Chandavong v. Fresno Deputy Sheriff's Ass'n

599 F.Supp.3d 1017

Latana CHANDAVONG and Neng Her, Plaintiffs

v.FRESNO DEPUTY SHERIFF'S ASSOCIATION and County of Fresno, Defendants

Case No. 1:21-CV-0675 AWI EPG

United States District Court, E.D. California.

Signed April 22, 2022

Filed April 25, 2022

Bradley A. Benbrook, Benbrook Law Group, PC, Sacramento, CA, Jonathan F. Mitchell, PHV, Pro Hac Vice, Mitchell Law PLLC, Austin, TX, for Plaintiff Latana M. Chandavong.

Jonathan F. Mitchell, PHV, Pro Hac Vice, Mitchell Law PLLC, Austin, TX, for Plaintiff Neng Her.

Gary Marc Messing, Jason H. Jasmine, Messing Adam & Jasmine LLP, Sacramento, CA, Monique Alonso, Baute Crochetiere & Hartley LLP, Los Angeles, CA, for Defendant Fresno Deputy Sheriff's Association.

Catherine Ellen Basham, Fresno County Counsel's Office, Daniel Carl Cederborg, County of Fresno, Fresno, CA, for Defendant County of Fresno.

ORDER ON DEFENDANT'S RULE 12(c) MOTION FOR JUDGMENT ON THE PLEADINGS

Anthony W. Ishii, SENIOR DISTRICT JUDGE

This is a dispute between Plaintiffs Latana Chandavong ("Chandavong") and Neng Her ("Her") against their employer Defendant Fresno County ("the County") and Defendant the Fresno Deputy Sheriff's Association ("FDSA"), which is a public sector employee union. Plaintiffs allege that the involuntary collection of vacation hours by the County for the use and benefit of the FDSA violates the First Amendment. Following the severance of this case from the claims of other County employees, the active complaint is the Third Amended Complaint ("TAC"). Currently before the Court is the FDSA's Rule 12(c) motion for judgment on the pleadings. For the reasons that follow, the FDSA's motion will be denied.

RULE 12(c) FRAMEWORK

Under Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed. R. Civ. Pro. 12(c). Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b)(6) motion applies to a Rule 12(c) motion. Gregg v. Department of Public Safety, 870 F.3d 883, 887 (9th Cir. 2017). The non-moving party's allegations are accepted as true, and all reasonable inferences are drawn in the non-moving party's favor. See Herrera v. Zumiez, Inc., 953 F.3d 1063, 1068 (9th Cir. 2020) ; Hines v. Youseff, 914 F.3d 1218, 1227 (9th Cir. 2019). Any allegations made by the moving party that have been denied or contradicted are assumed to be false. See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006) ; Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). However, the Court is "not required to accept as true allegations that contradict exhibits attached to the Complaint, or matters properly subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Seven Arts Filmed Entm't, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To avoid judgment, "a 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Complaints that offer no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ; Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ; see Harris, 682 F.3d at 1131. "Plausibility" means "more than a sheer possibility," but less than a probability, and facts that are "merely consistent" with liability fall short of "plausibility." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Although Rule 12(c) does not mention leave to amend, courts may grant a Rule 12(c) motion with leave to amend. See Gregg, 870 F.3d at 887, 889 ; Harris, 682 F.3d at 1134. The court need not grant leave to amend when doing so would be futile and the deficiencies in the complaint could not be cured by amendment. See Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1046 (9th Cir. 2006) ; see also Gregg, 870 F.3d at 887 ; Harris, 682 F.3d at 1131. Further, although Rule 12(c) "does not expressly authorize ‘partial’ judgments, neither does it bar them; it is common practice to apply Rule 12(c) to individual causes of action." Mays v. Wal-Mart Stores, Inc., 354 F.Supp.3d 1136, 1141 (C.D. Cal. 2019) ; Cornejo v. Ocwen Loan Serv'g LLC, 151 F.Supp.3d 1102, 1107 (E.D. Cal. 2015).

FACTUAL BACKGROUND

From the TAC, the FDSA collects union dues from its members and, prior to July 2018, collected "fair-share service fees" from the wages of non-members. The County assisted the FDSA in collecting these fees by diverting money from its employees to the FDSA at the FDSA's request. The FDSA also collects vacation hours from the County employees that compose the FDSA's bargaining unit. Each year, the FDSA transfers 5.7 hours of vacation time from all County bargaining unit employees to the FDSA president, who uses the hours to conduct union-related business. The FDSA takes 3.5 hours in March and 2.2 hours in September. The County assists the union in collecting these vacation hours by indicating the diversion/deduction of vacation hours on pay stubs as "FDSA Vacation Lv I Bank" and by prohibiting affected County employees from using the vacation hours that were taken by the FDSA.

Her is employed by the Fresno County Sheriff's Department as a community service officer. Her has never been a member of the FDSA, but in February 2016, the FDSA started taking vacation hours from him. Her never consented to the taking of these vacation hours. Following a lawsuit in which Her sued to stop the County and the FDSA from taking his vacation hours, the County restored all vacation hours that were taken after July 2018 (the date that Janus v. American Federation of State, County, and Municipal Employees, Council 31, ––– U.S. ––––, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018) was decided). It does not appear that the County and the FDSA have taken any further vacation hours after restoring the hours that were taken after July 2018. However, the County and the FDSA have refused to restore the vacation hours taken by the County and the FDSA between February 2016 and July 2018.

Chandavong is employed by the Fresno County Sheriff's Department as a deputy sheriff. Chandavong's union membership was terminated in December 2016. The County and the FDSA continued to collect vacation hours from Chandavong after December 2016. Like Her, the County and the FDSA stopped collecting vacation hours after the filing of a lawsuit, restored all vacation hours taken after July 2018, and do not appear to have taken any further vacation hours, but have not restored the vacation hours taken between December 2016 and July 2018. Chandavong never consented to the taking of the vacation hours taken between December 2016 and July 2018.

The FDSA's taking of Her and Chandavong's vacation hours was allegedly not consistent with the Supreme Court's limitations under Abood v. Detroit Bd. of Educ. , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). The FDSA allegedly failed to include any of the necessary procedural safeguards required to prevent non-union members from subsidizing activities that are not germane to collective bargaining. Further, the same amount of vacation hours were taken from each affected County employee, both FDSA member and FDSA non-member alike. The vacation hours taken from non-union employees were not reduced to account for the time that would be spent on activities that were not germane to collective bargaining activities.

DEFENDANT'S MOTION

I. State Action

Defendant's Arguments

The FDSA argues that the TAC fails to contain any factual allegations that plausibly demonstrates that the FDSA engaged in "state action." The FDSA is a private actor, and without plausible allegations that it engaged in "state action," there are no viable § 1983 claims. Plaintiffs must allege more than that the County simply played a role in taking the vacation hours. Instead, the allegations must show that the allegedly unconstitutional conduct is fairly attributable to the County. The TAC contains no factual allegations that would satisfy any of the four tests for state action. The TAC merely alleges that the County "assisted," but does not include factual allegations that show conduct imposed by a governmental entity. This allegation at best shows only a ministerial role in the conduct alleged because the County merely reflected the deduction on pre-printed paystubs.

Plaintiffs’ Opposition

Plaintiffs argue that the TAC plausibly alleges that the FDSA violated 42 U.S.C. § 1983 and the First Amendment. The TAC repeatedly and specifically alleges that the County and the FDSA acted together in diverting vacation hours. The TAC describes the diversion as joint activity undertaken by the County and the FDSA together. The TAC's allegations are sufficient to demonstrate a state policy and a state actor under Lugar v. Edmondson Oil Co. , 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). A state policy is satisfied if there is a rule of conduct imposed by the state. The rule of conduct here is the collective bargaining agreement between the County and the FDSA, which requires the County to implement a union's request for payroll deductions or diversion of vacation hours, as well as the statutes that authorize collective bargaining in the public sector. The state actor requirement is met because the County and the FDSA are engaged in the joint activity of diverting vacation hours – the FDSA asks the County to divert and the County does so. The TAC does not allege...