Woltkamp v. Los Rios Classified Employees Association ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Dawn Woltkamp, No. 2:20-cv-00457-KJM-DB 12 Plaintiff, ORDER 13 Vv. 14 Los Rios Classified Emp. Ass’n, et.al., 15 Defendants, '6 Rob Bonta, in his official capacity as Attorney 17 General of California, 18 Real Party in 19 Interest/Intervenor. 20 21 22 23 24 25 26 27 28 1 Plaintiff Dawn Woltkamp (“Woltkamp”) filed this § 1983 action requesting injunctive and 2 declaratory relief for the allegedly unlawful deprivation of her First and Fourteenth Amendment 3 rights to refrain from subsidizing the speech of the defendant union, Los Rios Classified 4 Employees Association (“LRCEA”). Xavier Becerra1 in his official capacity as California 5 Attorney General intervened, ECF No. 18, and filed a motion to dismiss, ECF No. 22. Woltkamp 6 and defendant LRCEA filed cross motions for judgment on the pleadings, ECF Nos. 23 & 24, 7 respectively. Having considered the arguments of counsel made at hearing on September 25, 8 2020, and the parties’ briefs including the supplemental briefing, the court grants the Attorney 9 General’s motion to dismiss. LRCEA’s motion for judgment on the pleadings and plaintiff’s 10 motion for judgment on the pleadings are denied as moot. 11 I. BACKGROUND 12 Woltkamp is a “public school employee” in the employee benefits division of defendant 13 Los Rios Community College District. Compl. ¶¶ 12–14, ECF No. 1. On March 17, 2017, 14 Woltkamp signed a document titled, “LRCEA Classified Employee Association Organizational 15 Security Deduction Check-Off.” Id. ¶ 20; Jt. Stip. of Counsel (“Jt. Stip.”), ECF No. 25,2 Ex. A 16 (“Dues Deduction Check-Off Form”), ECF No. 25-1. This dues deduction authorization form 17 expressly stated it is an “Agreement with Los Rios Classified Employee Association Contract, 18 Article 2.” It provided three distinct options, with a check-off box next to each option, as 19 follows: 20 (1) Union membership deduction: $216 annually (or currently 21 authorized dues rate), to be equally distributed over assigned work 22 year. 1 Rob Bonta was sworn in as the Attorney General of California on April 23, 2021 and is substituted in the caption of this case in place of Xavier Becerra. See Fed. R. Civ. P. 25(d); Office of Governor Gavin Newsom, “Governor Newsom Swears in Rob Bonta as Attorney General of California” (Apr. 23, 2021), https://www.gov.ca.gov/2021/04/23/governor-newsom- swears-in-rob-bonta-as-attorney-general-of-california/, last visited May 3, 2021. 2 Plaintiff and defendant stipulated to consideration of three exhibits: Ex. A (dues deduction authorization form, dated March 17, 2017), ECF No. 25-1; Ex. B (Resignation Letter, dated September 13, 2018), ECF No. 25-2; Ex. C (Collective Bargaining Agreement (CBA) between LRCEA and defendant District, 2017-2020), ECF No. 25-3. See generally Jt. Stip. 1 (2) Non-Membership, Representational Service Fee: $216 per 2 annually (or currently authorized dues rate), to be equally distributed 3 over assigned work year. 4 (3) Application for any employee who is a member of a religious 5 body whose traditional tenets and teachings include objections to 6 joining or financially supporting employee organizations shall, in 7 lieu of LRCEA membership dues or a fee, have an amount deducted 8 monthly from his/her paycheck equivalent to the monthly LRCEA 9 fees [$216 per annually (or currently authorized dues rate), to be 10 equally distributed over assigned work year], with such deduction 11 deposited to one of the following charitable organizations designated 12 by the unit member . . . 13 Dues Deduction Check-Off Form at 1 (parentheses and brackets in original). 14 Plaintiff checked off the first box labelled “Union membership deduction,” signed and dated 15 the Dues Deduction Check-Off Form. Id. On July 1, 2017, defendant school district entered into 16 a Collective Bargaining Agreement (“CBA”) with LRCEA as the exclusive representative for 17 plaintiff’s bargaining unit, effective July 1, 2017 through June 30, 2020. Compl. ¶¶ 16–17. 18 The CBA provides in pertinent part: 19 The organizational security provisions described in this article of the 20 Agreement constitute an Agency Shop. Within thirty (30) calendar 21 days of the effective date of this Agreement or the employee being 22 employed into a position in the Bargaining Unit, whichever comes 23 first, each employee shall either join LRCEA as a member and pay 24 its membership dues (“dues”), remain a non-member of LRCEA and 25 pay the fair share service fee (“fee”) it charges, or, if qualified 26 pursuant to Section 3546.3 of the [Educational Employment 27 Relations Act] EERA, pay the charitable contribution required by 28 this Agreement. 29 CBA § 3.1.1 at 13 (bracketed text added). California’s EERA expressly authorizes the collection 30 of agency fees. Specifically, it provides: 31 Notwithstanding any other provision of law, upon receiving notice 32 from the exclusive representative of a public school employee who 33 is in a unit for which an exclusive representative has been selected 34 pursuant to this chapter, the employer shall deduct the amount of 35 the fair share service fee authorized by this section from the wages 36 and salary of the employee and pay that amount to the employee 37 organization . . . 38 Cal. Gov’t Code § 3546(a); see also id. §§ 3540.1(i)(1), 3542(2), 3543(2). 1 In a separate section, the CBA provides that, “Each employee who is a member of 2 LRCEA on the effective date of this Agreement or who subsequently becomes a member of 3 LRCEA shall, from that date forward, remain as a member of LRCEA and pay its dues for the 4 duration of this Agreement and in accordance with the EERA.” CBA § 3.1.2 at 13. 5 On September 19, 2018, after learning of the U.S. Supreme Court’s decision in Janus v. 6 AFSCME, 138 S. Ct. 2448 (2018), plaintiff sent LRCEA a written notice requesting that it end her 7 union membership and revoke her previous authorization for dues deductions. Compl. ¶ 22; see 8 Resignation Letter. LRCEA informed plaintiff she would have to remain a union member unless 9 she resigned within the 30-day period after the expiration of the CBA in June 2020. Compl. ¶ 24. 10 Plaintiff alleges LRCEA relied on the EERA to compel plaintiff to remain a member and 11 continued to deduct dues from plaintiff’s paychecks each pay period, without her consent. Id. 12 ¶¶ 36–38. After this suit was filed, LRCEA ultimately confirmed plaintiff was discharged from 13 LRCEA membership, effective July 1, 2020. See LRCEA Mot. at 7, ECF No. 24-1. 14 Before LRCEA discharged her from membership, plaintiff filed this suit on February 28, 15 2020. She named LRCEA, Los Rios Community College District and the President of the 16 District’s Board of Trustees John Knight,3 alleging deprivation of her First and Fourteenth 17 Amendment rights to refrain from subsidizing the union’s speech through dues, without adequate 18 consent as provided in Janus. Compl. ¶¶ 43–46, 56. Plaintiff alleges defendants violated her 19 First Amendment rights in three ways: (1) deducting union dues from plaintiff’s paychecks; 20 (2) claiming the authority to prevent plaintiff’s resignation from the LRCEA at a time of her 21 choosing; and (3) enforcing the LRCEA’s revocation policy with respect to her dues deductions. 22 See Id. ¶¶ 3, 64. In her complaint, plaintiff mounts facial and as-applied challenges to the 23 constitutionality of California Government Code sections 3540.1(i)(1), 3542(2), 3543(2) and 24 3546(a), see Compl. ¶¶ 48, 51, 60, and California Education Code section 88167, id. ¶¶ 63, 67, 3 The Los Rios Community College District and Knight entered a stipulation with plaintiff whereby the District remains as a defendant but will “not oppose or otherwise contest the allegations or underlying legal theories in the Complaint.” Stip. LRCEA Non-Opp’n at 2, ECF No. 7. In exchange, plaintiff waives her right to recover attorneys’ fees and costs from the 1 71, alleging these statutes violate her right to free association, free speech, thought and 2 conscience under the U.S. Constitution, id. ¶ 48. Plaintiff seeks a judgment declaring that 3 California Government Code sections 3540.1(i)(1), 3542(2) and 3546 violate plaintiff’s First and 4 Fourteenth Amendment rights as well as damages for the alleged violation of her First 5 Amendment rights, and attorneys’ fees and costs under 42 U.S.C. § 1988. Id. ¶¶ 12–13. 6 Three motions are pending before the court: (1) the motion to dismiss filed by the 7 California Attorney General, AG MTD, ECF No. 22; (2) a request for judgment on the pleadings 8 by plaintiff, Woltkamp Mot., ECF No. 23; and (3) a request for judgment on the pleadings by 9 defendant LRCEA, LRCEA Mot., ECF No. 24. In connection with these motions, there are two 10 outstanding requests for judicial notice, ECF No. 22-3; ECF No. 38, the parties filed a joint 11 stipulation, ECF No. 25; plaintiff filed a notice of errata, ECF No. 39; and defendant filed two 12 statements of recent decisions, ECF Nos. 41 & 43. 13 On September 25, 2020, the court held a videoconference hearing on the motions. Shella 14 Sadovnik appeared on behalf of plaintiff, Monique Alonso appeared for defendant LRCEA, and 15 Anthony O’Brien appeared on behalf of the California Attorney General. The court granted the 16 parties leave to file supplemental briefing addressing: (1) two cases decided since the motions 17 were fully briefed, Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020) and Savas v. California State 18 Law Enf’t Agency, No. 20-CV-00032-DMS-DEB, 2020 WL 5408940 (S.D. Cal. Sept. 9, 2020), 19 and (2) whether plaintiff’s First Amendment freedom of association claim raises a question of 20 first impression not addressed by these recent decisions. See Minutes, ECF No. 45. The court 21 submitted the matter after receiving supplemental briefing by plaintiff, Woltkamp Suppl. Br., 22 ECF No. 47; objections by defendant LRCEA, Obj., ECF No. 48, and a notice of intent not to file 23 supplemental briefing by the Attorney General, Not., ECF No. 46. The court addresses all three 24 pending motions here. 25 II. MOTION TO DISMISS 26 A. Legal Standard 27 A party may move to dismiss for “failure to state a claim upon which relief can be 28 granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks a 1 “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. 2 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court 3 assumes all factual allegations are true and construes “them in the light most favorable to the 4 nonmoving party.” Steinle v. City & Cty. of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019). 5 If the complaint’s allegations do not “plausibly give rise to an entitlement to relief,” the motion 6 must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 7 A complaint need contain only a “short and plain statement of the claim showing that the 8 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl. 9 Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned 10 accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. at 11 678. In the same vein, conclusory or formulaic recitations elements do not alone suffice. Id. 12 (quoting Twombly, 550 U.S. at 555). This evaluation of plausibility is a context-specific task 13 drawing on “judicial experience and common sense.” Id. at 679. 14 Standing and mootness are limitations on federal courts’ subject matter jurisdiction and 15 may be a basis for Rule 12(b)(1) dismissal. See Fed. R. Civ. P. 12(b)(1); White v. Lee, 227 F.3d 16 1214, 1242 (9th Cir. 2000). “To establish Article III standing, an injury must be concrete, 17 particularized, and actual or imminent; fairly traceable to the challenged action; and redressable 18 by a favorable ruling.” Clapper v. Amnesty International USA, 568 U.S. 398, 409 (2013) 19 (internal quotation omitted). The Supreme Court has “insisted that the injury proceed with a high 20 degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would 21 have occurred at all.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 n. 2 (1992). Mootness is 22 a prudential limitation on jurisdiction, triggered when the injury giving rise to the case no longer 23 exists, leaving no case or controversy for the court to resolve. Friends of the Earth, Inc. v. 24 Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000); Powell v. McCormack, 395 U.S. 25 486, 496 (1969). 26 B. Standing & Mootness 27 The Attorney General as intervenor challenges the court’s jurisdiction to hear this matter 28 on two bases: standing and mootness. See AG MTD at 13–19. LRCEA joins the Attorney 1 General’s motion to dismiss and incorporates his arguments by reference. See LRCEA Mot. at 10 2 n.8, ECF No. 24. If standing is lacking or the matter is moot, the court must dismiss for lack of 3 jurisdiction. The court, however, finds it has jurisdiction to decide the merits of plaintiff’s claims, 4 as explained below. 5 1. Standing 6 The Attorney General argues plaintiff cannot establish any injury-in-fact resulting from 7 enforcement of the facially challenged statutes because at the time of her challenge she was a 8 union member and the statutes address “fair-share fees from nonunion members.” AG MTD at 9 17 (emphasis in original). Additionally, “no state law compelled [her] to join the union or 10 consent to payroll deductions.” LRCEA Mot. at 11. Plaintiff argues she has standing because 11 LRCEA could not have included maintenance of membership dues for the term of the labor 12 contract in the CBA “but for the [challenged] statutes,” and the CBA does not constitute valid 13 consent under the Supreme Court’s ruling in Janus. See Compl. at 12; MTD Opp’n at 12–13, 14 ECF No. 28 (emphasis in original). 15 “The existence of federal jurisdiction ordinarily depends on the facts as they exist when 16 the complaint is filed.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 571 n.4 (1992) (emphasis in 17 original). The court finds a controversy existed and plaintiff had standing when she filed her 18 complaint based on LRCEA’s continued deduction of membership dues for nearly two years after 19 her September 19, 2018 request to withdraw from the union. 20 2. Mootness 21 Plaintiff’s claim for nominal damages also is not moot. Because the possibility of 22 plaintiff’s rejoining LRCEA is implausible given her professed views, the court addresses each 23 claim below without reaching the “capable of repetition but evading review” exception to the 24 Article III mootness doctrine. See United States v. Sanchez, 138 S. Ct. 1532, 1540 (2018) (“A 25 dispute qualifies for [capable of repetition yet evading review] only if (1) the challenged action is 26 in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a 27 reasonable expectation that the same complaining party will be subjected to the same action 28 again.” (internal quotation omitted)). 1 Plaintiff maintains her claims are not moot because she seeks declaratory relief and 2 nominal damages for the period she was not permitted to resign from LRCEA. See MTD Opp’n 3 at 25. At hearing, plaintiff clarified she does not seek injunctive or equitable relief. In light of 4 this clarification, the court deems plaintiff’s request for injunctive relief in the complaint 5 withdrawn. Even so, “[a] live claim for nominal damages will prevent dismissal for mootness.” 6 Bernhardt v. City of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002). This is true even where 7 related claims for injunctive relief and compensatory damages have been rendered moot. Lokey 8 v. Richardson, 600 F.2d 1265, 1266 (9th Cir. 1979) (claim for nominal damages prevented 9 dismissal even though claim for injunctive relief was moot); Chew v. Gates, 27 F.3d 1432, 1437 10 (9th Cir. 1994) (claim for nominal damages prevented dismissal even if claim for actual damages 11 might be moot). This is because nominal damages, while symbolic in nature, serve the important 12 purpose of vindicating an individual’s rights even when no actual damages are available. See 13 Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 872 (9th Cir. 2017). Accordingly, plaintiff’s 14 case is not moot with respect to her requests for declaratory relief and nominal damages. The 15 court thus proceeds to the merits of the motion to dismiss. 16 C. Analysis 17 1. Claims Against LRCEA 18 Plaintiff’s § 1983 claims are based on the assertion that LRCEA violated her First 19 Amendment rights (1) to resign union membership; (2) by continuing to deduct dues from her 20 wages, and (3) by unconstitutionally compelling her to remain a member of LRCEA without 21 adequate consent. See Compl. ¶¶ 43–46, 56. As explained below, she does not adequately state a 22 § 1983 claim. 23 To plead a claim under § 1983, a plaintiff must first show “the conduct complained of was 24 committed by a person acting under color of state law.” Parratt v. Taylor, 451 U.S. 527, 535 25 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). “[C]onstitutional 26 standards are invoked only when it can be said that the State is responsible for the specific 27 conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) 28 (emphasis in original). First, the court asks “whether the claimed deprivation has resulted from 1 the exercise of a right or privilege having its source in state authority,” and second, whether 2 defendant “may be appropriately characterized as [a] ‘state actor[].’” Lugar v. Edmondson Oil 3 Co., 457 U.S. 922, 939 (1982). State action exists only when the answers to both questions are in 4 the affirmative. See Collins v. Womancare, 878 F.2d 1145, 1151 (9th Cir. 1989) (citing Lugar, 5 457 U.S. at 937–39). 6 In a separate case, this court recently found the state’s fee deduction on behalf of a union 7 did not render the union a state actor. See Polk v. Yee, 481 F. Supp. 3d 1060, 1066 (E.D. Cal. 8 2020) (relying on Belgau v. Inslee, 359 F. Supp. 3d 1000 (W.D. Wash. 2019), aff’d, 975 F.3d 9 940, 947 (9th Cir. 2020)). Here, although there is a connection between the alleged constitutional 10 violation and the alleged state action, plaintiffs have not pled facts to show LRCEA acted “in 11 concert” with the state to cause the deduction of dues and prevent withdrawal from membership. 12 Id.; see Belgau, 975 F.3d at 947 (“A joint action between a state and a private party may be found 13 . . . [when] the government either (1) affirms, authorizes, encourages, or facilitates 14 unconstitutional conduct through its involvement with a private party, or (2) otherwise has so far 15 insinuated itself into a position of interdependence with the non-governmental party, that it is 16 recognized as a joint participant in the challenged activity.” (internal quotations omitted)). 17 Despite plaintiff’s contention that she did not waive her constitutional right to not fund union 18 advocacy, Compl. ¶¶ 69–73, plaintiff expressly consented to the terms of her union membership. 19 When plaintiff became a member of LRCEA, she signed a membership application and 20 affirmatively consented to union membership for a set period of time, including limitations on 21 withdrawal and dues deductions. Compl. ¶¶ 20, 24; see Belgau, 975 F.3d at 950–51 (“Choosing 22 to pay union dues cannot be decoupled from the decision to join a union.”); Savas v. California 23 State Law Enf’t Agency, No. 20-CV-00032-DMS-DEB, 2020 WL 5408940, at *3 (S.D. Cal. Sept. 24 9, 2020) (noting holding in Janus does not apply to voluntary agreements to join union). 25 Here, the dues deduction authorization form plaintiff voluntarily signed expressly stated 26 this is an “Agreement with Classified Employee Association Contract, Article 2.” The CBA 27 provides for limits on the ability to withdraw from membership, circumscribing a withdrawal 28 period of 30 days after the expiration of the current CBA. Plaintiff’s signing the membership 1 application cannot be decoupled from the CBA, just as choosing to pay union dues cannot be 2 decoupled from the decision to join a union. Plaintiff does not provide authority to counter the 3 proposition that her contract with LRCEA is comprised of the membership application and the 4 CBA, or to support the position that California’s role was to enforce the parties’ private 5 agreement. See Roberts v. AT&T Mobility LLC, 877 F.3d 833, 844 (9th Cir. 2017) (“permission 6 of private choice cannot support a finding of state action”); see also Shelley v. Kraemer, 334 U.S. 7 1, 13 (1948) (There is “no shield against merely private conduct.”). Accordingly, the court finds 8 the LRCEA was not acting under color of state law in enforcing plaintiff’s membership 9 agreement. 10 Next, plaintiff fails to allege any violation of her First Amendment rights. The Ninth 11 Circuit recently decided, in an unpublished disposition, that the continued deduction of union 12 dues in accordance with the provisions of a signed membership agreement did not violate 13 plaintiffs’ First Amendment rights. See Fisk v. Inslee, 759 F. App’x 632, 633–34 (9th Cir. 2019) 14 (“[T]he First Amendment does not preclude the enforcement of ‘legal obligations’ that are 15 bargained-for and ‘self-imposed’ under state contract law.”) (quoting Cohen v. Cowles Media 16 Co., 501 U.S. 663, 668–71 (1991)). This observation is applicable here, where there is no 17 indication plaintiff was coerced into entering the union membership with dues deductions 18 agreement in first place. Accordingly, the court finds Janus is inapplicable to union members like 19 plaintiff, who agreed to become dues-paying members and agreed to restrictions governing when 20 they could withdraw from union membership. All four of plaintiffs’ § 1983 claims against 21 LRCEA must be dismissed. 22 2. Claims Against State Defendants 23 Plaintiff challenges California Government Code sections 3540.1(i)(1), 3542(2) and 3546 24 as enforced by the Attorney General, along with the CBA, alleging each violate her “right to free 25 association, free speech, thought, and conscience under the U.S. Constitution.” Compl. ¶¶ 48–49. 26 At hearing, plaintiff’s counsel claimed her case raises a question of first impression regarding 27 freedom of association. See Woltkamp Suppl. Br. at 2–5. Plaintiff argues the “ministerial 28 exception” to state action found in Belgau, 975 F.3d at 948, is inapplicable here because the 1 source of the harm, namely membership restrictions connected to continued employment, is 2 rooted in the CBA and state statutes, not her private membership agreement. Id. At hearing, 3 defendant LRCEA argued Belgau and Savas discussed and rejected a freedom of association 4 claim similar to Woltkamp’s claim. See Woltkamp Suppl. Br. at 2–5. Plaintiff’s rejoinder is that 5 her case is distinguishable because “she has been forced to remain a union member for nearly two 6 years after she resigned her membership.” Id. at 4 (citing generally Elrod v. Burns, 427 U.S. 347 7 (1976)) (emphasis in original); Compl. ¶¶ 18–25. The court concludes plaintiff does not raise an 8 issue of “first impression,” but rather the same issue of law and fact other courts have addressed 9 in interpreting the Janus decision and what it means for those who, like plaintiff, voluntarily 10 joined the union. 11 In Savas, for example, plaintiffs alleged defendants refused to accept their resignations 12 from union membership after plaintiffs submitted them. 2020 WL 5408940, at *5. The court 13 found “Janus did not explicitly announce the right of resignation [plaintiff] seeks to enforce,” id. 14 at *4, observing that “[t]he statutes and the [CBA] do not compel involuntary membership or 15 deductions,” id. at *5. Moreover, the Ninth Circuit made clear “[t]he membership card [plaintiff] 16 signed, titled “Payroll Deduction Authorization,” begins with the statement: “Yes! I want to be a 17 union member,” and this choice to voluntarily join a union “cannot be decoupled from the 18 decision” to in fact be a union member. Belgau, 975 F.3d at 950–51; Mendez v. California 19 Teachers Ass’n, et al., 419 F. Supp. 3d 1182, 1186 (N.D. Cal. 2020) (“Janus does not preclude 20 enforcement of union membership”). 21 At hearing plaintiff’s counsel pressed her point, arguing defendants erroneously conflate 22 the Belgau court’s analysis of a compelled speech claim with a freedom of association claim 23 because no party in Belgau argued that the phrase “Yes! I want to be a union member” in the 24 Dues Deduction Authorization Form was enforceable after plaintiff’s resignation from 25 membership. Here, plaintiff was told she could not end her union membership until the end of the 26 CBA at the time she agreed to join. Compl. ¶¶18–24. Plaintiff does not claim that initially 27 joining the union was a necessary condition of employment in violation of her freedom to 28 associate, which could state a viable claim. See Rutan v. Republican Party of Illinois, 497 U.S. 1 62, 78 (1990) (“Under our sustained precedent, conditioning hiring decisions on political belief 2 and association plainly constitutes an unconstitutional condition, unless the government has a 3 vital interest in doing so.”); State Emp. Bargaining Agent Coal. v. Rowland, 718 F.3d 126, 133 4 (2d Cir. 2013) (“Conditioning public employment on union membership is [] subject to strict 5 scrutiny”). 6 The Supreme Court has made clear that a person can “contract away and waive” her First 7 Amendment rights. Smith v. Teamsters Loc. 2010, No. CV1900771, 2019 WL 6647935, at *8 8 (C.D. Cal. Dec. 3, 2019) (citing Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991) (“[T]he 9 First Amendment does not confer . . . a constitutional right to disregard promises that would 10 otherwise be enforced under state law.”)). Here, in March 2017, Woltkamp agreed to become a 11 union member and chose to remain a union member even though the July 2017 renewal of the 12 CBA allowed her an opportunity to resign at that time. Compl. ¶¶ 16, 20; see NLRB v. Va. Elec. 13 & Power Co., 314 U.S. 469, 477 (1941) (plaintiff had (and has) a First Amendment right not to 14 join a union). In March 17, 2017, when she joined the union, plaintiff could have chosen not to 15 sign the dues-authorization agreement. Where rights are freely forfeited, there is no First 16 Amendment compulsion. See Janus, 138 S. Ct. at 2464. Moreover, plaintiff does not plead a 17 causal connection between her alleged injuries, of continued dues deductions and limitations on 18 the ability to withdraw from union membership, see Compl. ¶¶ 25–29, and the challenged 19 statutes, see Belgau, 975 F.3d at 950 (9th Cir. 2020) (“These facts speak to a contractual 20 obligation, not a First Amendment violation.”). Rather, the statutes she points to do not require 21 union membership as a condition of employment. And the State of California no longer enforces 22 California Government Code section 3546(a), which relates to fair-share agency fees. See De La 23 Torre Decl. ¶¶ 3–4, ECF No. 22-2 (noting since June 27, 2018, the Office of the General Counsel 24 no longer enforces section 3546)). Accordingly, plaintiff’s First Amendment claims against State 25 defendants are dismissed. 26 Plaintiff’s Fourteenth Amendment claim, Compl. ¶¶ 66–71, also must be dismissed 27 because she improperly invokes procedural due process as a means of attempting to protect her 28 asserted First Amendment rights. Id. ¶ 67 (alleging “dues deduction procedures” result “in the 1 deduction of money from her wages without constitutionally required procedural safeguards”); 2 see also id. ¶ 47 (“Defendants compel the Plaintiff to associate with the Union without the 3 necessary procedural safeguards”). To establish a violation of procedural due process, “[w]e first 4 ask whether there exists a liberty or property interest of which a person has been deprived, and if 5 so we ask whether the procedures followed by the State were constitutionally sufficient.” 6 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (internal citation omitted). Here, no protectible 7 liberty or property right has been implicated because, as discussed above, the LCREA is a private 8 actor that cannot violate plaintiff’s First Amendment rights. Janus did not identify the First 9 Amendment right that plaintiff seeks to enforce. Plaintiff’s Fourteenth Amendment claim, 10 therefore, fails as a matter of law because plaintiff has not and cannot plead the first element of a 11 procedural due process claim. 12 D. Conclusion 13 Because California continued to deduct union dues until the CBA expired, see Compl. 14 ¶ 67, plaintiff has stated a claim for retrospective, nominal damages, which she may pursue in 15 state court. Given that federal jurisdiction is based on nominal damages, the court may decline to 16 exercise jurisdiction over any remaining state law claim. 28 U.S.C. § 1367(c)(2). In deciding 17 whether to exercise supplemental jurisdiction, courts consider “the values of judicial economy, 18 convenience, fairness, and comity[,]” but ultimately apply a strong presumption against the 19 exercise of supplemental jurisdiction once federal claims have been dismissed. Carnegie–Mellon 20 Univ. v. Cohill, 484 U.S. 343, 350 (1988); Brooks v. FCI Lender Servs., Inc, No. 2:16-CV-02598 21 KJM KJN, 2018 WL 495634, at *2 (E.D. Cal. Jan. 22, 2018). The court here exercises its 22 discretion to decline supplemental jurisdiction over any contract-based claim for damages for 23 dues plaintiff paid from September 19, 2018 to July 1, 2020. See Titan Global LLC v. Organo 24 Gold Intern., Inc., No. 12–CV–2104–LHK, 2012 WL 6019285, at *11–12 (N.D. Cal. Dec. 2, 25 2012) (declining supplemental jurisdiction over claim requiring interpretation of agreement not at 26 issue in other claims). Additionally, leave to amend need not be granted if amendment would be 27 ///// 1 futile, as here, because no amendment can cure the complaint’s deficiencies for plaintiff’s alleged 2 § 1983 claims. See Garmon v. County of L.A., 828 F.3d 837, 842 (9th Cir. 2016). 3 The court grants the Attorney General’s motion to dismiss without leave to amend. 4 IV. CONCLUSION 5 (1) Intervenor’s motion to dismiss is granted, ECF No. 22; 6 (2) Plaintiff’s motion for judgment on the pleadings is denied as moot, ECF No. 23; 7 (3) Defendant’s motion for judgment on the pleadings is denied as moot, ECF No. 24; 8 (4) Plaintiff’s request for judicial notice is granted, ECF No. 38; and 9 (5) Intervenor’s request for judicial notice is granted. 10 This order resolves ECF Nos. 22, 23, 24, 38. The court reviewed the parties’ Jt. Status 11 Report filed on September 11, 2020, ECF No. 42. Given the current posture of this case the court 12 declines to issue a scheduling order. Case closed. 13 IT IS SO ORDERED. 14 DATED: May 12, 2021.