1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 BETHANY MENDEZ, ET AL., CASE NO. 19-cv-01290-YGR

6 Plaintiffs, ORDER GRANTING MOTIONS TO DISMISS;

DIRECTING JOINT STATEMENT OF

7 vs. PLAINTIFFS AND DEFENDANT MCCOWAN

8 CALIFORNIA TEACHERS ASSOCIATION, ET Dkt. Nos. 83, 84, 88

AL.,

9 Defendants.

10

The instant action is one of many brought in the wake of the United States Supreme 11 Court’s decision in Janus v. AFSCME, Council 31, 138 S.Ct. 2448 (2018) (“Janus”). Plaintiffs 12 Scott Carpenter, Linda Leigh-Dick, Bethany Mendez, Audrey Stewart, and Angela Williams are 13 teachers in different school districts across California who were, at one time, members of their 14 respective teachers’ unions. They allege that they submitted requests to revoke their union 15 memberships and dues deductions and that they were informed those dues deductions would not 16 cease until the time period specified in their membership agreements, i.e., a 90-day window falling 17 around their membership anniversary date in which they could request termination of the dues 18 deduction according to the agreement’s terms. (FAC ¶ 38.) Plaintiffs bring this action on behalf 19 of themselves and others similarly situated pursuant to 42 U.S.C. section 1983 against: (1) 20 defendant Attorney General Xavier Becerra (“the State”); (2) defendants Associated Chino 21 Teachers, California Teachers Association, Fremont Unified District Teachers Association, 22 Hayward Education Association-CTA-NEA, National Education Association, Tustin Educators 23 Association, Valley Center-Pauma Teachers Association (collectively, “the Union defendants”); 24 and (3) defendants Kim Wallace, Matt Wayne, Norm Enfield and Gregory Franklin (“the 25 Superintendents”).1 26 27 1 In particular, plaintiffs bring a Section1983 claim against all defendants on the grounds 2 that deduction of dues from plaintiffs’ wages pursuant to California Education Code section 45060 3 violates the First Amendment of the United States Constitution. They bring a second Section 4 1983 claim against the Union defendants and the Superintendents on the grounds that the 5 deduction of dues pursuant to the collective bargaining agreements (CBAs) likewise violates the 6 First Amendment. 7 With a motion to dismiss pending, plaintiffs filed their First Amended Complaint (“FAC”) 8 as of right on June 11, 2019. (Dkt. No. 62.) Thereafter, the State (Dkt. No. 83), the Union 9 defendants (Dkt. No. 84); and the Superintendents (Dkt. Nos. 86, 88) filed or joined in motions to 10 dismiss the FAC. The Court heard oral argument on the motions on November 19, 2019. The 11 Court has considered carefully the papers submitted and the pleadings in this action, as well as the 12 parties’ arguments at the hearing. For the reasons set forth below and the decisions cited herein, 13 the motions to dismiss (Dkt. Nos. 83, 84, and 88) and the joinders to those motions are GRANTED. 14 *** 15 “To state a claim under § 1983, a plaintiff [1] must allege the violation of a right secured 16 by the Constitution and laws of the United States, and [2] must show that the alleged deprivation 17 was committed by a person acting under color of state law.” Naffe v. Frey, 789 F.3d 1030, 1035– 18 36 (9th Cir. 2015). “Dismissal of a § 1983 claim following a Rule 12(b)(6) motion is proper if the 19 complaint is devoid of factual allegations that give rise to a plausible inference of either element.” 20 Id. at 1036 (internal citation omitted). “Section 1983 creates a cause of action based on personal 21 liability and predicated upon fault; thus, liability does not attach unless the individual defendant 22 caused or participated in a constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (9th Cir. 23 1996); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 24 “In order to recover under § 1983 for conduct by the defendant, a plaintiff must show ‘that 25 the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.’” 26 Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Lugar 27 v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “[M]ost rights secured by the Constitution are 1 Ohno v. Yuko Yasuma, 723 F.3d 984, 993 (9th Cir. 2013) (state court enforcement of Japanese 2 judgment under California Uniform Judgment Act was not state action). “[C]onstitutional 3 standards are invoked only when it can be said that the State is responsible for the specific conduct 4 of which the plaintiff complains.” Id. at 994. The state-action element in section 1983 “excludes 5 from its reach merely private conduct, no matter how discriminatory or wrongful.” Caviness, 590 6 F.3d at 812 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). Where the 7 actions complained of are undertaken by a private actor, “[s]tate action may be found . . . only 8 if [ ] there is such a close nexus between the State and the challenged action that seemingly private 9 behavior may be fairly treated as that of the State itself.” Id. at 812 (9th Cir. 2010) (quoting 10 Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 955 (9th Cir.2008) (en banc)). 11 Plaintiffs allege that California Education Code section 45060 violates their First 12 Amendment rights because it permits the Superintendents to deduct union dues from their wages 13 without their clear, affirmative consent to use that money to subsidize the union’s political 14 activity. (FAC ¶ 131.) Plaintiffs allege that, after Janus, neither their union representatives nor 15 their public employer informed them of their rights to refrain from joining or financially 16 supporting a union. (Id. ¶¶ 33, 42, 51, 60, 68, 76, 87.) 17 In general, under California Education Code section 45060, public school teachers who 18 voluntarily join the union may have their union dues deducted from their paychecks if “requested 19 in a revocable written authorization by the employee.” Cal. Educ. Code § 45060(a). “Any 20 revocation of a written authorization shall be in writing and shall be effective provided the 21 revocation complies with the terms of the written authorization.” Id. “The revocable written 22 authorization shall remain in effect until expressly revoked in writing by the employee, pursuant to 23 the terms of the written authorization.” Cal. Educ. Code § 45060(c). The unions are responsible 24 for informing the school districts of employees’ authorization status:

25 The governing board shall honor the terms of the employee's written 26 authorization for payroll deductions. Employee requests to cancel or change authorizations for payroll deductions for employee organizations shall be 27 directed to the employee organization rather than to the governing board. The employee organization shall be responsible for processing these requests. organization regarding whether deductions for an employee organization 1 were properly canceled or changed. 2 Cal. Educ. Code § 45060(e). 3 Here, the Court analyzes whether plaintiffs’ alleged constitutional injury on account of 4 dues deductions under section 45060 constitutes an injury arising from state action and finds that it 5 does not. The FAC alleges plaintiffs each signed an agreement to pay union membership dues 6 through a payroll deduction for at least one year. Section 45060 does no more than set forth an 7 administrative, ministerial mechanism for carrying out a deduction from the wages of those 8 individuals who voluntarily elected to become union members and authorized deduction of their 9 union dues from their paychecks. The State and Superintendents play no role in enforcing union 10 membership agreements or setting their terms. 11 As every court to consider the issue has concluded, Janus does not preclude enforcement 12 of union membership and dues deduction authorization agreements like plaintiffs’ agreements 13 here. See Seager v. United Teachers Los Angeles, No. 2:19-CV-469-JLS(DFM), 2019 WL 14 3822001, at *2 (C.D. Cal. Aug. 14, 2019) (claim for dues already deducted pursuant to agreement 15 fails as a matter of law because consented to union membership and dues deduction); O'Callaghan 16 v. Regents of the Univ. of California, No. CV 19-02289-JVS(DFMx), 2019 WL 2635585, at *3–4 17 (C.D. Cal. June 10, 2019) (“nothing in Janus’s holding requires unions to cease deductions for 18 individuals who have affirmatively chosen to become union members and accept the terms of a 19 contract that may limit their ability to revoke authorized dues-deductions in exchange for union 20 membership rights, such as voting, merely because they later decide to resign membership”); 21 Belgau v. Inslee, 359 F.Supp.3d 1000, 1016 (W.D. Wash. 2019); Babb v. California Teachers 22 Ass’n, 378 F. Supp. 3d 857, 877 (C.D. Cal. 2019) (C.D. Cal. May 8, 2019); Crockett v. NEA- 23 Alaska, 367 F.Supp.3d 996, 1008 (D. Alaska 2019); Bermudez v. SEIU Local 521, 2019 WL 24 1615414, at *2 (N.D. Cal. Apr. 16, 2019); Cooley v. California Statewide Law Enforcement Ass’n, 25 2019 WL 331170, at *3 (E.D. Cal. Jan. 25, 2019); Smith v. Superior Court, Cty. of Contra Costa, 26 2018 WL 6072806, at *1 (N.D. Cal. Nov. 16, 2018), order after further proceedings, Smith v. 27 Bieker, 2019 WL 2476679, at *2 (N.D. Cal. June 13, 2019); see also Cohen v. Cowles Media Co., 1 disregard promises that would otherwise be enforced under state law.”). Union members 2 “voluntarily chose to pay membership dues in exchange for certain benefits, and the fact that 3 plaintiffs would not have opted to pay union membership fees if Janus had been the law at the 4 time of their decision does not mean their decision was therefore coerced.” Babb, 378 F. Supp. 3d 5 at 877 (internal citation and quotation omitted). The State’s (and Superintendents’) “deduct[ion 6 of] fees in accordance with the authorization agreements does not transform decisions about 7 membership requirements . . . into state action.” Belgau, 359 F. Supp. 3d at 1015 (internal citation 8 omitted). The Court spent considerable time reviewing the rationale underpinning these decisions 9 during oral arguments and finds no persuasive basis to reject the rationale set forth therein. 10 Further, there is no alleged nexus between the State and Superintendents’ actions and the 11 alleged wrongful conduct of the Union defendants such as establish state action for purposes of 12 section 1983 liability. Plaintiffs allege that they believed that they had to join a union or were 13 misinformed by the Union defendants about the legal implications of signing their membership 14 and dues deduction authorization agreements. California’s Educational Employment Relations 15 Act (“EERA”) makes union membership voluntary for school district employees. See Cal. Gov’t 16 Code §§ 3543, 3543.5, 3543.6; Cumero v. Pub. Employment Relations Bd., 49 Cal.3d 575, 587 17 (1989). To the extent plaintiffs allege that the Union defendants misinformed them about their 18 legal obligations to join the union or pay membership dues, their claims would be against the 19 Union defendants under state law. Plaintiffs’ allegations regarding the Union defendants’ conduct 20 do not set forth a claim challenging state action for purposes of section 1983.2 21 In sum, for the reasons stated herein, on the record, and the decisions cited herein, and 22 because plaintiffs have not alleged any basis for finding that state action gave rise to any of their 23 alleged constitutional injuries, the motion to dismiss the claims as against all moving defendants is 24 25 2 In their second claim for relief, plaintiffs allege that the defendant’s actions “taken 26 pursuant to California statutes governing the Districts’ relationships with the Unions and their collective bargaining agreements (‘CBAs’)” impermissibly infringe on their First Amendment 27 rights. (FAC ¶ 4.) The FAC does not identify any provisions of the CBAs that plaintiffs contend 1 || GRANTED.’ 2 At the hearing, plaintiffs indicated that they did not seek leave to amend and therefore no 3 leave to amend is granted. 4 This action is dismissed as to defendants Xavier Becerra, Associated Chino Teachers, 5 California Teachers Association, Fremont Unified District Teachers Association, Hayward 6 Education Association-CTA-NEA, National Education Association, Tustin Educators Association, 7 || Valley Center-Pauma Teachers Association, Kim Wallace, Matt Wayne, Gregory Franklin and 8 Norm Enfield. 9 The only other defendant in this action, Ron McCowan, answered the FAC rather than 10 || move to dismiss. Plaintiffs and defendant McCowan shall submit a joint statement as to how they 11 wish to proceed no later than January 28, 2020. a 12 This Order terminates Docket Nos. 83, 84 and 88.

13 || ITIsSO ORDERED.

14 || Dated: January 16, 2020 Lopeee bees.

YVONNE GONZALEZ ROGERS

IS UNITED STATES DISTRICT COURT JUDGE 16 & 17

Z 18

19 20 3 The Court notes two additional bases for dismissal. First, all seven named plaintiffs’ dues deductions ceased prior to the hearing on these motions. Consequently, to the extent the 21 claims in the FAC seek prospective relief on behalf of plaintiffs, such claims would be moot. See Babb, 378 F. Supp. 3d at 886; Seager, 2019 WL 3822001, at *2; Aliser v. SEIU California, No. 19-CV-00426-VC, 2019 WL 6711470, at *4 (N.D. Cal. Dec. 10, 2019) (former union members’ 22 . 7 . □ claims were no longer justiciable because they voluntarily elected to resign from the union and no 73 || longer had any legal interest in the outcome of the claims). 24 Second, to the extent that the FAC can be read to seek retrospective relief against Wallace, Wayne, Franklin, and Enfield in their official capacities, such claims would be barred by the 25 Eleventh Amendment. See Sato v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 934 (9th Cir. 2017) (“California school districts ... remain arms of the state and continue to enjoy Eleventh 26 Amendment immunity’]; Belanger v. Madera Unified School District, 963 F.2d 248 (9th Cir. 1992); Eaglesmith v. Ward, 73 F.3d 857 (9th Cir. 1995); Mitchell v. Los Angeles Community 07 College District, 861 F.2d 198 (9th Cir. 1988). 28 The Court declines to reach the additional arguments raised as they are not necessary to conclude that the action must be dismissed.