Hamidi et al v. Service Employees International Union Local 1000 et al

Filing 53

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 5/22/2015 GRANTING IN PART AND DENYING IN PART 22 Plaintiffs' Motion for Certification and Appointment of Class Counsel. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KOUROSH KENNETH HAMIDI, et al.;
and the class they seek to
represent,
Plaintiffs,

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v.
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1000; and BETTY YEE,
Controller State of California,

Civ. No. 2:14-319 WBS KJN

MEMORANDUM AND ORDER RE:
MOTION FOR CLASS
CERTIFICATION AND
APPOINTMENT OF CLASS COUNSEL

Defendants.

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Eighteen plaintiffs,1 who are employees of the State of
California, brought this putative class action lawsuit against
defendants Service Employees International Union Local 1000

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On March 23, 2015, plaintiffs Sandra Kieffer, Angel Lo,
and Mozelle Yarbrough stipulated to voluntarily dismiss their
claims. (Docket No. 33.) Plaintiffs also withdrew their request
that the court appoint plaintiff Cecilia Stanfield to serve as a
class representative, although Stanfield remains a named
plaintiff in this action. (Id.)
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(“Local 1000”) and the California State Controller.2

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year has passed since plaintiffs filed this case, and no party

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has yet moved for dismissal or otherwise tested its merits.

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instant motion asks the court instead to decide whether this case

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may be litigated as a class action.

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More than a

The

Consequently, this Order addresses only plaintiffs’

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motion for class certification and appointment of class counsel

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pursuant to Federal Rule of Civil Procedure 23.

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views on whether plaintiffs have stated a claim upon which the

It expresses no

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requested relief can be granted or the ultimate merits of

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plaintiffs’ lawsuit.

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Local 1000 engages in collective bargaining with the

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state on behalf of plaintiffs and other public employees.

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Compl. ¶¶ 6, 8, 19 (Docket No. 1)); Cal. Gov’t Code §§ 3513(a)-

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(c), 3520.5.

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¶ 6.)

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compensate it for “fulfilling its duty to represent the employees

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in their employment relations with the state.”

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§ 3513(k) (defining “fair share fee”); see also 8 C.C.R. § 32990

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(defining “agency fee”).

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fees directly from a public employee’s wages and remits them to

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Local 1000 on a monthly basis.

Plaintiffs are not members of Local 1000.

(See

(Compl.

However, plaintiffs must pay a “fair share fee” to

Cal. Gov’t Code

The State Controller deducts fair share

See Cal. Gov’t Code § 3515.7(b).

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At the time plaintiffs filed their Complaint, John
Chiang was California’s state controller. Betty Yee has since
succeeded Chiang to that office and is substituted as a party.
See Fed. R. Civ. P. 25(d) (stating that, when a party is an
officer sued in his or her official capacity, “the officer’s
successor is automatically substituted as a party”). For
simplicity, the court will refer to this defendant only as the
“State Controller.”
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Plaintiffs challenge the opt out method by which

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defendants collect fees from non-union members to pay for the

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union’s partisan political and ideological activities.

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Compl. ¶¶ 30-33.)

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certification and appointment of class counsel.

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plaintiffs seek to represent consists of:

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All individuals who pay compulsory fees to Local
1000 who are not members and who have, at one
time or another, specifically objected to the use
of their union fees for politics or other
nonbargaining activities;

b.

All individuals who pay compulsory fees to Local
1000 who are not members and who have never
specifically objected to the use of their union
fees
for
politics
or
other
nonbargaining
activities; and

c.

All individuals who pay compulsory fees to Local
1000
who
are
not
members
and
who
have
specifically objected to the use of their union
fees
for
politics
or
other
nonbargaining
activities and for whom Local 1000 has, for
whatever
reason,
refused
to
honor
their
objections.

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The class that

a.

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On August 15, 2014, plaintiffs moved for class

all former, current, and future State of California
employees employed in Bargaining Units 1, 3, 4, 11,
14, 15, 17, 20, and 21 who are, have been, or will be
represented exclusively for purposes of collective
bargaining by Local 1000, in three subclasses:

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(See

(Compl. ¶ 9; Pls.’ Mot. at 2.)

Plaintiffs state that this class

is intended to encompass all potential fee objectors.
Mem. at 3.)

(Pls.’

Plaintiffs also explain that the subclasses included

within their proposed definition are for determining the amount
of damages only and that all members of the general class share
the claims asserted in their Complaint.3
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(Pls.’ Reply at 32 &

In light of some confusion regarding plaintiffs’
claims, the parties submitted a stipulation to the court on April
20, 2015, clarifying that plaintiffs are pursuing only two
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n.38 (Docket No. 51).)

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I.

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Discussion
“For a class to be certified, a plaintiff must satisfy

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each prerequisite of Rule 23(a) of the Federal Rules of Civil

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Procedure and must also establish an appropriate ground for

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maintaining class actions under Rule 23(b).”

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Ticketmaster Corp., 655 F.3d 1013, 1019 (9th Cir. 2011); see Fed.

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R. Civ. P. 23.

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of affirmatively demonstrating that the class meets the

Stearns v.

“The party seeking certification has the burden

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requirements of [Rule 23].”

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666 F.3d 581, 588 (9th Cir. 2012) (citing Wal-Mart Stores, Inc.

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v. Dukes, 131 S. Ct. 2541, 2551 (2011)).

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Mazza v. Am. Honda Motor Co., Inc.,

A. Clarification of the Proposed Class
As a preliminary matter, plaintiffs acknowledge some

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confusion as to the scope of the class they seek to certify.

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(Pls.’ Reply at 31-32.)

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claims pertain to periods and practices after June 2013, they

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have no objection to making this time limitation explicit.

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at 31; see Stipulation & Order ¶ 4.)

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modify the proposed class definition to include nonmembers

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Plaintiffs state that, because their

(Id.

The court will therefore

claims: First, plaintiffs allege that the opt out system
established by California law and Local 1000’s June 2013 Notice,
requiring nonmembers to notify Local 1000 of their objection to
paying for nonchargeable expenses and to renew their objection
annually, violates the First Amendment. (See Compl. ¶ 31;
Stipulation & Order ¶ 4 (Docket No. 47).) Second, plaintiffs
allege that Local 1000 improperly included litigation expenses
incurred in an earlier fair share fee case, Knox v. Service
Employees International Union, Local 1000, Civ. No. 2:05-02198
MCE KJM, reported at 132 S. Ct. 2277 (2012), in the June 2013
Notice’s allocation of chargeable expenses in violation of the
First Amendment. (See Compl. ¶ 30, Ex. A at 6; Stipulation &
Order ¶ 4.)
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represented by Local 1000 “from June 2013 onward.”
The court also notes that, as defined by plaintiffs,

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subclass (c) is a lesser-included group of subclass (a).

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court will separate these subclasses by adding to the definition

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of subclass (a) the phrase “and whose objections were honored.”

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The court retains the power to modify this definition, and it

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will be the duty of the parties’ counsel to call to the court’s

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attention any other necessary adjustments.

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Connell, 316 F.3d 886, 896 (9th Cir. 2003).

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The

See Cummings v.

B. Rule 23(a)
Rule 23(a) restricts class actions to cases where:
(1) the class is so numerous
members is impracticable;

that

joinder

of

all

(2) there are questions of law or fact common to the
class;

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(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class; and

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(4) the representative parties will fairly
adequately protect the interests of the class.

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Fed. R. Civ. P. 23(a).

and

“The Rule’s four requirements--

numerosity, commonality, typicality, and adequate representation-effectively limit the class claims to those fairly encompassed
by the named plaintiff’s claims.”

Dukes, 131 S. Ct. at 2551

(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156
(1982)) (internal quotation marks omitted).
A case’s merits may be considered only “to the extent
. . . that they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied.”

Amgen Inc.

v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1195 (2013);

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see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983-84 &

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n.8 (9th Cir. 2011) (“The district court is required to examine

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the merits of the underlying claim in this context, only inasmuch

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as it must determine whether common questions exist; not to

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determine whether class members could actually prevail on the

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merits of their claims.”).

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1. Numerosity

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“A proposed class of at least forty members

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presumptively satisfies the numerosity requirement.”

Avilez v.

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Pinkerton Gov’t Servs., 286 F.R.D. 450, 456 (C.D. Cal. 2012); see

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also, e.g., Collins v. Cargill Meat Solutions Corp., 274 F.R.D.

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294, 300 (E.D. Cal. 2011) (Wanger, J.).

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thus easily satisfy numerosity.

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Subclasses (a) and (b)

(See Calderia Decl. ¶ 11.)

Local 1000 challenges only the numerosity of subclass

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(c), the “attempted objector” subclass.

(Local 1000’s Opp’n at

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34-35 (Docket No. 39).)

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clarification that all general class members will assert the same

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two claims, (see Pls.’ Reply at 32), the court concludes that

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numerosity is satisfied as to the general class and will proceed

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to the next requirement.

However, in light of plaintiffs’

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2. Commonality

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Commonality requires a lawsuit to “depend upon a common

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contention” that is “capable of classwide resolution--which means

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that determination of its truth or falsity will resolve an issue

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that is central to the validity of each one of the claims in one

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stroke.”

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certification . . . is not the raising of common ‘questions’--

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even in droves--but, rather the capacity of a classwide

Dukes, 131 S. Ct. at 2551.

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“What matters to class

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proceeding to generate common answers apt to drive the resolution

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of the litigation.”

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members share a common question . . . [the court] must identify

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the elements of the class members’ case-in-chief.”

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City & Cnty. of San Francisco, 749 F.3d 1107, 1114 (9th Cir.

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2014)

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“To assess whether the putative class

Stockwell v.

a. Facts Relevant to Commonality

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Id.

The parties do not dispute application of the same opt
out procedure to all nonmember public employees.

By default,

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fair share fees deducted from public employees’ wages reflect

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both a union’s collective bargaining and non-collective

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bargaining expenditures.

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However, nonmembers may demand a return of the portion of the fee

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used “in aid of activities or causes of a partisan political or

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ideological nature only incidentally related to the terms and

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conditions of employment.”

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See Cal. Gov’t Code §§ 3513(k); 3515.7.

Id. § 3515.8.

In late May or June 2013, Local 1000 sent nonmembers a

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Notice to Fair Share Fee Payers (“June 2013 Notice”).

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Ex. A (Docket No. 1-1); Decl. of Brian Caldeira (“Calderia

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Decl.”) ¶¶ 3, 6 (Docket No. 37).)

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opt out procedure, as explained in the notice, for raising an

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objection should they wish to avoid the fee associated with

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political or ideological expenditures.

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Local 1000 identified those individuals who objected for the

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State Controller.

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either a full fee or a reduced fee from all nonmember public

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employees’ wages pursuant state law.

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///

(Id. ¶ 8.)

(Compl.

All nonmembers faced the same

(Caldeira Decl. ¶ 7.)

The State Controller then deducted

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(See id. ¶ 11.)

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b. Plaintiffs’ First Claim Satisfies Commonality

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Plaintiffs’ first claim “advances the theory that a

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union is not permitted to seize from any ‘potential objector’

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fees exceeding those which serve a compelling state interest--

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i.e., those for constitutionally-chargeable costs--absent their

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affirmative consent.”

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Language from the Supreme Court’s recent decision in Knox invites

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such a challenge, plaintiffs say.

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Union, Local 1000, 132 S. Ct. 2277, 2289-91 (2012).

(Pls.’ Reply at 24; see Compl. ¶¶ 31-33.)

See Knox v. Serv. Empl. Int’l
The court

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therefore understands this claim, like the claim in Knox, to

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allege the opt out procedure does not comply with Chicago

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Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292

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(1986).

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Before Knox reached the Supreme Court, the Ninth

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Circuit employed a “balancing test” in Hudson challenges.

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F.3d 1115, 1119-20 (9th Cir. 2010), rev’d and remanded, 132 S.

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Ct. 2277 (2012).

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Knox by stating,

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628

The Supreme Court clarified the standard in

Far from calling for a balancing of rights or
interests, Hudson made it clear that any procedure for
exacting fees from unwilling contributors must be
“carefully tailored to minimize the infringement” of
free speech rights. And to underscore the meaning of
this careful tailoring, we followed that statement
with a citation to cases holding that measures
burdening the freedom of speech or association must
serve a “compelling interest” and must not be
significantly broader than necessary to serve that
interest.
132 S. Ct. at 2291 (internal citations omitted).

Application of

this standard to the present case reveals at least two core
questions of law common to the class: (1) whether the opt out
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procedure serves a compelling state interest and (2) whether that

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interest cannot be achieved through significantly less

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restrictive means.

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475 U.S. at 303.

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resolve plaintiffs’ first claim for all class members at the same

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time.

See Knox, 132 S. Ct. at 2291 & n.3; Hudson,
Accordingly, sufficient commonality exists to

See Dukes, 131 S. Ct. at 2551-52.

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c. Plaintiffs’ Second Claim Lacks Commonality

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There is a “clear distinction between the adequacy of a

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union’s notice addressed by the Supreme Court in Hudson, and the

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propriety of a union’s chargeability determinations.”

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Prof’l Eng’r in Cal. Gov’t, 354 F.3d 1036, 1046 (9th Cir. 2004)

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(quoting Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d

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807, 813–14 (9th Cir. 1997)).

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determinations “categorically prohibit[s] only one type of First

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Amendment harm: use of nonmembers’ money to promote causes they

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do not believe in.”

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Dist., 994 F.2d 1370, 1375 (9th Cir. 1993) (emphasis added); see

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also Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight

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Handlers, Exp. & Station Emps., 466 U.S. 435, 456 (1984)

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(“Petitioners may feel that their money is not being well-spent,

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but that does not mean they have a First Amendment complaint.”).

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Unless the class as a whole opposes the union’s political

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activities, “[t]his is not and cannot be a class action.”

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of Ry. & S. S. Clerks, Freight Handlers, Exp. & Station Emp. v.

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Allen, 373 U.S. 113, 119 (1963).

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Wagner v.

Case law addressing chargeability

Grunwald v. San Bernardino City Unified Sch.

Bhd.

There is no evidence that the proposed class as a whole

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opposes the union’s political activities.

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objector must prove that he or she subjectively disagrees with
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If every potential

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the union on political grounds--as opposed to some other reason

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for not wanting to pay the fee--in order to obtain relief, this

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claim lacks a common contention “capable of classwide resolution

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. . . in one stroke.”

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because plaintiffs have failed to prove commonality as to their

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second claim, the court will decline to certify it.

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this Order address only plaintiffs’ first claim.

Dukes, 131 S. Ct. at 2551.

Accordingly,

The rest of

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3. Typicality

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“The test of typicality ‘is whether other members have

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the same or similar injury, whether the action is based on

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conduct which is not unique to the named plaintiffs, and whether

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other class members have been injured by the same course of

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conduct.’”

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Corp., 976 F.2d 497, 508 (9th Cir. 1992)).

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Ellis, 657 F.3d at 984 (quoting Hanon v. Dataproducts

The prior analysis of commonality supports the

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conclusion that plaintiffs’ first claim is typical of absent

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class members’.

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“[t]he commonality and typicality requirements of Rule 23(a) tend

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to merge”).

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applied” challenge to the opt out procedure in addition to their

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facial First Amendment challenge, (see Compl. at 13), plaintiffs

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have presented no evidence of the typicality of that theory.4

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See Dukes, 131 S. Ct. at 2551 n.5 (noting that

However, to the extent plaintiffs assert an “as

Defendants have provided the court with deposition
testimony from several named plaintiffs suggesting they did not
receive the June 2013 Notice for various reasons. Many named
plaintiffs say they may have thrown notices from various years
away unopened after mistakenly believing the notices were union
membership solicitations. (See, e.g., Ammons Dep. at 115-116
(Docket No. 40); Blaylock Dep. at 155-56 (Docket No. 40); Giles
Dep. at 82-84, 87-88 (Docket No. 40); Lopez Dep. at 99-104
(Docket No. 40).) Other plaintiffs relocated their residences
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See Legal Aid Servs. of Or. v. Legal Servs. Corp., 608 F.3d 1084,

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1096 (9th Cir. 2010); Baird v. Cal. Faculty Ass’n, Civ. No. S-00-

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0999 WBS DAD, 2000 WL 1028782, at *4 n.2 (E.D. Cal. July 13,

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2000) (declining to certify an as applied class because

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plaintiffs presented no evidence of typicality).

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the court will deny certification at this time of plaintiffs’

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first claim in so far as it asserts an as applied challenge.

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Accordingly,

Defendants point to the fact that many class
representatives submitted fee objections, whereas others did not.

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(See, e.g., Hamidi Dep. at 102, 107-09, 115 (Docket No. 40);

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Christensen Dep. at 57-58 (Docket No. 40).)

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actual objectors cannot represent a class of potential objectors

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has already been rejected in this District.”

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3147683, at *3 (citing Friedman v. Cal. State Emps. Ass’n, Civ.

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No. S000101 WBS GGH, 2000 WL 288468, at *5 (E.D. Cal. Mar. 15,

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2000)).

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situated with respect to the objection procedure afforded them.

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“The suggestion that

Knox, 2006 WL

Plaintiffs and absent class members are similarly

Local 1000 also argues that plaintiffs are not typical

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of the class because they differ from many absent class members

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in their reasons for refraining from union membership and in

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their opposition to Local 1000’s political activities.

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1000’s Opp’n at 10-12.)

(Local

Local 1000 raises these arguments in the

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around the time the June 2013 Notice was mailed. (See, e.g.,
Ollis Dep. at 70-83, 106-07 (Docket No. 40); Giles Dep. at 90-91,
95-98 (Docket No. 40).) Still others were out of state on
military duty, (Browne Dep. at 63, 92, 100-104, 118-19 (Docket
No. 40)), had just resigned from union membership at the time the
notice was sent, (McElroy Dep. at 109 (Docket No. 40)), or stated
that a neighbor or roommate may have collected the mail on the
day the notice was received and never alerted its intended
recipient, (see Giles Dep. at 85-86; Browne Dep. at 109).
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adequacy of representation prong of Rule 23(a)(4) as well.

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court therefore addresses them below.

The

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4. Adequacy of Representation

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To fairly and adequately protect the interests of the

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class, a class representative “must be part of the class and

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possess the same interest and suffer the same injury as the class

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members.”

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(1977) (internal quotations omitted).

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named plaintiffs will adequately represent a class, courts must

E. Tex. Motor Freight v. Rodriguez, 431 U.S. 395, 403
“To determine whether

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resolve two questions: ‘(1) do the named plaintiffs and their

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counsel have any conflicts of interest with other class members

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and (2) will the named plaintiffs and their counsel prosecute the

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action vigorously on behalf of the class?’”

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985 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th

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Cir. 1998)).

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Ellis, 657 F.3d at

a. Conflicts of Interest

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Local 1000 has presented the court with thirty-one

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declarations from individuals it says are putative class

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members.5

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The union argues these declarations prove a conflict

There is no evidence before the court explaining how
Local 1000 came by these declarations or what motivated the
declarants to make them. Several declarants say that they chose
to pay the full fair share fee, including the portion that funds
nonchargeable expenditures, because they support Local 1000’s
political activities. (See, e.g., Gaeta Decl. ¶¶ 2, 4 (Docket
No. 35); Lee Decl. ¶¶ 3-4 (Docket No. 35); Pischalnikoff Decl. ¶¶
2-4 (Docket No. 35).) Some declarants say they simply do not
care to take the time to object. (See, e.g., Turner Decl. ¶¶ 3-4
(Docket No. 35) Smith Decl. ¶ 4 (Docket No. 35).) Other
declarants say they chose to become objectors for financial
reasons while still approving of Local 1000’s political
activities. (See, e.g., Cerda Decl. ¶ 3 (Docket No. 35); Fuzesi
Decl. ¶¶ 4, 6 (Docket No. 35); Jonason Decl. ¶¶ 3, 5 (Docket No.
35); Ramirez Decl. ¶ 2 (Docket No. 35).)
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between the interests of absent class members and the relief

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plaintiffs seek in this lawsuit.

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(Local 1000’s Opp’n at 28.)

The court hesitates to draw this conclusion from the

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evidence before it.

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states a preference to retain the opt out procedure.

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Johnson Decl. ¶ 7 (Docket No. 35) (“I prefer to have an opt-out

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system so that I can contribute to political activities without

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having to opt-in every single year.”).)

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Circuit has rejected this kind of argument against class actions.

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See Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 779-81 (9th

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Cir. 1986) (concluding “the fact that there may be some who would

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prefer that [an annuity retirement plan] remain in operation”

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does not constitute a conflict of interest preventing class

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certification).

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with plaintiffs’ constitutional interests such that it renders

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the representative parties inadequate.

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opt out procedure is found unconstitutional, it will be

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unconstitutional notwithstanding the fact that some would prefer

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it.

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Only one of the thirty-one declarations
(See

However, the Ninth

A mere preference does not properly “conflict”

See id. at 781.

If the

See id.
All other declarants speak only in sweeping

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generalities that do not explicitly address whether they favor an

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opt out procedure or oppose a refund of fair share fees.

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for a strong union, (see George Decl. ¶ 3 (Docket No. 35)),

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approval of the union’s political activities, (see Gaeta Decl. ¶¶

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2, 4), or the view that the current opt out process is

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straightforward, (Moreno Decl. ¶ 5 (Docket No. 35)), does not

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necessarily conflict with plaintiffs’ goal in this lawsuit.

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example, an individual may favor both a strong union and an opt
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Support

For

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in procedure for contributing to political activities--the two

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views are not mutually exclusive.

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to speculate about views the declarants have not expressed.6

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The court therefore declines

Local 1000 also points to Gilpin v. AFSCME, AFL–CIO,

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875 F.2d 1310 (7th Cir. 1989).

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denial of class certification in a fair share fee case because

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the full “restitution” remedy sought by the plaintiffs

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potentially conflicted with the interests of free riders within

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the class.

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Gilpin affirmed a lower court’s

See id. at 1313.

Plaintiffs’ prayer for relief does not seek the remedy

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at issue in Gilpin.

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[plaintiff] is seeking repayment to all the bargaining unit’s

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nonunion employees of the entire agency fees collected by the

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union in the 1985 and 1986 school years . . . .”), with Compl. at

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14 (seeking “the amount of agency fees improperly deducted from

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their wages”).

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share fee is unavailable in the Ninth Circuit.

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County of El Dorado, 177 F.3d 1102, 1109-10 (9th Cir. 1999).

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Gilpin is therefore distinguishable.

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895-96 (affirming this court’s prior decision to distinguish

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Gilpin on similar grounds).7

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Compare Gilpin, 875 F.2d at 1313 (“The

Moreover, full restitution of the entire fair
See Prescott v.

See Cummings, 316 F.3d at

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Local 1000 may wish the court to draw the speculative
inference that an individual who says he or she favors a strong
union also disfavors a refund of nonchargeable fair share fees.
The court follows well-established Ninth Circuit precedent in
declining to deny class certification on this basis. See Soc.
Servs. Union, Local 535 v. Santa Clara Cnty., 609 F.2d 944, 948
(9th Cir. 1979) (“Mere speculation as to conflicts that may
develop at the remedy stage is insufficient to support denial of
initial class certification.”).
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The State Controller also argues that named plaintiffs
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b. Vigorous Prosecution on Behalf of the Class

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Local 1000 next argues that the representative

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plaintiffs are not adequate because they do not understand their

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fiduciary duties to absent class members or the goal of this

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lawsuit.

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contention on deposition testimony of the named plaintiffs

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suggesting that seven of them did not understand the term “class

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representative” or other legal terminology, (see, e.g., Tutt Dep.

9

at 26-27 (Docket No. 40); Giles Dep. at 23-24 (Docket No. 40);

(Local 1000’s Opp’n at 12-16, 22-27.)

It bases this

10

Sarumi Dep. at 38-39 (Docket No. 40)), and others did not

11

understand the exact extent of the class they seek to represent,

12

(see, e.g., Blaylock Dep. at 52-53 (Docket No. 40); Browne Dep.

13

at 27 (Docket No. 40)).

14

Taken in context and without reliance on legal jargon,

15

however, the representative plaintiffs displayed an appropriate

16

understanding of the aims of this lawsuit and their role in it.8

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18
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20
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22
23
24
25
26
27
28

are inadequate because they seek to represent bargaining units in
which none of them work. (State Controller’s Opp’n at 7-8.) The
State Controller cites no authority supporting the proposition
that a named plaintiff must have the same or similar occupation
as class members, nor does it explain the relevance that a
particular bargaining unit may have on the ability of the
representatives to “fairly and adequately protect the interests
of the class.” Fed. R. Civ. P. 23(a)(4). Accordingly, this
argument is unpersuasive.
8

(See, e.g., Ammon Dep. at 27-28 (“Q: Do you have an
understanding if you’re asking the Court to appoint you as a
representative of other people in this case? A: Yes.”); id. at
35, 40 (“Q: Do you think it is fair for all of the members in the
bargaining unit to pay their fair share of the costs of that
bargaining? A: As long as it’s going for our bargaining.”);
Blaylock Dep. at 51 (“My goal is . . . answer the question that
the Supreme Court left open, why do I have to opt out of
something.”); Browne Dep. at 31 (“My understanding is that
everyone is required to at least pay a little bit of those
15

1

Plaintiffs also demonstrated knowledge of the fair share fee, the

2

opt out procedure, and other facts relevant to their claims.9

3

Accordingly, these class representatives can vigorously prosecute

4

and direct this lawsuit on behalf of absent class members.

5

To the extent some plaintiffs misunderstand legal terms

6

or litigation strategy, Local 1000 has not provided, and the

7

court has not found, any authority that requires them to have

8

such knowledge.

9

found named plaintiffs competent to serve as class

To the contrary, judges in this district have

10

representatives based on their retainer of qualified, experienced

11

attorneys to advise them and act on their behalf.

12

Rossi v. Whirlpool Corp., Civ. No. 2:12-00125 TLN, 2015 WL

13

1932484, at *5-6 (E.D. Cal. Apr. 28, 2015) (finding adequate

14

representation in part because “[p]laintiffs are represented in

15

this case by prominent law firms with extensive experience in

16

complex and class action litigation”); see also Hanlon, 150 F.3d

17

at 1021 (“Although there are no fixed standards by which ‘vigor’

See, e.g., Dei

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19
20
21
22
23
24
25
26
27
28

expenses, since on paper everyone benefits from that. . . . I
think that is fair as long as the amount is correct and has been
decided fairly and is -- and the money is only to be used for
collective bargaining.”); Giles Dep. at 20-21 (“[W]e are hoping
to change that instead of having to opt out of fees, that we
would have to opt in to fees. . . . This is a class-action suit,
so there are others that are in the class with me. . . . Similar
employees with a similar complaint.”); Sarumi Dep. at 31 (“Q: Are
you asking the court to certify a class of people who will
benefit from this lawsuit? A: That is correct.”); Tutt Dep. at
21 (“I am part of this [lawsuit] because I believe that it is not
fair that the union makes us opt out every single year. . . . I
don’t want to pay for your advertising and the other things that
you do.”).
9

(See, e.g., Ammon Dep. at 36-41; Browne Dep. at 28-31;
Giles Dep. at 24-27, 39-40; Tutt Dep. at 21.)
16

1

can be assayed, considerations include competency of counsel

2

. . . .”).

3

Turning to counsel, plaintiffs are represented by W.

4

James Young of the National Right to Work Legal Defense and

5

Education Foundation, Inc.

6

appellate counsel for several class actions, (see Young Decl. ¶ 9

7

(Docket No. 22-2)), including Knox, which was litigated out of

8

this district, see 2006 WL 3147683, at *4.

9

contest Young’s competence.

10

Young has served as trial and

Local 1000 does not

(Local 1000’s Opp’n at 24 n.40.)

Accordingly, because the court finds no conflicts of

11

interest and is confident that plaintiffs and their counsel will

12

vigorously prosecute this case on the class’s behalf, the court

13

concludes that the representative parties will fairly and

14

adequately protect the interests of the class.

15

F.3d at 985.

16

counsel under the factors listed in Rule 23(g)(1) and will

17

therefore appoint him to that position.

18

23(g).

19
20

See Ellis, 657

The court further finds Young an appropriate class

See Fed. R. Civ. P.

C. Rule 23(b)
Plaintiffs request certification under subsection

21

(b)(1)(A), (b)(2), or, in the alternative, (b)(3).

22

class meets the criteria of Rule 23(b)(2).

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need not address whether it meets the criteria of subsection

24

(b)(1)(A) or (b)(3).

25

The proposed

The court therefore

Rule 23(b)(2) allows maintenance of a class action if

26

“the party opposing the class has acted or refused to act on

27

grounds that apply generally to the class, so that final

28

injunctive relief or corresponding declaratory relief is
17

1

appropriate respecting the class as a whole.”

2

23(b)(2).

3

maintenance of a class action as a vehicle for the redress of

4

civil rights violations.”

5

Union No. 164 v. Nelson, 102 F.R.D. 457, 462 (N.D. Cal. 1983)

6

(citing Alliance to End Repression v. Rochford, 565 F.2d 975,

7

979, n.9 (7th Cir. 1977)).

8
9

Fed. R. Civ. P.

“Subsection (b)(2) was designed largely to permit

Int’l Molders’ & Allied Workers’ Local

Subsection (b)(2) addresses injunctive and declaratory
relief only, not monetary damages.

In Dukes, the Supreme Court

10

held that claims for “individualized” monetary relief cannot be

11

maintained under (b)(2).

12

Court explained:

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14
15
16
17

Dukes, 131 S. Ct. at 2557-61.

The

The key to the (b)(2) class is the indivisible nature
of the injunctive or declaratory remedy warranted--the
notion that the conduct is such that it can be
enjoined or declared unlawful only as to all of the
class members or as to none of them. . . . [I]t does
not authorize class certification when each class
member would be entitled to an individualized award of
monetary damages.

18

Id. at 2557 (internal quotation marks and citations

19

omitted).

20

“incidental” monetary relief is consistent with subsection

21

(b)(2).

22

737 F.3d 538, 544 (9th Cir. 2013).

23

The Supreme Court did not decide, however, whether

Id. at 2560; see also Wang v. Chinese Daily News, Inc.,

Plaintiffs seek injunctive and declaratory relief as

24

well as monetary damages for “the amount of agency fees

25

improperly deducted from their wages” and nominal damages.

26

Compl. at 14; Pls.’ Reply at 32 n.38.)

27

are not the kind of “individualized” damages banished from

28
18

(See

They argue these damages

1

subsection (b)(2) by Dukes because a refund of deducted fees will

2

flow directly from the injunctive and declaratory relief they

3

seek.

4

(Pls.’ Reply at 32-33.)
For an example, plaintiffs point to the court’s award

5

of damages in Knox.

6

to this court, Judge England ordered: “Defendant [Local 1000]

7

shall refund to Plaintiffs all monies exacted for the ‘Emergency

8

Temporary Assessment to Build a Political Fight–Back Fund,’ for

9

the entirety of the period during which the assessment was

10

After the Supreme Court remanded that case

exacted, plus interest.”

11

Knox, 2013 WL 2434606, at *3.

The court agrees that a similar order would not amount

12

to individualized damages under Dukes because its “indivisible

13

nature” comports with the “key to the (b)(2) class.”

14

131 S. Ct. at 2557.

15

certification pursuant to Rule 23(b)(2).

16

or individualized determinations become necessary at some later

17

time, the court will modify or decertify the class.

18

Cummings, 316 F.3d at 896.

19

See Dukes,

The court will therefore grant class
If additional hearings

See

Mindful of its limited ability to consider a claim’s

20

merits for purposes of this motion, see Amgen, 133 S. Ct. at

21

1195, the court expresses no views on whether the monetary

22

damages plaintiffs request are available under claim one.

23

party has moved for dismissal or properly asked the court to

24

address that question.

25

1060, 1068-73 (E.D. Cal. 2001) (addressing the compensability of

26

claims and appropriate relief on motion for summary judgment).

27

Accordingly, the court will not consider it here.

28

///

No

See Cummings v. Connell, 177 F. Supp. 2d

19

1

II.

Conclusion

2

Plaintiffs’ first claim has satisfied all the

3

prerequisites of Rule 23(a) and has met the criteria of Rule

4

23(b)(2).

5

the requested plaintiffs as class representatives and appointing

6

class counsel.

7

Accordingly, the court will certify the class, naming

IT IS THEREFORE ORDERED that plaintiffs’ motion for

8

class certification and for appointment of class counsel be, and

9

the same hereby is, GRANTED in part and DENIED in part.

The

10

court certifies only plaintiffs’ first claim to the extent it

11

asserts a facial First Amendment challenge.

12

without prejudice (1) certification of plaintiffs’ first claim to

13

the extent it asserts an as applied First Amendment challenge and

14

(2) certification of plaintiffs’ second claim.

15
16
17
18
19
20

The certified class shall consist of:
all former, current, and future State of
employees employed in Bargaining Units 1,
14, 15, 17, 20, and 21 who are, have been,
represented exclusively for purposes of
bargaining by Local 1000, from June 2013
three subclasses:

All individuals who pay compulsory fees to Local
1000 who are not members and who have, at one
time or another, specifically objected to the use
of their union fees for politics or other
nonbargaining activities, and whose objections
were honored;

b.

All individuals who pay compulsory fees to Local
1000 who are not members and who have never
specifically objected to the use of their union
fees
for
politics
or
other
nonbargaining
activities; and

c.

All individuals who pay compulsory fees to Local
1000
who
are
not
members
and
who
have
specifically objected to the use of their union
fees
for
politics
or
other
nonbargaining

22

24
25
26
27
28

California
3, 4, 11,
or will be
collective
onward, in

a.

21

23

The court denies

20

1

activities and for whom Local 1000 has, for
whatever
reason,
refused
to
honor
their
objections.

2
3
4
5
6

The court appoints plaintiffs Hamidi, McElroy, Ammons,
Blaylock, Browne, Christensen, Giles, Lopez, Miller, Morrish,
Ollis, Sarumi, Toledo, and Tutt as class representatives and
further appoints W. James Young as class counsel.

7
8

Dated:

May 22, 2015

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