed   Permission granted for appellant to allocate 10 min. of oral argument time to A/C League of Calif. Cities.
May 2 2005	Request for judicial notice granted   The request of the Coachella Valley Mosquito and Vector Control District for judicial notice, filed in this court, on July 16, 2004, is granted. The request of the California Public Employment Relations Board for judicial notice, filed in this court, on August 19, 2004, is denied on the grounds that these items were judicially notice by the Court of Appeal and therefore are properly before us. (See Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 910, 922, fn. 4.)
May 4 2005	Cause argued and submitted
Jun 9 2005	Opinion filed: Judgment affirmed in full   OPINION BY : Kennard , J. --- joined by : George, C.J., Baxter, Werdegar, Chin, Brown, Moreno, JJ.
Jul 12 2005	Remittitur issued (civil case)
Jul 18 2005	Received:   receipt for remittitur from CA 4/2

Briefs
May 12 2004	Opening brief on the merits filed
May 17 2004	Opening brief on the merits filed
Jul 16 2004	Answer brief on the merits filed
Aug 4 2004	Reply brief filed (case not yet fully briefed)
Aug 5 2004	Reply brief filed (case fully briefed)
Aug 31 2004	Amicus curiae brief filed
Sep 8 2004	Amicus curiae brief filed
Sep 9 2004	Amicus curiae brief filed
Sep 20 2004	Response to amicus curiae brief filed

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