Filed 4/28/20
                     CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                       FIRST APPELLATE DISTRICT

                                DIVISION FIVE


PHILIP B. OBBARD,                             A155106
       Plaintiff and Respondent,
                                             (County of San Francisco
v.                                           Super. Ct. No. CPF-17515590)
STATE BAR OF CALIFORNIA,
       Defendant and Appellant.


       The State Bar of California (State Bar) argues that respondent Philip
B. Obbard, a research attorney for the Superior Court of the State of
California, is not a state employee and is not, therefore, exempt from the
State Bar’s mandatory continuing legal education requirements. (See Bus. &
Prof. Code, § 6070, subd. (c) [exempting “employees of the State of
California”]).1 The trial court disagreed and entered judgment for Obbard.
We affirm.
                                   BACKGROUND
                                       A.
       In 1989, the Legislature enacted section 6070, which prompted the
creation of the State Bar’s mandatory continuing legal education program.
(Hoffman v. State Bar of California (2003) 113 Cal.App.4th 630, 636; § 6070,
subd. (a); Cal. Rules of Court, rule 9.31.) The legislation is intended to


      1 Undesignated statutory references are to the Business and
Professions Code.

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protect consumers by enhancing the competency of California’s attorneys.
(Warden v. State Bar (1999) 21 Cal.4th 628, 634.) It establishes minimum
requirements for the continuing education program. (§ 6070, subd. (a).)
Subdivision (c) of the statute exempts certain groups of attorneys, including
“[f]ull-time employees of the State of California, acting within the scope of
their employment.” (§ 6070, subd. (c).)
                                       B.
      When the State Bar first implemented the continuing education
program in 1992, two State Bar employees informally concluded attorneys
employed by the superior court are not “employees of the State of California”
and thus not exempt under section 6070, subdivision (c). This conclusion was
never reduced to writing or approved by executives at the State Bar.
      Obbard is a member of the State Bar and a fulltime research attorney
at the superior court in Alameda County. In late 2016 and early 2017, when
Obbard was due to report his continuing education compliance, he sent
letters to the State Bar, asserting his position that he is exempt from the
requirement by virtue of his employment with the superior court. The State
Bar rejected his position, contending that he is employed by the superior
court, not by the State of California. The State Bar conceded that superior
courts are funded by the state but reasoned Obbard is not a state employee
because his paychecks are issued by the superior court (rather than the State
Controller) and he is “covered by different labor rules and collective
bargaining agreements than those of State Employees.”
      But the State Bar has been inconsistent on this point. In continuing
education audits of other superior court research attorneys, the State Bar
accepted the attorneys’ position that they are exempt as state employees




                                       2
under section 6070, subdivision (c). The State Bar now characterizes these
decisions as mistakes.
                                        C.
      Obbard filed a petition for writ of mandate (Code Civ. Proc., § 1085)
and a complaint for declaratory relief (id., § 1060), asking the trial court to
decide whether superior court attorneys are “employees of the State of
California” as used in section 6070, subdivision (c).
      The trial court granted Obbard’s petition. The trial court explained,
“Both [Obbard] and the State Bar proffer reasonable, albeit wholly
inconsistent, interpretations [of the exemption] that are at least arguably
supported by the history and structure of the employment status of California
trial court attorneys. . . . [¶] The decisive factor in choosing between the two
interpretations is that the State Bar’s interpretation . . . presents a serious
equal protection problem because there is no rational basis why California
trial court attorneys should be required to comply with the State Bar
[continuing education] program when attorneys employed by the California
Supreme Court, California Courts of Appeal and California Judicial Council
are exempt.” To avoid an equal protection conflict, the trial court adopted
Obbard’s interpretation.
      The trial court entered judgment in Obbard’s favor, ordering the State
Bar to “cease requiring that attorneys employed full-time by a superior court
of the State of California comply with the State Bar’s mandatory continuing
legal educational program established pursuant to . . . section 6070(a).”
                                  DISCUSSION
      The State Bar contends the trial court erred in construing “employees
of the State of California,” as used in section 6070, subdivision (c), to include
employees of the superior courts. We disagree.


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                                        A.
      We independently review the trial court’s interpretation of a statute
(Alameda County Management Employees Assn. v. Superior Court (2011) 195
Cal.App.4th 325, 339, applying the familiar rules of statutory interpretation.
(Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630.)
                                        B.
      The issue here is simple. Section 6070 exempts “employees of the State
of California” from the State Bar’s mandatory continuing education
requirements but does not define that phrase. (§ 6070, subd. (c).) When a
statute refers to “employees” without defining the term, “courts have
generally applied the common law test of employment.” (Metropolitan Water
Dist. v. Superior Court (2004) 32 Cal.4th 491, 500.) The principal common
law test of an employment relationship is whether the employer has the right
to supervise and control the work and to discharge the worker. (Ayala v.
Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531.) Thus, the
question is whether the State of California supervises and controls the work
of superior court research attorneys. It does.
      The presiding judge of each superior court is a state officer (Cal. Const.,
art. VI, § 16), who controls the hiring, firing, and supervision of superior
court employees, or delegates those duties to the court’s executive officer.
(Cal. Rules of Court, rules 10.603(c)(5), 10.610(a) and (c)(1).) The superior
court is part of the state judicial branch (Cal. Const., art. VI, §§ 1 and 4),
administered by the state Judicial Council (id., § 6), and funded through the
state budget process. (See Gov. Code, § 68502.5.) Obbard’s salary is part of
the superior court’s operations costs, for which the state is responsible. (Gov.
Code, §§ 77200, 77003, subd. (a)(2).) Obbard is indeed a state employee.




                                         4
      This interpretation is consistent with the rationale for the state
employee exemption from the mandatory continuing legal education program.
The continuing education requirement is intended to protect consumers, i.e.,
attorneys’ clients. (Warden v. State Bar, supra, 21 Cal.4th at pp. 645-646.)
The exemption applies to categories of attorneys that generally do not
represent clients (ibid.), which, as the trial court noted, applies equally to
research attorneys for the Supreme Court, the courts of appeal, and the
superior court.2
                                         C.
      The State Bar is determined to make the issue more complicated than
necessary. None of its arguments has merit.
                                         1.
      The State Bar concedes that Obbard is a superior court employee but
argues he is not a state employee. To prove this, the State Bar offers a five-
factor test: state employees are (1) paid directly by the State Controller; (2)
subject to hire, supervision, discipline, or discharge by the State of California;
(3) subject to state civil service rules; (4) subject to the Ralph C. Dills Act
(Gov. Code, §§ 3512-3524) for collective bargaining; and (5) required to
participate in the California Public Employees Retirement System.
      We need not address these factors for two reasons. First, nothing about
the phrase “employees of the State of California” in section 6070 suggests
that it is narrowly limited in this manner. We give the words their ordinary,
commonsense meaning. (Riverside County Sheriff’s Dept. v. Stiglitz, supra,


      2 Our decision does not mean that superior court research attorneys
are no longer required to participate in a continuing legal education program.
As Obbard concedes, they remain subject to the judicial branch’s mandatory
continuing education program. (Cal. Rules of Court, rules 10.452, 10.474,
10.479.)

                                         5
60 Cal.4th at p. 630.) Second, the State Bar points to no authority requiring
all state employees to meet any of these factors, much less all of them. In
fact, the State Bar concedes that the factors do not apply to all state
employees.
      The state is entitled to create different processes and rules for
employee paychecks, benefits, and collective bargaining for different groups
of its own employees. (See, e.g., Cal. Const., Art. VII, § 4, subd. (b)
[exempting judicial branch employees from civil service rules]; Gov. Code, §
3513 [excluding numerous groups of employees from definition of “state
employee” for purposes of collective bargaining]; id., § 3524 et seq. [collective
bargaining for Judicial Council employees]; id., § 71630-71639.3 [collective
bargaining for trial court employees].) These are simply policy decisions that
the state has made over time to manage its sprawling workforce. Such policy
decisions have no bearing on the scope of the continuing education exemption
before us.
       Obbard is a superior court employee and a state employee. This poses
no contradiction. All state employees work for specific agencies,
departments, boards, courts, or other units of state government.
                                        2.
      Like the trial court, we decline to defer to the State Bar’s interpretation
of section 6070. The proper definition of “employee[] of the State of
California” is not a technical issue within the State Bar’s area of expertise.
(See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th
1, 12; § 6001.1 [State Bar has “licensing, regulatory, and disciplinary
functions”].) Nor has the State Bar demonstrated it adopted the
interpretation after careful consideration by senior State Bar officials. (See
Heckart v. A-1 Self Storage, Inc. (2018) 4 Cal.5th 749, 769, fn. 9.) Finally, the


                                        6
record suggests the State Bar has applied the interpretation inconsistently by
granting continuing education exemptions to other research attorneys
employed by the superior court. (Yamaha, supra, 19 Cal.4th at p. 13 [“ ‘[A]
vacillating position . . . is entitled to no deference.’ ”].)
                                           3.
      The State Bar contends we must narrowly construe “employees of the
State of California” to exclude employees of the superior courts because the
Legislature rejected language proposing to exempt “full-time employees of the
State of California, or of any political subdivision thereof[.]” (Sen. Bill No.
905 (1989-1990 Reg. Sess.) as amended June 1, 1989 and August 30, 1989,
italics added; § 6070, subd. (c).) The argument fails because superior courts
are not, and never were, political subdivisions. (See Cal. Const., art. VI, §§ 1,
4.)
                                           4.
      Finally, we reject the State Bar’s contention that the Legislature
created a special employment status for trial court employees, 11 years after
enacting section 6070, that excludes them from the exemption for state
employees in section 6070, subsection (c).
      Some background is helpful. In 1997, the Legislature enacted the
Lockyer-Isenberg Trial Court Funding Act (Assem. Bill No. 233 (1997-1998
Reg. Sess.), added by Stats. 1997, ch. 850, §§ 1, 46, pp. 5968-6021), which was
intended to “transfer all fiscal responsibility for the support of the trial courts
from the counties to the State of California.” (Gov. Code, § 77212, subd. (a);
accord, id., § 77200.)
      Similar legislation had failed the year before due to disagreements over
how to handle personnel issues such as collective bargaining. (Trial Court
Funding Workgroup, Report to the Judicial Council of California and


                                           7
Governor Edmund G. Brown, Jr. (2013) pp. 6, 14.) It was a complicated
problem because each superior court in the state’s 58 counties had different
employee classification systems, salary structures, retirement systems, and
other arrangements. (Task Force on Trial Court Employees, Final Report
(Dec. 1999) § I, p. 8 (Final Report).) The 1997 legislation finessed the issue
by creating a task force to recommend “an appropriate system of employment
and governance for trial court employees.” (Gov. Code, § 77600.) (Trial Court
Funding Workgroup, Report to the Judicial Council of California and
Governor Edmund G. Brown, Jr. (2013) p. 14.) Among other assignments,
the task force was instructed to examine issues “relating to the establishment
of a local personnel structure for trial court employees under (1) court
employment, (2) county employment . . . , (3) state employment . . . , or (4)
other options identified by the task force.” (Gov. Code, § 77603, subd. (g).)
      The task force report explains that, under each of the options, the trial
court would have the authority to hire and fire employees, lead collective
bargaining, and have final authority over employee benefits. (Final Report,
supra, at § IV, p. 23.) Under the “state employment” option, the employees
would be employed by the judicial branch rather than the trial court, and
thus the judicial branch’s statewide personnel rules would apply, and it
would be more involved in collective bargaining and benefits. (Final Report,
supra, at § IV, p. 23.) The task force settled on option 1—court
employment—and developed recommendations for employee salaries,
collective bargaining, benefits, personnel files, and other issues. (Final
Report, supra, at pp. 1-2.)
      Following the task force’s report, the Legislature enacted the Trial
Court Employment Protection and Governance Act (Stats. 2000, ch. 1010,
Sec. 14; Gov. Code, § 71600 et seq.), which, consistent with the task force


                                        8
recommendations, adopted a decentralized approach to employment issues,
essentially placing responsibility for personnel issues with each of the trial
courts. (Trial Court Funding Workgroup, Report to the Judicial Council of
California and Governor Edmund G. Brown, Jr. (2013) p. 14.) It defines a
“trial court employee” as a person who is paid from the trial court’s budget
and is subject to the trial court’s authority to control, hire, supervise,
discipline, and terminate employment. (Gov. Code, § 71601, subd. (l).)
      Relying on this legislation and the task force report, the State Bar
argues the Legislature created a classification for trial court employees that
excludes them from state employment for purposes of the continuing
education exemption in section 6070, subdivision (c). The Legislature did no
such thing. The legislation and task force report relate solely to employee
personnel issues managed by the trial courts, and they were intended to
implement a decentralized personnel system tailored to address the unique
problems of transitioning the superior courts to full state funding. (Gov.
Code, § 71600 et seq.) The State Bar’s argument hinges on a statutory
definition of “trial court employee” that is explicitly limited to the chapter in
which it appears (Gov. Code, § 71601, subd. (l) [“For purposes of this chapter
. . . .”]). Nothing suggests the Legislature intended to exclude trial court
employees from the continuing legal education exemption in section 6070,
subdivision (c).
      We need not address the parties’ remaining arguments.3




      3 Obbard asked us to take judicial notice of a Judicial Council report
regarding judicial branch education and other judicial branch job
descriptions. We deferred ruling on the unopposed request and now deny it
because the documents Obbard asks us to notice are irrelevant. (See
Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1.)

                                         9
                              DISPOSITION
     The judgment is affirmed. The State Bar shall bear Obbard’s costs on
appeal.




                                   10
                                    ____________________________
                                    BURNS, J.



We concur:




____________________________
JONES, P.J.




____________________________
NEEDHAM, J.




A155106




                               11
Superior Court of San Francisco County, Case No. CPF-17515590, Judge
Harold E. Kahn

Vanessa L. Holton, General Counsel, Robert G. Retana, Deputy General
Counsel, and Sean T. Strauss, Assistant General Counsel of the State Bar of
California, for Defendant and Appellant.

Philip B. Obbard, in pro. per., for Plaintiff and Respondent.




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