Westminster Teachers Association, et al.(Zaikowsky, et al.) (PERB A010E)

STATE
	OF
	CALIFORNIA
EDUCATIONAL
	EMPLOYMENT
	RELATIONS
	BOARD
ORDER
In
the
Matter Appealing a Denial
of
:tvbtion
to
Dismiss
JIM
V.
	ZAIKOWSKY,
	BETlY
VREBAI.OVICH,
NANCY
WILEY
AND KATHRYN
FRANKLIN,
Charging
Party,
vs.
WESTMINSTER
TEACHERS
ASSOCIATION,
	et. 	al
. ,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
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____________________
)
Case
No.
	IA-CE-80, 	IA-C0-14
EERB
Order
No.
	Ad-10
The
ruling of
the
hearing
officer
denying
appellant's
notion to
dismiss
the charge
in
the above-captioned case
is
sustained by the Board
itself.
The Board finds
	that
the appeal
is
premature.
Educational
Employment
Relations Board
by
0~
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STEPHEN
BARBER
Executive Assistant to the Board
6/22./77
Jerilou
H.
	Cossack,
	~1.ernber,
	concurring:
On
February
28, 	1977, 	four
staff
psychologists
of
the Westminister School
District filed
the captioned unfair practice charges .	
On May 2,
	19 77
, hearing
officer Perea denied Westminister Teachers Association's
	(WT.A)
	Motion to Dismiss.
wr.A
has appealed this denial to us. 	California Pupil Services Labor Relations,
apparently a party to these proceedings, 	urges denial of the appeal.
	No
other
party has stated a position on the appeal.

Notwithstanding
the
status of this
appeal under our Rules and
Regulations,Y
since
it
appears
	that
a genuine controversy
exists,
	as
	a general
proposition,
	the
parties
	should have an opporttm.ity
to
explore the m2rits
of
the issues presented.
This
policy
is
consistent with
the
California
courts
of
general
jurisdiction
in
which
the
cases
are
tm.i.form
in
denying appeals taken from
refusals to
dismiss:
An
order
of
the court refusing to
dismiss an
action
is
not
itself
appealable, 	and an appeal taken
there-
from must be dismissed. 	2/
The theory
is
based upon
the
sound proposition
that
piecemeal
disposition
and
multiple
appeals
	in
a
single action are
oppressive and
costly,
	and should
be denied pending the
final
disposition
of
the
case.JI
The
Pretrial
Rules
of
Court, 	applicable by analogy, were designed
to
channel
the
courts'
	energies toward resolving the
real
and
substantial
issues
	in
contro-
versy. 	Baird v. 	Hodson, 	161 Cal.App.
	687
	(1958). 	Wishing to
similarly
utilize
our resources,
	we
should. not
entertain
an appeal from the hearing
officer'
s
refusal
to dismiss
	at this
juncture, 	but should
invite
the
parties
	to renew
their
objection
at
a
later
time.
	The
California Rules
	of
Court Rule
218
provides:
A
pretrial
conference order, 	and any proceeding to
correct
or
rmdify such order,
	may
be reviewed on appeal from a
final
	judgment
in
the case.
lfea1.
	Admin.
	C.Ode,
	title
8, 	Sec. 	32000
et.~'
	hereafter referred to
by
section number.
YForrester
v. 	Lawler, 	14 Cal.App. 	170, 	111 P 284 (1910). 	See also Parker v.
Crvven,
	83 Cal.App.2d 474, 	189 P.2d
81
	(1948). 	Writers Guild
of
American, West, 	Inc.
v. 	Superior Court
273
Cal.App.2d 841,
	78
Cal.Rptr.
	520
	(1969). 	See also Estate ofRoberson 114 Cal.App.2d 267, 	268, 	179 	(1952); 	Perry v.
	M'agneson 207
Cal. 	617, 	620
(1929).
1/Bank
of
America Superior C.Ourt, 	20
	Cal.2d 697, 	701, 	128 P.2d 357 (1942);Brown
Men:orial Nat.
	Horne
Foundation, 	158 Cal.App.2d 448, 	455 	(1958); Murphy v.Fong Shuck, 	151 Cal.App. 2d 64,
	65
	(1957); 	Efron v. Ka.lmanovitz, 	185 Cal.App. 2d
149, 154 (1960); Maier Brewing
Co.
	v. 	Pac. 	Nat. 	Fire Ins. 	Co., 	194 Cal.App.2d494 	(1961).
-2-

However,
	the
explanation
of
that
section
reads:
Since
the granting
or
denying
of
a IIDtion
to correct or
rrodify
a
pretrial
order
rests in
the
sotmd
discretion
of
the
trial
court, 	appellant
must show
that
there
has
beenabuse
of
discretion,
	and
in
so doing,
	be prepared
to
dem:mstrate
that
the alleged
error
is
prejudicial
to
him.
For
purposes
of
an
appeal
of
this
nature the
Board
likens
its
proposed
decisions
	to
those
of
a
	civil
trial
court.
	As
an
appellate
body,
	this
Board,
	like
a
court
of
appeal,
	applies
	this
standard
and
requires
	that
the
appeal
of
a IIDtion-on a
pre-
trial
order
only be
entertained
when an abuse
of
discretion
has
resulted
in
prejudicial error
to the
appellant.
A judgment
may
be
appealed
before
it
is
final
but
only
upon
the
express
authority
of
statute.~	
The
Educational
Ernployrrent
Relations
Act	
(EERA.)21'
confers
such
authority but
only
in
limited
circt:D1JStances. 	The
rules
and
regulations
governing
unfair practice
proceedings
tmder
the
EERA
give the
Board power
under
Section
35007(b)
	to
review a
	dismissal.
	This
power
is
	consistent with
the
enunciated
judicial
preference
for
hearing the merits
in
a
doubtful
situation
and
providing the
parties their
''day
in court.''
Conspicuously absent
from
the section
is
any mention
of
ooard
intention
to
review a
	denial to dismiss.
	Reading
this section with other
procedural provisions
it
is
	clear that
~e
Board may
have power
to rule
on such a rrotion
but
it
is
signi-
ficant
	that
the silence of
Section
35007
indicates the Board's adherence
to
traditional
standards favoring
full
adjudication
of
substantive issues.
While
it
is
	true that
Section
35014
provides
for
appeal from a
ruling
on a
mtion, 	that section
should only
become
operational
once a fonna.l
hearing has
~
See 6 Witkin,
	St.lI111larY
of
Cal. 	Procedure, 	Appeals, Sec. 	63, 	p 4077 and
Deering's Rules
of
Court, 	Rule 218, 	p 120.
~_/
Gov. 	Code Sec. 	3540
et seq.
-3-

comnenced. 	As the Response to Appeal points out, 	the hearing officer's decision
was reached at the infonnal investigatory stage. 	Thus the Board should abstain
at the prehearing stage in view of the wording of Section 35014, which governs
the propriety of this appeal.
It is also clear that even if this appeal had been taken at the fo:rmal hearing
stage, 	Section 35014 grants a power of refusal in the board agent. 	Th.at section
provides for only two courses of action open to the board agent: 	refuse or join
in the request. 	The agent chose not to join in the request. 	1 view his action
as a refusal to certify this appeal to the Board. 	I 	rely upon the sound discretion
of the board agent and limit our acceptance of such appeals 	to those situations iri.
which the board agent has joined in the parties request for review pursuant to the
three requirements enunciated in Section 35014.
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c,	
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D~'l....-,.
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---- 	,\
Jerilou H. 	Cossack, Merrber
-4-