PECG and CAPS v. Brown Furlough Answer Brief
Transcript of PECG and CAPS v. Brown Furlough Answer Brief
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Case No. A136338
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
EDMUND G. BROWN, JR., Governor of the State of California, et al.,
Defendants and Appellants
v.
PROFESSIONAL ENGINEERS IN CALIFORNIA
GOVERNMENT, et al.,
Plaintiffs and Respondents.
Appeal from the Superior Court, Alameda County
The Honorable Stephen A. Brick, Department 17
(Superior Court Case No. RG10494800, consolidated with
Case No. RG10530845)
PLAINTIFFS-RESPONDENTS ANSWERING BRIEF
BARBARA J. CHISHOLM(SBN 224656)
PEDER THOREEN
(SBN 217081)
Altshuler Berzon LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Facsimile: (415) 362-8064
E-Mail: [email protected]
GERALD JAMES(SBN 179258)
455 Capitol Mall, Suite 501
Sacramento, CA 95814
Telephone: (916) 446-0400
Facsimile: (916) 446-0489
E-mail: [email protected]
Attorneys for Plaintiffs and Respondents Professional Engineers in
California Government, Shabbir Ahmed, Terry Escarda, and California
Association of Professional Scientists
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TABLE OF CONTENTS
Certificate of Interested Entities or Persons
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTRODUCTION AND SUMMARY OF ARGUMENT. . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Unpaid Furloughs of State Employees Represented By PECG
and CAPS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Budget Act for Fiscal Year 2010-2011 and Reductions to
Employee Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. Mandamus Relief is Appropriate to Remedy the Furloughing of
Employees that Exceeded Legislative Authorization. . . . . . . . . . . . . 7
II. The Trial Court Correctly Held that Employees Represented by
PECG and CAPS Performing Military Base Remediation and
Hazardous Material Management Could Not Lawfully Be
Furloughed Without Violating the Single Subject Rule of the
California Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Health and Safety Code 25353.5 and Water Code 13177.7
Prohibit the Unpaid Furloughing of State Employees
Performing Military Base Remediation and Hazardous
Material Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
B. The Budget Acts Could Not Ratify the Furlough ProgramBecause Any Such Ratification Would Violate the Single
Subject Rule.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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III. The Trial Court Correctly Held that Appellants Furloughing of
Employees in State Bargaining Units 9 and 10 Through the End of
March 2011 Exceeded the Legislatures Authorization of Reductions
to Compensation that Were Proportionate to Those of Supervisory
Employees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
IV. The Trial Court Reasonably Overruled Appellants Objections to
Evidence of Reductions to Employees Compensation in Fiscal Year
2010-2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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TABLE OF AUTHORITIES
STATE CASES
Bannerman v. Boyle (1911)
160 Cal. 197. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Berkeley Unified School District v. City of Berkeley (1956)
141 Cal.App.2d 841. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bernard v. Foley (2006)
39 Cal.4th 794.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Bodinson Manufacturing Co. v. California Employment Commission (1941)
17 Cal.2d 321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8
Brown v. Chiang(2011)
198 Cal.App.4th 1203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Brown v. Superior Court(2011)
199 Cal.App.4th 971. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Bunnett v. Regents of University of Cal. (1995)
35 Cal.App.4th 843. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
California Association of Health Facilities v. Director, Department ofHealth Services (1986)
178 Cal.App.3d 1109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
California Attorneys v. Brown (2011)
195 Cal.App.4th 119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19, 28
California School Employees Association v. Torrance Unified School
District(2010)
182 Cal.App.4th 1040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
California Teachers Association v. Governing Board of Gustine Unified
School District(1983)
145 Cal.App.3d 735. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 13, 14
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California Labor Federation, AFL-CIO v. Occupational Safety and Health
Standards Board(1992)
5 Cal.App.4th 985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Carter v. California Department of Veterans Affairs (2006)
38 Cal.4th 914.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Coan v. State of California (1974)
11 Cal.3d 286. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
Feitelberg v. Credit Suisse First Boston, LLC(2005)
134 Cal.App.4th 997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Fitch v. Justice Court of Anderson Valley Judicial District(1972)
24 Cal.App.3d 492. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Franchise Tax Board v. Cory (1978)
80 Cal.App.3d 772. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22, 24
Fugitt v. City of Placentia (1977)
70 Cal.App.3d 868. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Glendale City Employees Association, Inc. v. City of Glendale (1975)
15 Cal.3d 328. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Green v. State of California (2007)42 Cal.4th 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 30
Hahn v. Diaz-Barba (2011)
194 Cal.App.4th 1177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Harbor v. Deukmejian (1987)
43 Cal.3d 1078. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Holt v. Kelly (1978)
20 Cal.3d 560. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Homan v. Gomez(1995)
37 Cal.App.4th 597. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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Kavanaugh v. West Sonoma County Union High School District(2003)
29 Cal.4th 911.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Payne v. Superior Court(1976)
17 Cal.3d 908. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
People v. Carter(1996)
48 Cal.App.4th 1536. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
People v. Lamas (2007)
42 Cal.4th 516.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
People ex rel. Lockyer v. Sun Pacific Farming Co. (2000)
77 Cal.App.4th 619. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
People v. Rodriguez(1999)20 Cal.4th 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Planned Parenthood Affiliates of California v. Swoap (1985)
173 Cal.App.3d 1187. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Pomona Police Officers Association v. City of Pomona (1997)
58 Cal.App.4th 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Professional Engineers in California Government v. Schwarzenegger
(2010)50 Cal.4th 989.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Reinbold v. City of Santa Monica (1976)
63 Cal.App.3d 433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
San Diego Watercrafts, Inc. v. Wells Fargo (2002)
102 Cal.App.4th 308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
San Joaquin Helicopters v. Department of Forestry (2003)
110 Cal.App.4th 1549. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
San Lorenzo Valley Community Advocates for Responsible Education v.
San Lorenzo Valley Unified School District(2006)
139 Cal.App.4th 1356. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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Sanders v. City of Los Angeles (1970)
3 Cal.3d 252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sara M. v. Superior Court(2005)
26 Cal.4th 998.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Stone v. Bancroft(1902)
139 Cal. 78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tevis v. City & County of San Francisco (1954)
43 Cal.2d 190. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13
Treber v. Superior Court(1968)
68 Cal.2d 128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Troche v. Daley (1990)217 Cal.App.3d 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Wall Street Network, Ltd. v. New York Times Co. (2008)
164 Cal.App.4th 1171. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Wohlgemuth v. Caterpillar Inc. (2012)
207 Cal.App.4th 1252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
STATE STATUTES
A.B. 1700 (Chapter 869, Stats. of 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Budget Act of 2010, S.B. 870, 3.91(a)
(Chapter 712, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 11
California Constitution, art. IV, 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 21
Code of Civil Procedure 1021.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Evidence Code 353. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Evidence Code 354. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Government Code 3513. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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Government Code 3527. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Government Code 19826. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Health & Safety Code 25353.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Insurance Code 11873. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 26
Revised 2008 Budget Act, S.B.3X 2, 3.90(a). . . . . . . . . . . . . . . . . . . . . . 23
Revised 2009 Budget Act, A.B.4X 1, 552. . . . . . . . . . . . . . . . . . . . . . . . . 23
Revised 2012 Budget Act, A.B. 1497, 3.90
(Chapter 29, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26
S.B. 1006 (Chapter 32, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Water Code 13177.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
LEGISLATIVE HISTORY MATERIALS
Assembly Floor Analysis of A.B. 1700 (2003-04 Reg. Sess.), as amended
Sept. 2, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Senate Appropriations Committee, Fiscal Summary of A.B. 1700 (2003-04
Reg. Sess.), as amended Aug. 18, 2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
MISCELLANEOUS
Webster Collegiate Dict. (11th ed. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 30
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INTRODUCTION AND SUMMARY OF ARGUMENT
InProfessional Engineers in California Government v.
Schwarzenegger(2010) 50 Cal.4th 989, 1041, 1047-48 (Professional
Engineers), the California Supreme Court affirmed the core principle that
the Executive Branch lacks authority unilaterally to impose unpaid
furloughs on state employees. Such furloughs are lawful only to the extent
they are duly authorized by the Legislature. Id.
This appeal involves two discrete instances in which the unpaid
furloughs of employees represented by Professional Engineers in California
Government (PECG) and the California Association of Professional
Scientists (CAPS) exceeded any valid legislative authorization.1
First, Appellants furloughed employees working in positions
involving hazardous waste remediation and management on military bases,
positions expressly protected from such furloughs by Health and Safety
Code 25353.5 and Water Code 13177.7. As the trial court correctly2
held, the Legislature could not, consistent with the single subject rule of the
California Constitution, override these statutory protections through budget
legislation. JA, pp. 3110-11. Appellants argue that the single subject rule
does not apply because the Legislature has general, reserved authority over
employee compensation. AOB 32-33. But nothing in Appellants argument
PECG and CAPS, together with two individual state employees1
represented by PECG, Shabbir Ahmed and Terry Escarda, are Plaintiffs-
Respondents in this matter.
Appellants include the Governor, the California Department of2
Human Resources (formerly known as the Department of Personnel
Administration or DPA), and various state agencies that employ members
of PECG and CAPS. JA, pp. 1645-47, 1683-88. The State Controller has
not appealed the trial courts ruling.
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can overcome the fact that the Legislatures authorization of furloughs of
employees in statutorily protected positions necessarily change[d] . . . the
scope [and] effect of . . . existing statute[s], and thereby violated the single
subject rule. Franchise Tax Bd. v. Cory (1978) 80 Cal.App.3d 772, 776.
Second, Appellants exceeded the express requirement set forth in the
Budget Act of 2010 (2010 Budget Act), that any reductions in
compensation for represented employees, including any reductions achieved
through the furlough program, be proportionate to reductions made to
nonrepresented employees compensation. S.B. 870, 3.91(a) (Chapter
712, Stats. of 2012). Despite this explicit limitation embedded in the
Legislatures authorization, Appellants furloughed employees in the
bargaining units represented by PECG and CAPS in a manner that resulted
in disproportionate reductions to those employees compensation.
Appellants cannot dispute that the plain meaning of the Budget Act requires
that reductions to employees compensation be of the same proportion or
ratio, and so instead urge this Court to find that proportionate means
something less than its plain meaning. AOB 36-38. But the Legislatures
instruction that reductions to employee compensation be proportionate is
a precise and clear limit. The trial court was correct to set aside the
furlough program to the extent it exceeded the Legislatures authorization
and exacted disproportionate reductions in the pay of PECGs and CAPS
rank-and-file members. JA, p. 3113.
Additionally, contrary to Appellants arguments, writ relief is
appropriate to correct and set aside these unauthorized and unlawful agencyactions. Bodinson Mfg. Co. v. California Employment Commn (1941) 17
Cal.2d 321, 328-30.
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The well-reasoned and considered judgment of the trial court should
be affirmed in its entirety.
STATEMENT OF FACTS
A. Unpaid Furloughs of State Employees Represented By PECG
and CAPS
PECG and CAPS represent close to 16,000 engineers and scientists
employed throughout the State. JA, p. 2406. PECG and CAPS are certified
pursuant to Government Code 3513(b) as the exclusive bargaining
representatives of State Bargaining Unit 9 and 10, respectively. Id.
Additionally, both PECG and CAPS are verified supervisory employee
organizations and, pursuant to Government Code 3527(c), represent state
professional engineers and scientists who are supervisory employees. Id.
In 2008 and 2009, then-Governor Schwarzenegger issued two
Executive Orders requiring the unpaid furloughing of practically all state
employees, including those represented by PECG and CAPS. JA, pp. 2534-
39, 2407. Pursuant to those Executive Orders, employees were subject to
two days of unpaid furloughs each month from February 1 to June 30, 2009,
and then three days of unpaid furloughs per month from July 1, 2009 to
June 30, 2010. JA, pp. 2535, 2539, 2407.
There were no furloughs in July 2010. On July 28, 2010, however,
the Governor issued Executive Order S-12-10, again directing the
furloughing of state employees for three days each month, beginning in
August 2010. JA, pp. 2540-42.
Rank-and-file members of Bargaining Units 9 and 10 were subject tothese three-day-per-month furloughs through the end of March 2011. JA, p.
2407. In contrast, supervisory employees, including those who were
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members of PECG and CAPS, were subject to the three-day-per-month
furloughs only through the end of October 2010. Id.
B. The Budget Act for Fiscal Year 2010-2011 and Reductions to
Employee Compensation
On October 8, 2010, the Legislature passed Senate Bill 870 as the
Budget Act for Fiscal Year 2010-2011. Section 3.91 of the Act provides for
reductions in employee compensation achieved through the collective
bargaining process or through administrative actions for represented
employees and a proportionate reduction for nonrepresented employees
(utilizing existing authority of the administration to adjust compensation for
nonrepresented employees) . . . . S.B. 870, 3.91 (JA, p. 2663) (emphasis
added). The section further provides that the Director of Finance shall
make the necessary reductions to each item of appropriation. Id.
On October 8, 2010, the same day the Legislature passed the 2010
Budget Act, then-Governor Schwarzenegger issued Executive Order S-15-
10, which reduced nonrepresented employees compensation. JA, pp.
2543-45. This Order applied to most state employees who were not
members of a certified State Bargaining Unit, including those supervisory
employees represented by PECG and CAPS. Id.; JA, p. 2411.
Executive Order S-15-10 reduced nonrepresented employees
compensation in two ways: a one-day-per-month personal leave program
and an increase in employees contributions to pension plans of 3 percent
per month. JA, p. 2544. Both of these reductions were effective November
1, 2010. When taken together with the three-day-per-month furloughs towhich the unrepresented employees were subject from August through
October 2010, unrepresented state employees pay for fiscal year 2010-11
was reduced by a total of 8.5 percent. JA, pp. 2411, 3026-27.
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The reductions to nonrepresented employees compensation in fiscal
year 2010-2011 precisely mirror reductions approved by the Legislature on
October 7, 2010, to the compensation of employees in nine State Bargaining
Units represented by Service Employees International Union (SEIU). JA,
pp. 2544-2545. The total reduction to SEIU-represented employees
compensation for fiscal year 2010-2011 was also 8.5 percent. JA, pp. 2412,
3026-27.
PECG- and CAPS-represented employees in Bargaining Units 9 and
10 were subject to the three-day-per-month furloughs longer than the
nonrepresented and SEIU-represented employees, and thus the reduction to
their compensation for the 2010-2011 fiscal year reached 8.5 percent after
the imposition of one unpaid furlough day in March 2011. JA, pp. 2412,
3025-26. Despite this, employees in Bargaining Units 9 and 10 were3
subject to two additional furlough days in March 2011.
C. Procedural History
PECGs writ petition was filed in the trial court on January 21, 2010,
and challenged the furloughs implemented pursuant to the 2008 and 2009
Executive Orders. The Court consolidated PECGs writ petition with nine
subsequently-filed cases challenging the Governors furlough orders with
respect to other state employees. JA, pp. 612-16, 619-23, 644-46, 1268-71,
Appellants do not dispute that the furlough program resulted in a3
greater percentage reduction in compensation for employees in BargainingUnits 9 and 10 than the percentage by which nonrepresented employees
compensation was reduced. Although they object to the trial courts
decision to admit evidence of the exact percentages by which employee
compensation was reduced, those objections are without merit (see infra at
pp. 35-40), and none of the underlying facts are in dispute.
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1457-58. With the exception of the writ petition filed by CAPS (JA, pp.
1273-83), these other matters are no longer pending.
When the Governor issued his July 28, 2010 Executive Order,
requiring three-day-per-month furloughs beginning in August 2010, PECG
and CAPS sought a temporary restraining order enjoining the furlough
program. JA, pp. 648-74. The trial court entered a temporary restraining
order and this Court denied a writ of supersedeas filed by the Governor and
DPA. JA, pp. 1249-59, 1272. The Supreme Court then granted review and
stayed the trial court proceedings, deferring further action until after a
decision inProfessional Engineers in California Government v.
Schwarzenegger. JA, p. 1623;see also 50 Cal.4th at 1008.
InProfessional Engineers, the Court rejected the Governors
arguments that he had authority unilaterally to order unpaid furloughs of
state employees, confirming that such power rests with the Legislature. 50
Cal.4th at 1041. The Court, however, held that the Legislature, through
budget legislation, had ratified the furloughs implemented pursuant to the
2008 and 2009 Executive Orders. Id. at 1043, 1047-48. The Court did not
rule on the validity of the Governors July 28, 2010 furlough order. Id. at
1008.
After the Supreme Courts decision inProfessional Engineers
became final, the Supreme Court remanded this matter to this Court. JA, p.
1637. At the request of PECG and CAPS, this Court subsequently
remanded the cases to the trial court for further proceedings in light of
Professional Engineers, the enactment of the 2010 Budget Act, and otherintervening developments. JA, p. 2558.
On remand to the trial court, and in light of intervening
developments, PECG and CAPS filed amended writ petitions challenging
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the legality of the furloughs in light of the Supreme Courts holding that the
Governor could not unilaterally impose furloughs without proper
authorization from the Legislature. JA, pp. 1640-75, 1676-1727. In
briefing the petitions, PECG and CAPS challenged three aspects of the
furlough program that were not addressed byProfessional Engineers: (1)
the furlough of employees at state agencies that do not receive
appropriations through the Budget Act, and thus for whom the Budget Act
could not have constituted legislative ratification of the furlough program;
(2) the furlough of employees in positions involved with military base
remediation and hazardous material management at the Department of
Toxic Substance Control (DTSC) and the State Water Resources Control
Board (SWRCB), positions that are protected from any form of personal
services limitations by Health and Safety Code 25353.5 and Water Code
13177.7; and (3) the furlough of employees in Bargaining Units 9 and 10
in March 2011, after the percentage reduction to their compensation for
fiscal year 2010-2011 came level with the reductions to nonrepresented
employees compensation, such that the furloughs exceeded the
authorization set forth in the 2010 Budget Act. JA, pp. 2386-88.
The trial court ruled in favor of PECG and CAPS on all three
grounds. JA, pp. 3100-13. Appellants do not challenge the trial courts
ruling on the first ground, with respect to agencies that do not receive
appropriations through the Budget Act. JA, pp. 3206-39; AOB p.4 n.2.
ARGUMENT
I. Mandamus Relief is Appropriate to Remedy the Furloughing ofEmployees that Exceeded Legislative Authorization
As a threshold matter, Appellants erroneously contend that writ relief
is unavailable in this action. It is well established that the proper method of
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obtaining judicial review of most public agency decisions is by instituting a
proceeding for writ of mandate. Bodinson Mfg. Co., 17 Cal.2d at 328-30.
Generally, a writ will lie when there is no plain, speedy, and adequate
alternative remedy; the respondent has a duty to perform; and the petitioner
has a clear and beneficial right to performance. Payne v. Superior Court
(1976) 17 Cal.3d 908, 925. Writ relief is specifically appropriate to
correct those acts and decisions of administrative agencies which are in
violation of law, where no other adequate remedy is provided. Bodinson
Mfg. Co., 17 Cal.2d at 329. As detailed below, writ relief is appropriate
here because Appellants implementation of the furlough program exceeded
any legislative authorization of those furloughs, and violated Appellants
clear, present, non-discretionary, ministerial obligations under the Water
Code, Health and Safety Code, and the 2010 Budget Act. Mandamus is
therefore an appropriate vehicle to determine whether Appellants
administrative actions comply with the Legislatures enactments. See also
California Attorneys v. Brown (2011) 195 Cal.App.4th 119, 127 (writ of
mandate directing Governor to set aside Executive Order insofar as it
conflicted with statutory prohibition on furloughs of certain employees).
Appellants nevertheless contend that writ relief is inappropriate
because this action is merely a wage dispute between . . . state employees
and the state employer. AOB 17. Although a claim for money damages,
including back pay, is sometimes construed as a legal remedy, the
overwhelming weight of authority establishes that mandamus relief is
available where, as here, an obligation to pay money rests upon an officialsactions and disputes as to the proper construction of a statute or ordinance
defining or giving rise to the exercise of official duty. California
Teachers Assn v. Governing Bd. of Gustine Unified Sch. Dist. (1983) 145
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Cal.App.3d 735, 747 (quoting Tevis v. City & County of San Francisco
(1954) 43 Cal.2d 190, 198); see also Coan v. State of California (1974) 11
Cal.3d 286, 291 (Although a claim for payment of salary is in effect a
money claim, mandamus is a proper remedy where the dispute concerns the
proper construction of a statute or ordinance giving rise to the official duty
to pay the salary claim.). These cases also emphasize that mandamus is
appropriate not only where there is a need for judicial construction of the
statute or ordinance giving rise to the official duty, but also because there
may be a need to obtain official cooperation to ensure payment. Tevis, 43
Cal.2d at 198;see also Holt v. Kelly (1978) 20 Cal.3d 560, 565 n.5
([M]andamus may be brought to start the chain of action designed to
compel a ministerial duty by a public officer, even if the ultimate goal may
be recovery of a sum of money.); Glendale City Employees Assn, Inc. v.
City of Glendale (1975) 15 Cal.3d 328, 343 (often the payment of the
wages of apublic employee requires certain preliminary steps by public
officials) (emphasis in original).
Courts thus repeatedly have held that writ relief may properly be
obtained to ensure public officials comply with their legal obligations, even
when such compliance results in a back pay award. See, e.g., id. at 343-44
(mandamus appropriate to compel city employer to pay wages in
accordance with duties established in collective bargaining agreement);
Sanders v. City of Los Angeles (1970) 3 Cal.3d 252, 259-62 (granting writ
relief to obtain back pay where city failed to comply with legal obligation to
adjust salaries); Cal. Sch. Employees Assn v. Torrance Unified Sch. Dist.(2010) 182 Cal.App.4th 1040, 1044 (writ of mandate proper for addressing
wage claims by school district employees where dispute was based on
alleged statutory duty); Fugitt v. City of Placentia (1977) 70 Cal.App.3d
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868, 876 (Mandamus is proper to compel the payment of back salary to a
city employee for the period during which he was wrongfully discharged.);
Reinbold v. City of Santa Monica (1976) 63 Cal.App.3d 433, 438 (action
for payment of accumulated sick leave properly brought as a writ
proceeding where lack of payment was caused by improperly excluding
petitioner from bargaining unit; and mandamus relief appropriate to
compel public officials to do what is necessary to make payment to
employees);see also Bunnett v. Regents of Univ. of Cal. (1995) 35
Cal.App.4th 843, 849 (universitys denial of certain monetary retirement
benefits should have been brought as an action for ordinary mandate, not a
civil action);Berkeley Unified Sch. Dist. v. City of Berkeley (1956) 141
Cal.App.2d 841, 845-46 (where auditor withheld school funding based on
erroneous conception of his duties, writ of mandate more appropriate than
simple action for money, as it better comports with the dignity of public
officials who stand by their duties as they see them, [and it] also carries
through to conclusion by directing issuance of a warrant).4
Pomona Police Officers Association v. City of Pomona (1997) 584
Cal.App.4th 578, cited by Appellants (AOB 16), provides a useful contrast.
There, the court held that a unions claim for economic benefits was a claim
for damages for which there was an adequate remedy at law through a
breach of contract action. 58 Cal.App.4th at 590. At issue was an
agreement between the union and the city to convert certain portions of
retirement contributions to salary for retirement purposes. Id. at 582-83.
When the agreement could not be implemented because of existing statutory
constraints, and the parties could not agree on terms of a new agreement,
the union sought a writ to compel the city to provide an economic benefitequivalent to what had been contemplated in the original agreement. Id. at
590. The Court of Appeal affirmed the denial of a writ, finding that the
unions claim was in essence a breach of contract action. Id. The court
acknowledged the established exception for wage claims involving disputes
(continued...)
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While Appellants concede that writ relief may be had in some
circumstances to compel public officials to pay employees salaries, they
contend writ relief is properonly when the legal duty at issue is the specific
duty to pay those salaries. AOB 18-20. As an initial matter, even assuming
that Appellants proposed narrow rule was supported by the case law
(which it is not), the statutes at issue in this case do establish the obligation
to pay salaries. Specifically, both Water Code 13177.7(b) and Health and
Safety Code 25353.5(b) prohibit the reduction in salaries through
personal services limitations, including any position reductions. And the
2010 Budget Act the source of the other statutory obligation at issue
establishes the amount by which employees salaries may be reduced
through furloughs. Thus, all of the legal obligations at issue directly control
Appellants ability to reducethe hours and salaries of employees
represented by PECG and CAPS.5
(...continued)4
as to the proper construction of a statute, but held it did notapply to the
case. Id. (noting that in cases where exception does apply, ultimate effect
of a decision may be to adjudicate a money claim). Because PECG and
CAPS claims here do involve the proper construction or application of the
legislatively approved furlough program, as well as prohibitions of the
Water Code and Health and Safety Code, they are a proper subject for a
mandamus action.
In the trial court, Appellants argued that their statutory obligations5
are not present because the last furloughs occurred in 2011. Appellants
appear to have abandoned that argument on appeal. In any event, it lacks
merit. As a general matter, the requirement that there be a present duty
stems from the fact that mandamus will not lie where the act complained ofhas not yet occurredand is thus contingent or speculative. See, e.g., Treber
v. Superior Court(1968) 68 Cal.2d 128, 134 (rule that there must be a
present duty is most commonly invoked in denying an application to
compel the performance of future acts);Brown v. Superior Court(2011)
(continued...)
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Moreover, Appellants argument relies on an overly narrow view of
the types of legal obligation that may be involved in mandamus proceedings
with related wage claims. See AOB 20 (contending the legislative
enactments which are the subject of the courts review must create the very
duty to pay the salary claim which is before the court). The case law
simply does not support such a constrained reading. Appellants base their
argument on a single statement in Coan, 11 Cal.3d at 291, that mandamus
is a proper remedy where the dispute concerns the proper construction ofa
statute or ordinance giving rise to the official duty to pay the salary claim.
(Emphasis added.) While this is true as far as it goes, other cases establish
that the availability of writ relief is broader and that a mandamus action
over a public employees salary is appropriate whenever the claim turns on
(...continued)5
199 Cal.App.4th 971, 995 (denying writ relief related to unused furlough
days where potential duty to pay for those days contingent on future
events); Fitch v. Justice Court of Anderson Valley Judicial Dist. (1972) 24
Cal.App.3d 492, 495 ([M]andate [will not] lie to perform a future duty if
no present duty to perform exists.). Although the requirement that apresent duty exists is equally applicable to acts which it is too late to
perform, that generally occurs only when the party required to act has lost
jurisdiction to do so. See, e.g., Treber, 68 Cal.2d at 134; Cal. Assn of
Health Facilities v. Dir., Dept of Health Servs. (1986) 178 Cal.App.3d
1109, 1114 (to accept contention there is no present duty because statutory
deadline for implementing program had passed would encourage others to
ignore a deadline in order to argue that their duty to act had been
extinguished; duty too late to perform only where the party in question no
longer ha[s] the legal authority to act (emphasis in original)). Appellants
have not, and cannot, claim that they lack legal authority to comply with acourt order in this case. Finally, the numerous cases discussed above,supra
at pp. 9-10, where writ relief was granted to award back pay, conclusively
demonstrate that an officials failure to fulfill mandatory obligations to
make salary payments in the past gives rise to a present duty for purposes
of mandamus.
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construction of a statute or ordinance defining or giving rise to the exercise
of official duty. Tevis, 43 Cal.2d at 198;see alsoCaliforniaTeachers
Assn , 145 Cal.App.3d at 747.
Thus, for example, the California Supreme Court inBannerman v.
Boyle (1911) 160 Cal. 197, held that mandamus was appropriate to compel
back pay from an auditor where the failure to pay was based on the
auditors belief that the petitioner had been removed from his position
during the relevant period. The central legal issue was whether the mayor
had met requirements of the city charter for removing the petitioner from
his position. Id. at 203-08. Mandamus was proper even though the removal
provisions of the charter arguably did not create the duty to pay petitioners
salary. But there, as here, the failure to comply with mandatory legal
requirements necessarily gave rise to an obligation to provide back pay, and
that claim was properly adjudicated in a mandamus proceeding. Id. at 209.
Appellants also erroneously attempt to characterize PECG and
CAPS claims as a challenge to Appellants exercise of discretion. AOB
20-21. But PECG and CAPS bring distinct challenges to aspects of the
furlough program, each of which is based on the contention that the
furloughs exceeded the scope of any valid legislative authorization. These
challenges to the administrative actions of the Governor and DPA do not
relate to any exercise of judgment or discretion. Rather, they are claims that
executive officials erred in implementing ministerial duties when they
furloughed employees in excess of any legislative authorization to do so.
Thus, Appellants repeated assertion that the Legislatures ratification ofstate employee furloughs through the various budget acts simply represents
an exercise of theLegislatures reserved authority over state employee
compensation (AOB 21 (quotingProfessional Engineers , 50 Cal.4th at
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1050-51) (emphasis added)), is simply not relevant.
Finally, Appellants erroneously contend that the trial court granted
the writ, rather than requiring the filing of a damages action, simply as a
matter of judicial economy. While the trial court observe[d] in passing
that in light of the procedural history of this case, it would be
inappropriate, unfair, and a waste of the litigants and the courts resources
to dismiss the petition and require [PECG and CAPS] to file a new
complaint pursuing the very same claims in an action at law, the court did
not base its ruling solely on that observation. Rather, the court clearly and
(as detailed above) correctly held that [w]rit [r]elief is [a]vailable and
[a]ppropriate. JA, pp. 3103, 3104. But cf. California Teachers Assn , 145
Cal.App.3d at 748 (where legal entitlement to compensation was the proper
subject of mandamus action, petitioner not required to bring separate action
at law to recover funds; all of the issues can best be handled as part of one
proceeding before one judge).6
II. The Trial Court Correctly Held that Employees Represented by
PECG and CAPS Performing Military Base Remediation and
Hazardous Material Management Could Not Lawfully BeFurloughed Without Violating the Single Subject Rule of the
California Constitution
The trial court correctly concluded that the Budget Acts did not
lawfully ratify the furlough of employees protected by Health and Safety
Even if the trial court erroneously had based its decision solely on6
the fact that granting writ relief was more expeditious (which it did not), theCourt should nevertheless affirm the judgment, as writ relief is undeniably
proper. Troche v. Daley (1990) 217 Cal.App.3d 403, 407 ([A] ruling or
decision, itself correct in law, will not be disturbed on appeal merely
because given for a wrong reason. (quotation marks and citation omitted;
alteration in original)).
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Code 25353.5 and Water Code 13177.7 because such ratification would
violate the single subject rule contained in section 9 of article IV of the
State Constitution. JA, pp. 3106-11.
Appellants do not dispute, nor could they, that the Governor lacked
authority unilaterally to impose unpaid furloughs on state employees. In
accordance with the rule ofProfessional Engineers, the Governors
furloughs were lawful only if and to the extentthey were approved by the
Legislature. 50 Cal.4th at 1041, 1050-51. Appellants thus rely on the
Revised 2008, 2009 and 2010 Budget Acts as the source of legislative
approval of the furloughs of the 255 state employees represented by PECG
and CAPS who worked in positions that, during the time the challenged
furloughs were in effect, received non-state funding to perform military
base remediation and hazardous substance management. AOB 28-29; see
also JA, pp. 2409-11.7
The problem with Appellants reliance on the budget legislation is
that these military base positions were protected from furloughs by
provisions of the Health and Safety Code and Water Code that expressly
prohibit the Controller and the Department of Finance from imposing any
. . . personal service limitations of any kind on the positions. Health &
Safety Code 25353.5(b); Water Code 13177.7(b). Therefore, to the
extent any of the Budget Acts purported to authorize the furlough of
personnel in these statutorily protected positions, they ran afoul of the
Constitutions single subject rule.
Appellants have not disputed that PECG and CAPS represent7
employees who worked in positions covered by Health and Safety Code
25353.5(b) and Water Code 13177.7(b), and were furloughed pursuant to
the Executive Orders.
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Under Californias single subject rule, a Budget Act may not
substantively amend and change existing statute law. Professional
Engineers, 50 Cal.4th at 1049 (internal citations and formatting omitted);
see also Cal. Const., art. IV, 9. Appellants attempt to hide from this
single-subject problem, arguing first (and for the first time), that Health and
Safety Code 25353.5 and Water Code 13177.7 do not actually protect
employees working in military base remediation positions from furloughs;
and second, that the Budget Acts authorization of furloughs of employees
in protected positions had no effect on the existing statutory protections,
and thus comports with the single subject rule. As detailed below, neither
of these arguments has any merit.
A. Health and Safety Code 25353.5 and Water Code
13177.7 Prohibit the Unpaid Furloughing of State
Employees Performing Military Base Remediation and
Hazardous Material Management
The trial court properly held that the Health and Safety Code
25353.5 and Water Code 13177.7 protect employees in the covered
military base remediation positions against furloughs. JA, p. 3108.
Specifically, the court held that furloughing of employees in covered
positions was the imposition of personal services limitations prohibited
by the statutes. Id.
In the trial court, Appellants did not dispute that the furloughs
constituted personal services limitations within the meaning of Health
and Safety Code 25353.5(b) and Water Code 13177.7(b). JA, p. 3106.
Thus, Appellants complaint that the trial court did not engage in a lengthy
analysis of this issue (AOB 25), is not well taken. In any event, Appellants
late objection to the plain meaning of these statutes is without merit. The
statutory language, as well as the legislative history, confirm that the
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Legislature plainly intended Health and Safety Code 25353.5 and Water
Code 13177.7 to insulate state employee positions related to military base
clean-up from the vagaries of budget battles and across-the-board
reductions to agencies budgets such as those occasioned by the furloughs.
Health and Safety Code 25353.5(b) and Water Code 13177.7(b)
both prohibit the Controller and the Department of Finance from
impos[ing] any hiring freeze orpersonal services limitations, including
any position reductions, upon any direct or indirect position at DTSC and
the SWRCB relating to the oversight and support of hazardous substance
management and remediation work at military bases. Health & Safety Code
25353.5(b); Water Code 13177.7(b).
Because the statutes refer to personal services limitations as
including[,] but not limited to any position reductions[,] the
Legislatures use of the term must be construed as encompassing personal
services limitations beyondthe reduction of covered positions. Personal
services refers generally to employment. See Stone v. Bancroft(1902) 139
Cal. 78, 82 (describing contract of employment as one for personal
services). Thus, any . . . limitations on personal services is plainly read
as including any restrictions of employee time or services, including those
caused by the furloughs. See Green v. State of Cal. (2007) 42 Cal.4th 254,
260 (language should be given its usual and ordinary meaning).
Personal services also has a specific and commonly understood
meaning in the context of state budgets. SeeWohlgemuth v. Caterpillar
Inc. (2012) 207 Cal.App.4th 1252, 1261 (The meaning of the words of astatute is determined with reference to the context in which the words are
used.); see also People v. Carter(1996) 48 Cal.App.4th 1536, 1540
(Ordinarily words used in a statute are presumed to be used in accordance
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with their established legal or technical meaning.). The personal
services budgets of state agencies cover employee compensation. See
Governors Feb. 20, 2009 Veto Message re: 2009 Budget Act, pp. 2, 4, 5, 7,
9, attached as Exh. B to Decl. of Barbara J. Chisholm in Support of
Plaintiffs-Respondents Request for Judicial Notice (Chisholm Decl.);see
also Chisholm Decl., Exh. A, p. 54 (Department of Finance summary of
2008 Budget Act describing reductions in departmental personal services
budgets); Brown v. Chiang(2011) 198 Cal.App.4th 1203, 1226 (quoting
State Controllers arguments referring to reductions in budgeted employee
compensation as cutbacks in . . . personal service budgets). Thus, and
as Governor Schwarzeneggers own 2009 budget veto message reflects,
reductions to an agencys personal services budget encompass state
employee compensation reduction[s] for furloughs. Chisholm Decl., Exh.
B, pp. 2, 5, 9, 11.
The accepted meaning of personal services in the budgetary
context properly informs the reading of Health and Safety Code
25353.5(b) and Water Code 13177.7(b), in particular because the statutes
were enacted with the intent of insulating covered positions from across-
the-board budget cuts. This is reflected in the statutes legislative history,
as well as in other provisions of the statutes.
Both Code sections were enacted in 2003 in a single bill. JA, pp.
2678-82 (A.B. 1700). At the time of their enactment, not only was there a
state hiring freeze in place (implemented pursuant to an Executive Order),
but there was a proposed 10 percent across-the-board cut to state personnelthat would have affected the covered positions. See JA, p. 2687 (Sen.
Appropriations Comm., Fiscal Summary of A.B. 1700 (2003-04 Reg.
Sess.), as amended Aug. 18, 2003); JA, p. 2684 (Assem. Floor Analysis of
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A.B. 1700 (2003-04 Reg. Sess.), as amended Sept. 2, 2003). The Senate
committee analysis explained that, if these across-the-board cuts were
applied to positions involved in military base clean-up projects, the State
would be required to return current federal funding and would lose future
federal funding for military base remediation projects. JA, p. 2687 (noting
intent to preserve federal funds going to California to pay for [military
base] clean-up). Therefore, to avoid such losses as a result of across-the-
board cuts, the statutes expressly [e]xemptcertain positions within
[DTSC] and [SWRCB] from any hiring freezes and staff cutbacks. JA, p.
2684 (Assem. Floor Analysis of A.B. 1700). See also JA, p. 2684 (Sen.8
Appropriations Comm., Fiscal Summary of A.B. 1700: bill would exempt
[covered] positions from hiring freezes or other personal services
limitations).
That Health and Safety Code 25353.5 and Water Code 13177.7
were intended to insulate the covered positions from the effects of budget
legislation is also reflected in subdivision (c) of the statutes. Those
subdivisions direct the Controller and Department of Finance to exclude
By describing the statutory language, which prohibits freeze[s] or8
personal services limitations, as exempting covered positions from any
hiring freezes and staff cutbacks, the Assembly floor analysis mirrored the
language of Insurance Code 11873(c), which prohibits any freezes and
staff cutbacks. . . . The Legislature thus clearly understood Health and
Safety Code 25353.5(b) and Water Code 13177.7(b) to have an effect
similar to Insurance Code 11873(c). In California Attorneys v. Brown,
supra, 195 Cal.App.4th at 126, this Court held that Insurance Code11873(c)s prohibition on staff cutbacks encompassed reductions in
employees hours caused by the furlough program. The protections of the
Health and Safety Code and Water Code should be construed accordingly.
See People v. Lamas (2007) 42 Cal.4th 516, 525 (similar statutes should be
construed in light of one another) (internal quotation marks omitted).
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covered positions and the specific amounts associated with the positions
from the relevant state agencies base for purposes of calculating any
budget or position reductions required by any state agency or any state law.
Health & Safety Code 25353.5(c); Water Code 13177.7(c). As such, to
the extent budget legislation (or any other state law) purports to require
reductions to an agencys personal services budget, the statutes expressly
require that the amounts associated with covered positions be excluded
from such reductions.
Thus, consistent with the common usage of the term personal
services as referring to budget items covering employee compensation, and
consistent with the Governors own acknowledgment that furloughs
constituted a reduction to personal services (Chisholm Decl., Exh. B, pp. 2,
5, 9, 11), there can be no doubt that Health and Safety Code 25353.5(b)
and Water Code 13177.7(b) prohibit the imposition of furloughs on
employees in covered positions.9
B. The Budget Acts Could Not Ratify the Furlough Program
Because Any Such Ratification Would Violate the Single
Subject Rule
Appellants argue that the Legislature, through the Revised 2008
Budget Act, and the 2009 and 2010 Budget Acts, ratified the furlough of all
state employees covered by then-Governor Schwarzeneggers Executive
Appellants also argue that Health and Safety Code 25353.5 and9
Water Code 13177.7 do not protect the covered positions from furloughs
because the statutes prohibit only the Controller and Department of Financefrom imposing personal services limitations. AOB 25-28. This, however,
is an argument relevant to the effect of the Legislatures purported
authorization of the furloughs on the protections offered by the Health and
Safety and Water Codes, and is therefore addressed below, infra at pp. 25-
26, in the context of the single subject rule analysis.
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Orders, including those in positions involving military base remediation
activities and covered by Health and Safety Code 25353.5 and Water Code
13177.7. But such ratification is ineffective, as it would violate the single
subject rule set forth in the California Constitution.10
Article IV, section 9 of the California Constitution requires that
every statute embrace but one subject, which shall be expressed in its
title. Cal. Const., art. IV, 9. As this Court has explained, the single
subject rule grew out of a concern with ensuring that rider provisions not
slip[] through as part of unrelated legislation, especially where they may
not have carried if the legislative mind had been directed to them.
Planned Parenthood Affiliates of Cal. v. Swoap (1985) 173 Cal.App.3d
1187, 1196 (quotingEx parte Hallawell(1909) 155 Cal. 112, 114).
A Budget Act is fully subject to scrutiny under the single subject
rule. California Labor Fed., AFL-CIO v. Occupational Safety & Health
Standards Bd. (1992) 5 Cal.App.4th 985, 991;see also Harbor v.
Deukmejian (1987) 43 Cal.3d 1078, 1100-01 & n.23 (applying single
subject rule to bill purporting generally to address fiscal affairs). The
single subject of any Budget Act is the appropriation of funds for
government operations, and [the Budget Act] cannot constitutionally be
employed to expand a state agencys authority, or to substantively amend[]
and chang[e] existing statute law. California Labor Fed., 5 Cal.App.4th
at 991 (quoting Swoap, 173 Cal.App.3d at 1198);see also San Joaquin
Appellants complain that the single subject issue was raised for10
the first time in the trial court in PECG and CAPS reply brief. AOB 29
n.5. But as the trial court correctly noted, the issue was squarely presented
by the unions opening brief, which explained that reading the budget
legislation to authorize the furloughs would violate the Constitutions single
subject rule. See JA, pp. 2395, 3106.
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Helicopters v. Department of Forestry (2003) 110 Cal.App.4th 1549, 1558
(Budget bills that substantively change existing law violate the single-
subject rule.).
For purposes of this analysis, conflict with existing law is neither an
essential, nor even a normal attribute of an amendment. Franchise Tax
Bd., 80 Cal.App.3d at 776. Rather, [a]n amendment is . . . any change of
the scope or effect of an existing statute, whether by addition, omission, or
substitution of provisions, which does not wholly terminate its existence,
whether by an act purporting to amend, repeal, revise, or supplement, or by
an act independent and original in form[.] Id. (internal quotations
omitted). For example, under the single subject rule, the Legislature may
not in a budget bill constitutionally grant authority to a state agency that the
agency does not otherwise possess. Professional Engineers, 50 Cal.4th at
1049.
Thus, as this Court has explained, the test of whether a Budget Act
unconstitutionally effects an amendment of existing law for purposes of the
single subject rule:
is determined not by title alone, or by declarations in the new
act that it purports to amendexisting law. On the contrary, it
is determined by an examination and comparison of its
provisions with existing law. If its aim is to clarify or correct
uncertainties which arose from the enforcement of the
existing law, or to reach situations which were not covered by
the original statute, the act is amendatory, even though in its
wording it does not purport to amend the language of the prior
act.
Swoap, 173 Cal.App.3d at 1199 (emphasis in original; quotation marks
omitted), quoted in California Labor Fed., 5 Cal.App.4th at 991.
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The Budget Acts authorization of furloughs of employees in
positions performing military base remediation and hazardous substance
clean-up squarely contradicts the mandate of Health and Safety Code
25353.5 and Water Code 13177.7 that these positions not be reduced or
limited, and thus violates the single subject rule.
In California Labor Federation v. Occupational Safety & Health
Standards Board,supra , this Court held that provisions of a Budget Act
were an invalid amendatory enactment in violation of the single subject
rule. 5 Cal.App.4th at 994-95. The Budget Act provisions at issue
established a cap on the hourly rate the State would pay toward certain
categories of attorney fee awards against state agencies. Id. at 991-92. The
Court explained that existing law, Code of Civil Procedure 1021.5,
contain[ed] an implicit cap of its own by limiting a party to recovering a
reasonable fee, and that the budget restrictions purport to impose a
wholly different cap . . ., and thus were a markedly different substantive
measure. Id. at 994-95;see also Homan v. Gomez(1995) 37 Cal.App.4th
597, 601 (budget restriction violated single subject rule where it restricted
and amend[ed] regulations which provide[d] for family leave for all
qualified prisoners).
Here, the Budget Acts purported authorization of furloughs of
employees working on military base remediation projects is wholly
different from the statutory protections afforded these employees by the
Health and Safety Code and Water Code. California Labor Fed., 5
Cal.App.4th at 994-95. Indeed, a comparison of [the Budget Acts]provisions with existing law (Swoap, 173 Cal.App.3d at 1199), reveals
directly conflictingmandates. On the one hand, the Budget Acts authorize
the furloughs and direct the Director of Finance to make corresponding
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reductions to employee compensation. See Revised 2008 Budget Act,
S.B.3X 2, 3.90(a); Revised 2009 Budget Act, A.B.4X 1, 552 (amending
3.90 of the original 2009 Budget Act); 2010 Budget Act, S.B. 870,
3.91(b). On the other hand, the preexisting Health and Safety Code and
Water Code provisions,prohibit the Department of Finance from instituting
furloughs of employees in covered positions, and, further, require the
Department to exclude covered positions and associated budget amounts
from the relevant agencies budget for purposes of calculating any budget
or position reductions required by . . . any state law. Health & Safety Code
25353.5(b), (c); Water Code 13177.7(b), (c). By attempting to override
and change these instructions to the Department of Finance, there can be no
question that the Budget Acts authorization of furloughs changes the effect
of existing law and is an amendatory enactment in violation of the single
subject rule.
But even if the Budget Acts authorization of the furloughs of
employees in protected positions did not directly conflict with the mandate
of the Health and Safety Code and Water Code provisions (which it does),
there can be no question that the Legislatures authorization of the
furloughs changes . . . the scope [and] effect of those statutory
protections. Franchise Tax Bd., 80 Cal.App.3d at 776.
It is well established that budget legislation can modify the effect of
existing laws even when it does not directly conflict with those laws. For
example, inPlanned Parenthood v. Swoap,supra, the budgetary provisions
at issue purported to prohibit the allocation of any funds appropriated to theOffice of Family Planning to any group promoting abortion services. 173
Cal.App.3d at 1191. Existing statutes provided for the Office to engage in
family planning education and services, and the Court concluded that the
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budget restriction was impermissibly amendatory, foreven if it did not flatly
contradictthe family planning statutes it sought to clarify them, and to
impose[] substantive conditions that nowhere appear in existing law.
California Labor Fed., 5 Cal.App.4th at 994 (discussing and quoting
Swoap, 173 Cal.App.3d at 1201) (emphasis added). The Court explained
that the Budget Act could not properly restrict activities that were
authorized under existing law. Swoap, 173 Cal.App.3d at 1201.
Similarly, in California Labor Federation,supra, the Court noted
that even if the existing law were viewed as ambiguous and open to
judicial interpretation, such that it would not directly conflict with the
Budget Act, the provisions [of the Budget Act] [were] amendatory for
purporting to supersede the judicial resolution of that ambiguity with a
legislative clarification set forth as an appropriation. Id. at 995.
Appellants here argue that the Budget Acts did not change the effect
or scope of existing protections under the Health and Safety Code and the
Water Code because the Legislature has reserved authority to alter state
employee compensation. AOB 32-33. Under Appellants theory, the
Budget Acts do not have an amendatory effect because Health and Safety
Code 25353.5 and Water Code 13177.7 do not restrict the authority of the
Legislature to furlough, and only impose obligations on the Director of
Finance and the Controller.
But the question for this Court is not whether the Legislature has the
authority to implement furloughs. Rather, it is whether the Legislatures
attempt to do so in budget legislation modified the scope of existing law.See California Labor Fed., 5 Cal.App.4th at 995-96 (reiterat[ing] that the
Legislature is presumptively free to limit existing law, but that [w]hat the
Legislature may notdo is to enact existing law granting a right, and then
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retract or impair th[at] right . . . through amendments masquerading as
Budget Act provisions).11
Even if the Health and Safety Code and Water Code provisions are
read as Appellants urge i.e., as impliedly reserving to the Legislature the
authority to impose the otherwise prohibited limitations on personal
services the Budget Acts still have a prohibited amendatory effect. By
authorizing the Department of Finance to implement furloughs that
theretofore the Department wasstatutorily prohibitedfrom undertaking, the
Budget Acts undoubtedly impose[] substantive conditions that nowhere
appear[ed] in existing law. Swoap, 173 Cal.App.3d at 1201. This is no
different from the situation in Swoap, wherein the Office of Family
Planning was authorized by existing law to appropriate money for family
planning, and then was instructed through budget legislation not to
appropriate money to organizations supporting abortions. Id. at 1199-1201.
The authorization of furloughs of employees performing military base
remediation work is a new, substantive provision that certainly was not
Of course, it is always the case the Legislature has the power to11
amend a statute or to enact other legislation that would affect existing
statutes. To the extent the Legislature wants both to dictate appropriations
for a particular subject andto change or clarify the effect of existing law,
nothing prevents it from including provisions in budget legislation and
passing a companion bill to make the statutory changes necessary to
implement the provisions in the budget legislation. Indeed, this is exactly
what the Legislature did in passing the amended 2012-13 Budget Act,
which authorized the furlough of certain state employees. A.B. 1497, 3.90
(Chapter 29, Stats. of 2012). The Legislature also passed a trailer bill (S.B.1006, Chapter 32, Stats. of 2012), which made substantive revisions to
existing statutes, including an amendment to Insurance Code 11873, which
generally exempts employees at the State Compensation Insurance Fund
from furloughs, to allow furloughs during Fiscal Year 2012-13. See S.B.
1006, 26.
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present in existing law. There is no escaping the fact that the Budget Acts,
by authorizing furloughs of employees in statutorily protected positions, had
the effect of amending existing substantive law.12
Appellants rely onProfessional Engineers for their suggestion that
the Legislatures reserved authority over employee compensation
somehow immunizes the Budget Acts authorization of furloughs from
scrutiny under the single subject rule. AOB 32-33. But nothing in
Professional Engineers alters the traditional single subject rule analysis.
There, the Court held that the Budget Act did not substantively amend or
change Government Code 19826. 50 Cal.4th at 1049-50. Section13
19826, however, did not authorize or prohibit furloughs, or provide any
instructions at all to the Executive Branch regarding such furloughs; rather,
as the trial court found, it simply gave the DPA authority to negotiate
salaries and left the last word to the Legislature. JA, p. 3110. Thus, there
was no conflict with Section 19826 when the Legislature ratified the
furloughs. 50 Cal.4th at 1051. Here, in contrast, the Legislatures furlough
of employees in protected military base positions undisputably affects and
undermines the scope of existing substantive protections offered by the
Nor would it work for Appellants to argue that the Budget Acts12
simply clarify the Legislatures reserved authority to furlough employees in
the protected provisions. As in Swoap, such a clarification that purports to
reach situations which were not covered by the original statute is a
prohibited amendatory enactment. 173 Cal.App.3d at 1201 (quotation
marks omitted).
Professional Engineers did not consider whether legislative13
authorization of the furloughs presented a single-subject problem with
respect to employees in positions covered by Health and Safety Code
25353.5 and Water Code 13177.7; nor was that issue presented to the
Court.
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Health and Safety and Water Code provisions, protections that were
intended to insulate the covered positions in the event of a budget crisis.
Finally, Appellants try to contrast the Code sections at issue here
with the Insurance Code provision that was held in California Attorneys,
supra, to prohibit the furloughing of affected employees, arguing that the
Insurance Code provision exempted employees from hiring freezes and
staff cutbacks notwithstanding any other provision of law, where the
protections for military base remediation do not. AOB 27. But this
argument ultimately proves too much. The point of the single subject rule
is that the Legislature cannot, through budget legislation, change the effect
of existing laws. Whether budget legislation has a prohibited amendatory
effect on existing law simply does not depend on whether that law applies
notwithstanding any other laws.14
In sum, Appellants attempt to avoid the single subject rule problem
is unavailing. By ratifying the Governors furlough program through the
Budget Acts, the Legislature perhaps unwittingly impermissibly affected
the existing substantive protections for military base remediation positions
provided by Health and Safety Code 25353.5 and Water Code 13177.7.
Cf. Swoap, 173 Cal.App.3d at 1191, 1193 (giving effect to provision in
Budget Act that was included as a result of clerical error before finding
provision violated single subject rule). Accordingly, the furloughs of
Of course, the mandate set forth in Health and Safety Code14
25353.5(c) and Water Code 13177.7(c), which is also impermissiblymodified by the purported authorization of furloughs, does include a
similarly broad exemption: it requires the Controller and Department of
Finance to exclude covered positions and associated budget amounts when
calculating any budget or position reductions required by . . . any state
law. Health and Safety Code 25353.5(c); Water Code 13177.7(c).
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employees working on the military base projects were without lawful
authorization and should be set aside.
III. The Trial Court Correctly Held that Appellants Furloughing of
Employees in State Bargaining Units 9 and 10 Through the End
of March 2011 Exceeded the Legislatures Authorization ofReductions to Compensation that Were Proportionate to
Those of Supervisory Employees
In enacting the 2010 Budget Act, the Legislature did not authorize
the Governor to make unlimited reductions to represented employees
compensation. Instead, in Section 3.91(a) of the Act, the Legislature
delineated the scope of reductions authorized, requiring that certain item[s]
of appropriation in the Budget Act:
shall be reduced . . . to reflect reductions in employee
compensation achieved through the collective bargaining
process or through administrative actions for represented
employees and a proportionate reduction for nonrepresented
employees. . . .
S.B. 870 3.91(a) (JA, p. 2663).
It is undisputed that, in fiscal year 2010-11, nonrepresented
employees had their compensation reduced by a smaller percentage than the
percentage by which the compensation of PECG- and CAPS-represented
employees in Bargaining Units 9 and 10 was reduced. Nonrepresented
employees had their compensation cut by a total of 8.5 percent during the
fiscal year. JA, pp. 2411, 3025. Although the nonrepresented employees
were subject to three-day-per-month furloughs in August, September and
October of 2010, when the 2010 Budget Act was enacted in October, theGovernor reduced the cuts being made to these employees compensation.
Id. Employees in State Bargaining Units 9 and 10, however, remained
subject to the three-day-per-month furloughs throughout the remainder of
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2010, and into 2011. JA, p. 2411. As a result, these employees hit the mark
of an 8.5 percent reduction in compensation for the fiscal year after their
first furlough day in March 2011. JA, pp. 3025-27. Nonetheless, they were
subject to two additional furlough days in March 2011. JA, pp. 2411-12.
The trial court correctly held that Appellants exceeded the scope of
legislative authorization by imposing furloughs on employees in Bargaining
Units 9 and 10 that resulted in reductions to compensation that were not
proportionate to the reductions made to nonrepresented employees
compensation. JA, pp. 3111-13. None of Appellants arguments to the
contrary have merit.
First, Appellants argue that the trial court misapplied the plain
meaning of the term proportionate. AOB 36. But there is no legitimate
disagreement over the meaning of this term. As Appellants acknowledge,
language should be applied pursuant to its plain meaning. AOB 36; see
also Green, 42 Cal.4th at 260. The plain language meaning of
proportionate, as the trial court explained, is having the same or constant
ratio. JA p. 3111;see also Merriam Webster Collegiate Dict. (11th ed.
2003), at 997 (defining proportionate as synonymous with proportional,
which is defined as [a] corresponding in size, degree, or intensity and [b]
having the same or a constant ratio). Thus, as Appellants counsel
explained to the trial court, two items are proportionate if they maintain
thesame . . . ratio. JA, pp. 3177-78 (hearing transcript). Here, if
reductions to represented and nonrepresented employees compensation
were to maintain the same ratios, or to be reduced by the same proportions,both groups compensation had to be reduced by the same percentage.
Second, while acknowledging the plain meaning of the word
proportionate as having the same . . . ratio, Appellants protest that
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[t]his is not the same . . . as being exactly equal. AOB at 36. Appellants
point is confusing. Clearly, the trial court did not hold that the total dollar
amounts of reductions to represented and nonrepresented employees
compensation had to be exactly equal. Rather, it held consistent with
the plain meaning of the Budget Act and the term proportionate that the
ratio or percentage of the reductions to compensation had to be the same.
See JA, p. 3111.
Presumably what Appellants mean to argue, despite having conceded
that proportionate means having the same ratio, is that the term should
not be read as requiring exactly the same ratios. Or, in other words,
proportionate need not mean exactly proportionate. See AOB 39
(referring to minor variance in reductions). The problem with this
argument is that proportionate has a plain, precise and ascertainable
meaning, and Appellants offer no alternative that would meaningfully
constrain their proposed definition. Further, Appellants certainly cannot
claim they were incapable of determining when the furloughs would exact
cuts from represented employees pay that would draw them even with the
8.5 percent reduction to nonrepresented employees compensation.15
Nor is it the case, as Appellants suggest, that the requirement of
proportionate reductions contemplates an exercise of discretion. The
Indeed, the Governors actions reflect that he understood the15
Budget Act as requiring thesame percentage reductions to nonrepresentedand represented employees pay. In his Executive Order S-15-10, issued
one day after the Legislature ratified nine MOUs with represented
employees, the Governor instituted reductions to compensation that exactly
mirrored the 8.5 percent reduction made to the represented employees
compensation for the 2010-11 fiscal year. JA, p. 2412.
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proportionality requirement imposes a specific and precise duty, one that
Appellants were required to perform in a prescribed manner in obedience
to the mandate of legal authority[,] . . . without regard to [their] own
judgment or opinion. Kavanaugh v. West Sonoma County Union High
School Dist. (2003) 29 Cal.4th 911, 916 (internal quotation marks omitted).
Appellants point to the fact that the Budget Act authorized overall
reductions in employee compensation up to $1,557 million as suggesting
that the Legislature granted Appellants broad discretion to figure out how to
achieve these reductions. AOB 38-39. But Appellants theory would read
the proportionality requirement out of the Budget Act altogether. Although
the Budget Act identified potential total savings that might be obtained
through reductions to employee compensation, it also specifically
designated the manner in which those savings had to be achieved i.e.,
proportionate reductions to represented and nonrepresented employees
compensation.
The requirement of proportionality thus necessarily provides a
limitation on the total savings achieved through reductions. Indeed, it
would be inconsistentwith the scope of the Legislatures authorization if, as
Appellants suggest, the target savings number were read as the only
limitation on the permissible scope of reductions for represented and
nonrepresented employees. See AOB 38-39. As the trial court explained,
adopt[ing] [such a] structural argument would render the word
proportionate mere surplusage, which is not permitted by fundamental
rules of statutory construction. JA, pp. 3111-12 (citingBernard v. Foley(2006) 39 Cal.4th 794, 811; Sara M. v. Superior Court(2005) 26 Cal.4th
998, 1023).
Although the Legislature, in enacting the Budget Act, allowed
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Appellants leeway to reduce compensation either through collective
bargaining or through administrative actions, it imposed a clear limitation
on the scope of that authority. Once the Governors furlough program
extracted the same percentage reductions in compensation from employees
in State Bargaining Units 9 and 10 as those taken from nonrepresented
employees compensation, the furloughs should have ended. They did not,
and the continued furloughing thus exceeded the Legislatures authorization
of proportionate reductions.
Finally, Appellants argue that the legislative history of the 2010
Budget Act supports reading the term proportionate as synonymous with
similar. AOB 37. It does not. As an initial matter, as reflected above,
proportionate is not ambiguous and there is no need to turn to legislative
history. But even when that history is considered, it confirms the trial
courts reading of the Budget Act.
Relying on a single phrase by Senator Ducheny, Appellants argue
that reductions to nonrepresented employees and represented employees
compensation need only be similar, and not proportionate. AOB 37.
Although it is true that Senator Ducheny described the anticipated savings
from reductions to various employee groups employee compensation as
similar, when taken in context, it is clear the Senators remarks did not
stray from the plain meaning of the Budget Act.16
At the time the 2010 Budget Act was being debated, the State was in
Of course, a single senators comments are not sufficient to16
override plain statutory language. See Carter v. California Dept of
Veterans Affairs (2006) 38 Cal.4th 914, 929 ([A] legislators personal
understanding of a bill does not indicate the Legislatures collective intent
in enacting that bill.).
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the process of executing new memoranda of understanding (MOUs) with
SEIU for nine State bargaining units. JA, p. 2412. Thus, during the floor
debate on the Budget Act in the Senate, Senator Ducheny explained:
[The Budget Act] includes savings in employee compensation
that we are pleased, as I think we are waiting for the MOU
that will ratify additional agreements with 9 additional
bargaining units that brings the total to about 15 of our 21
bargaining units who after today, hopefully will have signed
agreements. The savings on employee compensation
recognized through this budget, recognizes those contracts
and assumes similar savings for other units and non-
represented employees, some of which if they do not have a
contract would be done by the administrative actions like the
furloughs the Governor has already imposed. So those
savings are acknowledged in this budget.
JA, p. 2677 (emphasis added).
Senator Duchenys reference to similar savings for other units and
nonrepresented employees is entirely consistent with the notion of
proportionality. In this context, anticipated savings would be similar
precisely because they would be proportionate, i.e., not the same in terms of
dollar amounts, but reflecting the same percentage reduction to employees
compensation.
Additionally, what Senator Duchenys statement does confirm is that
the Legislatures use of the word proportionate referred to the
relationship between the reductions made to represented employees
compensation and those made to non-represented employees
compensation. In order for these reductions to have the same ratio to
each other, they needed to reflect the same percentage reduction in
compensation. Therefore, the trial court reasonably and correctly held that
proportionate means having the same or constant ratio, which is
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synonymous with the same percentage. JA, p. 3111.
Appellants acted outside the scope of the Legislatures authorization
in continuing to furlough employees in Bargaining Units 9 and 10 through
the end of March 2011. The trial courts judgment setting aside this
unlawful action should be affirmed.
IV. The Trial Court Reasonably Overruled Appellants Objections
to Evidence of Reductions to Employees Compensationin Fiscal
Year 2010-2011
The trial court did not abuse its discretion by overruling Appellants
objections to PECGs evidence. A trial courts exercise of discretion in
admitting . . . evidence . . . will not be disturbed except on a showing the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice. San
Lorenzo Valley Community Advocates for Responsible Educ. v. San
Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419
(quotingPeople v. Rodriguez(1999) 20 Cal.4th 1, 9-10);see also People ex
rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640
(discretion is only abused where there is a clear showing [it] exceeded the
bounds of reason, all of the circumstances being considered) (internal
quotation marks omitted);Evid. Code 353, 354.
As an initial matter, Appellants mistakenly state that the trial court
found merit to their objections to paragraphs 16, 17 and 20of the
Declaration of Theodore Toppin, PECG and CAPS Legislative Director,
which was filed together with the unions opening brief in the trial court.
AOB 40; JA, p. 2406. Instead, the trial court found that the foundational
issues raised by Appellants objections 16-17, and 20 to that declaration
had merit, but were remedied by a Supplemental Declaration filed by Mr.
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Toppin. JA, p. 3102. Appellants objections 16-17 and 20 related to17
paragraphs 28, 29 and 32 of the original Toppin declaration, each of which
described the percentage by which the compensation of employees
represented by PECG and CAPS was reduced during fiscal year 2010-2011.
JA, pp. 2952-53, 2955-56.
The Declaration of Theodore Toppin submitted with the unions
opening brief documented the reductions in compensation made to
employees in State Bargaining Units 9 and 10 in fiscal year 2010-2011, and
those made to supervisory employees represented by PECG and CAPS (i.e.,
the so-called nonrepresented employees). JA, pp. 2411-12 (27-31).
The declaration explained the size and timing of reductions made to the
compensation of employees represented by PECG and CAPS (something to
which Mr. Toppin undisputedly could testify), and then provided the
percentages by which these employees compensation had been reduced for
the fiscal year. See id.;see also JA, pp. 2406-07 (describing personal
knowledge of furloughs, Executive Orders, and their effects on employees
represented by PECG and CAPS). The declaration contained sufficient
detail to support these percentages. For example, paragraph 29 of the
declaration explained that the supervisory employees represented by PECG
and CAPS were first subject to three-day-per-month furloughs in effect in
Augus