Calipatria Unified School District (PERB A217E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIPATRIA UNIFIED TEACHERS
ASSOCIATION,
Charging Party,
v.
CALIPATRIA UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
)
)
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Case No. LA-CE-2792
PERB Order No. Ad-217
November 7, 1990
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____________________ )
Appearance: Littler, Mendelson, Fastiff & Tichy, by Hector E.
Salitrero, Attorney for Calipatria Unified School District.
Before Hesse, Chairperson; Camilli and Cunningham, Members.
DECISION
HESSE, Chairperson: Calipatria Unified School District
(District) appeals the Public Employment Relations Board (PERB or
Board) agent's rejection as untimely of its exceptions to the
administrative law judge's (ALJ) proposed decision. The proposed
decision was served on the District by mail on May 17, 1990.
Pursuant to PERB Regulation 323001 exceptions to the decision
were due to be filed with the Board no later than June 6, 1990.
1PERB Regulations are codified at California Code of
Regulations, title 8, section 31001, et seq.
Since 1978, Regulation 32300 has set forth the procedures
for excepting to a Board agent's proposed decision. Regulation
32300 provides, in relevant part:
(a) A party may file with the Board itself
an original and five copies of a statement of
exceptions to a Board agent's proposed
decision issued pursuant to section 32215,
and supporting brief, within 20 days
following the date of service of the decision
or as provided in section 32310.

However, 	since 	the 	proposed 	decision was 	served 	on 	the 	parties 	by
mail, 	five 	additional 	days 	were 	added 	for 	filing 	exceptions
pursuant 	to 	PERB 	Regulation 	32130(c). 2 Thus, 	the 	parties 	had
until 	June 	11, 	1990 	to 	file 	exceptions. 	The 	District 	deposited
its 	exceptions 	in 	the 	regular 	mail 	on 	June 	11, 	1990, 	and 	were
received 	in 	the 	Board 	headquarter 1 s 	office 	on 	June 	14, 	1990. 	On
June 	14, 	1990, 	the 	appeals 	assistant 	rejected 	the 	District's
filing 	as 	untimely. 	The 	District 1 s 	appeal 	of 	this 	administrative
decision 	was 	timely 	filed 	on 	June 	29, 	1990.
In 	its 	appeal, 	the 	District 	urges 	PERB 	to 	interpret 	its
regulations 	and 	California 	Code 	of 	Civil 	Procedure3 section 	1013
in 	such 	a 	manner 	as 	to 	allow 	for 	an 	"alternate 	filing" 	with 	PERB
by 	regular 	mail. 	Specifically, 	the 	District 	argues 	a 	filing
should 	be 	considered 	effective 	when 	deposited 	in 	the 	regular
United 	States 	mail, 	in 	addition 	to 	the 	filing 	methods 	mandated 	by
Regulation 	32135. 4 Alternatively, 	the 	District 	seeks 	to 	have 	its
2Regulation 	32130 	provides, 	in 	rele~ant 	part:
(c) 	The 	extension 	of 	time 	provided 	by
California 	Code 	of 	Civil 	Procedure 	section
1013, 	subdivision 	(a), 	shall 	apply 	to 	any
filing 	made 	in 	response 	to 	documents 	served
by 	mail.
3All 	further 	references 	will 	be 	to 	the 	Code 	of 	Civil
Procedure, 	hereinafter 	"CCP," 	unless 	otherwise 	specifically
identified.
4Regulation 	32135 	provides 	that:
All 	documents 	shall 	be 	considered 	"filed"
when 	actually 	received 	by 	the 	appropriate
PERB 	office 	before 	the 	close 	of 	business 	on
the 	last 	date 	set 	for 	filing 	or when 	sent 	by
telegraph 	or 	certified 	or 	Express 	United
2

late 	filing
	excused
	for
	good
	cause
	pursuant
	to
	Regulation
	32136.
5
For
	the
	reasons
	set
	forth
	below,
	we
	deny
	the
	District's
	appeal.
DISCUSSION
1.
	Alternate
	Filing
On
	January
	28, 	1989,
	PERB
	amended
	Regulation
	32130	
by
adding,
	inter 	alia,
	subsection
	(c),
	which
	states:
The
	extension 	of
	time
	provided
	by
	California
Code
	of
	Civil
	Procedure
	section
	1013
subdivision
	(a), 	shall
	apply
	to
	any
	filing
made
	in
	response
	to
	documents
	served
	by
mail.
6
(Emphasis
	added.)
In
	order 	to 	find 	for 	the
	District
	in
	this
	case, 	the
	Board 	would
have
	to
	interpret
	CCP
	section
	1013
	in
	a
	manner
	inconsistent
	with
a
	plain
	reading 	of 	the
	statute
	and
	fully
	disregard
	its
established 	definition
	of
	"filing'' 	in
	Regulation
	32135. 	The
District 	relies
	heavily
	upon
	California 	court 	cases 	applying
	CCP
section
	1013(a)
	to 	administrative 	agencies.
	That
	section
	states:
States
	mail 	postmarked
	not
	later
	than 	the
last
	day
	set
	for
	filing
	and
	addressed
	to 	theproper
	PERB
	office.
5
Regulation
	32136
	states:
A
late 	filing
	may
	be 	excused
	in 	the
discretion
	of 	the
	Board
	for
	good
	cause
only.
	A
	late 	filing
	which 	has 	been
excused
	becomes
	a
	timely
	filing
	under
these 	regulations.
6
Prior 	to 	this
	amendment
	to 	section
	32130,
	PERB
	repealed
	its
regulation 	prohibiting 	the 	application 	of
	CCP
	section
	1013
	and
found
	that
	PERB
	is
	mandated
	to 	provide
	an
	additional 	five 	days 	inwhich
	to 	file
	exceptions
	if
	service 	of 	the 	proposed 	decisionoccurs
	by 	mail. 	(See 	Lake
	Elsinore 	School
	District
	(1986)
	PERB
Order
	No. 	Ad-154 	and 	Los 	Angeles 	Unified 	School
	District
	(1986)PERB
	Order
	No.
	Ad-155.) 
3

In
	case 	of
	service
	by
	mail, 	the 	notice 	or
other
	paper
	must 	be
	deposited
	in
	a
	post
office,
	mailbox,
	sub-post
	office,
	substation,
or
	mail
	chute,
	or 	other
	like
	facility
regularly
	maintained
	by
	the
	United
	States
Postal
	Service,
	in
	a
	sealed
	envelope, 	with
postage
	paid,
	addressed
	to
	the
	person
	on
	whom
it
	is
	to
	be
	served,
	at
	his
	office
	address
	as
last
	given
	by 	him
	on 	any 	document
	which
	he
has
	filed
	in
	the
	cause
	and
	served
	on
	the
party
	making
	service
	by
	mail; 	otherwise
	at
his
	place 	of
	residence.
	The
	service
	is
complete
	at
	the
	time
	of
	the
	deposit,
	but
	any
prescribed 	period 	of
	notice
	and 	any
	right
	or
duty
	to
	do
	any
	act
	or
	make
	any
	response
within
	any
	prescribed 	period 	or
	on
	a
	date
certain
	after
	the
	service
	of
	such
	document
served
	by
	mail
	shall
	be
	extended
	five
	days
	if
the 	place 	of 	address
	is
	within 	the
	State
	of
California,
	10
	days
	if
	the 	place 	of 	address
is
	outside 	the
	State
	of
	California
	but 	within
the
	United
	States,
	and
	20
	days
	if
	the 	place
of 	address
	is
	outside 	the
	United
	States,
	but
such
	extension
	shall
	not 	apply
	to
	extend
	the
time
	for
	filing
	notice
	of
	intention 	to
	move
for
	new
	trial,
	notice
	of
	intention 	to
	move
	to
vacate
	judgment
	pursuant
	to
	Section
	663a
	of
this
	code
	or 	notice
	of 	appeal.
	(Emphasis
added.)
PERB
	Regulations
	clearly 	state 	that
	in
	order 	for 	exceptions
	to
	be
considered 	timely
	filed,
	the
	documents 	must
	be
	received
	at
	the
appropriate
	PERB
	office
7
within
	20
	days
	of 	service 	of 	the
proposed
	decision,
	and,
	when
	a
	proposed
	decision
	is
	served
	by
mail
	on
	the
	parties,
	an
	additional 	five
	days
	is
	added.
	In
	this
case, 	the
	District
	does 	not
	contest 	the
	computation 	of 	time
	for
filing
	exceptions.
	Thus,
	the 	issue
	is
	not 	whether 	the 	five-day
extension provided
	by
	CCP
	section
	1013·
should 	apply, 	but
	rather
whether
	that 	section
	can
	also
	be 	read 	to 	provide 	for 	an
7
For 	appeals 	of 	proposed 	decisions, 	the 	appropriate
	PERB
office 	is
	11
	•
	with 	the
	Board
	itself 	in 	the 	headquarters
off ice.
11
	(Regulation 	32300.) 
4

"alternate 	filing" 	with 	PERB 	by 	regular 	mail, 	which 	is 	effective
and 	complete 	when 	deposited. 8
In 	Pesce 	v. 	The 	Department 	of 	Alcoholic 	Beverage 	Control
(1958) 	51 	Cal.2d 	310 	(Pesce), 	the 	California 	Supreme 	Court 1 	in
interpreting 	sections 	23081 	and 	25760 	of 	the 	Business 	and
Professions 	Code, 	found 	these 	sections 	contained:
. 	nothing 	which 	would 	preclude 	the
application 	of 	section 	1013 	in 	its 	entirety
to 	the 	service 	of 	the 	board's 	decision 	and
to 	the 	extension 	of 	the 	period 	in which 	an
appeal 	can 	be 	taken 	from 	such 	decision.
(Id., 	p. 	312; 	emphasis 	added.)
In 	that 	case, 	the 	Alcoholic 	Beverage 	Control 	Appeals 	Board 	had
sent 	to 	the 	petitioner 	via 	United 	States 	mail 	a 	decision
recommending 	that 	the 	petitioner's 	on 	sale 	license 	be 	revoked.
Business 	and 	Professions 	Code 	section 	23081 	provided 	that 	time
for 	filing 	an 	appeal 	of 	a 	decision 	of 	the 	department 	was 	limited
to 	40 	days. 9
The 	court 	found 	that 	it 	was 	the 	service 	of 	the 	Board's
decision 	by 	mail 	that 	is 	the 	"service" 	which 	is 	referred 	to 	in
CCP 	section 	1013. 	(Id. 	at 	p. 	312. ) 	Nothing 	in 	the.e court's
..
analysis 	provided 	for 	an 	alternate 	method 	of 	filing 	by 	regular·
mail. 	The 	court 	did 	not 	need 	to 	address 	that 	issue 	inasmuch 	as
8The 	Board 	has 	previously 	refused 	to 	consider 	a 	party's
response 	to 	exceptions 	when 	such 	response 	was 	sent 	by 	regular
mail 	and 	not 	received 	until 	after 	the 	due 	date. 	(Ventura 	Unified
School 	District 	(1989) 	PERB 	Decision 	No. 	757, 	fn. 	3.)
9At 	the 	time 	of 	the 	decision 	in 	Pesce, 	CCP 	section 	1013
extended 	time 	one 	day 	for 	every 	hundred 	miles 	distance 	between
the 	place 	of 	deposit 	and 	the 	address 	of 	the 	served 	party. 	The
appeal 	was 	mailed 	via 	regular 	United 	States 	mail 	on 	the 	40th 	day,
but 	not 	received 	by 	the 	Board 	until 	the 	41st 	day.
5

the
	appeal
	was
	effectively
	filed
	when
	received
	by
	the
	Board
	on
the
	41st
	day,
	a
	due
	date
	obtained
	when
	CCP
	section
	1013
	was
applied 	to
	the
	time
	for 	exercising
	the
	right
	to
	appeal.
Although
	the
	District
	suggests
	that
	Pesce 	might
	be
	read
	to
apply
	CCP
	section
	1013
	to
	render
	a
	document
	filed
	when
	deposited
in 	regular
	mail, 	the
	Legislature
	removed
	any
	doubt
	regarding
	this
issue
	when
	it
	subsequently
	added
	section
	23081.5
	to 	the
	Business
and
	Professions
	Code.
	This
	section,
	which
	is
	similar 	to
	PERB
regulation
	32135,
	states:
An
	appeal
	to
	the
	board
	shall
	be
	deemed
	filed
on
	the 	date
	it
	is
	received
	in 	the
	principal
office
	of 	the
	board;
	provided,
	however, 	an
appeal 	mailed
	to
	the
	board
	by
	means
	of
registered
	mail
	shall
	be
	deemed
	filed
	with
the
	board
	on
	the 	date 	of 	the
	registry
	with
the
	United
	States
	Post 	Office.
Therefore, 	the
	District's
	reliance
	on
	Pesce
	is
	not
	persuasive.
The
	District
	also
	relies
	on
	Industrial
	Indemnity
	Company
	v.
Industrial
	Accident
	Commission 	(1961)
	57
	Cal.2d
	123
	as
	authority
for
	its
	position 	that 	filing
	may
	be
	effective,
	under
	CCP
	section
1013,
	when
	a
	responding
	document
	is
	deposited
	in 	regular 	mail.
In
	Industrial
	Indemnity,
	the 	court 	held
	that
	the
	Commission's 	use
of
	the
	mail
	for 	service 	of 	the 	rating 	bureau's
	recommendation,
which 	included
	a
	statement
	that
	the 	case
	would 	be
	submitted
	for
decision
	if
	no
	objection
	were~
within
	seven 	days, 	extended
time
	for 	objection 	pursuant 	to 	section
	1013. 	The
	court
	went 	on
to 	state 	that 	the
	company's
	objection
	was
	"effective
	when
deposited 	in 	the 	mails." 	(Id.,
	p. 	126.) 	However,
	it
	is
	not
clear
	from
	the 	text 	of 	the 	decision which
	regulation 	the 	court
6

11
was 	interpreting, 	if 	any. 	Furthermore, 	there 	is 	no 	indication
what 	was 	meant 	by 	the 	phrase 	"if 	no 	objection were 	made. 	As 	in
Pesce, 	the 	court 	did 	not 	address 	what 	constituted 	a 	''filing"
under 	the 	agency's 	regulations, 	only 	that 	an 	objection 	had 	to 	be
made 	within 	seven 	days 	of 	the 	service 	of 	the 	decision. 	Also, 	as
in 	Pesce, 	the 	court 	concluded 	that 	CCP 	section 	1013 	should 	be
applied 	to 	extend 	the 	filing 	deadline 	by 	one 	day. 	Thus, 	in 	the
apparent 	absence 	of 	regulations 	defining 	filing, 	the 	court 	could,
and 	did, 	find 	the 	objections 	were 	effective when 	deposited 	in
regular 	mail. 	The 	court 	did 	not 	conclude, 	however, 	that 	an
"alternate 	filing'' 	is 	created 	by 	the 	statute. 	Therefore, 	we 	do
not 	find 	this 	case 	controlling.
Finally, 	in 	contrast 	to 	the 	analysis 	underlying 	Pesce 	and
Industrial 	Indemnity, 	PERB 	regulations 	clearly 	specify 	the 	time,
place 	and 	method 	for 	filing 	appeals 	(exceptions) 	to 	proposed
decisions 	of 	ALJs. 	In 	addition, 	consistent with 	those
regulations, 	the 	procedures 	for 	filing 	such 	appeals 	are
unambiguously 	set 	forth 	in 	the 	proposed 	decision 	sent 	to 	the
parties. 	Under 	Regulation 	32135, 	filing 	is 	complete 	when
received 	or 	when 	sent 	by 	telegraph 	or 	certified 	or 	express 	United
States 	mail 	postmarked 	not 	later 	than 	the 	last 	day 	set 	for
filing. 	Under 	Regulation 	32130(c), 	the 	time 	extension .created 	by
CCP 	section 	1013 	is 	expressly 	applied 	to 	any 	filing 	made 	in
response 	to 	documents 	served 	by 	mail. 	As 	previously 	noted, 	the
date 	for 	filing, 	in 	this 	case, 	was 	extended 	five 	days 	from 	June 	6
to 	June 	11, 	1990. 	Therefore, 	the 	District's 	exceptions, 	if 	filed
7

by
	regular
	mail,
	had
	to
	be
	received
	by
	June
	11
	to
	be
	timely.
However,
	to
	be
	considered
	filed
	when
	deposited
	in 	the 	mail,
	they
would 	have
	to
	be
	sent
	certified
	or
	express
	United
	States
	mail
	and
postmarked
	June
	11, 	1990.
	As
	the
	Board
	stated 	in
	Regents
	of 	the
University
	of
	California
	(Davis.
	Los
	Angeles. 	Santa 	Barbara
	and
San
	Diego)
	(1989)
	PERB
	Order
	No.
	Ad-202-H,
	p.
	2, 	had
	a
	document
mailed
	to
	PERB
	by
	regular
	first
	class
	mail
	on
	the
	filing
	date,
but 	received
	after
	the
	filing
	date,
	"been
	mailed
	by
	certified
	or
express
	mail
	and
	postmarked
	on
	or 	before 	[the
	due
	date],
	it
	would
have 	been
	accepted
	as
	timely."
	(Emphasis
	added.)
Since
	we
	find
	that
	the 	regulations
	governing
	the
	filing
	of
appeals
	to 	the
	Board
	are
	not
	ambiguous 	and
	CCP
	section
	1013
	does
not
	create
	an
	alternate 	filing
	method,
	the
	District's 	filing
	in
this
	case
	was
	untimely.
2.
	Good
	Cause
In
	a
	declaration 	filed
	with 	the
	appeal
	requesting
	relief
from
	rejection
	of 	the
	late 	filing,
	counsel
	for 	the
	District
states
	his 	secretary 	inquired,
	on
	the
	last
	day
	for
	filing,
whether
	the
	District's
	statement 	of 	exceptions
	to
	a
	proposed
decision 	of
	a 	PERB 	ALJ
	should 	be
	sent
	by
	certified
	mail. 	Counsel
declares 	that
	he
	specifically
	advised 	her 	not 	to
	send
	the
exceptions
	by
	certified
	mail, 	but 	instead,
	send
	the
	document 	by
regular 	mail. 	Counsel
	further 	declares 	this 	instruction
	was
based
	upon
	his 	interpretation 	of
	PERB
	Regulations,
	CCP
	section
1013, 	as 	well 	as 	"to 	avoid 	any 	unnecessary 	expense 	to 	the
client." 
8

Based
	on
	these
	facts,
	the
	District
	urges
	the
	Board
	to
	excuse
the
	late
	filing
	for
	good
	cause 	under
	Regulation
	32136.
	The
District
	contends
	that
	PERB
	has
	allowed
	late 	filings
	based
	upon
''mistake, 	inadvertence
	and
	excusable
	neglect
	of
	counsel"
particularly
	where
	the 	delay
	was
	brief
	and
	nonprejudicial
	to
	the
opposing
	party.
	The
	District
	also
	argues
	that
	a
	mistake
	of
	law
by
	counsel
	has 	been
	recognized
	under
	CCP
	section
	473
	by
	the
courts
	as
	a
	valid
	ground
	for 	granting
	relief
	and
	that
	the
	Board
should
	interpret
	its
	regulations
	in
	a
	similar
	manner. 	Such
	an
interpretation,
	the
	District
	contends,
	furthers
	the
	overriding
policy
	consideration
	which
	favors 	the
	preservation
	of
	the
	rights
of 	appeal,
	and
	the 	hearing 	of
	such
	appeals,
	on
	the 	merits.
10
We
do
	not 	find 	these
	arguments
	persuasive.
The 	"good
	cause''
	standard 	for
	excusing
	a
	late 	filing
	under
Regulation
	32136 	was
	adopted
	on
	January
	28,
	1989.
	Since
	that
time, 	three
	PERB
	decisions
	have 	excused
	late 	filings
	using
	this
standard.
	In 	Trustees 	of
	California 	State 	University
	(1989)
	PERB
Order
	No.
	Ad-192-H,
	the
	Board
	adopted
	the 	reasoning 	of
	the
California
	Supreme
	Court
	in
	Gibson 	v.
	Unemployment
	Insurance
10
The
	District
	also
	urges
	the
	Board
	to
	excuse
	the
	late
filing
	in 	order
	that
	PERB 	may
	address 	the 	merits 	of
	its
	appealconcerning
	an
	"important 	matter 	of 	statewide
	concern"
	regarding
an
	exclusive 	representative's 	right 	to
	file
	a
	grievance
	in
	its
own
	name.
	We
	note,
	however,
	that
	the 	issue 	of
	an
	association's
right
	to
	file
	a
	grievance 	in
	its
	own 	name
	has 	been 	decided
	by
	theBoard
	in
	South
	Bay 	Union 	School
	District
	(1990)
	PERB
	Decision
	No.
791; 	Chula
	Vista 	City 	School
	District
	(1990)
	PERB
	Decision
	No.
834; 	and
	Mt.
	Diablo 	Unified 	School
	District
	(1990)
	PERB
	Decision
No.
	844, 	(petn. 	for 	writ 	of 	review,
	(Mt.
	Diablo 	Unified 	School
District
	v.
	PERB,
	Sixth 	District
	Court 	of 	Appeals, 	app. 	pending))which 	issued 	after 	the 	District's
	appeal 	of 	the 	Board's 	rejectionof 	the 	District's 	filing 	in 	this 	case.
9

Appeals 	Board 	(1973) 	9 	Cal.3d 	494 	which 	noted 	the 	general 	policy
of 	law 	that 	favors 	the 	preservation 	of 	rights 	of 	appeal 	and 	the
hearing 	of 	appeals 	on 	the 	merits. 	(Id	-· a t 	p. 	5.) 11 In 	Trustees,
the 	exceptions 	were 	sent 	by 	certified 	mail, 	but 	were 	deemed 	to 	be
filed 	one 	day 	late 	by 	reason 	of 	the 	postmark, 	which 	resulted 	from
an 	error 	of 	a 	mail-room 	employee 	who 	incorrectly 	set 	the 	postage
meter. 	The 	Board 	held 	that 	the 	explanation 	of 	the 	clerical 	error
was 	not 	so 	unreasonable 	as 	to 	seem 	unbelievable, 	and 	on 	that
basis 	excused 	the 	untimely 	filing. 	(Id. 	at 	p. 	5.)
In 	Regents 	of 	the 	University 	of 	California, 	supra, 	PERB
Order 	No. 	Ad-202-H, 	the 	Board 	excused 	the 	late 	filing 	based 	on 	an
unrefuted 	declaration 	by 	the 	University 1 s 	attorney 	that 	it 	was
the 	policy 	of 	his 	office 	to 	file 	documents 	with 	PERB 	by 	certified
mail. 	He 	had 	instructed 	his 	secretary 	to 	mail 	the 	documents, 	but
she 	inadvertently 	sent 	them 	by 	regular 	mail 	on 	the 	last 	day 	set
for 	filing 	rather 	than 	by 	certified 	mail. 	The 	Board 	also 	found
that 	there 	was 	no 	prejudice 	to 	the 	opposing 	party 	as 	a 	result 	of
the 	late 	filing.
In 	North 	Orange 	County 	Regional 	Occupation 	Program 	(1990)
PERB 	Decision 	No. 	807, 	the 	Board 	excused 	a 	filing 	that 	was
inadvertently 	sent 	to 	the 	Los 	Angeles 	Regional 	Office 	based 	on
11 Under 	the 	previous 	more 	exacting 	requirement 	of 	extra-
ordinary 	circumstances 	for 	excusing 	a 	late 	filing 	(prior
Regulation 	32136), 	the 	Board 	also 	adopted 	the 	reasoning 	from
Gibson 	in 	Chula 	Vista 	City 	School 	District 	(1978) 	PERB 	Order
No. 	Ad-29, 	where 	a 	temporary 	secretary 	had 	not 	followed 	the
attorney 1 s 	instructions 	to 	deliver 	the 	exceptions 	to 	the
appropriate 	office. 	The 	Board 	held 	this 	was 	excusable 	neglect
by 	the 	attorney.
10

the 	declaration
	of 	the
	secretary
	who
	mailed
	the
	document
	that
	she
routinely
	sent
	a
	large
	number
	of
	PERB
	filings
	to 	the
	Los
	Angeles
office
	and
	incorrectly
	followed
	that
	routine
	practice 	in
	this
instance.
	In
	reviewing
	these
	facts,
	and
	those 	of
	Regents 	and
Trustees,
	the
	Board
	noted
	that 	in
	each
	case
	a
	party
	had
	attempted
to
	file
	in
	a
	timely 	fashion
	and
	in
	accord 	with
	the
	filing
requirements
	specified
	under
	PERB
	regulations
	but
	due
	to
inadvertent
	error,
	the
	mechanics
	of 	the
	filing
	went 	awry.
at
	p. 	5.)
	Accordingly,
	certain
	clerical
	errors
	were
	excused
under
	the
	good
	cause
	standard.
In
	this
	case,
	however,
	there
	was 	no
	such
	attempt. 	Rather,
as
	indicated 	in 	his 	declaration,
	counsel
	for 	the
	District
reviewed
	the
	law 	and
	incorrectly
	determined
	that
	deposit
	in
	the
regular
	mail
	satisfied
	PERB's
	filing
	requirements.
	We
	conclude
this
	does
	not
	meet
	the
	good
	cause
	standard 	for
	excusing
	a
	late
filing.
The
	District
	also
	argues
	that
	its
	appeal 	should
	be
	accepted
based
	on
	a
	"mistake
	of
	law"
	theory. 	In 	support 	of
	this
	argument,
the
	District
	points 	out
	that
	the 	court, 	in
	McCormici
	v. 	Board
	of
Supervisors
	(1988)
	198
	Cal.App.3d 	352,
	granted
	an
	inadequately	
.
plead
	mandamus
	petition
	based
	upon
	the 	lack 	of
	clear
	guidance
	in
the
	law
	at
	the
	time 	and
	counsel's
	good
	faith,
	though
	faulty,
attempt 	to
	comply
	with 	the 	pleading 	requirements.
	The
	court
stated:
"It 	is
	well 	settled 	that 	relief
	may
	be
granted 	for 	mistake 	of 	law by
	a
	party'sattorney. 	[Citation]
	An
	honest 	mistake 	of
law
	is
	a
	valid 	ground 	for 	relief
	where 	a
1 1

problem
	is
	complex 	and
	debata~le."
(Citations 	omitted.)
	The
	controlling 	factors
in
	determining
	whether
	an
	attorney
1 s
	mistake
was
	excusable
	are
	(1)
	the
	reasonableness 	of
the
	misconception
	and 	(2)
	the
	justifiability
of
	the
	failure
	to
	determine
	the
	correct
	law.
(Citations
	omitted, 	Id.
	at
	p.
	360,
	emphasis
added.)
Similarly, 	in
	Brochtrup
	v.
	INTEP
	(1987)
	190
	Cal.App.3d
	323,
the
	appellate
	court
	found
	that
	relief
	from
	the
	denial
	of
	the
defendant
1 s
	motion 	under
	CCP
	section
	473
	should
	be
	granted
	based
on
	the 	attorney's
	mistaken
	belief 	that
	he
	was
	authorized
	to
verify 	certain
	responses
	on
	behalf 	of
	two
	of 	the 	defendants
absent
	from
	the
	county.
	Moreover,
	the 	defendant's 	attorney
	had,
in
	fact, 	filed
	his
	motion
	in
	a
	timely
	manner.
	In 	determining
	the
reasonableness 	of 	the
	misconception
	and
	the
	justifiable
	lack 	of
determination
	of
	the 	correct
	law,
	the 	court
	found
	the
	mistake
	was
excusable
	because
	the
	law had
	recently
	changed 	and
	there
	were
	no
cases 	or
	authorities 	specifically
	governing
	the 	pleading
requirements.
	The
	court
	stated:
Thus,
	we
	can
	safely
	say
	that 	at
	the
	time
defendants
1
	motion
	for
	relief
	was
	heard
	and
decided, 	the
	law on
	who 	may
	verify
	responsesunder
	section
	2033 	was
	unsettled.(Id.
	at
	p. 	332.)
Unlike
	these 	cases, 	the 	rules
	governing
	the
	filing
	of
exceptions 	with
	PERB
	to
	a
	proposed
	decision 	of
	an
	ALJ
	are 	neither
new,
	unsettled,
	nor 	complex.
	Additionally, 	there
	was 	no
	lack 	of
PERB
	case 	authority 	specifically 	dealing 	with 	the 	issue 	of 	timely
filing
	under 	the 	revised 	regulation.
	Although 	the
	Board
	did
revise 	its
	regulations 	in
	1989
	concerning 	the 	extension 	of 	time
under
	CCP
	section
	1013 	and 	a
	section 	excusing
	a
	late 	filing,
12

neither
	of
	these
	revisions
	are 	unclear
	as
	to 	the 	time,
	place
	and
method
	of
	filing.
	Thus,
	we
	find 	the
	District
1 s
	interpretation
	of
PERB
	regulations 	to
	be
	neither
	reasonable
	nor
	justifiable
	in
	this
circumstance.
	If
	nothing
	else,
	the 	inquiry
	from
	counsel
1 s
secretary
	should
	have
	alerted
	him
	to
	the 	required 	procedures.
The
	District
1 s
	mistake
	of
	law
	resulting 	in
	the
	late 	filing
	is,
therefore,
	not
	excused
	for
	good
	cause.
With
	respect 	to
	the
	argument
	that
	the
	District
1 s
	mistake 	of
law
	should
	be
	excused
	because
	the
	opposing
	party
	has
	not
	been
prejudiced,
	we
	note
	that
	while 	the 	lack 	of
	prejudice
	resulting
from
	a
	late 	filing 	is
	an
	important
	consideration 	in
	deciding
whether
	to
	excuse
	a
	late 	filing
	for
	good
	cause,
	it
	is
	not,
	in
	and
of
	itself,
	the 	determinative
	factor.
	(See
	e.g.,
	Gonzales 	v.
State
	Personnel
	Board 	(1977)
	76
	Cal.App.3d
	364, 	367, 	where
	the
court,
	addressing
	an 	employee
1 s
	fundamental
	vested
	right 	to
continue
	employment,
	granted
	relief
	from
	a
	default
	judgment
	based
upon
	a
	showing
	of
	good
	cause
	and
	lack 	of 	prejudice
	to
	the
employer.)
	As
	the
	District
	has
	failed 	to 	establish 	that
	its
mistake 	of
	law
	constitutes
	good
	cause 	under 	Regulation
	32136,
	the
fact 	that
	the
	opposing
	party
	has 	not 	been
	prejudiced
	will
	not 	by
itself
	excuse
	the
	late 	filing.
Finally,
	we
	do
	not 	find
	that
	an
	attorney's 	desire
.to
	avoid
unnecessary 	expenses
	associated 	with 	the 	standard
	filing
requirements 	specifically
	expressed 	under
	PERB
	regulations
excuses 	the 	late 	filing, 	particularly
	where
	the 	expense
	is
relatively
	minor.
13

14
ORDER
The
	District's
	appeal
	for
	relief
	from
	rejection
	of
	late
filing 	is
	hereby
	DENIED.
Members
	Camilli
	and
	Cunningham
	join 	in
	this
	Decision.
14