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1 833 S. Burnside Ave. Los Angeles, California (213) California practice dedicated to providing affordable legal assistance to teachers Second District Court of Appeal Law Offices of Ronald C. Lapekas May 23, 2016 Via only 7017 Kinzalow Drive Knoxville, Tennessee (865) Tennessee practice limited to representing Veterans before the Board of Veteran Appeals Re: B Adams Petition for Rehearing Notice of intention to submit motion for relief from default in filing petition due May 20, 2016 To the Presiding Justice of the Court of Appeal: I am filing the petition for rehearing that was due Friday, May 20, 2016 after the Court granted an extension of time to do so. I was unable to meet that deadline and will submit a motion for relief from default as soon as I can prepare it. Thank you in advance for your consideration. Very truly yours, Ronald C. Lapekas rcl-law@lapekas.net Fax: (888)

2 NO. B IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA Second Appellate District, Division One LOS ANGELES UNIFIED SCHOOL DISTRICT, Plaintiff and Respondent, vs. JOHN W. ADAMS, Defendant and Appellant. Appeal from the Judgment of the Los Angeles County Superior Court Hon. C. Edward Simpson, Judge Presiding Los Angeles Superior Court No. BC APPELLANT S PETITION FOR REHEARING Ronald C. Lapekas - SBN Law Offices of Ronald C. Lapekas 833 S. Burnside Ave. Los Angeles, CA Tel: (213) Fax: (888) rcl-law@lapekas.net Attorney for Appellant

3 TABLE OF CONTENTS TABLE OF CONTENTS... 2 TABLE OF AUTHORITIES... 3 I. PRELIMINARY STATEMENT... 5 II. Discussion... 7 A. LAUSD WAS REQUIRED TO SUBMIT THE ISSUE OF THE PROPER CALCULATION OF MR.ADAMS COMPENSATION TO THE PUBLIC EMPLOYEE RELATIONS BOARD (PERB) BECAUSE COMPENSATION IS A SUBJECT OF MANDATORY BARGAINING B. LAUSD S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES COMPELS REVERSAL OF THE JUDGMENT AS A MATTER OF LAW BECAUSE THE TRIAL COURT WAS DEPRIVED OF SUBJECT MATTER JURISDICTION... 9 C. LAUSD'S FAILURE TO ALLEGE EXHAUSTION OF ADMINISTRATIVE REMEDIES UNDER THE EERA NOT ONLY DEPRIVED THE TRIAL COURT OF SUBJECT MATTER JURISDICTION, IT ALSO UNNECESSARILY BURDENED THE JUDICIAL SYSTEM D. THE DAMAGES ARE SPECULATIVE BECAUSE THEY WERE CALCULATED USING SUMMARIES AND NOT BASED ON ARTICLE IX OF THE CBA...15 E. BECAUSE MR.ADAMS WAS PAID A SALARY UNDER A COLLECTIVE BARGAINING AGREEMENT IT WAS IMPOSSIBLE FOR HIM TO BE OVERPAID BASED ON LAUSD S HOURLY SUMMARIES AS A MATTER OF LAW III. CONCLUSION...18 LAUSD v. Adams NO. B262506

4 TABLE OF AUTHORITIES California Supreme Court Abelleira v. District Court of Appeal (1941) 17 Cal.2d , 13 Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th San Mateo City School Dist. v. Public Employee Relations Bd. (1983) 33 Cal.3d Zinn v. Ex-Cell-O Corp. (1944) 24 Cal.2d California Court of Appeal County of Sacramento v. AFSCME Local 146 (2008) 165 Cal.App.4th Los Angeles Unified School Dist. v. Public Employment Relations Bd. (1986) 191 Cal.App.3d Negri v. Koning & Assoc. (2013) 216 Cal.App.4th Personnel Com. v. Barstow Unified School Dist. (1996) 43 Cal.App.4th Schwenke v. J & P Scott, Inc. (1988) 205 Cal.App.3d United Teachers Los Angeles v. Los Angeles Unified School Dist. (2009) 177 Cal.App.4th LAUSD v. Adams NO. B262506

5 California Codes Civil Code Evidence Code Government Code Government Code Government Code (b)-(d)...8 Government Code Government Code Precedent Decisions Anaheim Unified High School District (1981) PERB No LAUSD v. Adams NO. B262506

6 I. PRELIMINARY STATEMENT Appellant John W. Adams respectfully submits that this Petition for Rehearing should be granted so that the parties may submit further briefing on two simple issues: 1. Did the failure of Respondent Los Angeles Unified School District (LAUSD or District) to exhaust its administrative remedies deprive the trial court of subject matter jurisdiction? 2. If LAUSD was not required to exhaust its administrative remedies, did the District s unilateral change of the way teachers are paid from annual salary paid monthly to hourly pay based on a six-hour work day render its calculation of overpayment damages speculative? Unfortunately, and as explained in this Court s Decision, Mr. Adams clearly misperceived and failed to fully appreciate the requirement that the appellant challenging a trial court s findings of fact and evidentiary rulings has the burden to provide the complete record to argue his legal points. While at first glance, this rule might seem to LAUSD v. Adams NO. B262506

7 render this Petition futile, this Petition requests rehearing on issues of law based on evidence that is in the record before this Court. Mr. Adams is also requests the Court to take Judicial Notice of judicial notice of relevant parts of the Collective Bargaining Agreement attached hereto as Exhibit A under Evidence Code 451 because it appears that the Collective Bargaining Agreement was not offered into evidence. However, it is a matter of common knowledge that LAUSD and UTLA are parties to a collective bargaining agreement. Indeed, it is submitted that the mere existence of the collective bargaining agreement and the fact LAUSD s lawsuit seeks recovery of alleged overpaid compensation requires a rehearing to ensure that both the trial court and this Court have subject matter jurisdiction over this dispute. With regard to the second ground that the damages awarded by the Court are speculative, the District s calculation of overpayment damages does not reflect the fact that Mr. Adams and other teachers were paid an annual salary, not an hourly rate. The CBA also provides that a teacher s contract period is measured in days, not hours. Therefore, further briefing is necessary to determine whether LAUSD s LAUSD v. Adams NO. B262506

8 alleged overpayments are pure speculation. This also reinforces the first point that LAUSD s unilateral change of the way it calculates overpayment disregards the express language of the CBA because compensation is a matter of mandatory negotiation that should have been to PERB. II. Discussion A. LAUSD WAS REQUIRED TO SUBMIT THE ISSUE OF THE PROPER CALCULATION OF MR.ADAMS COMPENSATION TO THE PUBLIC EMPLOYEE RELATIONS BOARD (PERB) BECAUSE COMPENSATION IS A SUBJECT OF MANDATORY BARGAINING. The original and current mandatory subjects of bargaining, otherwise known as the scope of representation, or the scope of bargaining, state that the definitions included in Government Code Section are to be limited to matters relating to wages, hours of employment, and other terms and conditions of employment. Terms and conditions of employment are further defined to mean health and welfare benefits, leave, transfer and reassignment policies, safety conditions, class size, evaluation procedures, organizational security, grievance procedures, certain aspects of layoffs, and causes and LAUSD v. Adams NO. B262506

9 procedures for discipline. Gov. Code (b)-(d). In order to resolve disputes between the parties to negotiated agreements, the Public Employment Relations Board (PERB) was established. Gov. Code PERB is charged with administering and enforcing EERA as well as several other provisions of educational law. PERB s interpretations of the act s scope of language, ave resulted in a settled rule: A subject not specifically listed as negotiable will be held to be so if it (1) clearly relates to an enumerated subject (such as the alleged overpayments ); (2) is likely to cause conflict of the sort that collective bargaining is designed to overcome (are teachers paid an annual salary payable monthly or are they paid an hourly rate for a specific number of hours?) ; and (3) negotiations over it will not unduly abridge managerial prerogatives (as in the CBA was amended and readopted as the CBA AFTER LAUSD discovered its LAUSD v. Adams NO. B262506

10 payroll mistake. Anaheim Unified High School District (1981) PERB No. 177, 52 CPER 64; cited with approval in San Mateo City School Dist. v. Public Employee Relations Bd. (1983) 33 Cal.3d 850. See also United Teachers Los Angeles v. Los Angeles Unified School Dist. (2009) 177 Cal.App.4th 863; Los Angeles Unified School Dist. v. Public Employment Relations Bd. (1986) 191 Cal.App.3d 551. B. LAUSD S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES COMPELS REVERSAL OF THE JUDGMENT AS A MATTER OF LAW BECAUSE THE TRIAL COURT WAS DEPRIVED OF SUBJECT MATTERJURISDICTION The following facts show that LAUSD s allegations that it had overpaid teachers should have been submitted to PERB because compensation is a mandatory subject of negotiation under the EERA. LAUSD is a public school district. [First Amended] Complaint (FAC), Clerk s Transcript (CT), pp. 191 et seq.. LAUSD employed Mr. Adams and 636 other named defendants as full-time, permanent teachers. CT pp. 191 et seq. UTLA is the exclusive bargaining agent for all LAUSD certificated employees. Judicial notice under Ev. Code 451. LAUSD v. Adams NO. B262506

11 All of the defendants in the present and consolidated cases were members of UTLA. Judicial notice under Ev. Code 451. LAUSD and UTLA adopted a series of CBA s during the relevant time periods (2007 through 2010). Judicial notice under Ev. Code 451. LAUSD s complaint alleges that LAUSD overpaid compensation to Mr. Adams. Mr. Adams requests judicial notice be taken that compensation is a mandatory subject of bargaining under the EERA. Ev. Code 451. Compensation of UTLA members is addressed in Article IX of the CBA. Exhibit A, p. xx. The trial court awarded damages to LAUSD based on the trial court s determination that the calculations presented in the form of summaries were true and accurate representations of Mr. Adams hourly rate, his hours of work, and his sick leave benefits. Minute Order dated 1/13/15, CT The trial court awarded damages to LAUSD based on the LAUSD v. Adams NO. B262506

12 exhibits listed in the trial court s minute order dated 1/13/15. Minute Order dated 1/13/15, CT The exhibits the trial court relied on were summaries, not direct evidence. CT Mr. Adams was paid monthly, therefore it would not have been unduly burdensome to require LAUSD to submit admissible evidence of approximately 36 pages instead of summaries. The summaries refer to contract hours, a term that does not exist in the CBA. The summaries refer to hourly rate, a term that does not apply to full-time permanent teachers under Article IX. The summaries do NOT include ANY time worked in excess of 8 hours a day. The complaints filed herein do not allege that LAUSD either exhausted its administrative remedies or was excused from doing so. Mr. Adams attempt to file a cross-complaint was rejected because, inter alia, he failed to allege that he exhausted his LAUSD v. Adams NO. B262506

13 administrative remedies. Based on these facts, upon a finding that LAUSD was required to first submit its attempt to re-characterize the CBA s compensation provisions, LAUSD s failure clearly deprived the trial court of subject matter jurisdiction. In general, a party must exhaust available administrative remedies before resorting to the courts. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292.) Absent such exhaustion, the courts have no subject matter jurisdiction to proceed. (Id. at p. 293.) (2) "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.) County of Sacramento v. AFSCME Local 146 (2008) 165 Cal.App.4th 401 LAUSD v. Adams NO. B262506

14 Our Supreme Court has explained the distinction between a lack of jurisdiction "in the strict sense" and acts in excess of jurisdiction as follows: " 'Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citing situations providing examples.]... [ ] But in its ordinary usage the phrase 'lack of jurisdiction' is not limited to these fundamental situations... [I]t may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942, emphasis deleted.) Schwenke v. J & P Scott, Inc. (1988) 205 Cal.App.3d 71, LAUSD v. Adams NO. B262506

15 Unlike a challenge to personal jurisdiction, an attack on subject matter jurisdiction is not waived by a failure to make it initially and may be made for the first time at any stage of the litigation, including appeal. Code of Civ. Proc (a); Consolidated Theatres, Inc. v Theatrical Stage Employees Union, Local 16 (1968) 69 Cal.2d 713, 721. Further, when subject matter jurisdiction has been challenged unsuccessfully in the trial court before judgment, the party challenging the ruling may, after judgment, attack the ruling directly by, e.g., an appeal (Code Civ. Proc (a)(1), 904.2(a)) or a motion to set aside a default and default judgment (Code Civ. Proc. 473). C. LAUSD'S FAILURE TO ALLEGE EXHAUSTION OF ADMINISTRATIVE REMEDIES UNDER THE EERA NOT ONLY DEPRIVED THE TRIAL COURT OF SUBJECT MATTER JURISDICTION, IT ALSO UNNECESSARILY BURDENED THE JUDICIAL SYSTEM. "The EERA governs employer-employee relations within public school systems. Government Code sections and set forth conduct deemed to constitute unfair employment practices by employers or employee organizations. Government Code section provides, '[t]he initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of LAUSD v. Adams NO. B262506

16 this chapter, shall be a matter within the exclusive jurisdiction of [PERB].' PERB's exclusive jurisdiction extends to all alleged violations of the EERA, not just those which constitute unfair practices. [Citation.]" Personnel Com. v. Barstow Unified School Dist. (1996) 43 Cal.App.4th 871, 885. D. THE DAMAGES ARE SPECULATIVE BECAUSE THEY WERE CALCULATED USING SUMMARIES AND NOT BASED ON ARTICLE IX OF THE CBA Although the law does not require that damages be determined with an absolute degree of certainty, damages must not be speculative. Compare Zinn v. Ex-Cell-O Corp. (1944) 24 Cal.2d 290 with Civil Code 3301, providing that No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin. E. BECAUSE MR.ADAMS WAS PAID A SALARY UNDER A COLLECTIVE BARGAINING AGREEMENT IT WAS IMPOSSIBLE FOR HIM TO BE OVERPAID BASED ON LAUSD S HOURLY SUMMARIES AS A MATTER OF LAW. LAUSD's "calculations" not only violate the CBA and trigger its duty to submit the matter to PERB, they also do not make sense. Specifically, LAUSD unilaterally adopted an arbitrary process that is neither authorized nor contemplated by the express terms of the CBA. Indeed, LAUSD s calculations are little more than guesses because teachers are paid an annual salary paid monthly, not an hourly rate based on LAUSD v. Adams NO. B262506

17 a six-hour day. It is patently obvious that Article IX does not authorize paying fulltime, regular employees an "hourly rate". To the contrary, Article IX, Section 1.0 specifically negates LAUSD s ability to estimate the number of hours a teacher works because THE CBA CLEARLY ANTICIPATES THAT TEACHERS WILL WORK MORE THAN EIGHT HOURS A DAY: 1.0 General Workday Provisions: It is agreed that the professional workday of a full-time regular employee requires no fewer than eight hours of on-site and off-site work, and that the varying nature of professional duties does not lend itself to a total maximum daily work time of definite or uniform length. the workday for part-time employees shall be proportionate, or governed by the employee's individual employment contract. Further, if the trial court adopted LAUSD s reasoning to determine the proper amount by arbitrarily using a six-hour day, this calculation is already incorrect as a matter of law because it is in conflict with the unambiguous CBA language stating that a professional workday requires no fewer than eight hours of on-site and off-site work. LAUSD v. Adams NO. B262506

18 It is also a fact that full-time, permanent teachers do not punch a clock or get paid by the hour. Therefore, neither common sense nor the CBA offers factual or legal support for LAUSD s crystal ball method of calculating the alleged overpayment. As a final point, it appears that Mr. Adams was never paid any compensation at an hourly rate, whether for a six-hour day or an eighthour day. Moreover, unless and until LAUSD explains how and why Article IX of the CBA has been repealed or otherwise rendered inapplicable, Mr. Adams compensation was annual, not hourly. Therefore, rehearing is necessary because ANY attempt to calculate an alleged overpayment by guessing at the number of hours worked is speculative and may, in fact, be unlawful as a matter of California and Federal overtime laws and may have resulted in LAUSD being required to pay overtime because it has categorized its exempt employees as hourly. The question presented in this case is whether a compensation scheme based solely upon the number of hours worked, with no guaranteed minimum, can be considered a salary within the meaning of the pertinent wage and hour laws. We conclude that such a payment schedule is not a salary and, therefore, does not qualify the employee as LAUSD v. Adams NO. B262506

19 exempt. Since the trial court found the employee was exempt, we shall reverse. Negri v. Koning & Assoc. (2013) 216 Cal.App.4th 392. III. CONCLUSION It is well settled that the absence of subject matter jurisdiction means that a judgment may be attacked at any time, both directly and collaterally. Therefore, rehearing should be granted on this ground. In the alternative, Mr. Adams respectfully submits that the trial court s calculation of damages is erroneous as a matter of law because the calculations violate the CBA. Therefore, should the Court not reverse the judgment on the ground that LAUSD failed to exhaust its administrative remedies, rehearing is necessary so that this issue may be further developed. Respectfully submitted, Dated: May 23, 2016 Ronald C. Lapekas LAUSD v. Adams NO. B262506

20 PROOF OF SERVICE I am a citizen of the United States, a resident of the State of Tennessee, over the age of eighteen years, a member of the State Bar of California, and I am not a party to this action. My Los Angeles business address is 833 Burnside Ave., Los Angeles, CA My Tennessee office address is 7017 Kinzalow Dr., Knoxville, TN PETITION FOR REHEARING On May 23, 2016, I served the above listed document(s) on the interested parties to this action as follows: Person/Entity Served Electronic Address Party Dennis K. Wheeler, Esq. Koeller, Nebeker, Carlson, & Halluck, LLP 3 Park Plaza Suite 1500 Irvine, CA Hon. C. Edward Simpson, Esq. Los Angeles County Superior Court 111 N. Hill St. Los Angeles, CA dennis.wheeler@knch.com via U.S. Mail Respondent LAUSD By or electronic service. Based on a court order or an agreement of certain parties to accept service by or electronic transmission, I caused the documents to be sent to the address(es) listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. By U.S. Postal Service: I served a true and correct copy of the documents on the parties who have not agreed to other forms of service by placing a true and correct copy of the documents in a sealed envelope, with proper postage affixed thereto. I personally deposited the envelope in the U.S. Mail at Issaquah, Washington today. I certify under penalty of perjury of the laws of Tennessee, Washington, and of California that the foregoing is true and correct. Executed at Knoxville, Tennessee / Los Angeles, California Dated: May 23, 2016 Ronald C. Lapekas LAUSD v. Adams NO. B262506

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