May 2017 Newsletter – Community College Districts

PERB Allows Pre-Hearing Motions to Dismiss Under Limited Circumstances

In the recent case before the Public Employment Relations Board (“PERB”), Felicijan v. Santa Ana Unified School District (2017) PERB Decision No. 2514, the PERB examined the circumstances under which an Administrative Law Judge (“ALJ”) could dismiss a case prior to hearing.

In this case, in March of 2006, the Charging Party, Ms. Felicijan, brought an unfair practice charge against the Santa Ana Unified School District, with regard to an alleged failure to consider accommodation of her disability.   The case was continued multiple times due to the Complainant’s medical condition and deteriorating health, until August of 2013.  The District brought a motion to dismiss for failure to prosecute or proceed to hearing within a reasonable time.  The District claimed that, because its main witness suffered loss of memory due to a stroke or heart attack in 2008 [there were six declarations which attributed the loss of memory to either stroke or heart attack, and placed the time as being alternatively as between 2005-2006, 2008, or 2011], the delay in prosecution had caused the District prejudice.  The ALJ granted the motion in January of 2014.  The Charging Party appealed to the PERB.

The PERB reversed, and set forth under what circumstances an ALJ could grant a motion to dismiss prior to hearing.  The PERB noted that there is no official provision for pre-hearing motions to dismiss in the PERB regulations; however, the PERB had considered such motions since its beginning, and therefore, the PERB held that consideration of such a motion was within the ALJ’s discretion.  The PERB found that there were basically two situations in which an ALJ can grant a motion to dismiss.  The first situation is where the complaint, on its face, shows that the Charging Party is not entitled to judgment, or is barred by the statute of limitations.  The PERB analogized this to a motion in California State Court for judgment on the pleadings.  (Code Civ. Proc., § 438(c)(1)(B)(i), (ii).)  In ruling on such a motion, all facts alleged in the complaint are assumed to be true and must be read in the light most favorable to the non-moving party.  Matters extrinsic to the complaint, including any defenses or other matters pleaded in the defendant’s answer, are not considered.  The PERB held that in the present case, the Charging Party had alleged sufficient facts, and so the case could not be dismissed on that basis.

The second instance is where there are no facts in dispute, and the moving party is entitled to judgment as a matter of law.  The PERB explained that this was similar to a motion for summary judgment in California State Court under Code of Civil Procedure section 437c.  However, the PERB set out important distinctions between what is allowed in California State Court, and what is allowed in an unfair practices context.  In California State Court, the moving party must provide a separate statement setting forth each fact as to which there is no dispute, and the evidence supporting it.  (Cal. Code. Civ. P. §437c(b)(1).)  The facts can be supported by declarations of witnesses, affidavits, discovery responses, and matters subject to judicial notice.

In contrast, the PERB found that there was no similar tool to the separate statement of undisputed facts required in administrative proceedings.  Further, no prehearing discovery is authorized in unfair practice proceedings.  In addition, declarations and affidavits were hearsay, so the ALJ could only consider declarations or affidavits when “corroborating, non-hearsay evidence, typically in the form of live testimony,” existed.  Since live testimony required a hearing, where the only evidence is in the form of declarations or affidavits, granting the motion is improper.  The PERB therefore decided that, because there was no admissible evidence, but only hearsay declarations that were inconsistent with each other (indeed, one even stated that the witness’s memory was improving over time), the ALJ erred in granting the motion to dismiss.

For more information regarding this article, please contact Ken Baisch at kbaisch@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice.  If you would like further information on this matter, please contact our office.

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