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, Re: Dkt. No. 11 11 v.

12 COUNTY OF MENDOCINO,

13 Defendant.

14 15 Currently pending before the court is Defendant’s Motion to Dismiss Plaintiffs’ 16 Complaint. Def’s. Mot. (dkt. 11). Defendant argues that Plaintiffs’ complaint must be dismissed 17 because Plaintiffs fail to state a claim upon which relief can be granted, and granting leave to 18 amend would be futile. Id. at 9-18. All parties have consented to proceed before a magistrate judge 19 (dkts. 9, 10). For the reasons stated below, the court will grant Defendant’s Motion to Dismiss. 20 PROCEDURAL AND FACTUAL 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, alleging violations of Frahm’s rights to due process under the U.S. and California 24 Constitutions. Compl. (dkt. 1) at 1-10. Defendant moved to dismiss (dkt. 11), Plaintiffs responded 25 (dkt. 14), Defendant has replied (dkt. 15), and the Parties appeared for oral argument on 26 November 10, 2020 (dkt. 17). 27 The Complaint describes the termination of Frahm’s employment as a custodian with 1 the County in August of 2016. Id. On April 22, 2019, Defendant issued Frahm a Notice of Intent 2 to Discipline, citing chapter three of the County Civil Service Ordinance which governs the appeal 3 and hearing procedure for County employees dismissed from County employment. Id. at 1-2. On 4 May 23, 2019, the County issued Frahm an Order of Disciplinary Action, permanently dismissing 5 him from his employment. Id. at 1. Frahm timely appealed his dismissal pursuant to Chapter Three 6 of the County Civil Service Code. Id. at 2. On September 18 and 19, 2019, four of the five Civil 7 Service Commissioners heard Frahm’s appeal, during which the parties presented witnesses, 8 documentary evidence, and had the opportunity to cross examine witnesses. Id. At the conclusion 9 of the hearing, on September 19, the four Commissioners presiding at the hearing voted on 10 Frahm’s appeal, resulting in a deadlock vote with two Commissioners voting to uphold the 11 dismissal, and two Commissioners voting to reverse. Id. On September 26, 2019, the Chairperson 12 of the Commission issued a Notice of Action After Hearing terminating Frahm’s employment by 13 the County, noting that “since neither motion passed by majority vote, the Commission failed to 14 take action on Appellant’s appeal” and concluded that, “as a result the Order of Disciplinary 15 Action remains in full force and effect.” Id. In response to the Commission’s tie vote and 16 subsequent inaction, the Complaint presents four claims. See id. at 3-11. 17 Plaintiffs’ first claim seeks a declaratory judgment holding that the County violated 18 Plaintiffs’ federal and state constitutionally protected rights by refusing to provide union members, 19 in this case Frahm, with the due process owed them through local disciplinary appeals procedures 20 by failing to revoke disciplinary orders that are not supported by a majority vote of the 21 Commissioners. Id. at 7. Plaintiffs’ second claim contends that by failing to revoke the 22 Disciplinary Order and reinstate Frahm, the County violated Frahm’s due process rights. Id. at 8. 23 Plaintiffs therefore seek an order: directing the County to revoke Frahm’s dismissal; for 24 reinstatement; for an award of actual damages; for an award of attorneys’ fees and costs; and any 25 other appropriate relief. Id. at 9-10. Plaintiffs’ third claim – brought under 42 U.S.C. § 1983 – 26 contends that in light of the provisions relied upon by the County in this matter and the application 27 thereof, the County will continue to violate the due process rights of similarly situated union 1 Disciplinary Order and return Frahm to his permanent-status position of custodian, the County 2 violated Frahm’s due process rights afforded to him under Article 1, Section 7 of the California 3 Constitution. Id. at 9. 4 STANDARD OF REVIEW 5 In order to survive a motion to dismiss for failure to state a claim under Federal Rule of 6 Civil Procedure 12(b)(6), a plaintiff must allege facts that “raise a right to relief above the 7 speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); thus, the “complaint 8 must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on 9 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “all well-pleaded allegations of 10 material fact are taken as true and construed in a light most favorable to the nonmoving party,” 11 Wyler Summit Partnership v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998), the court 12 is not required to accept as true allegations that are merely conclusory, unwarranted deductions of 13 fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 14 2001). Thus, mere recitals of the elements of a cause of action, supported only by conclusory 15 statements, are insufficient. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. 16 Dismissal for failure to state a claim is appropriate only where it appears, beyond doubt, 17 that the plaintiff can prove no set of the pleaded facts that would entitle her or him to relief. 18 Morley v. Walker,175 F.3d 756, 759 (9th Cir. 1999). In short, for a complaint to survive a motion 19 to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must 20 plausibly suggest a claim entitling the plaintiff to relief. Moss v. United States Secret Serv., 572 21 F.3d 962, 970 (9th Cir. 2009). 22 DISCUSSION 23 Defendant’s Motion to Dismiss Plaintiffs’ Complaint presents six issues by arguing: that 24 Plaintiffs’ allegations (complaining that Defendant has merely failed to comply with local laws) 25 are insufficient to establish a federal claim for due process; that Plaintiffs’ Complaint should be 26 dismissed for lack of federal question jurisdiction; that the state and local laws were in fact applied 27 correctly; that Plaintiffs’ first three causes of action fail because the factual allegations are 1 alternative request for leave to amend should not be granted because doing so would be futile; and 2 that Plaintiffs’ fourth claim fails because the factual allegations are insufficient to state a due 3 process violation under the California Constitution. Def’s. Mot. (dkt. 11) at 10-19. 4 The core of the Complaint, and the basis for Defendant’s requests for dismissal, revolves 5 around the Commission’s two-two deadlock vote after Frahm’s post-termination hearing. 6 Defendant submits that the claims that the County violated Frahm’s due process rights are not 7 supported with factual allegations that “… demonstrate that the manner in which the local rules 8 are applied somehow violates a federal statute or constitutional provision.” Id. at 11-12. 9 Defendant, therefore, contends that Plaintiffs have not stated facts that, if true, would entitle them 10 to relief. More specifically, Defendant contends that Plaintiffs have not identified a due process 11 right to a majority vote that might affirm or vacate an employment termination decision by a 12 municipality in the context of a post-termination appeal hearing. 13 As stated, Plaintiffs submit that the County’s lack of a policy requiring action by the 14 Commission after a tie vote is unconstitutional. In the Complaint, Plaintiffs assert that “the County 15 had the burden to show Frahm violated the rules, and a tie [vote] does not meet that burden” – 16 further, because the Commission’s vote resulted in a two-two deadlock and the Commission failed 17 to take any further remedial action thereafter, Plaintiffs submit that the County “refused to follow 18 the procedure proscribed in the County’s Civil Service Ordinance which required it to revoke the 19 Disciplinary Order and reinstate Mr. Frahm.” Compl. (dkt. 1) at 2, 7. However, there is no 20 provision in the Civil Code cited by Plaintiffs to the effect that it is incumbent on the County to 21 take further action when a majority of the Commissioners are not persuaded upon the conclusion 22 of an appeals hearing to either “affirm, modify, or revoke” a disciplinary order. See County’s Code 23 Sec. 3.16.140.1 The Complaint does not allege that affirming a decision terminating employment, 24 under the applicable code sections, can only be accomplished by a majority vote. Indeed, the 25 notice of disciplinary action, which was quoted in the Complaint (dkt. 1 at 5-6), is indicative of the 26 27 1 The County’s Civil Code Sec. 3.16.140 states, in relevant part, “Within thirty (30) business days from the filing of such appeal, the Commission or its referee shall hold a hearing which may be continued from time 1 fact that the burden was on Frahm to convince a majority of Commissioners to reverse the 2 termination decision. Further, Plaintiff does not venture to allege how Defendant failed to follow 3 its own procedures, or how procedures that would allow for a tie vote to amount to an affirming of 4 a termination decision might operate to violate Plaintiffs’ federal procedural due process rights.2 5 With regard to the County’s other arguments for dismissal, the Supreme Court has 6 established when a municipality may be sued under § 1983 for violating a plaintiff’s constitutional 7 rights: “it is when execution of a government’s policy or custom, whether made by its lawmakers 8 or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury 9 that the government as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs., 436 10 U.S. 658, 694 (1978). It is well settled that local governments are not wholly immune from suit 11 under § 1983. Monell, at 664-89. Further, a plaintiff must be able to point to a municipality’s 12 policy that caused a violation of the plaintiff’s due process rights. Association for Los Angeles 13 Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 992-93 (9th Cir. 2011). Thus, because 14 Frahm has a constitutionally protected Fourteenth Amendment property interest in continued 15 employment – a fact which Defendant concedes3 — if Frahm can show that either a County policy 16 or lack of policy resulted in a due process violation, then he can maintain a federal action against 17 the County. Frahm has failed to satisfy this standard. As to Plaintiffs’ remaining state-law claim, 18 the court will generally decline pendant jurisdiction over state law claims in cases where the 19 federal claims have been dismissed. Here, because the court is dismissing Plaintiffs’ federal claims 20 with leave to amend, the court will also dismiss Plaintiffs’ state law claim with leave to amend. 21 // 22

23 2 It is also worth noting that Frahm was given a two-day hearing that appears to have been conducted in a meaningful manner, which included presenting witnesses, documentary evidence, and the opportunity to 24 cross examine witnesses. Compl. (dkt. 1) at 2. In this context, due process requires no more. See, e.g., Jones v. City of Modesto, 408 F. Supp. 2d 935 (E.D. Cal. 2005). Thus, before a property or liberty interest can be 25 taken (such as Frahm’s employment in this context), the owner of the interest is entitled to notice and a hearing “at a meaningful time and in a meaningful manner.” Id. (quoting Armstrong v. Manzo, 380 U.S. 26 545, 552 (1965)). The notice must also be sufficient to enable the plaintiff to prepare for the hearing in a 27 meaningful way. Jones, 408 F. Supp. 2d at 949. 1 CONCLUSION 2 For the reasons stated above, Plaintiffs’ Complaint (dkt. 1) is DISMISSED WITHOUT 3 PREJUDICE. Plaintiff is hereby ORDERED to file an amended pleading, if at all, no later than 4 30 days from the date of this Order. 5 IT IS SO ORDERED. 6 || Dated: January 12, 2021 7 8

ROBERT M. ILLMAN

9 United States Magistrate Judge 10 ll a 12

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