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1 DENNIS J. HERRERA, State Bar #139669
City Attorney
2 KATHARINE HOBIN PORTER, State Bar #173180 ELECTRONICALLY
Chief Labor Attorney F I L E D
3 CECILIA T. MANGOBA, State Bar #169007 Superior Court of California,
County of San Francisco
Deputy City Attorney
4 Fox Plaza 06/21/2019
1390 Market Street, Floor Five Clerk of the Court
5 San Francisco, California 94102-5408 BY: KALENE APOLONIO
Deputy Clerk
Telephone: (415) 554-3927
6 Facsimile: (415) 554-4248
E-Mail: cecilia.mangoba@sfcityatty.org
7
8 Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO
12 UNLIMITED JURISDICTION
13 SERVICE EMPLOYEES INTERNATIONAL Case No. CPF-19-516692
UNION, LOCAL 1021,
14 CITY AND COUNTY OF SAN FRANCISCO’S
Petitioner, ANSWER TO PETITION TO COMPEL
15 ARBITRATION
vs.
16
CITY AND COUNTY OF SAN FRANCISCO Date Action Filed: June 4, 2019
17 DEPARTMENT OF PUBLIC HEALTH, Trial Date: Not Set
18 Defendant.
19
20
21 Respondent City and County of San Francisco1 (Respondent) here by answers the Petition to
22 Compel Arbitration brought by the Service Employees International Union, Local 1021 (Petitioner) as
23 follows:
24 1. In Response to paragraph 1 of the Petition, Respondent admits that Petitioner is an
25 1
The San Francisco Department of Public Health is not a separate public entity subject to
being sued separate from the City and County of San Francisco. See Talbot v. City of Pasadena
26 (1938) 28 Cal.App.2d 271, 274.
27
1
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ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx
PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19-
516692
1 employee organization whose members are employees of Respondent and that Respondent and
2 Petitioner are parties to a collective bargaining agreement. Except as specifically admitted herein,
3 Respondent denies each and every allegation set forth in paragraph 1.
4 2. In Response to paragraph 2 of the Petition, Respondent admits that it is a public agency
5 operating in the State of California. Except as specifically admitted herein, Respondent denies each
6 and every allegation set forth in paragraph 2.
7 3. In Response to paragraph 3 of the Petition, Respondent admits that Respondent and
8 Petitioner are parties to a Memorandum of Understanding with a term of July 1, 2014 through June 30,
9 2019 (“MOU”), and that Petitioner has marked a copy of portions of the MOU as Exhibit A. Except
10 as specifically admitted herein, Respondent denies each and every allegation set forth in paragraph 3.
11 4. In Response to paragraph 4 of the Petition, Respondent responds that the MOU speaks
12 for itself. Except as specifically admitted herein, Respondent denies each and every allegation set
13 forth in paragraph 4.
14 5. In Response to paragraph 5 of the Petition, Respondent admits that Petitioner filed a
15 grievance and that there continues to be a grievance. Respondent further admits that on or about
16 September 28, 2018 and December 5, 2018, Respondent sent letters to Petitioner advising that the
17 dispute is not grievable. Except as specifically admitted herein, Respondent denies each and every
18 allegation set forth in paragraph 5.
19 6. In Response to paragraph 6 of the Petition, Respondent admits that by letter dated
20 August 22, 2018, Petitioner sought to have this dispute referred to arbitration and that Petitioner has
21 attached a copy of this letter to the Petition as Exhibit C. Respondent further admits that on or about
22 September 28, 2018 and December 5, 2018, Respondent sent letters to Petitioner advising that the
23 dispute is not grievable. Except as specifically admitted herein, Respondent denies each and every
24 allegation set forth in paragraph 6.
25 7. In Response to paragraph 7 of the Petition, Respondent denies each and every
26 allegation set forth in paragraph 7.
27 Respondent denies Petitioner is entitled to the relief requested.
2
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ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx
PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19-
516692
1 AFFIRMATIVE DEFENSES
2 FIRST AFFIRMATIVE DEFENSE
3 As a separate and affirmative defense to the Petition and to each and every allegation
4 contained therein, Respondent alleges that the Petition and each and every allegation contained
5 therein, whether considered singly or in any combination, fails to state a claim upon which relief
6 can be granted.
7 SECOND AFFIRMATIVE DEFENSE
8 As a separate and affirmative defense to the Petition and to each and every allegation
9 set forth therein, Respondent alleges that the Petition, and each and every claim set forth therein, is
10 barred by the applicable statute of limitations.
11 THIRD AFFIRMATIVE DEFENSE
12 As a separate and affirmative defense to the Petition and to each and every allegation
13 set forth therein, Respondent alleges that at all times mentioned in the Petition, Respondent
14 performed and discharged in good faith each and every obligation, if any, owed to Petitioner.
15 FOURTH AFFIRMATIVE DEFENSE
16 As a separate and affirmative defense to the Petition and to each and every allegation
17 contained therein, Respondent alleges that Petitioner has failed to exhaust his administrative and/or
18 contractual remedies.
19 FIFTH AFFIRMATIVE DEFENSE
20 As a separate and affirmative defense to the Petition and to each and every allegation
21 contained therein, Respondent alleges that its conduct at all times material herein was privileged
22 and/or justified under applicable law.
23 SIXTH AFFIRMATIVE DEFENSE
24 As a separate and affirmative defense to the Petition and to each and every allegation
25 contained herein, Respondent alleges that the Petition is barred by the doctrine of unclean hands.
26
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ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx
PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19-
516692
SEVENTH AFFIRMATIVE DEFENSE
1
As a separate and affirmative defense to the Petition and to each and every allegation
2
contained therein, Respondent alleges that Petitioner is estopped by its conduct from asserting any
3
cause of action against Respondent.
4
EIGHTH AFFIRMATIVE DEFENSE
5
As a separate and affirmative defense to the Petition and to each and every allegation
6
contained therein, Respondent alleges that, by its conduct, Petitioner has waived any right to
7
recover any relief by the Petition.
8
NINTH AFFIRMATIVE DEFENSE
9
As a separate and affirmative defense to the Petition and to each and every allegation
10
contained therein, Respondent alleges that any relief sought by Petitioner is barred by the doctrine
11
of laches.
12
TENTH AFFIRMATIVE DEFENSE
13
As a separate and affirmative defense to the Petition and to each and every allegation
14
contained therein, Respondent alleges that Petitioner has failed to use due diligence to mitigate
15
damages, if any.
16
ELEVENTH AFFIRMATIVE DEFENSE
17
As a separate and affirmative defense to the Petition and to each and every allegation
18
therein, Respondent alleges that Petitioner’s maintenance of this action is frivolous, vexatious and
19
unreasonable, thereby entitling these answering Respondent to an award of attorneys' fees.
20
21
TWELFTH AFFIRMATIVE DEFENSE
22
As a separate and affirmative defense to the Petition and to each and every allegation
23
contained therein, Respondent alleges that it is under no duty to perform the act requested or is
24
under not duty to perform it at the present time.
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ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx
PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19-
516692
THIRTEENTH AFFIRMATIVE DEFENSE
1
As a separate and affirmative defense to the Petition and to each and every allegation
2
contained therein, Respondent alleges that the act sought to be compelled is discretionary.
3
FOURTEENTH AFFIRMATIVE DEFENSE
4
As a separate and affirmative defense to the Petition and to each and every allegation
5
contained therein, Respondent alleges that it has exercised its discretion and, based on the facts and
6
the law, has not abused it.
7
FIFTEENTH AFFIRMATIVE DEFENSE
8
As a separate and affirmative defense to the Petition and to each and every allegation
9
contained therein, Respondent alleges that the challenged act is not expressly required by law.
10
WHEREFORE, Respondent prays for judgment as follows:
11
1. That Petitioner takes nothing from Respondent;
12
2. That the Petition be dismissed with prejudice;
13
3. That Respondent recover costs of suit herein, including attorney’s fees;
14
4. That the Court order such other and further relief for Respondent as is just and proper.
15
16 Dated: June 21, 2019
17 DENNIS J. HERRERA
City Attorney
18 KATHARINE HOBIN PORTER
Chief Labor Attorney
19 CECILIA T. MANGOBA
Deputy City Attorney
20
21 By:/s/ Cecilia T. Mangoba
CECILIA T. MANGOBA
22
23 Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
24
25
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ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx
PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19-
516692
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1 DENNIS J. HERRERA, State Bar #139669 City Attorney 2 KATHARINE HOBIN PORTER, State Bar #173180 ELECTRONICALLY Chief Labor Attorney F I L E D 3 CECILIA T. MANGOBA, State Bar #169007 Superior Court of California, County of San Francisco Deputy City Attorney 4 Fox Plaza 06/21/2019 1390 Market Street, Floor Five Clerk of the Court 5 San Francisco, California 94102-5408 BY: KALENE APOLONIO Deputy Clerk Telephone: (415) 554-3927 6 Facsimile: (415) 554-4248 E-Mail: cecilia.mangoba@sfcityatty.org 7 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 UNLIMITED JURISDICTION 13 SERVICE EMPLOYEES INTERNATIONAL Case No. CPF-19-516692 UNION, LOCAL 1021, 14 CITY AND COUNTY OF SAN FRANCISCO’S Petitioner, ANSWER TO PETITION TO COMPEL 15 ARBITRATION vs. 16 CITY AND COUNTY OF SAN FRANCISCO Date Action Filed: June 4, 2019 17 DEPARTMENT OF PUBLIC HEALTH, Trial Date: Not Set 18 Defendant. 19 20 21 Respondent City and County of San Francisco1 (Respondent) here by answers the Petition to 22 Compel Arbitration brought by the Service Employees International Union, Local 1021 (Petitioner) as 23 follows: 24 1. In Response to paragraph 1 of the Petition, Respondent admits that Petitioner is an 25 1 The San Francisco Department of Public Health is not a separate public entity subject to being sued separate from the City and County of San Francisco. See Talbot v. City of Pasadena 26 (1938) 28 Cal.App.2d 271, 274. 27 1 28 ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19- 516692 1 employee organization whose members are employees of Respondent and that Respondent and 2 Petitioner are parties to a collective bargaining agreement. Except as specifically admitted herein, 3 Respondent denies each and every allegation set forth in paragraph 1. 4 2. In Response to paragraph 2 of the Petition, Respondent admits that it is a public agency 5 operating in the State of California. Except as specifically admitted herein, Respondent denies each 6 and every allegation set forth in paragraph 2. 7 3. In Response to paragraph 3 of the Petition, Respondent admits that Respondent and 8 Petitioner are parties to a Memorandum of Understanding with a term of July 1, 2014 through June 30, 9 2019 (“MOU”), and that Petitioner has marked a copy of portions of the MOU as Exhibit A. Except 10 as specifically admitted herein, Respondent denies each and every allegation set forth in paragraph 3. 11 4. In Response to paragraph 4 of the Petition, Respondent responds that the MOU speaks 12 for itself. Except as specifically admitted herein, Respondent denies each and every allegation set 13 forth in paragraph 4. 14 5. In Response to paragraph 5 of the Petition, Respondent admits that Petitioner filed a 15 grievance and that there continues to be a grievance. Respondent further admits that on or about 16 September 28, 2018 and December 5, 2018, Respondent sent letters to Petitioner advising that the 17 dispute is not grievable. Except as specifically admitted herein, Respondent denies each and every 18 allegation set forth in paragraph 5. 19 6. In Response to paragraph 6 of the Petition, Respondent admits that by letter dated 20 August 22, 2018, Petitioner sought to have this dispute referred to arbitration and that Petitioner has 21 attached a copy of this letter to the Petition as Exhibit C. Respondent further admits that on or about 22 September 28, 2018 and December 5, 2018, Respondent sent letters to Petitioner advising that the 23 dispute is not grievable. Except as specifically admitted herein, Respondent denies each and every 24 allegation set forth in paragraph 6. 25 7. In Response to paragraph 7 of the Petition, Respondent denies each and every 26 allegation set forth in paragraph 7. 27 Respondent denies Petitioner is entitled to the relief requested. 2 28 ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19- 516692 1 AFFIRMATIVE DEFENSES 2 FIRST AFFIRMATIVE DEFENSE 3 As a separate and affirmative defense to the Petition and to each and every allegation 4 contained therein, Respondent alleges that the Petition and each and every allegation contained 5 therein, whether considered singly or in any combination, fails to state a claim upon which relief 6 can be granted. 7 SECOND AFFIRMATIVE DEFENSE 8 As a separate and affirmative defense to the Petition and to each and every allegation 9 set forth therein, Respondent alleges that the Petition, and each and every claim set forth therein, is 10 barred by the applicable statute of limitations. 11 THIRD AFFIRMATIVE DEFENSE 12 As a separate and affirmative defense to the Petition and to each and every allegation 13 set forth therein, Respondent alleges that at all times mentioned in the Petition, Respondent 14 performed and discharged in good faith each and every obligation, if any, owed to Petitioner. 15 FOURTH AFFIRMATIVE DEFENSE 16 As a separate and affirmative defense to the Petition and to each and every allegation 17 contained therein, Respondent alleges that Petitioner has failed to exhaust his administrative and/or 18 contractual remedies. 19 FIFTH AFFIRMATIVE DEFENSE 20 As a separate and affirmative defense to the Petition and to each and every allegation 21 contained therein, Respondent alleges that its conduct at all times material herein was privileged 22 and/or justified under applicable law. 23 SIXTH AFFIRMATIVE DEFENSE 24 As a separate and affirmative defense to the Petition and to each and every allegation 25 contained herein, Respondent alleges that the Petition is barred by the doctrine of unclean hands. 26 27 3 28 ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19- 516692 SEVENTH AFFIRMATIVE DEFENSE 1 As a separate and affirmative defense to the Petition and to each and every allegation 2 contained therein, Respondent alleges that Petitioner is estopped by its conduct from asserting any 3 cause of action against Respondent. 4 EIGHTH AFFIRMATIVE DEFENSE 5 As a separate and affirmative defense to the Petition and to each and every allegation 6 contained therein, Respondent alleges that, by its conduct, Petitioner has waived any right to 7 recover any relief by the Petition. 8 NINTH AFFIRMATIVE DEFENSE 9 As a separate and affirmative defense to the Petition and to each and every allegation 10 contained therein, Respondent alleges that any relief sought by Petitioner is barred by the doctrine 11 of laches. 12 TENTH AFFIRMATIVE DEFENSE 13 As a separate and affirmative defense to the Petition and to each and every allegation 14 contained therein, Respondent alleges that Petitioner has failed to use due diligence to mitigate 15 damages, if any. 16 ELEVENTH AFFIRMATIVE DEFENSE 17 As a separate and affirmative defense to the Petition and to each and every allegation 18 therein, Respondent alleges that Petitioner’s maintenance of this action is frivolous, vexatious and 19 unreasonable, thereby entitling these answering Respondent to an award of attorneys' fees. 20 21 TWELFTH AFFIRMATIVE DEFENSE 22 As a separate and affirmative defense to the Petition and to each and every allegation 23 contained therein, Respondent alleges that it is under no duty to perform the act requested or is 24 under not duty to perform it at the present time. 25 26 27 4 28 ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19- 516692 THIRTEENTH AFFIRMATIVE DEFENSE 1 As a separate and affirmative defense to the Petition and to each and every allegation 2 contained therein, Respondent alleges that the act sought to be compelled is discretionary. 3 FOURTEENTH AFFIRMATIVE DEFENSE 4 As a separate and affirmative defense to the Petition and to each and every allegation 5 contained therein, Respondent alleges that it has exercised its discretion and, based on the facts and 6 the law, has not abused it. 7 FIFTEENTH AFFIRMATIVE DEFENSE 8 As a separate and affirmative defense to the Petition and to each and every allegation 9 contained therein, Respondent alleges that the challenged act is not expressly required by law. 10 WHEREFORE, Respondent prays for judgment as follows: 11 1. That Petitioner takes nothing from Respondent; 12 2. That the Petition be dismissed with prejudice; 13 3. That Respondent recover costs of suit herein, including attorney’s fees; 14 4. That the Court order such other and further relief for Respondent as is just and proper. 15 16 Dated: June 21, 2019 17 DENNIS J. HERRERA City Attorney 18 KATHARINE HOBIN PORTER Chief Labor Attorney 19 CECILIA T. MANGOBA Deputy City Attorney 20 21 By:/s/ Cecilia T. Mangoba CECILIA T. MANGOBA 22 23 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 24 25 26 27 5 28 ANSWER TO PETITION TO COMPEL ARBITRATION n:\labor\li2019\191400\01369322.docx PETITIONER, Local 1021 v. City & County of San Francisco, CASE NO. CPF-19- 516692