Filed 3/30/16
                             CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                       DIVISION ONE

                                    STATE OF CALIFORNIA



COUNTY OF RIVERSIDE,                              D069065

         Plaintiff and Appellant,

         v.                                       (Super. Ct. No. RIC1305661)

PUBLIC EMPLOYMENT RELATIONS
BOARD,

         Defendant and Appellant;

SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 721,

         Real Party in Interest and Appellant.


         APPEALS from a judgment, a writ, and orders of the Superior Court of Riverside

County, John W. Vineyard, Judge. Affirmed in part, reversed in part, and remanded.



         Wendi L. Ross, Mary Weiss, J. Felix De La Torre, Joseph Eckhart, Blaire Baily

and Ronald R. Pearson for Defendant and Appellant Public Employment Relations

Board.

         Najeeb Khoury for Real Party in Interest and Appellant Service Employees

International Union, Local 721.
       The Zappia Law Firm, Edward P. Zappia and Anna Zappia for Plaintiff and

Appellant County of Riverside.

       Renne Sloan Holtzman Sakai, Timothy G. Yeung and Erich W. Shiners for

League of California Cities and California State Association of Counties as Amicus

Curiae on behalf of Plaintiff and Appellant County of Riverside.



                                     INTRODUCTION

       This case requires us to decide whether the provisions in the Meyers-Milias-

Brown Act (Act) (Gov. Code, § 3500 et seq.)1 for impasse resolution through advisory

factfinding (factfinding provisions) violate article XI, section 11, subdivision (a), of the

California Constitution by delegating a county's or a city's home rule powers to a private

person or body. We conclude the factfinding provisions do not violate this section of the

California Constitution because the provisions do not divest a county or a city of its final

decisionmaking authority.

       This case also requires us to decide whether the Act's factfinding provisions apply

to impasses arising during the negotiation of any bargainable matter or only to impasses

arising during the negotiation of a comprehensive memorandum of understanding

(MOU). For the reasons stated in San Diego Housing Commission v. Public Employment

Relations Board (Mar. 30, 2016, D066237) __ Cal.App.4th __, we conclude the



1       Further statutory references are also to the Government Code unless otherwise
stated.

                                              2
factfinding provisions apply to impasses arising during the negotiation of any bargainable

matter.2 As the trial court reached a different decision on this point, we reverse the

judgment and the related writ and orders and remand the matter for further proceedings

consistent with this opinion.

                                     BACKGROUND

        The County of Riverside (County) is a local public agency subject to the Act.

(§ 3501, subd. (c).) Service Employees International Union, Local 721 (Union) is an

employee organization and the exclusive representative of certain County employees.

The Public Employment Relations Board (Board) is a quasi-judicial administrative

agency modeled after the National Labor Relations Board and administers the Act.

(County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56

Cal.4th 905, 916 (County of Los Angeles); §§ 3501, subd. (f), 3509, subd. (a), 3541, subd.

(g).)

        The County implemented a new background check policy requiring information

technology employees represented by the Union to pass a background check. An

employee's failure to pass the background check provided grounds to discharge the

employee. The County and the Union entered negotiations over the effects of the policy,

but were unable to reach an agreement. After the Union declared an impasse and the

County declined the Union's offer to mediate the dispute, the Union submitted a request


2      We previously ordered this appeal considered with the appeal in San Diego
Housing Commission v. Public Employment Relations Board (Mar. 30, 2016, D066237)
__ Cal.App.4th __.

                                             3
to the Board for factfinding. The Board granted the Union's request over the County's

objection.3

       The County filed a petition for writ of mandate and a complaint for declaratory

relief, injunctive relief, breach of contract, and statutory and constitutional violations

(complaint). The County claimed the Act's factfinding provisions apply only to impasses

arising from negotiations for a new or successor MOU, not to discrete bargainable issues.

The County further claimed the Act's factfinding procedures violated the County's

constitutional right to establish compensation for its employees.

       To bring the complaint to a decision point, the County filed three concurrent

motions. After a stipulation by the parties, the court ordered one of the motions taken off

calendar and set a hearing date and briefing schedule for the remaining motions

(scheduling order). While the County's remaining motions were pending, the Board filed

a special motion to strike the complaint under Code of Civil Procedure section 425.16,

commonly referred to as the anti-SLAPP (strategic lawsuit against public participation)

statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 & fn. 1.)

In the motion, the Board argued the court should strike the County's complaint because


3      The Union withdrew its factfinding request while this case was pending in the trial
court. None of the parties contends this case is moot. "A case is moot when the
reviewing court cannot provide the parties with practical, effectual relief. [Citation.] In
such cases, the appeal generally should be dismissed. [Citation.] But even if a case is
technically moot, the court has inherent power to decide it where the issues presented are
important and of continuing interest." (City of San Jose v. International Assn. of
Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 417-418.) Even if this action "is
technically moot, given the important issues presented, 'it is appropriate for us to retain
and decide the matter.' " (Id. at p. 418.)

                                               4
the complaint was based on the Board's statutorily required and protected activity of

processing the Union's factfinding request, and the complaint lacked merit.

       The Board scheduled the anti-SLAPP motion to be heard before the County's

motions. After the Board filed the anti-SLAPP motion, the County unilaterally obtained

an earlier hearing date for its motions and refiled them. The Board then filed an ex parte

application seeking confirmation of the scheduling order and sanctions under Code of

Civil Procedure section 177.5 against the County for violating it. The court granted the

application in part by ordering the anti-SLAPP motion, the Board's request for sanctions,

and the County's motions to be heard on the day on which the County's motions had

originally been set in the scheduling order.

       At the motion hearing, the court denied the anti-SLAPP motion, finding the anti-

SLAPP statute did not apply because the gravamen of the County's claim did not involve

protected activity. The court also denied the Board's request for sanctions under Code of

Civil Procedure section 177.5, finding that, although the County technically violated the

scheduling order, the County's actions were substantially justified by the parties' general

lack of communication and gamesmanship.

       As to the County's motions, the court denied one of the motions, which challenged

the constitutionality of the Act's factfinding provisions, after finding the provisions were

not unconstitutional because they did not deprive the County of its right to implement its

last, best, and final offer. However, the court granted the other motion, which challenged

the scope of the factfinding provisions, after finding the provisions applied only to

impasses arising from negotiations for a successor or comprehensive MOU. The court

                                               5
subsequently issued an injunction and a writ of mandate precluding the Board from

processing any factfinding requests under the Act not arising from negotiations for a new

or successor MOU. The court also granted a motion by the County for $15,000 in

attorney fees and costs under Code of Civil Procedure sections 128.5 and 425.16,

subdivision (c)(1), after finding the Board's anti-SLAPP motion was frivolous. The court

denied the County's request for attorney fees under Code of Civil Procedure section

1021.5.

       The Board appealed the writ, the injunction, the order denying the Board's request

for sanctions under Code of Civil Procedure section 177.5, the order denying the Board's

anti-SLAPP motion, and the order awarding the County attorney fees and costs under

Code of Civil Procedure sections 128.5 and 425.16, subdivision (c)(1). The County

appealed the order denying its motion as to the constitutionality of the factfinding

provisions and the order denying its motion for attorney fees under Code of Civil

Procedure section 1021.5.

                                      DISCUSSION

                                              I

       Preliminarily, the County questions the Board's standing to appeal. Any party

aggrieved by a judgment may appeal the judgment. (Code Civ. Proc., § 902.) "An

aggrieved person, for this purpose, is one whose rights or interests are injuriously

affected by the decision in an immediate and substantial way, and not as a nominal or

remote consequence of the decision." (In re K.C. (2011) 52 Cal.4th 231, 236.) An



                                             6
aggrieved party includes a party against whom an appealable order or judgment has been

entered. (Ely v. Frisbie (1861) 17 Cal. 250, 260.)

       In this case, the court issued orders, a writ, and a judgment against the Board. The

orders, writ, and judgment effectively nullify a Board decision regarding the application

of the Act and require the Board to pay a significant attorney fees award. Accordingly,

we conclude the orders, writ and judgment injuriously affected the Board's interests in an

immediate and substantial way such that the Board is an aggrieved party with standing to

appeal.

                                             II

                                            A

       The County next contends the court erred in determining the Act's factfinding

provisions do not interfere with a county's and city's home rule powers protected by

article XI, section 11, subdivision (a), of the California Constitution.4 The County's



4       In the trial court, the County also challenged the constitutionally of the Act's
factfinding provisions under article XI, section 1, subdivision (b) of the California
Constitution, which provides: "The Legislature shall provide for county powers, an
elected county sheriff, an elected district attorney, an elected assessor, and an elected
governing body in each county. Except as provided in subdivision (b) of Section 4 of this
article, each governing body shall prescribe by ordinance the compensation of its
members, but the ordinance prescribing such compensation shall be subject to
referendum. The Legislature or the governing body may provide for other officers whose
compensation shall be prescribed by the governing body. The governing body shall
provide for the number, compensation, tenure, and appointment of employees." The
County's opening brief raises no specific arguments on this point. We, therefore, treat the
point as having been abandoned. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 538;
Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 451-452; Lyons v. Chinese
Hospital Assn. (2006) 136 Cal.App.4th 1331, 1336, fn. 2.)

                                             7
contention presents a facial challenge to the Act's factfinding procedures, which requires

the County to demonstrate that the procedures " ' inevitably pose a present total and fatal

conflict with applicable constitutional prohibitions.' " (County of Sonoma v. Superior

Court (2009) 173 Cal.App.4th 322, 337 (County of Sonoma).) We review this challenge

de novo. (Ibid.)

                                              B

       The California Constitution prohibits the Legislature from delegating "to a private

person or body power to make, control, appropriate, supervise, or interfere with county or

municipal corporation improvements, money, or property, or to levy taxes or

assessments, or perform municipal functions." (Cal. Const., art. XI, § 11, subd. (a).) "In

deciding whether the Legislature has exceeded its power, we are guided 'by well settled

rules of constitutional construction. Unlike the federal Constitution, which is a grant of

power to Congress, the California Constitution is a limitation or restriction on the powers

of the Legislature. [Citations.] Two important consequences flow from this fact. First,

the entire law-making authority of the state, except the people's right of initiative and

referendum, is vested in the Legislature, and that body may exercise any and all

legislative powers which are not expressly or by necessary implication denied to it by the

Constitution. [Citations.] In other words, "we do not look to the Constitution to

determine whether the legislature is authorized to do an act, but only to see if it is

prohibited." [Citation.] [¶] Secondly, all intendments favor the exercise of the

Legislature's plenary authority: "If there is any doubt as to the Legislature's power to act

in any given case, the doubt should be resolved in favor of the Legislature's action. Such

                                              8
restrictions and limitations [imposed by the Constitution] are to be construed strictly, and

are not to be extended to include matters not covered by the language used." ' [Citations.]

On the other hand, 'we also must enforce the provisions of our Constitution and "may not

lightly disregard or blink at ... a clear constitutional mandate." ' " (County of Riverside v.

Superior Court (2003) 30 Cal.4th 278, 284-285 (County of Riverside).)

       The constitutionality of the Act's factfinding provisions turns on whether the

provisions divest the County of its final decision-making authority. (County of Riverside,

supra, 30 Cal.4th at p. 289; County of Sonoma, supra, 173 Cal.App.4th at p. 340.)

Article XI, section 11, subdivision (a), of the California Constitution is " 'inapplicable to

statutes which are dependent, for their effectiveness, upon local option.' " (County of

Sonoma, at p. 356.)

       The Act's factfinding provisions are designed to provide a public agency at an

impasse in negotiations with a union additional information and recommendations before

the public agency makes a decision to impose its last, best, and final offer. (§§ 3505.4,

subds. (c) & (d), 3505.5, subd. (a), 3505.7.) The factfinding provisions do not delegate to

factfinding panels any power to make any binding decisions affecting public agency

operations. (§ 3505.5, subd. (a).) The public agency still retains the ultimate power to

refuse an agreement and make its own decisions. (§ 3505.7.) Therefore, the factfinding

provisions do not unconstitutionally interfere with the public agency's home rule powers.

       County of Riverside, supra, 30 Cal.4th 278, upon which the County relies, is

distinguishable. This case involved a statute compelling a public agency to submit

certain bargaining disputes to binding arbitration. Because the results of the arbitration

                                              9
were binding on the public agency, the statute deprived the public agency of the ultimate

power to make its own decisions. (Id. at pp. 282, 288-289, 291.)

       The County's reliance on County of Sonoma, supra, 173 Cal.App.4th 322, is

similarly misplaced. This case involved a statute compelling a public agency to submit

certain bargaining disputes to arbitration, the outcome of which would be binding unless

rejected by a unanimous vote of the public agency's governing body. (Id. at pp. 333-

334.) The statute gave the public agency the power to prevent another body from making

a binding decision, but did not give the public agency the power to make its own

decision. (Id. at p. 344.) Since a minority of the public agency's governing body could

cause the arbitration decision to become binding, the statute also had the effect of

allowing less than a majority of the governing body to make a final decision. (Id. at

pp. 346-348.) If either one member voted against rejection or was absent or abstained,

the decision would "become binding even if a majority or supermajority of the governing

body votes to reject it." (Id. at p. 355.) In such cases, it would be an arbitration panel

created by the Legislature, not the public agency's governing body, making the ultimate

decision on the disputed issues. (Ibid.)

       Unlike the County of Riverside case, the Act's factfinding provisions do not result

in a binding decision. Unlike the County of Sonoma decision, the factfinding provisions

do not result in a decision that will become binding unless rejected by a unanimous vote

of the public agency's governing body. Rather, the factfinding provisions result in

advisory findings and recommendations, which the public agency remains free to reject.



                                             10
Accordingly, neither the County of Riverside case nor the County of Sonoma case compel

a conclusion the factfinding provisions are unconstitutional.

                                              III

                                              A

       Turning to the Board's appeal, the Board contends the court erred in denying the

anti-SLAPP motion. The Board further contends that, even if the court did not err in

denying the motion, the court erred in awarding the County attorney fees and costs under

Code of Civil Procedure sections 128.5 and 425.16, subdivision (c)(1), without a showing

and a finding the Board filed the motion in bad faith.

                                              B

       "[Code of Civil Procedure section] 425.16, subdivision (b)(1), provides: 'A cause

of action against a person arising from any act of that person in furtherance of the

person's right of petition or free speech under the United States Constitution or the

California Constitution in connection with a public issue shall be subject to a special

motion to strike, unless the court determines that the plaintiff has established that there is

a probability that the plaintiff will prevail on the claim.' The analysis of an anti-SLAPP

motion thus involves two steps. 'First, the court decides whether the defendant has made

a threshold showing that the challenged cause of action is one "arising from" protected

activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it

then must consider whether the plaintiff has demonstrated a probability of prevailing on

the claim.' [Citation.] 'Only a cause of action that satisfies both prongs of the anti-

SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even

                                              11
minimal merit—is a SLAPP, subject to being stricken under the statute.' " (Oasis West

Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820.) We review the denial of an

anti-SLAPP motion de novo, as the issues raised are purely ones of law. (San Ramon

Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004)

125 Cal.App.4th 343, 352 (San Ramon).)

                                              1

       Regarding the first step of the required analysis, activities protected by the anti-

SLAPP statute include written or oral statements "made in connection with an issue under

consideration or review by a legislative, executive, or judicial body, or in any other

official proceeding authorized by law." (§ 425.16, subd. (e)(2).) This protection

"extends to statements and writings of governmental entities and public officials on

matters of public interest and concern that would fall within the scope of the statute if

such statements were made by a private individual or entity." (Vargas v. City of Salinas

(2009) 46 Cal.4th 1, 17.)

       Whether a cause of action arises from protected activity depends upon its principal

thrust or gravamen. (Episcopal Church Cases (2009) 45 Cal.4th 467, 477; Martinez v.

Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) "[T]he critical point is

whether the plaintiff's cause of action itself [is] based on an act in furtherance of the

defendant's right of petition or free speech." (City of Cotati v. Cashman (2002) 29

Cal.4th 69, 78.) In other words, "the defendant's act underlying the plaintiff's cause of

action must itself have been an act in furtherance of the right of petition or free speech."

(Ibid.) The anti-SLAPP statute does not apply where allegations of protected activity are

                                              12
only incidental to a cause of action based on unprotected activity. (Martinez v.

Metabolife Internat., Inc., supra, at p. 187.)

       In this case, the conduct underlying the County's complaint is the Board's

processing and approval of the Union's request to utilize the Act's factfinding procedures

to attempt to resolve the Union's impasse with the County. Statutory hearing procedures

qualify as official proceedings authorized by law for purposes of Code of Civil Procedure

section 425.16, subdivision (e)(2). (Vergos v. McNeal (2007) 146 Cal.App.4th 1387,

1396.) Thus, Board's conduct falls within the ambit of the anti-SLAPP statute because it

constitutes speech made in connection with an issue under consideration or review in an

official proceeding authorized by law. (See Kurz v. Syrus Systems, LLC (2013) 221

Cal.App.4th 748, 759 [lawsuit based on a decision of the Unemployment Insurance

Appeals Board falls within the ambit of the anti-SLAPP statute because the decision was

made in connection with an issue under consideration or review in an official proceeding

authorized by law]; Vergos v. McNeal, supra, at p. 1394 [statements and communicative

conduct by a hearing officer in hearing, processing, and deciding an employee grievance

were protected activity under the anti-SLAPP statute because they were connected with

an issue under review in an official proceeding authorized by law].)5



5      We have previously held section 425.16, subdivision (e)(2), did not apply to a
cause of action seeking judicial review of a quasi-judicial administrative decision under
section 1094.5. (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 58.) We
have no occasion to address this question here as the conduct underlying the County's
complaint was not a quasi-judicial administrative decision.
       We further note the California Supreme Court is currently reviewing whether the
anti-SLAPP statute applies to a cause of action in which the plaintiff challenges only the
                                                 13
         San Ramon, supra, 125 Cal.App.4th 343, upon which the County relies, is

inapplicable because the question presented in that case was whether the challenged

conduct arose out of the public agency's acts in furtherance of its right to petition or free

speech. (Id. at p. 353; § 425.16, subd. (e)(4).) The case did not address the question

presented here: whether the challenged conduct involved written or oral statements made

in connection with an issue under consideration in official proceeding authorized by law.

(§ 425.16, subd. (e)(2).) "It is well established, of course, that ' "cases are not authority

for propositions not considered." ' " (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081,

1134.)

         Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th

1207, upon which the County also relies, did address the question presented here.

However, the case is distinguishable because, unlike here, the plaintiff's claims were not

based on a statement or writing made by the public agency. (Id. at pp. 1218, 1224.)

Young v. Tri-City Healthcare Dist., supra, 210 Cal.App.4th 35 is distinguishable for the

same reason. (Id. at pp. 58-59.)

                                               2

         Regarding the second step of the required analysis, we conclude the County could

not have established a probability of prevailing on the merits of its claims for the reasons

stated in part II, ante, and in our decision in San Diego Housing Commission v. Public


validity of an action taken by a public entity in an official proceeding authorized by law,
but does not seek relief against any participant in the proceeding based on the
participant's protected communications. (Park v. Board of Trustees of the California
State University (2015) 239 Cal.App.4th 1258, review granted Dec. 16, 2015, S229728.)
                                              14
Employment Relations Board (Mar. 30, 2016, D066237) __ Cal.App.4th __. As the

court's award of attorney fees and costs under Code of Civil Procedure sections 128.5 and

425.16, subdivision (c)(1), was predicated on a finding the Board's anti-SLAPP motion

was frivolous, we must also necessarily conclude the court erred in awarding the County

fees under the anti-SLAPP statute. Rather, because the court should have granted the

Board's motion, the Board is entitled to an award of attorney fees and costs. (Code Civ.

Proc., § 425.16, subd. (c)(1); Vergos v. McNeal, supra, 146 Cal.App.4th at p. 1404.) We,

therefore, remand the matter to the court for a determination of the amount of the award.

                                            IV

       Given our conclusion in part III, ante, the County may no longer be considered the

prevailing party in this action. Accordingly, we need not decide whether the court erred

in denying the County's motion for attorney fees under Code of Civil Procedure section

1021.5.

                                            V

       Finally, the Board contends the court erred in failing to sanction the County under

Code of Civil Procedure section 177.5 for the County's violation of the scheduling order.

Code of Civil Procedure section 177.5 provides in part: "A judicial officer shall have the

power to impose reasonable money sanctions, not to exceed fifteen hundred dollars

($1,500), notwithstanding any other provision of law, payable to the court, for any

violation of a lawful court order by a person, done without good cause or substantial

justification."



                                            15
       "The 'imposition of sanctions, monetary or otherwise, is within the discretion of

the trial court. That discretion must be exercised in a reasonable manner with one of the

statutorily authorized purposes in mind and must be guided by existing legal standards as

adapted to current circumstances.' [Citations.] 'When the question on appeal is whether

the trial court has abused its discretion, the showing is insufficient if it presents facts

which merely afford an opportunity for a difference of opinion. An appellate tribunal is

not authorized to substitute its judgment for that of the trial judge. [Citation.] A trial

court's exercise of discretion will not be disturbed unless it appears that the resulting

injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other

words, discretion is abused only if the court exceeds the bounds of reason, all of the

circumstances being considered.' " (In re Woodham (2001) 95 Cal.App.4th 438, 443.)

       Here, the court denied the Board's motion for sanctions because it found the

Board's violation of the scheduling order was minor and neither party's handling of

scheduling matters was entirely laudable. The record amply supports both findings.

Accordingly, we cannot conclude the court's decision not to sanction the County

exceeded the bounds of reason, all circumstances considered.

                                        DISPOSITION

       The judgment, writ, order denying the Board's anti-SLAPP motion, and order

awarding attorney fees and costs to the County under Code of Civil Procedure sections

128.5 and 425.16, subdivision (c)(1), are reversed. The other orders appealed by the

Board and the County are affirmed. The matter is remanded to the court for further

proceedings consistent with this opinion as well as a determination of the amount of

                                               16
attorney fees and costs to be awarded to the Board under Code of Civil Procedure section

425.16, subdivision (c)(1). The Board is awarded its costs on appeal.




                                                                    MCCONNELL, P. J.

WE CONCUR:


MCINTYRE, J.


AARON, J.




                                           17
