Service Employees International Union Local 1021 v. County of Mendocino

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 SERVICE EMPLOYEES Case No. 20-cv-05423-RMI INTERNATIONAL UNION LOCAL 1021, 9 et al., ORDER ON MOTION TO DISMISS 10 Plaintiffs, PLAINTIFFS’ FIRST AMENDED COMPLAINT 11 v. Re: Dkt. No. 43 12 COUNTY OF MENDOCINO,

13 Defendant.

14 15 Now pending before the court is Defendant’s Motion to Dismiss Plaintiffs’ First Amended 16 Complaint. Def’s. Mot. (dkt. 34). Defendant argues that the First Amended Complaint (“FAC”) 17 must be dismissed because Plaintiffs fail to state a claim upon which relief can be granted, and that 18 granting leave to amend would be futile. Id. at 9-22. For the reasons stated below, the court will 19 grant Defendant’s Motion to Dismiss Plaintiffs’ FAC without leave to amend. 20 PROCEDURAL BACKGROUND 21 On August 5, 2020, Plaintiffs, Service Employees International Union Local 1021 22 (“SEIU”) and Henry Frahm Rinne (“Frahm”), filed an original Complaint against the County of 23 Mendocino (“the County”), alleging violations of Frahm’s federal and state due process rights. 24 Compl. (dkt. 1) at 1-10. Defendant moved to dismiss (dkt. 11) and—following Plaintiffs’ response 25 (dkt. 14), Defendant’s reply (dkt. 15), and oral argument on November 10, 2020 (dkt. 17)—the 26 court granted Defendant’s Motion to Dismiss Plaintiffs’ Complaint with leave to amend. Order on 27 Mot. to Dismiss (dkt. 28). 1 violations of Frahm’s rights to due process under the United States and California Constitutions. 2 Pls.’ First Amd. Compl. (dkt. 29) at 1-12. Defendant moved to dismiss the FAC (dkt. 34), 3 Plaintiffs responded (dkt. 39), Defendant replied (dkt. 40), and the Parties appeared for oral 4 argument on June 8, 2021 (dkt. 42). 5 FACTUAL BACKGROUND 6 The FAC, like the original Complaint, recounts the termination of Frahm’s employment 7 with the County of Mendocino. Pls.’ First Amd. Compl. (dkt. 29) at 1-2. Frahm began his 8 employment with the County in August 2016, when he was hired as a custodian. Id. at 1. On April 9 22, 2019, the County issued Frahm a Notice of Intent to Discipline (“NOI”), citing Chapter Three 10 of the County Civil Service Ordinance—which sets forth the appeals and hearing process for 11 employees dismissed from County employment. Id. at 1-2. The NOI also notified Frahm of his 12 right to request Skelly review.1 Id. at 4. On May 23, 2019, following a Skelly review, the County 13 issued Frahm an Order of Disciplinary Action permanently dismissing Frahm from his 14 employment. Id. at 1. 15 Frahm appealed his dismissal pursuant to Chapter Three of the Civil Service Ordinance. Id. 16 at 2. On September 18 and 19, 2019, four of the County’s five Civil Service Commissioners heard 17 Frahm’s appeal. Id. During this hearing, Frahm presented witnesses, documentary evidence, and 18 had the opportunity to cross examine witnesses. Id. At the conclusion of the hearing, on 19 September 19, the four presiding Commissioners voted on Frahm’s appeal. Id. The result of the 20 Commission’s vote was a deadlock, with two Commissioners voting to uphold the dismissal and 21 two voting to reverse. Id. On September 26, 2019, the Chairperson of the Commission issued a 22 Notice of Action After Hearing (“NOAAH”) which terminated Frahm’s employment with the 23 County, stating that “since neither motion passed by majority vote, the Commission failed to take 24

25 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 26 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 27 materials upon which the action is based, and the right to respond, either orally or in writing, to the 1 action on Appellant’s appeal” and “as a result the Order of Disciplinary Action remains in full 2 force and effect.” Id. In response to the Commission’s tie vote and the County’s failure to revoke 3 the Disciplinary Order and reinstate Frahm to his permanent-status position, Plaintiffs’ FAC 4 presents four claims. Id. at 8-10. 5 Plaintiffs’ first claim seeks a declaratory judgment that the County violated Plaintiffs’ 6 federal and state constitutionally protected rights by failing to provide union members (i.e., 7 Frahm) with the due process owed them by local disciplinary appeals procedures—namely, by 8 upholding the Disciplinary Order without meeting its burden to prove just cause by a majority vote 9 of the Commission. Id. at 8. Plaintiffs’ second claim contends that the County violated Frahm’s 10 due process rights by failing to revoke the Disciplinary Order and reinstate Frahm to his 11 permanent-status position. Id. at 9. Plaintiffs’ third claim, brought under 42 U.S.C. § 1983, asserts 12 that, in light of the provisions relied on by the County in this matter and the application thereof, 13 the County will continue to violate the due process rights of similarly situated union members— 14 that is, the County will refuse to revoke Disciplinary Orders which are not upheld by a majority 15 vote of the Commission. Id. at 9-10. Finally, Plaintiffs’ fourth claim contends that the County 16 violated the due process rights afforded Frahm under Article 1, Section 7 of the California 17 Constitution when it failed to meet its burden to prove just cause with a majority vote from the 18 Commission. Id. at 10. 19 STANDARD OF REVIEW 20 In order to survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 21 12(b)(6), a plaintiff must allege facts that “raise a right to relief above the speculative level.” Bell 22 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the “complaint must contain sufficient 23 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 24 Iqbal, 556 U.S. 662, 678 (2009). While “all well-pleaded allegations of material fact are taken as 25 true and construed in a light most favorable to the nonmoving party,” Wyler Summit P’ship v. 26 Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998), the court is not required to accept as 27 true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 1 recitals of the elements of a cause of action, supported only by conclusory statements, are 2 insufficient. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. 3 Dismissal for failure to state a claim is appropriate only where it appears, beyond doubt, 4 that the plaintiff can prove no set of pleaded facts that would entitle them to relief. Morley v. 5 Walker, 175 F.3d 756, 759 (9th Cir. 1999). In short, for a complaint to survive a motion to 6 dismiss, the non-conclusory factual content, including reasonable inferences from that content, 7 must plausibly suggest a claim entitling the plaintiff to relief. Moss v. United States Secret Serv., 8 572 F.3d 962, 970 (9th Cir. 2009). 9 DISCUSSION 10 Motion to Dismiss 11 Defendant’s Motion to Dismiss Plaintiffs’ FAC incorporates the six arguments presented 12 in their previously-granted dismissal request: that Plaintiffs’ allegations (complaining that 13 Defendant has merely failed to comply with local laws) are insufficient to establish a federal claim 14 for due process; that Plaintiffs’ Complaint should be dismissed for lack of federal question 15 jurisdiction; that state and local laws were applied correctly; that Plaintiffs’ first three causes of 16 action fail because the factual allegations are insufficient to state a due process violation under the 17 Fourteenth Amendment; that Plaintiffs’ alternative request for leave to amend should not be 18 granted because doing so would be futile; and that Plaintiffs’ fourth claim fails because the factual 19 allegations are insufficient to state a due process violation under the California Constitution. Def’s. 20 Mot. (dkt. 34) at 14-24. 21 In addition, Defendant’s Motion presents two new issues by arguing: that Plaintiffs’ new 22 allegations (asserting that it was a “long-standing policy and practice” that the County had to 23 prove just cause for their disciplinary orders for the Commission to affirm them on appeal) are 24 insufficient to establish that the Commission had a duty to revoke the disciplinary order; and that 25 federal law does not authorize declaratory relief on matters of state or local law. Id. at 11-16. 26 Both the FAC and Defendant’s Motion to Dismiss the FAC revolve around the County 27 Civil Service Commission’s two-two deadlocked vote following Frahm’s post-termination 1 bear the burden of proof are insufficient to establish that the Commission was required to issue an 2 order revoking the discipline in the event of a deadlock.” Id. at 11. According to the County, 3 “[n]either the Commission’s rules, California caselaw, nor the regular practices of courts and other 4 administrative bodies . . . would support an inference that bearing the burden of proof impliedly 5 contains an obligation to reverse the discipline in the event of a deadlock.” Id. at 13. Regardless, 6 Defendant contends that “[e]ven if Plaintiffs’ allegations were sufficient to establish that the 7 Commission erroneously applied its local rules, Plaintiffs’ claims fall well short of establishing 8 any . . . constitutional violation.” Id. at 14. Defendant, therefore, contends that Plaintiffs have not 9 stated facts that, if true, would entitle them to relief—irrespective of the reach of local rules or 10 policies. 11 Plaintiffs, on the other hand, submit that “a County policy or lack of policy resulted in a 12 due process violation.” Pls.’ Opp’n to Def’s. Mot. (dkt. 39) at 1. According to Plaintiffs, it was the 13 “long-standing policy and practice of SEIU Local 1021 and the County – that the County had to 14 prove it had just cause to the Commission in order to affirm its disciplinary orders . . . .” Pls.’ First 15 Amd. Compl. (dkt. 29) at 7. Plaintiffs allege that this policy required the County to secure at least a 16 majority vote by the Commission to meet its burden. Id. Plaintiffs contend, therefore, that the 17 “action required by the Commission was to ‘revoke’ Frahm’s disciplinary Order because it lacked 18 a majority vote of the Commissioners to affirm or modify it.” Id. at 8. Their failure to do so, 19 Plaintiffs submit, resulted in a due process violation. 20 As stated in this court’s previous Order, “there is no provision in the Civil Code . . . that it 21 is incumbent on the County to take further action when a majority of the Commissioners are not 22 persuaded upon the conclusion of an appeals hearing to either ‘affirm, modify, or revoke’ a 23 disciplinary hearing.” Order on Mot. to Dismiss (dkt. 28) at 4. Based on the Complaint’s 24 significant reliance on the Civil Code, therefore, this court found that Plaintiffs did not “allege 25 how Defendant failed to follow its own procedures, or how procedures that would allow for a tie 26 vote to amount to an affirming of a termination decision might operate to violate Plaintiffs’ federal 27 procedural due process rights.” Id. at 5. As a result, the court granted Plaintiffs leave to amend 1 could show “that either a County policy or lack of policy resulted in a due process violation.” Id. 2 Plaintiffs’ FAC follows directly from the language of the Order, asserting that it was the 3 “long-standing policy and practice of . . . the County . . . to prove it had just cause to the 4 Commission in order to affirm its disciplinary orders.” Pls.’ First Amd. Compl. (dkt. 29) at 7-8 5 (emphasis added); see also Pls.’ Opp’n to Def’s. Mot. (dkt. 39) at 1 (“Plaintiffs have alleged that a 6 County policy or lack of policy resulted in a due process violation . . . .”). Despite these recitations 7 of the Order’s language, however, Plaintiffs’ FAC again falls short of alleging how the 8 Commission’s actions violated Frahm’s due process rights. 9 At the outset, Plaintiffs do not allege, nor is it apparent, how the County’s actions violated 10 either the County Civil Service Ordinance or the “long-standing policy and practice” of the 11 County having to prove “just cause” at the Commission. Pls.’ First Amd. Compl. (dkt. 29) at 7. 12 The court must accept as true allegations that the burden of proof was on the County at both the 13 initial, County-level hearing, as well as at the Commission hearing—a fact which Defendant 14 apparently concedes.2 See Def’s. Mot. (dkt. 34) at 13 (“Plaintiffs have properly alleged, and 15 defendant’s do not dispute, that local practice placed the burden of proof on the department.”). The 16 court is not required, however, to accept as true Plaintiffs’ unfounded conclusion that satisfying 17 this burden somehow required a majority vote by the Commission. See Sprewell, 266 F.3d at 988. 18 There is nothing in the FAC, beyond Plaintiffs’ speculation as to the meaning of “just cause,” that 19 would suggest such a majority requirement existed. Likewise, the County Civil Service Ordinance 20 does not appear to address the burden of proof at the Commission—much less whether a majority 21 was required to satisfy that burden. Compare with Graves v. Comm’n on Pro. Competence, 134 22 Cal. Rptr. 71, 74 (Cal. Ct. App 1976) (“Section 13413 of the Education Code provides that the 23 decision of the Commission shall be by a majority vote.”); Clark v. City of Hermosa Beach, 56 24 Cal. Rptr. 2d 223, 237 (1996) (“In deciding an appeal . . . ‘[t]he action by the city council ... shall 25 be by three (3) affirmative votes.’ (Hermosa Beach Mun. Code, §§ 1412, 1413, italics added).”). 26

27 2 The court notes that while nothing in the County Civil Service Ordinance or the FAC provides 1 Considering that Frahm lost below, or, put another way, “just cause” was found for his 2 initial termination, Defendants are correct that nothing in “[ ]either the Commission’s rules, 3 California caselaw, nor the regular practices of courts and other administrative bodies . . .” would 4 indicate that a tie vote at the Commission would be insufficient to carry the County’s burden of 5 proving “just cause” on appeal. Id. at 14. In other words, considering that “just cause” was found 6 below, the County’s burden on appeal could be met by either a majority vote affirming the 7 termination decision, or a tie vote upholding the decision. Otherwise, any Disciplinary Order 8 issued below would be rendered meaningless. Much like an appellate court, a tie vote at the 9 Commission left the County’s original termination decision intact—a result which the 10 Commission expressly recognized in the NOAAH. See Pls.’ First Amd. Compl. (dkt. 29) at 2 11 (“[S]ince neither motion passed by majority vote, the Commission failed to take action on 12 Appellant’s appeal . . . as a result the Order of Disciplinary Action remains in full force and 13 effect.”); see also City of Hermosa Beach, 56 Cal. Rptr. 2d at 237 (“As a general rule an even 14 division among members of an administrative agency results in no action.); Grist Creek 15 Aggregates, LLC v. Super. Ct. of Mendocino Cty., 219 Cal. Rptr. 3d 229, 237 (“The board’s tie 16 vote meant that the November ATC was allowed to stand, which was effectively a decision not to 17 revoke it.”). 18 Outside of Plaintiffs’ conclusory allegations that a majority vote was necessary, Plaintiffs 19 have failed to address why a tie vote at the Commission would be insufficient for the County to 20 carry their burden of “just cause.” But it should also be noted that, assuming a tie vote was 21 somehow insufficient to carry this burden, Plaintiffs still fail to allege how the resulting action 22 violated Frahm’s federal procedural due process rights. Because “[d]ue process is flexible and 23 calls for such procedural protections as the particular situation demands,” Morrissey v. Brewer, 24 408 U.S. 471, 481 (1972), the Supreme Court had identified three factors which are to be 25 considered in determining what due process requires in a given situation.

26 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the 27 procedures used, and the probable value, if any, of additional or administrative burdens that the additional or substitute procedural 1 requirement would entail. 2 Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). While a full-fledged Mathews analysis seems 3 unnecessary, a few brief points are worth making. 4 There is little doubt that the private interest at stake is significant—namely, Frahm’s 5 constitutionally protected Fourteenth Amendment property interest in continued employment. See 6 Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Despite the significance of this 7 interest, however, the existing procedures for addressing the termination of County employees run 8 little risk of erroneously depriving the interest. Based on the allegations in the FAC, Defendant 9 informed Frahm of his right to request Skelly review and provided that review. Pls.’ First Amd. 10 Compl. (dkt. 29) at 4. Following the issuance of the Disciplinary Order, the County also provided 11 Frahm with an appeal to the Commission. Id. at 2. At the Commission hearing, Frahm presented 12 documentary evidence, witnesses, and had the opportunity to cross-examine witnesses. Id. Given 13 the comprehensive nature of these procedures, it is difficult to characterize them as running a 14 significant risk of erroneously depriving Frahm of his property interest. Thus, even if a tie vote 15 was somehow insufficient, under the Commission’s policy, Plaintiffs’ have not articulated a due 16 process violation. See Gryger v. Burke, 334 U.S. 728, 731 (1948) (“We cannot treat a mere error 17 of state law, if one occurred, as a denial of due process . . . .”). To hold otherwise would cast 18 constitutional doubt on the procedures of many judicial and administrative bodies including, for 19 example, the long-established authority of appellate courts to uphold the decision of a lower court 20 where there is not a majority to affirm or overrule it. At its core, the “fundamental requirement of 21 due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” 22 Mathews, 424 U.S. at 333 (1976). Apart from the conclusory allegations as to the requirements of 23 “just cause,” Frahm does not dispute that he was provided a meaningful hearing. 24 Finally, while the procedures provided by the County were sufficient to satisfy due 25 process, Plaintiffs fail to state a claim for relief in federal court even if they were not. California 26 law permits an aggrieved government employee, under certain circumstances, to file a petition for 27 a writ of administrative mandate. See Cal. Civ. Proc. Code §§ 1094.5, 1094.6. While this 1 time for such a proceeding to lapse. See Def.’s Mot. (dkt. 34) at 7. Plaintiffs, however, assert that 2 the availability of such a remedy does not otherwise relieve the County of the duties owed a 3 terminated employee. Plaintiffs contend that:

4 Defendant mistakenly alleges that challenging the Defendant’s administrative decision by writ of mandamus in California Superior 5 Court completes Defendant’s obligation to provide certain procedural due process when terminating an employee. Whether Plaintiffs may 6 have elected to challenge the Commission’s inaction by means of a writ . . . does not absolve Defendant of its duties to follow the 7 procedure due to a terminated employee under the constitution. 8 Pls.’ Opp’n to Def’s. Mot. (dkt. 39) at 10. Plaintiffs’ absolution argument, however, is backward. 9 Plaintiffs argue that Defendant’s failure to comply with local policy absolves them of their duty to 10 exhaust the available state post-deprivation remedies. However, “[t]he constitutional violation 11 actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and 12 until the State fails to provide due process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990). Thus, 13 even if the County violated a local procedural policy “no due process violation resulted because 14 [Plaintiffs] were free to challenge the Commission's orders in state court.” Ass’n for L.A. Deputy 15 Sheriffs v. Cty. of L.A., 617 F. App’x 712, 713 (9th Cir. 2015); see also Hudson v. Palmer, 468 16 U.S. 517, 533 (1984) (holding that a deprivation of property does not violate due process if 17 “adequate state post-deprivation remedies are available”). In a mandamus proceeding, a state court 18 will inquire into the circumstances and legitimacy of the proceedings below.3 In other words, the 19 state court is simply another procedural component designed to ensure that due process is 20 afforded. Given the availability of this mechanism, therefore, it does not follow that an alleged 21 violation of County policy, by itself, is sufficient to deprive Frahm of his constitutionally 22 protected due process rights. Plaintiffs cannot avoid this fact simply because they did not avail 23 themselves of this remedy. Given that Plaintiffs did not exhaust the available remedies at the state 24 level, they cannot state a claim for relief in federal court. See Burson v. State of Nev., Dep't of 25 Hum. Res., 42 F.3d 1398 (9th Cir. 1994) (“Thus, the trial court correctly ruled that [ ] [Plaintiff’s] 26 § 1983 claims were barred by the existence of adequate post-deprivation remedies.”); Hazzard v. 27 1 City of E. Palo Alto, 74 F.3d 1245 (9th Cir. 1996) (“[I]ntentional deprivations of property do not 2 violate the Due Process Clause if adequate state post-deprivation remedies are available; 3 Timberline Nw., Inc. v. Hill, 141 F.3d 1179 (9th Cir. 1998) (As [ ] [Plaintiff] has failed to 4 demonstrate that the postdeprivation remedies available to it are inadequate, it is clear that its due 5 process rights could not be violated.”). 6 Accordingly, Plaintiffs have failed to show that either a County policy or lack of policy 7 resulted in a due process violation. As such, Frahm cannot maintain a federal action against 8 Defendant, County of Mendocino. For the reasons stated below, the court will dismiss Plaintiffs’ 9 federal claims without leave to amend. 10 Dismissal Without Leave to Amend 11 In exercising its discretion to grant leave to amend, the court is guided by Fed. R. Civ. P. 12 15(a)(2): “The court should freely give leave when justice so requires.” As explained by the 13 Supreme Court:

14 In the absence of any apparent or declared reason—such as undue delay . . . repeated failure to cure deficiencies by amendments 15 previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave 16 sought should, as the rules require, be “freely given.” 17 Foman v. Davis, 321 U.S. 178, 182 (1962) (emphasis added). It is important to note, however, that 18 the court’s “discretion to deny leave to amend is particularly broad where plaintiff has previously 19 amended the complaint.” Ascon Prop., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 20 Plaintiffs were given an opportunity to cure the deficiencies of their Complaint and filed a 21 FAC. Plaintiffs’ FAC ventures to cure these deficiencies with only a handful of conclusory 22 allegations. See Sprewell, 266 F.3d at 988. Given the court’s “particularly broad” discretion under 23 such circumstances (Ascon Prop., Inc., 866 F.2d at 1160), the court is well within its authority to 24 deny Plaintiffs’ leave to amend—especially when taking into account the futility of further 25 amendments. While the FAC conveys additional facts as to the Commission’s procedures, 26 Plaintiffs still fail to allege how those procedures, or how the alleged failure to comply with them, 27 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. 9 CONCLUSION 10 For the reasons stated above, Defendant’s Motion (dkt. 34) is GRANTED, and Plaintiffs’ 11 || FAC (dkt. 29) is DISMISSED WITH PREJUDICE. 2 IT IS SO ORDERED. 13 Dated: August 6, 2021 14 Ml Z □ 15 RQBERT M. ILLMAN 16 United States Magistrate Judge

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