Service Employees International Union Local 1021 v. County of Mendocino

Opinion

SERVICE EMPLOYEES Case No. 20-cv-05423-RMI INTERNATIONAL UNION LOCAL 1021, et al., ORDER ON MOTION TO DISMISS Plaintiffs, PLAINTIFFS’ FIRST AMENDED COMPLAINT v. Re: Dkt. No. 43

Defendant.

Now pending before the court is Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint. Def’s. Mot. (dkt. 34). Defendant argues that the First Amended Complaint (“FAC”) must be dismissed because Plaintiffs fail to state a claim upon which relief can be granted, and that granting leave to amend would be futile. Id. at 9-22. For the reasons stated below, the court will grant Defendant’s Motion to Dismiss Plaintiffs’ FAC without leave to amend. On August 5, 2020, Plaintiffs, Service Employees International Union Local 1021 (“SEIU”) and Henry Frahm Rinne (“Frahm”), filed an original Complaint against the County of Mendocino (“the County”), alleging violations of Frahm’s federal and state due process rights. Compl. (dkt. 1) at 1-10. Defendant moved to dismiss (dkt. 11) and—following Plaintiffs’ response (dkt. 14), Defendant’s reply (dkt. 15), and oral argument on November 10, 2020 (dkt. 17)—the court granted Defendant’s Motion to Dismiss Plaintiffs’ Complaint with leave to amend. Order on Mot. to Dismiss (dkt. 28). violations of Frahm’s rights to due process under the United States and California Constitutions. Pls.’ First Amd. Compl. (dkt. 29) at 1-12. Defendant moved to dismiss the FAC (dkt. 34), Plaintiffs responded (dkt. 39), Defendant replied (dkt. 40), and the Parties appeared for oral argument on June 8, 2021 (dkt. 42). The FAC, like the original Complaint, recounts the termination of Frahm’s employment with the County of Mendocino. Pls.’ First Amd. Compl. (dkt. 29) at 1-2. Frahm began his employment with the County in August 2016, when he was hired as a custodian. Id. at 1. On April 22, 2019, the County issued Frahm a Notice of Intent to Discipline (“NOI”), citing Chapter Three of the County Civil Service Ordinance—which sets forth the appeals and hearing process for employees dismissed from County employment. Id. at 1-2. The NOI also notified Frahm of his right to request Skelly review.1 Id. at 4. On May 23, 2019, following a Skelly review, the County issued Frahm an Order of Disciplinary Action permanently dismissing Frahm from his employment. Id. at 1. Frahm appealed his dismissal pursuant to Chapter Three of the Civil Service Ordinance. Id. at 2. On September 18 and 19, 2019, four of the County’s five Civil Service Commissioners heard Frahm’s appeal. Id. During this hearing, Frahm presented witnesses, documentary evidence, and had the opportunity to cross examine witnesses. Id. At the conclusion of the hearing, on September 19, the four presiding Commissioners voted on Frahm’s appeal. Id. The result of the Commission’s vote was a deadlock, with two Commissioners voting to uphold the dismissal and two voting to reverse. Id. On September 26, 2019, the Chairperson of the Commission issued a Notice of Action After Hearing (“NOAAH”) which terminated Frahm’s employment with the County, stating that “since neither motion passed by majority vote, the Commission failed to take

1 In Skelly v. State Pers. Bd., 539 P.2d 775 (Cal. 1975), the California Supreme Court “recognize[d] a public employee's right to a pre-termination hearing.” Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 968 (9th Cir. 2011). “At a minimum, these pre-removal safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the action on Appellant’s appeal” and “as a result the Order of Disciplinary Action remains in full force and effect.” Id. In response to the Commission’s tie vote and the County’s failure to revoke the Disciplinary Order and reinstate Frahm to his permanent-status position, Plaintiffs’ FAC presents four claims. Id. at 8-10. Plaintiffs’ first claim seeks a declaratory judgment that the County violated Plaintiffs’ federal and state constitutionally protected rights by failing to provide union members (i.e., Frahm) with the due process owed them by local disciplinary appeals procedures—namely, by upholding the Disciplinary Order without meeting its burden to prove just cause by a majority vote of the Commission. Id. at 8. Plaintiffs’ second claim contends that the County violated Frahm’s due process rights by failing to revoke the Disciplinary Order and reinstate Frahm to his permanent-status position. Id. at 9. Plaintiffs’ third claim, brought under 42 U.S.C. § 1983, asserts that, in light of the provisions relied on by the County in this matter and the application thereof, the County will continue to violate the due process rights of similarly situated union members— that is, the County will refuse to revoke Disciplinary Orders which are not upheld by a majority vote of the Commission. Id. at 9-10. Finally, Plaintiffs’ fourth claim contends that the County violated the due process rights afforded Frahm under Article 1, Section 7 of the California Constitution when it failed to meet its burden to prove just cause with a majority vote from the Commission. Id. at 10. In order to survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a plaintiff must allege facts that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the nonmoving party,” Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998), the court is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable recitals of the elements of a cause of action, supported only by conclusory statements, are insufficient. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Dismissal for failure to state a claim is appropriate only where it appears, beyond doubt, that the plaintiff can prove no set of pleaded facts that would entitle them to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In short, for a complaint to survive a motion to dismiss, the non-conclusory factual content, including reasonable inferences from that content, must plausibly suggest a claim entitling the plaintiff to relief. Moss v. United States Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009). Motion to Dismiss Defendant’s Motion to Dismiss Plaintiffs’ FAC incorporates the six arguments presented in their previously-granted dismissal request: that Plaintiffs’ allegations (complaining that Defendant has merely failed to comply with local laws) are insufficient to establish a federal claim for due process; that Plaintiffs’ Complaint should be dismissed for lack of federal question jurisdiction; that state and local laws were applied correctly; that Plaintiffs’ first three causes of action fail because the factual allegations are insufficient to state a due process violation under the Fourteenth Amendment; that Plaintiffs’ alternative request for leave to amend should not be granted because doing so would be futile; and that Plaintiffs’ fourth claim fails because the factual allegations are insufficient to state a due process violation under the California Constitution. Def’s. Mot. (dkt. 34) at 14-24. In addition, Defendant’s Motion presents two new issues by arguing: that Plaintiffs’ new allegations (asserting that it was a “long-standing policy and practice” that the County had to prove just cause for their disciplinary orders for the Commission to affirm them on appeal) are insufficient to establish that the Commission had a duty to revoke the disciplinary order; and that federal law does not authorize declaratory relief on matters of state or local law. Id. at 11-16. Both the FAC and Defendant’s Motion to Dismiss the FAC revolve around the County Civil Service Commission’s two-two deadlocked vote following Frahm’s post-termination bear the burden of proof are insufficient to establish that the Commission was required to issue an order revoking the discipline in the event of a deadlock.” Id. at 11. According to the County, “[n]either the Commission’s rules, California caselaw, nor the regular practices of courts and other administrative bodies . . . would support an inference that bearing the burden of proof impliedly contains an obligation to reverse the discipline in the event of a deadlock.” Id. at 13. Regardless, Defendant contends that “[e]ven if Plaintiffs’ allegations were sufficient to establish that the Commission erroneously applied its local rules, Plaintiffs’ claims fall well short of establishing any . . . constitutional violation.” Id. at 14. Defendant, therefore, contends that Plaintiffs have not stated facts that, if true, would entitle them to relief—irrespective of the reach of local rules or policies. Plaintiffs, on the other hand, submit that “a County policy or lack of policy resulted in a due process violation.” Pls.’ Opp’n to Def’s. Mot. (dkt. 39) at 1. According to Plaintiffs, it was the “long-standing policy and practice of SEIU Local 1021 and the County – that the County had to prove it had just cause to the Commission in order to affirm its disciplinary orders . . . .” Pls.’ First Amd. Compl. (dkt. 29) at 7. Plaintiffs allege that this policy required the County to secure at least a majority vote by the Commission to meet its burden. Id. Plaintiffs contend, therefore, that the “action required by the Commission was to ‘revoke’ Frahm’s disciplinary Order because it lacked a majority vote of the Commissioners to affirm or modify it.” Id. at 8. Their failure to do so, Plaintiffs submit, resulted in a due process violation. As stated in this court’s previous Order, “there is no provision in the Civil Code . . . that it is incumbent on the County to take further action when a majority of the Commissioners are not persuaded upon the conclusion of an appeals hearing to either ‘affirm, modify, or revoke’ a disciplinary hearing.” Order on Mot. to Dismiss (dkt. 28) at 4. Based on the Complaint’s significant reliance on the Civil Code, therefore, this court found that Plaintiffs did not “allege how Defendant failed to follow its own procedures, or how procedures that would allow for a tie vote to amount to an affirming of a termination decision might operate to violate Plaintiffs’ federal procedural due process rights.” Id. at 5. As a result, the court granted Plaintiffs leave to amend could show “that either a County policy or lack of policy resulted in a due process violation.” Id. Plaintiffs’ FAC follows directly from the language of the Order, asserting that it was the “long-standing policy and practice of . . . the County . . . to prove it had just cause to the Commission in order to affirm its disciplinary orders.” Pls.’ First Amd. Compl. (dkt. 29) at 7-8 (emphasis added); see also Pls.’ Opp’n to Def’s. Mot. (dkt. 39) at 1 (“Plaintiffs have alleged that a County policy or lack of policy resulted in a due process violation . . . .”). Despite these recitations of the Order’s language, however, Plaintiffs’ FAC again falls short of alleging how the Commission’s actions violated Frahm’s due process rights. At the outset, Plaintiffs do not allege, nor is it apparent, how the County’s actions violated either the County Civil Service Ordinance or the “long-standing policy and practice” of the County having to prove “just cause” at the Commission. Pls.’ First Amd. Compl. (dkt. 29) at 7. The court must accept as true allegations that the burden of proof was on the County at both the initial, County-level hearing, as well as at the Commission hearing—a fact which Defendant apparently concedes.2 See Def’s. Mot. (dkt. 34) at 13 (“Plaintiffs have properly alleged, and defendant’s do not dispute, that local practice placed the burden of proof on the department.”). The court is not required, however, to accept as true Plaintiffs’ unfounded conclusion that satisfying this burden somehow required a majority vote by the Commission. See Sprewell, 266 F.3d at 988. There is nothing in the FAC, beyond Plaintiffs’ speculation as to the meaning of “just cause,” that would suggest such a majority requirement existed. Likewise, the County Civil Service Ordinance does not appear to address the burden of proof at the Commission—much less whether a majority was required to satisfy that burden. Compare with Graves v. Comm’n on Pro. Competence, 134 Cal. Rptr. 71, 74 (Cal. Ct. App 1976) (“Section 13413 of the Education Code provides that the decision of the Commission shall be by a majority vote.”); Clark v. City of Hermosa Beach, 56 Cal. Rptr. 2d 223, 237 (1996) (“In deciding an appeal . . . ‘[t]he action by the city council ... shall be by three (3) affirmative votes.’ (Hermosa Beach Mun. Code, §§ 1412, 1413, italics added).”).

2 The court notes that while nothing in the County Civil Service Ordinance or the FAC provides Considering that Frahm lost below, or, put another way, “just cause” was found for his initial termination, Defendants are correct that nothing in “[ ]either the Commission’s rules, California caselaw, nor the regular practices of courts and other administrative bodies . . .” would indicate that a tie vote at the Commission would be insufficient to carry the County’s burden of proving “just cause” on appeal. Id. at 14. In other words, considering that “just cause” was found below, the County’s burden on appeal could be met by either a majority vote affirming the termination decision, or a tie vote upholding the decision. Otherwise, any Disciplinary Order issued below would be rendered meaningless. Much like an appellate court, a tie vote at the Commission left the County’s original termination decision intact—a result which the Commission expressly recognized in the NOAAH. See Pls.’ First Amd. Compl. (dkt. 29) at 2 (“[S]ince neither motion passed by majority vote, the Commission failed to take action on Appellant’s appeal . . . as a result the Order of Disciplinary Action remains in full force and effect.”); see also City of Hermosa Beach, 56 Cal. Rptr. 2d at 237 (“As a general rule an even division among members of an administrative agency results in no action.); Grist Creek Aggregates, LLC v. Super. Ct. of Mendocino Cty., 219 Cal. Rptr. 3d 229, 237 (“The board’s tie vote meant that the November ATC was allowed to stand, which was effectively a decision not to revoke it.”). Outside of Plaintiffs’ conclusory allegations that a majority vote was necessary, Plaintiffs have failed to address why a tie vote at the Commission would be insufficient for the County to carry their burden of “just cause.” But it should also be noted that, assuming a tie vote was somehow insufficient to carry this burden, Plaintiffs still fail to allege how the resulting action violated Frahm’s federal procedural due process rights. Because “[d]ue process is flexible and calls for such procedural protections as the particular situation demands,” Morrissey v. Brewer, 408 U.S. 471, 481 (1972), the Supreme Court had identified three factors which are to be considered in determining what due process requires in a given situation.

First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). While a full-fledged Mathews analysis seems unnecessary, a few brief points are worth making. There is little doubt that the private interest at stake is significant—namely, Frahm’s constitutionally protected Fourteenth Amendment property interest in continued employment. See Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Despite the significance of this interest, however, the existing procedures for addressing the termination of County employees run little risk of erroneously depriving the interest. Based on the allegations in the FAC, Defendant informed Frahm of his right to request Skelly review and provided that review. Pls.’ First Amd. Compl. (dkt. 29) at 4. Following the issuance of the Disciplinary Order, the County also provided Frahm with an appeal to the Commission. Id. at 2. At the Commission hearing, Frahm presented documentary evidence, witnesses, and had the opportunity to cross-examine witnesses. Id. Given the comprehensive nature of these procedures, it is difficult to characterize them as running a significant risk of erroneously depriving Frahm of his property interest. Thus, even if a tie vote was somehow insufficient, under the Commission’s policy, Plaintiffs’ have not articulated a due process violation. See Gryger v. Burke, 334 U.S. 728, 731 (1948) (“We cannot treat a mere error of state law, if one occurred, as a denial of due process . . . .”). To hold otherwise would cast constitutional doubt on the procedures of many judicial and administrative bodies including, for example, the long-established authority of appellate courts to uphold the decision of a lower court where there is not a majority to affirm or overrule it. At its core, the “fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333 (1976). Apart from the conclusory allegations as to the requirements of “just cause,” Frahm does not dispute that he was provided a meaningful hearing. Finally, while the procedures provided by the County were sufficient to satisfy due process, Plaintiffs fail to state a claim for relief in federal court even if they were not. California law permits an aggrieved government employee, under certain circumstances, to file a petition for a writ of administrative mandate. See Cal. Civ. Proc. Code §§ 1094.5, 1094.6. While this time for such a proceeding to lapse. See Def.’s Mot. (dkt. 34) at 7. Plaintiffs, however, assert that the availability of such a remedy does not otherwise relieve the County of the duties owed a terminated employee. Plaintiffs contend that:

Defendant mistakenly alleges that challenging the Defendant’s administrative decision by writ of mandamus in California Superior Court completes Defendant’s obligation to provide certain procedural due process when terminating an employee. Whether Plaintiffs may have elected to challenge the Commission’s inaction by means of a writ . . . does not absolve Defendant of its duties to follow the procedure due to a terminated employee under the constitution. Pls.’ Opp’n to Def’s. Mot. (dkt. 39) at 10. Plaintiffs’ absolution argument, however, is backward. Plaintiffs argue that Defendant’s failure to comply with local policy absolves them of their duty to exhaust the available state post-deprivation remedies. However, “[t]he constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990). Thus, even if the County violated a local procedural policy “no due process violation resulted because [Plaintiffs] were free to challenge the Commission's orders in state court.” Ass’n for L.A. Deputy Sheriffs v. Cty. of L.A., 617 F. App’x 712, 713 (9th Cir. 2015); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that a deprivation of property does not violate due process if “adequate state post-deprivation remedies are available”). In a mandamus proceeding, a state court will inquire into the circumstances and legitimacy of the proceedings below.3 In other words, the state court is simply another procedural component designed to ensure that due process is afforded. Given the availability of this mechanism, therefore, it does not follow that an alleged violation of County policy, by itself, is sufficient to deprive Frahm of his constitutionally protected due process rights. Plaintiffs cannot avoid this fact simply because they did not avail themselves of this remedy. Given that Plaintiffs did not exhaust the available remedies at the state level, they cannot state a claim for relief in federal court. See Burson v. State of Nev., Dep't of Hum. Res., 42 F.3d 1398 (9th Cir. 1994) (“Thus, the trial court correctly ruled that [ ] [Plaintiff’s] § 1983 claims were barred by the existence of adequate post-deprivation remedies.”); Hazzard v. City of E. Palo Alto, 74 F.3d 1245 (9th Cir. 1996) (“[I]ntentional deprivations of property do not violate the Due Process Clause if adequate state post-deprivation remedies are available; Timberline Nw., Inc. v. Hill, 141 F.3d 1179 (9th Cir. 1998) (As [ ] [Plaintiff] has failed to demonstrate that the postdeprivation remedies available to it are inadequate, it is clear that its due process rights could not be violated.”). Accordingly, Plaintiffs have failed to show that either a County policy or lack of policy resulted in a due process violation. As such, Frahm cannot maintain a federal action against Defendant, County of Mendocino. For the reasons stated below, the court will dismiss Plaintiffs’ federal claims without leave to amend. Dismissal Without Leave to Amend In exercising its discretion to grant leave to amend, the court is guided by Fed. R. Civ. P. 15(a)(2): “The court should freely give leave when justice so requires.” As explained by the Supreme Court:

In the absence of any apparent or declared reason—such as undue delay . . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be “freely given.” Foman v. Davis, 321 U.S. 178, 182 (1962) (emphasis added). It is important to note, however, that the court’s “discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.” Ascon Prop., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). Plaintiffs were given an opportunity to cure the deficiencies of their Complaint and filed a FAC. Plaintiffs’ FAC ventures to cure these deficiencies with only a handful of conclusory allegations. See Sprewell, 266 F.3d at 988. Given the court’s “particularly broad” discretion under such circumstances (Ascon Prop., Inc., 866 F.2d at 1160), the court is well within its authority to deny Plaintiffs’ leave to amend—especially when taking into account the futility of further amendments. While the FAC conveys additional facts as to the Commission’s procedures, Plaintiffs still fail to allege how those procedures, or how the alleged failure to comply with them, resulted in a violation of Frahm’s federal procedural due process rights. It is clear then that no 1 As to the remaining state-law claims, the court will generally decline pendent jurisdiction 2 over state law claims in cases where the federal claims have been dismissed. See 28 U.S.C. § 3 1367(c)(2) (“The district courts may decline to exercise supplemental jurisdiction over a claim... 4 if... (3) the district court has dismissed all claims over which it has original jurisdiction . □ □ .”); 5 see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the 6 federal claims are dismissed before trial . . . the state law claims should be dismissed as well.”). 7 Because the court is dismissing Plaintiffs’ federal claims without leave to amend, the court will 8 also dismiss Plaintiffs’ state law claims with prejudice. 10 For the reasons stated above, Defendant’s Motion (dkt. 34) is GRANTED, and Plaintiffs’ 11 FAC (dkt. 29) is DISMISSED WITH PREJUDICE. 13 Dated: August 6, 2021 14 Ml Z □ 15 RQBERT M. ILLMAN 16 United States Magistrate Judge

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