Crossley v. State of California

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MICHAEL CROSSLEY; BART Case No.: 20-cv-0284-GPC-JLB

BAILEY; LET THE VOTERS DECIDE,

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LLC; V ALLEY DIRECT MARKETING ORDER GRANTING MOTION TO

13 LLC; IN THE FIELD, INC.; DISMISS

DISCOVERY PETITION

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MANAGEMENT LLC; PIR DATA [ECF No. 8]

15 PROCESSING INC.; CAROL YN OSTIC

dba VOTER DIRECT, and CHRIS

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BRENTLINGER dba BAY AREA

17 PETITIONS,

18 Plaintiffs,

19 v.

20 STATE OF CALIFORNIA; XAVIER

BECERRA, in his capacity as Attorney

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General of the State of California; and

22 “JOHN DOE,” in his/her official capacity

23 Defendants.

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1 This case presents a multi-pronged challenge to AB 5, a California state law

2 enacted in 2019 which applies the three-factor “ABC” test, for determining whether a

3 worker is an independent contractor or employee, to the entirety of the California Labor

4 Code and the California Unemployment Insurance Code. The Plaintiffs are individuals

5 and businesses that collect signatures to qualify popular initiated referendums on the

6 ballot for public vote. The Plaintiffs have challenged AB 5 on numerous constitutional

7 grounds, including, the Equal Protection Clause, the First Amendment and the California

8 Constitution. Before the Court is a motion to dismiss filed by Defendants State of

9 California and Xavier Becerra, in his capacity as California Attorney General

10 (collectively, “Defendants”). ECF No. 8. Plaintiffs filed an opposition on May 6, 2020.

11 ECF No. 9. Defendants filed a reply on May 15, 2020. ECF No. 10. The Court held a

12 hearing on the matter on May 22, 2020. Both parties subsequently filed supplemental

13 briefing at the Court’s invitation. ECF Nos. 14, 15.

14 BACKGROUND

15 Plaintiffs are data processing entities (“Data Processors”) that utilize individuals

16 and businesses (“Collectors”) to collect signatures from registered voters on ballot

17 initiatives and referenda throughout the United States, including the State of California.

18 Individual Plaintiffs, Michael Crossley and Bart Bailey, are two such Collectors who

19 have rendered services to the Data Processors. ECF No. 1 (“Compl.”) ¶¶ 3-5. In 2017,

20 Individual Plaintiff Michael Crossley began collecting signatures for various Data

21 Processors, including several Company Plaintiffs, pursuant to separately executed

22 contracts, in order to obtain additional income. Id. ¶¶ 52-54. Similarly, in 2018,

23 Individual Plaintiff Bart Bailey began collecting signatures in order to obtain additional

24 income and selling the collected signatures to Company Plaintiffs on a petition-by-

25 petition basis. Id. ¶¶ 55-57. Plaintiffs bring this action on behalf of a purported class

26 defined as all data processors who utilize collectors within California, and on behalf of all

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1 collectors who collect signature from registered voters pursuant to independent contractor

2 relationships with data processors. Id. ¶ 20.

3 Plaintiffs challenge California Assembly Bill 5 (“AB 5”), a recently-enacted statute

4 that became effective on January 1, 2020, which defines how employment status is

5 determined for purposes of certain state laws. AB 5, Ch. 296, 2019–2020 Reg. Sess.

6 (Cal. 2019). Specifically, Plaintiffs seek declaratory relief as to whether Collectors are

7 properly deemed “employees” under the test set out by AB 5 and whether AB 5 is

8 unconstitutional and invalid. Compl. ¶ 18.

9 California Assemblywoman Lorena Gonzalez introduced AB 5 with the purpose of

10 codifying the decision of the California Supreme Court in Dynamex Operations West,

11 Inc. v. Superior Court of Los Angeles, 4 Cal. 5th 903 (Cal. 2018), which set forth a three-

12 factor “ABC” test to determine whether a worker is an independent contractor or

13 employee for purposes of the California Industrial Welfare Commission’s wage orders.

14 According to the “ABC” test established by the Dynamex court, a worker should be

15 considered an employee, unless the hiring entity establishes the following three factors:

16 (A) that the worker is free from the control and direction of the hiring entity in

connection with the performance of the work, both under the contract for the

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performance of the work and in fact, (B) that the worker performs work that is

18 outside the usual course of the hiring entity's business, and (C) that the worker is

customarily engaged in an independently established trade, occupation, or

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business.

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Dynamex, 4 Cal. 5th 903 at 964. AB 5 applies the ABC test to the entirety of the

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California Labor Code and the California Unemployment Insurance Code. Compl. ¶ 28.

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AB 5 achieves this by adding a new provision incorporating the ABC test into Article 1

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of the California Labor Code, Section 2750.3 and amending Section 606.5 of the

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Unemployment Insurance Code to incorporate the ABC test into the definition of

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“employee.” Id. ¶ 29. Any employer who fails to abide by AB 5’s requirements could be

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found guilty of a misdemeanor or felony, and could be subject to fines up to $1,000

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and/or imprisonment for up to thirty days. Id. ¶¶ 29-30, 41-42.

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1 AB 5 includes a carve out for workers exempted from the ABC test. Id. ¶ 34.

2 These exemptions include workers who are “traditionally considered to be independent

3 contractors” including those engaged in occupations requiring licenses, direct sales

4 workers, and professional service providers. Id. ¶ 35.

5 The contracts between most Data Processors, including Company Plaintiffs, and

6 the Collectors either explicitly classify or treat the Collectors as “independent

7 contractors” and indicate that Data Processors do not have certain obligations under the

8 California Labor Code and that the Collectors do not have obligations as they would to

9 more traditional employers. Id. ¶ 63. Plaintiffs argue that if AB 5 were enforced against

10 Plaintiffs, by requiring them to classify the Collectors as employees rather than as

11 independent contractors, Plaintiffs would be required to change their business model, and

12 any existing independent contracts between Data Processors and Collectors would be

13 invalidated. Id. ¶ 59. Plaintiffs argue this would have a detrimental effect on Collectors

14 by depriving them of the opportunity to work in the manner that “provides the most

15 flexibility for them.” Id. Plaintiffs also contend that AB 5 would result in a reduction in

16 the number of employable Collectors, thereby producing a “chilling effect on the

17 collective ability” to place initiatives on election ballots. Id. ¶¶ 61-62.

18 Plaintiffs state that the relationship between Company Plaintiffs and Collectors

19 begins with either a “brief informational meeting” or another interaction that is “less

20 formal” wherein the Company Plaintiffs explain how the signature collection process

21 works and how the Collectors will be compensated. Id. ¶ 45. The Collectors’ primary

22 responsibility is to collect voter signatures and deliver these signatures in “raw” form to

23 the Data Processors. Id. ¶¶ 47, 51. The Data Processor then inspects, and improves as

24 necessary, the completed signature forms for resale to its clients, then submits the

25 signature forms in “batched, refined” form to the downstream clients. Id. ¶ 46. The

26 clients pay commissions to the Data Processors directly. Id. ¶ 47. The Data Processors

27 consider the commissions received from the clients, and pay commission to the

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1 Collectors on a “piece rate commission system,” which takes into account the wide

2 variation in the quantity and quality of the Collectors’ raw signature submissions. Id. ¶

3 46.

4 Plaintiffs argue that the Data Processors exert “no control whatsoever” over the

5 Collectors’ work since there is little uniformity in time and manner of the Collectors’

6 work and the interactions between Data Processors and Collectors are minimal. Id. ¶¶

7 48-50. Further, Plaintiffs assert that Collectors would be negatively affected if they were

8 to be reclassified as “employees” since this could result in reduced work opportunities,

9 higher taxation, and diminished control over their schedule and income opportunities. Id.

10 ¶ 64.

11 Plaintiffs bring causes of action for declaratory relief on the basis that AB 5

12 violates the following: the federal and state constitution’s Equal Protection Clauses

13 (claims 1 and 2); the California Constitution’s Inalienable Rights Clauses (claim 3); the

14 federal and state Due Process Clauses (claims 4, 5, 6, 7, and 11); article I, sections 2 and

15 3, of the California Constitution (claim 8); the federal Ninth Amendment and California’s

16 “Baby” Ninth Amendment (claims 9 and 10); and the federal and state Contracts Clauses

17 (claims 12 and 13). Plaintiffs seek injunctive relief to prevent the enforcement of AB 5

18 against Company Plaintiffs (claim 15), and in the alternative, Plaintiffs seek a court

19 declaration that Individual Plaintiffs are independent contractors when working as

20 Collectors for the Company Plaintiffs (claim 14).

21 LEGAL STANDARD

22 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to

23 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal

24 under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or

25 sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police

26 Dep't., 901 F.2d 696, 699 (9th Cir. 1990). Under Rule 8(a)(2), the plaintiff is required

27 only to set forth a “short and plain statement of the claim showing that the pleader is

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1 entitled to relief,” and “give the defendant fair notice of what the ... claim is and the

2 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

3 A complaint may survive a motion to dismiss only if, taking all well-pleaded factual

4 allegations as true, it contains enough facts to “state a claim to relief that is plausible on

5 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at

6 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows

7 the court to draw the reasonable inference that the defendant is liable for the misconduct

8 alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by

9 mere conclusory statements, do not suffice.” Id. “In sum, for a complaint to survive a

10 motion to dismiss, the non-conclusory factual content, and reasonable inferences from

11 that content, must be plausibly suggestive of a claim entitling the plaintiff to

12 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations

13 omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged

14 in the complaint and draws all reasonable inferences in favor of the plaintiff. al-Kidd v.

15 Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009).

16 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless

17 the court determines that the allegation of other facts consistent with the challenged

18 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc.,

19 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture

20 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would

21 be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber,

22 806 F.2d at 1401.

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1 DISCUSSION

2 I. Equal Protection Claims (claims 1 and 2)

3 Defendants argue that Plaintiffs’ equal protection claims are subject to rational

4 basis review and must be dismissed because the law rationally furthers a legitimate state

5 interest. Plaintiffs counter that AB 5 should be subject to strict scrutiny and alternatively,

6 that even if rational basis review applies, Plaintiffs have adequately plead their claims.

7 a. AB 5 is Subject to Rational Basis Review

8 The Equal Protection Clause of the Fourteenth Amendment provides that no State

9 shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S.

10 Const., amend. XIV, § 1. However, the Equal Protection Clause does not forbid

11 classifications but rather “simply keeps governmental decisionmakers from treating

12 differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S.

13 1, 10 (1992). Laws alleged to violate the constitutional guarantee of equal protection are

14 generally subject to one of three levels of “scrutiny” by courts: strict scrutiny,

15 intermediate scrutiny, or rational basis review. Tucson Woman's Clinic v. Eden, 379 F.3d

16 531, 543 (9th Cir. 2004). Strict scrutiny is applied when the classification is made on

17 “suspect” grounds such as race, ancestry, alienage, or categorizations impinging upon

18 fundamental rights. Kahawaiolaa v. Norton, 386 F.3d 1271, 1277 (9th Cir. 2004). The

19 rationale behind heightened review on the basis of a suspect class is that such categories

20 are “so seldom relevant to the achievement of any legitimate state interest that laws

21 grounded in such considerations are deemed to reflect prejudice and antipathy . . . and

22 because such discrimination is unlikely to be soon rectified by legislative means.” City of

23 Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Fundamental rights

24 such as privacy, marriage, voting, travel, and freedom of association have also been

25 afforded strict scrutiny review. Hoffman v. United States, 767 F.2d 1431, 1435 (9th Cir.

26 1985). In contrast, the Supreme Court has held that other rights are not fundamental,

27 such as the right to government employment, Massachusetts Bd. of Ret. v. Murgia, 427

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1 U.S. 307 (1976), or the right to a public education, San Antonio Indep. Sch. Dist. v.

2 Rodriguez, 411 U.S. 1 (1973).

3 “[U]nless a classification warrants some form of heightened review because it

4 jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently

5 suspect characteristic,” courts will apply rational basis review and only consider whether

6 the statute “rationally further[s] a legitimate state interest.” Nordlinger v. Hahn, 505 U.S.

7 1, 10 (1992).

8 Here, Defendants argue that Plaintiffs’ claims are subject to rational basis review

9 since Plaintiffs do not allege that they are part of a suspect class and Plaintiffs’ claims do

10 not implicate a fundamental right. Plaintiffs counter that AB 5 is subject to strict scrutiny

11 review because it infringes on a fundamental interest—namely, their “ability to make a

12 living at their chosen, lawful occupation.” ECF No. 9 at 15.

13 The Supreme Court has explained that “social importance is not the critical

14 determinant for subjecting state legislation to strict scrutiny” but instead courts must

15 ascertain whether such a right is “explicitly or implicitly guaranteed by the Constitution.”

16 San Antonio, 411 U.S. at 32-33. On this basis, the Supreme Court has denied strict

17 scrutiny review to rights that it has otherwise recognized as socially significant.

18 Rodriguez, 411 U.S. 1 (right to a public education); Lindsey v. Normet, 405 U.S. 56

19 (1972) (right of safe and sanitary housing); Dandridge v. Williams, 397 U.S. 471 (1970)

20 (right of welfare benefits). The Supreme Court has declined to extend the application of

21 strict scrutiny review outside of the existing scope since “the State has the authority to

22 implement, the courts have been very reluctant, as they should be in our federal system

23 and with our respect for the separation of powers, to closely scrutinize legislative

24 choices.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 441–42 (1985).

25 Here, Plaintiffs claim that the right to pursue their chosen, lawful occupation is a

26 fundamental right but have not cited any case law—and the Court has not found any—

27 supporting this argument. Cf. Roe v. Wade, 410 U.S. 113 (1973) (strict scrutiny review

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1 accorded to right of a uniquely private nature); Bullock v. Carter, 405 U.S. 134

2 (1972) (right to vote); Shapiro v. Thompson, 394 U.S. 618 (1969) (right of interstate

3 travel); Williams v. Rhodes, 393 U.S. 23 (1968) (rights guaranteed by the First

4 Amendment); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (right to

5 procreate).

6 Plaintiffs have also referenced their proximity to the voting process in support of

7 their argument. The right to vote has been accorded heightened strict scrutiny review in

8 instances where the statute at issue infringes an individual’s ability to participate in

9 elections. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966) (declaring

10 poll tax unconstitutional); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969)

11 (striking down state statute limiting school district elections voting to property owners

12 and parents of students); Dunn v. Blumstein, 405 U.S. 330, 362 (1972) (striking down

13 residence requirement for voting). However, the questions raised by restrictions on an

14 individual’s right to vote are markedly different from the issues raised by Plaintiffs’

15 claims. As discussed above, Plaintiffs collect and distribute signatures from registered

16 voters on various proposed ballot initiatives and referenda. This initiative process is one

17 step removed from the act of voting since these proposed ballot initiatives have not yet

18 qualified for inclusion on the voting ballot. Accordingly, signing a petition in support of

19 an initiative does not constitute the exercise of the right to vote since there is no

20 guarantee that any particular ballot initiative will qualify and appear on a voting ballot.

21 Moreover, AB 5 does not impact the right to vote for an initiative once it has been placed

22 on a ballot. While advocacy for ballot initiatives and referenda may have some

23 connection to the electoral process as a whole, Plaintiffs have failed to show how the

24 right to vote is denied or limited by any impact that AB 5 might have on the ballot

25 initiative process.

26 In sum, Plaintiffs have not shown either that the right to pursue a lawful occupation

27 merits strict scrutiny review, or, that the right to vote is implicated in their claims.

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1 Accordingly, their claims do not warrant application of strict scrutiny review and must,

2 instead, be analyzed under rational basis review.

3 b. Plaintiffs’ Claims Fail Under Rational Basis Review

4 Under rational basis review, “legislation is presumed to be valid and will be

5 sustained if the classification drawn by the statute is rationally related to a legitimate state

6 interest.” City of Cleburne, 473 U.S. at 440. Accordingly, the Court need only determine

7 whether AB 5 rationally relates to “a legitimate state interest.” Under rational basis

8 review, a statute bears “a strong presumption of validity,” and Plaintiffs bear the burden

9 “to negative every conceivable basis which might support it.” F.C.C. v. Beach

10 Commc’ns, 508 U.S. 307, 314–15 (1993) (citations omitted). “[E]qual protection is not a

11 license for courts to judge the wisdom, fairness, or logic of legislative choices.” Id. at

12 313. In other words, this standard of review is a “paradigm of judicial restraint.” Id. at

13 314.

14 Defendants argue that AB 5 was passed in order to remedy the widespread

15 misclassification of workers as independent contracts—a phenomenon which has been a

16 “significant factor in the erosion of the middle class and the rise of income inequality.”

17 ECF No. 8 (citing AB 5 § 1(c), Ch. 296, 2019-2020 Reg. Sess. (Cal 2019)). The state

18 legislature’s asserted purpose in passing AB 5 was to redress the exploitation of workers

19 who have been classified as independent contractors, thereby denied of the rights and

20 protections that they would otherwise be afforded as employees—namely, minimum

21 wage, workers’ compensation, unemployment insurance, paid sick leave, and paid family

22 leave. AB 5 § 1(e), Ch. 296, 2019-2020 Reg. Sess. (Cal 2019)). This stated purpose

23 serves as a “plausible reason” that passes muster under the highly deferential rational

24 basis review standard. See F.C.C., 508 U.S. at 315 (1993) (“a legislative choice is not

25 subject to courtroom fact-finding and may be based on rational speculation unsupported

26 by evidence or empirical data”).

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1 Plaintiffs argue, however, that the exemptions in AB 5 demonstrate “irrational

2 animus” towards non-exempted companies like Plaintiffs since no rational basis exists for

3 distinguishing certain businesses from others relative to the application of the ABC test

4 under AB 5. Compl. ¶¶ 68, 70. Plaintiffs assert that legislators either made these

5 exemptions arbitrarily or as political favors to groups who lobbied for such treatment. Id.

6 ¶¶ 36, 38.

7 Defendants counter that the legislative history demonstrates that the exemption

8 carve outs were based on a number of legitimate factors and rational explanations,

9 including whether the workers hold professional licenses, are wholly free from direction

10 or control of the hiring entity, perform “professional services,” exert sufficient bargaining

11 power, and set their own rate of pay. ECF No. 8 at 20-21. Legislators also considered

12 the nature of the relationship between the contractor and client. Id.

13 Specifically, Plaintiffs highlight several exempted professions—direct sales

14 salespersons, Cal. Lab. Code § 2750.3(b)(5), and newspaper carriers, Cal. Lab. Code §

15 2750.3(b)(7)—in support of their argument that there is no meaningful distinction

16 between the exempted professions and the Collectors since their payment structures are

17 similarly calculated (i.e., based on production output rather than the number of hours

18 worked), their work is not done from a fixed location, and their work is done pursuant to

19 separately-executed contracts. ECF No. 14.

20 Defendants assert that Plaintiffs have failed to negate “every conceivable basis”

21 that support the rationale behind these exemptions. FCC v. Beach Commc’ns, Inc., 508

22 U.S. 307, 314-15 (1993). For both direct sales salespersons and newspaper carriers,

23 Defendants point out laws which predate AB 5 that have distinguished both professions

24 from other occupations. See ECF No. 15 at 2, 4 (citing Cal. Lab. Code § 1171; Cal. Code

25 Regs. Tit. 8, § 11070(1)(C); Cal. Unemp. Ins. Code § 650; 26 U.S.C. § 3508(a)(1); citing

26 26 U.S.C. § 3508(b)(2)(A)(iii)).

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1 Defendants argue that direct salespersons are differently situated than Plaintiffs

2 since the salespersons offer public goods or services in exchange for money and therefore

3 may require a higher degree of skill or training than Plaintiffs. See ECF No. 15 at 2-3.

4 Additionally, direct sales salespersons negotiate their own commission rates or rates of

5 pay, exercise a greater degree of control over their work, and communicate with their

6 client directly about the nature of their work. Id. For similar reasons, Defendants argue

7 that Plaintiffs’ comparisons to newspaper carriers must fail given the distinguishable

8 exchange of goods and relationship with customers inherent to the work of newspaper

9 carriers. Id. at 4.

10 While the Plaintiffs focus on the similarities between these two categories of

11 workers, they fail to acknowledge the differences identified by the Defendants which

12 form the basis for the exemptions. In any event, under the highly deferential rational

13 basis review standard, the Court declines to judge the “wisdom, fairness, or logic” of the

14 California state legislature’s choices. While some of these exemptions may arguably

15 have been arbitrarily designed or the result of political motives, “[a]ccommodating one

16 interest group is not equivalent to intentionally harming another.” Gallinger v. Becerra,

17 898 F.3d 1012, 1021 (9th Cir. 2018). Defendants have shown that there is some

18 “reasonable basis” for these classifications—namely, the attempt to remedy the

19 widespread misclassification of workers as independent contractors—and no equal

20 protection violation is found even if “in practice [legislation] results in some inequality.”

21 Dandridge v. Williams, 397 U.S. 471, 485 (1970).

22 II. Due Process Claims (claims 4, 5, and 11)

23 Plaintiffs argue that AB 5 violates their due process rights under both the U.S. and

24 California state Constitutions. U.S. Const. amend. XIV, § 1; Cal. Const. art. I, § 7(a).

25 The range of liberty interests that substantive due process protects is narrow and “[o]nly

26 those aspects of liberty that we as a society traditionally have protected as fundamental

27 are included within the substantive protection of the Due Process Clause.” Franceschi v.

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1 Yee, 887 F.3d 927, 937 (9th Cir.), cert. denied, 139 S. Ct. 648 (2018). Substantive due

2 process has, therefore, been largely confined to protecting fundamental liberty interests,

3 “such as marriage, procreation, contraception, family relationships, child rearing,

4 education and a person's bodily integrity, which are ‘deeply rooted in this Nation's history

5 and tradition.’ ” Id. (citations omitted). Courts have recognized a liberty interest based

6 on some “generalized due process right to choose one’s field of private employment,” but

7 that right is “subject to reasonable government regulation.” Conn v. Gabbert, 526 U.S.

8 286, 291–92 (1999). Since the vocational liberty interest is not a fundamental right, and

9 is therefore subject to “reasonable government regulation,” the court need only determine

10 whether there is a “conceivable basis” for the legislation. Dittman v. California, 191 F.3d

11 1020, 1031 & n.5 (9th Cir. 1999). Any burden that may exist on an individual’s pursuit

12 of her profession does not amount to a due process violation unless it acts as a “complete

13 prohibition.” Franceschi, 887 F.3d at 938 (citing Lowry v. Barnhart, 329 F.3d 1019,

14 1023 (9th Cir. 2003) (holding that an “indirect and incidental burden on professional

15 practice is far too removed from a complete prohibition to support a due process claim”)).

16 Plaintiffs argue that enforcement of AB 5 would fundamentally preclude Data

17 Processors from offering Collectors flexibility and autonomy, and Collectors would be

18 required to declare allegiance to a single Data Processor, and “hope that that single Data

19 Processor possessed enough work to make the Collector’s job similarly remunerative to

20 that which s/he pursued as an independent contractor.” ECF No. 9 at 21. Plaintiffs argue

21 that this amounts to a complete prohibition. Defendants counter that the Collectors can

22 still work as independently contractors if they satisfy the ABC test or fall under an

23 exemption, and moreover, even if the Collectors’ employment classification changes, the

24 Data Processors could still offer the Collectors flexibility and autonomy as full

25 employees. See ECF No. 8 at 23.

26 In Franceschi, the plaintiff lawyer argued that deprivation of his driver’s license

27 amounted to a substantive due process violation since his license was “indispensable” to

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1 the practice of law. Franceschi, 887 F.3d at 938. While the Ninth Circuit acknowledged

2 the difficulties posed by the plaintiff’s inability to drive himself around Los Angeles in

3 pursuit of his legal practice, this burden did not amount to a complete prohibition. Here,

4 Plaintiffs argue that AB 5’s burden would not be indirect or incidental, but would

5 “absolutely and irrevocably” result in the loss of work for multiple individuals and

6 entities. ECF No. 9 at 22. While Plaintiffs’ allegations are different in kind from those in

7 Franceschi, they nevertheless fail to establish that AB 5’s effect would result in a

8 complete prohibition in their work. Accordingly, Plaintiffs have failed to show that they

9 are entitled to relief and their due process claims are dismissed.

10 III. Restriction on Political Speech (claims 6, 7, 8)

11 Plaintiffs argue that AB 5 violates their rights guaranteed by the U.S. and

12 California state Constitutions—including the right to petition and to solicit support or

13 opposition for political initiatives. U.S. Const. amend. I; Cal. Const. art. II(a). State

14 legislatures are prohibited from enacting laws “abridging the freedom of speech, or of the

15 press.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 336 n.1 (1995). Conduct-

16 based laws may implicate speech rights where (1) the conduct itself communicates a

17 message, (2) the conduct has an expressive element, or where, (3) even though the

18 conduct standing alone does not express an idea, it bears a tight nexus to a protected First

19 Amendment activity. Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 895 (9th Cir.

20 2018). “Regardless of the theory, the conduct must be ‘inherently expressive’ to merit

21 constitutional protection.” Id. (citations omitted). The circulation of initiative petitions

22 qualifies as “core political speech” since petition circulators “will at least have to

23 persuade [potential signatories] that the matter is one deserving of the public scrutiny and

24 debate that would attend its consideration by the whole electorate.” Meyer v. Grant, 486

25 U.S. 414, 421-22 (1988).

26 Defendants assert that Plaintiffs’ claims must be dismissed since AB 5 does not

27 qualify as conduct-based regulation and does not bear the requisite “tight nexus” to

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1 Plaintiffs’ free speech rights. ECF No. 10 at 12. The Ninth Circuit’s decision in

2 Interpipe is instructive. The Interpipe plaintiffs challenged a state statute requiring any

3 wage credit payments made to certain advocacy groups be paid through a collective

4 bargaining agreement. The Interpipe plaintiffs argued that this state law impermissibly

5 regulated the employer use of employee wages in favor of those advocacy groups. The

6 court held that the statute neither regulated conduct containing an “inherently expressive”

7 element nor did it bear a tight nexus to the employees’ free speech rights since it was a

8 “generally applicable wage law.” Interpipe, 898 F.3d at 896. The Interpipe court cited

9 Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575 (1983) in

10 order to illustrate its point. In Minneapolis Star, the Court held that a special use tax

11 imposed on paper and ink products violated the publications’ First Amendment rights,

12 noting that although purchasing ink and paper is not itself expressive conduct, the law at

13 issue applied exclusively to products used by news publications and therefore “singled out

14 the press for special treatment” in violation of the First Amendment. 460 U.S. at 582.

15 In contrast, AB 5 is a generally applicable law that regulates the classification of

16 employment relationships across the spectrum and does not single out any profession or

17 group of professions.1 Further, AB 5 does not regulate conduct that is inherently

18 expressive. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S.

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22 1 In this sense, AB 5’s carve outs are unlike the Telephone Consumer Protection Act (“TCPA”) carve

23 out, which provided an exception to the robocalling ban for entities in the business of collecting

government debt. See Barr v. Am. Ass’n of Political Consultants, Inc, 140 S. Ct. 2335 (2020). In Barr,

24 the plaintiff political consultants made calls to citizens to discuss candidates and issues, solicit

donations, conduct polls, and get out the vote; they claimed that their political outreach would be more

25 effective and efficient if they could also make robocalls to cell phones. The Barr plaintiffs challenged

the TCPA carve out under the First Amendment and argued that it could not be severed from the

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robocalling ban, thereby rendering the entire ban unconstitutional. Id. at 2345. The Supreme Court

27 found the carve out provision violated the First Amendment since it impermissibly favored debt-

collection speech over other speech and severed it from the remainder of the TCPA.

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1 47, 66 (2006) (legislation tying funding to permitting military recruiters on campus does

2 not target conduct that is “inherently expressive”).

3 Plaintiffs cite Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999)

4 in support. However, the distinctions between Buckley and the issues at hand are more

5 salient than any similarities. In Buckley, the statute directly regulated the petition

6 circulation process by requiring petition circulators to be registered voters, wear badges

7 with certain specifications, and report personal identifying information. The Court found

8 that such requirements were unduly burdensome and unjustifiably inhibited the

9 circulation of ballot-initiative petitions, noting that although states “have considerable

10 leeway . . . with respect to election processes generally” statutes that “significantly inhibit

11 communications with voters about proposed political change” are not warranted by state

12 interests. Buckley, 525 U.S. at 191-92 (1999). Unlike the statute in Buckley, AB 5 does

13 not impose any comparable requirements on the Collectors, and Plaintiffs have failed to

14 show that AB 5 would significantly inhibit their communications with voters about

15 proposed political change.

16 Plaintiffs additionally contend that California courts have held that the state

17 constitution’s protective provision provides stronger protections than the U.S.

18 Constitution but do not expand on this argument and do not cite any analogous state case

19 law. California courts have noted that the state constitution’s free speech protections are

20 “more definitive and inclusive” than their federal analog. Robins v. Pruneyard Shopping

21 Ctr., 23 Cal. 3d 899 (1979), aff'd, 447 U.S. 74 (1980). Section 2 of article I of the

22 California Constitution provides, “Every person may freely speak, write and publish his

23 or her sentiments on all subjects, being responsible for the abuse of this right. A law may

24 not restrain or abridge liberty of speech or press.” Cal. Const. art. I, § 2. However, the

25 California Supreme Court has explained that a determination that “a statute implicates the

26 right to freedom of speech under article I does not mean that it violates such right.”

27 Beeman v. Anthem Prescription Mgmt., LLC, 58 Cal. 4th 329, 345 (2013) (citations

28

1 omitted). The Beeman court found that a statute imposing regulations on drug claims

2 processors did not require the regulated entities to adopt or support any viewpoint or

3 opinion and declined to apply heightened scrutiny since doing so would “open the door to

4 intrusive and persistent judicial second-guessing of legislative choices in the economic

5 sphere.” Id. at 363. Ultimately, applying rational basis review, the Beeman court found

6 that the statute was reasonably related to a legitimate government purpose and denied the

7 plaintiff’s California Constitution First Amendment claim. As discussed above, AB 5

8 similarly passes constitutional muster—especially under the deferential rational basis

9 review standard—and is reasonably related to a legitimate government purpose even

10 under the more protective standard as set out by the California Constitution.

11 IV. Ninth Amendment Violation (claims 3, 9, and 10)

12 Plaintiffs allege that the United States Constitution’s Ninth Amendment (claim 9),

13 the California Constitution’s “Baby Ninth” (claim 10), and the Inalienable Rights clause

14 (claim 3) protect the “right to work on one’s own terms—as an independent service

15 provider, rather than an employee.” ECF No. 1 ¶¶ 81-83, 101. Defendants move to

16 dismiss these claims on the basis that these provisions are not interpreted as being “self-

17 executing” and thus provide no private right of action. ECF No. 8 at 27-29.

18 A. Ninth Amendment

19 The Ninth Amendment provides that “[t]he enumeration in the Constitution, of

20 certain rights, shall not be construed to deny or disparage others retained by the people.”

21 U.S. Const. amend. IX. The California Constitution “Baby Ninth Amendment” similarly

22 provides that this “declaration of rights may not be construed to impair or deny others

23 retained by the people.” Cal. Const. art. I, § 24. The Ninth Amendment “has not been

24 interpreted as independently securing any constitutional rights for purposes of making out

25 a constitutional violation,” San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121,

26 1125 (9th Cir. 1996) (citing cases), and is “not a source of rights as such; it is simply a

27 rule about how to read the Constitution.” San Diego, 98 F.3d at 1125 (quoting Laurence

28

1 H. Tribe, American Constitutional Law 776 n. 14 (2d ed. 1988)) (emphasis in original).

2 See also Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (“The ninth

3 amendment has never been recognized as independently securing any constitutional

4 right”) (internal citations omitted).

5 Plaintiffs appear to concede that the Ninth Amendment does not confer substantial

6 rights, but argue that even if they are unable to gain an affirmative award by making a

7 Ninth Amendment claim, they can still utilize the Ninth Amendment to challenge a state

8 action which would otherwise “crimp[] a fundamental right.” ECF No. 9 at 27.

9 However, even if there were a constitutional right to work as an independent contractor,

10 Plaintiffs have not pointed to any case that supports the notion that the Ninth Amendment

11 has been incorporated into the Fourteenth Amendment as to apply against state

12 government action. See Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092,

13 1107 (10th Cir. 1997), aff'd sub nom. Buckley v. Am. Constitutional Law Found., Inc.,

14 525 U.S. 182 (1999) (rejecting argument that the Ninth Amendment is incorporated in the

15 Fourteenth Amendment); Charles v. Brown, 495 F. Supp. 862, 864 (N.D. Ala. 1980)

16 (same). Accordingly, Plaintiffs have failed to demonstrate that they are entitled to relief

17 under the Ninth Amendment or California’s “Baby Ninth Amendment.”

18 B. Inalienable Rights

19 The California Constitution’s Inalienable Rights Clause provides that “[a]ll people

20 are by nature free and independent and have inalienable rights.” Cal. Const. Art. 1, § 1.

21 Both state and federal courts have found that this clause identifies mere principles and

22 does not create a private right of action. Olson v. California, No. CV1910956DMG,

23 2020 WL 905572, at *10 (C.D. Cal. Feb. 10, 2020) (citing Bates v. Arata, No. C 05-3383

24 SI, 2008 WL 820578, at *4 (N.D. Cal. Mar. 26, 2008), order clarified sub nom. Bates v.

25 San Francisco Sheriff’s Dep’t, No. C 05-3383 SI, 2008 WL 961153 (N.D. Cal. Apr. 7,

26 2008); Clausing v. San Francisco Unified Sch. Dist., 221 Cal. App. 3d 1224, 1237

27 (1990)).

28

1 Plaintiffs again assert that they do not seek affirmative relief from the state but are

2 instead seeking to prohibit the state from taking affirmative steps to divest Plaintiffs of

3 their “fundamental right guaranteed by the California Constitution—the right to pursue a

4 lawful occupation.” ECF No. 9 at 19. As noted above, however, if AB 5 were to force

5 the reclassification of the Collectors, this would not act as a complete prohibition on their

6 right to pursue a lawful occupation and therefore does not provide the basis for a claim

7 under the Inalienable Rights Clause.

8 For the foregoing reasons, the Court dismisses Plaintiffs’ claim under the Ninth

9 Amendment (claim 9), the California Constitution’s “Baby Ninth” (claim 10), and the

10 Inalienable Rights clause (claim 3).

11 V. Contract Claims (claims 12 and 13)

12 Plaintiffs also assert claims under the Contract Clauses of the U.S. Constitution

13 and California state Constitution. U.S. Const. art. I, § 10, cl. 1.; Cal. Const. art. I, § 9.

14 Plaintiffs argue that if AB 5 were enforced in a manner requiring the reclassification of

15 the Collectors as employees, AB 5 would violate the Contract Clauses by invalidating

16 already-existing contracts between the Data Processors and the Collectors. ECF No. 1 at

17 28-31. Defendants counter that AB 5 does not impose a substantial impairment on a

18 contractual relationship, and even if it did, Plaintiffs’ claims would fail given the public

19 purpose motivating AB 5’s passage. ECF No. 8 at 21-23.

20 Deferential review applies where a statute does not impair a state’s own

21 contractual obligations, as here. RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1147

22 (9th Cir. 2004). This review involves a three-step test: (1) “whether the state law has, in

23 fact, operated as a substantial impairment of a contractual relationship”; (2) whether the

24 state has “a significant and legitimate public purpose behind the [law], such as the

25 remedying of a broad and general social or economic problem”; and (3) “whether the

26 adjustment of the ‘rights and responsibilities of contracting parties is based upon

27 reasonable conditions and is of a character appropriate to the public purpose justifying

28

1 the legislation’s adoption.’” Id. (quoting Energy Reserves Grp., 459 U.S. at 411–13).

2 Parties address only the first two of these steps.

3 A. Substantial Impairment

4 AB 5 does not require that Collectors be reclassified as employees, but only

5 provides a new test for determining employee status. Plaintiffs would therefore only be

6 affected by AB 5 if it were enforced in a way that required reclassification of the

7 Collectors as employees. Id. ¶¶ 112-117. However, at this juncture, any effect that AB 5

8 may have on Plaintiffs’ contractual relationships is speculative and does not amount to

9 “substantial impairment.”

10 Additionally, a court is less likely to find substantial impairment when a state law

11 “was foreseeable as the type of law that would alter contract obligations.” Energy

12 Reserves Grp., Inc. v. Kansas Power and Light Co., 459 U.S. 400, 416 (1983). Here,

13 although Plaintiffs do not provide information about when their most recent contracts

14 were executed, it may be appropriately presumed that many of them did so after

15 Dynamex was decided in April of 2018 since Plaintiffs engaged in the signature

16 collection process in June 2018 and November 2018. Compl. ¶¶ 61(k)-(o). As such,

17 Plaintiffs should have been aware that the ABC test could apply and the independent

18 contractor status of their workers could be challenged, even before AB 5 was enacted.

19 See Olson, 2020 WL 905572, at *12.

20 To support their position, Plaintiffs cite Sonoma Cty. Org. of Pub. Employees v.

21 Cty. of Sonoma, 23 Cal. 3d 296 (1979). However, in Sonoma, the statute at issue

22 specifically declared null and void a specific set of agreements between local public

23 agencies and their employees. The court noted that even this direct impairment was not

24 sufficient to find a violation of the Contracts Clause since “the state’s police power

25 remains paramount” and so the court must instead consider “the circumstances under

26 which such impairment is permissible.” Sonoma, 23 Cal. at 305. Here, Plaintiffs have

27 failed to even show that there is a direct impairment comparable to the impairment

28

1 exacted by the statute at issue in Sonoma. As such, the Court need not engage in the

2 analysis of whether such impairment is permitted.

3 B. Significant and Legitimate Public Purpose

4 Even if the Court were to find that AB 5 imposed a substantial impairment on

5 Plaintiffs’ contracts, Plaintiffs have failed to show that AB 5 does not serve a significant

6 and legitimate public purpose. A state may impose a substantial impairment on an

7 existing contractual obligation so long as it has “a significant and legitimate public

8 purpose behind the regulation, such as the remedying of a broad and general social or

9 economic problem.” Energy Reserves Grp., 459 U.S. at 412 (internal citations omitted).

10 The public purpose need not be addressed to an emergency or temporary situation. Id.

11 As described above, the California state legislature enacted AB 5 in order to redress a

12 broad economic social problem—namely, employment misclassification which has acted

13 as “a significant factor in the erosion of the middle class and the rise in income

14 inequality.” A.B. 5, Ch. 296, 2019–2020 Reg. Sess. (Cal. 2019). Accordingly, AB 5

15 satisfies the public purpose prong of the test applied to challenges brought under the

16 Contracts Clause and is a legitimate use of the State’s police power. Metro. Life Ins. Co.

17 v. Massachusetts, 471 U.S. 724, 756 (1985) (“States possess broad authority under their

18 police powers to regulate the employment relationship to protect workers within the

19 State.”) (quoting DeCanas v. Bica, 424 U.S. 351, 356 (1976)).

20 For the reasons stated above, Plaintiffs fail to state a claim for which relief may be

21 granted under the Contract Clauses of the United States Constitution or the California

22 Constitution.

23 VI. Declaratory Relief (claim 14)

24 The Declaratory Judgment Act does not grant litigants an absolute right to a legal

25 determination. United States v. State of Wash., 759 F.2d 1353, 1356 (9th Cir. 1985)

26 (citations omitted). The decision to grant declaratory relief is a matter of discretion, even

27 when the court is presented with a justiciable controversy. Id. In fact, the court may,

28

1 after a full consideration of the merits, exercise its discretion to refuse to grant

2 declaratory relief because the state of the record is inadequate to support the extent of

3 relief sought. Id. “The two principal criteria guiding the policy in favor of rendering

4 declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying

5 and settling the legal relations in issue, and (2) when it will terminate and afford relief

6 from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Wright

7 & Miller, 10B Fed. Prac. & Proc. Civ. § 2759 (4th ed.). The plaintiff must demonstrate

8 that the probability of that future event occurring is real and substantial, “of sufficient

9 immediacy and reality to warrant the issuance of a declaratory judgment.” Steffel v.

10 Thompson, 415 U.S. 452, 460 (1974); see also Pac. Gas & Elec. Co. v. State Energy Res.

11 Conservation & Dev. Comm'n, 461 U.S. 190, 201 (1983) (the threatened injury must be

12 “certainly impending”). Declaratory relief should be denied when it will neither serve a

13 useful purpose in clarifying and settling the legal relations in issue nor terminate the

14 proceedings and afford relief from the uncertainty and controversy faced by the

15 parties. United States v. State of Wash., 759 F.2d 1353, 1357 (9th Cir. 1985).

16 Here, Plaintiffs argue that they have identified a justiciable dispute as to whether

17 the Individual Plaintiffs are employees or independent contractors under the ABC test.

18 Defendants counter that Plaintiffs have failed to show that they would be subject to any

19 enforcement actions and therefore are seeking a declaratory judgment review of a law

20 solely on the basis that AB 5 might affect them.

21 Generally, “courts particularly are reluctant to resolve important questions of

22 public law in a declaratory action and under usual circumstances will not use declaratory

23 judgments to halt state-law enforcement.” Wright & Miller, 10B Fed. Prac. & Proc. Civ.

24 § 2759 (4th ed.). Where the constitutionality of a state provision is at issue, the Supreme

25 Court has taken into account the degree to which postponing federal judicial review

26 would allow “the advantage of permitting state courts further opportunity to construe [the

27

28

1 challenged provisions], and perhaps in the process ‘materially alter the question to be

2 decided.’ ” Renne v. Geary, 501 U.S. 312 (1991).

3 Here, Plaintiffs have not alleged that they have been harmed by the passage of AB

4 5, that they are subject to enforcement under AB 5, nor that they would be materially

5 affected even if they were subject to such enforcement. Here, the recency of the passage

6 of AB 5, the absence of any threat of the state’s prosecution against Plaintiffs, and the

7 uncertainty of AB 5’s effect, if any, on Plaintiffs all counsel in favor of abstaining from

8 issuing a declaratory judgment on this issue. See Armstrong World Industries, Inc. by

9 Wolfson v. Adams, 961 F.2d 405 (3d Cir. 1992) (shareholders’ challenge of state’s

10 antitakeover statute was not ripe for judicial review when no takeover attempt existed, the

11 shareholders were unable to point to any instance that would trigger the statute’s

12 application to the shareholders’ detriment, and the shareholders did not face any threat of

13 prosecution for noncompliance with the statute).

14 VII. Injunctive Relief (claim 15)

15 A plaintiff seeking permanent injunctive relief must demonstrate: (1) that it has

16 suffered an irreparable injury; (2) that remedies available at law, such as monetary

17 damages, are inadequate to compensate for that injury; (3) that, considering the balance

18 of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4)

19 that the public interest would not be disserved by a permanent injunction. eBay Inc. v.

20 MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “A plaintiff seeking a preliminary

21 injunction must establish that he is likely to succeed on the merits, that he is likely to

22 suffer irreparable harm in the absence of preliminary relief, that the balance of equities

23 tips in his favor, and that an injunction is in the public interest.” Arc of California v.

24 Douglas, 757 F.3d 975, 983 (9th Cir. 2014). “[A]n injunction is regarded as an

25 extraordinary remedy, it is not granted routinely.” Wright & Miller, 11A Fed. Prac. &

26 Proc. Civ. § 2942 (3d ed.).

27

28

1 Plaintiffs argue that Defendants should be preliminarily and permanently enjoined

2 from enforcing AB 5 against Company Plaintiffs since such enforcement would force the

3 reclassification of Individual Plaintiffs from independent contractors to employees and

4 would additionally force Company Plaintiffs to retrain their staff, consult with legal

5 counsel, and develop new compensation, benefits, and other policies. Compl. ¶¶ 137-

6 139. Plaintiffs’ cannot seek permanent injunctive relief since they have failed to establish

7 that they are likely to succeed on the merits. Nor can they meet the first prong of the

8 four-part standard—namely, that they have suffered an irreparable injury.

9 Further, in considering the balance of equities and public interest, the Court finds

10 that the scale tips in favor of Defendants. Plaintiffs argue that public interest favors

11 injunctive relief since many members of the public depend on their contractor status as a

12 way to earn income without the “burdens and rigid demands of a tradition 9-to-5 job.”

13 Compl. ¶ 143. However, as the California Supreme Court noted in Dynamex, the ABC

14 test was intended to benefit “law-abiding businesses that comply with the obligations

15 imposed by the wage orders, ensuring that such responsible companies are not hurt by

16 unfair competition from competitor businesses that utilize substandard employment

17 practices” and also for the general public so that they are not “left to assume

18 responsibility for the ill effects to workers and their families resulting from substandard

19 wages or unhealthy and unsafe working conditions.” Dynamex, 4 Cal. 5th at 952-53. As

20 such, the Court finds that the balance of interests weighs against injunctive relief.

21 VIII. State Immunity

22 The Eleventh Amendment immunizes states, an arm of the state, its

23 instrumentalities, or its agencies from suits brought in federal courts. Deanco

24 Healthcare, LLC v. Becerra, 365 F. Supp. 3d 1029, 1035 (C.D. Cal. 2019), aff'd, 806 F.

25 App'x 581 (9th Cir. 2020). There are three exceptions to this rule: (1) “Congress may

26 abrogate that immunity pursuant to its lawmaking powers,” Kimel v. Fla. Bd. of

27 Regents, 528 U.S. 62, 80 (2000); (2) “a state may waive its Eleventh Amendment

28

1 |/immunity by consenting to suit,” College Sav. Bank v. Florida Prepaid Postsecondary

2 || Educ. Expense Bd., 527 U.S. 666, 670 (1999); and (3) “immunity does not apply when

3 || the plaintiff’ sues a state official in his or her official capacity for prospective injunctive

4 relief, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996). Here, Plaintiffs have

5 || brought their action against the State of California and Xavier Becerra in his capacity as

6 || Attorney General of the state of California.2 Defendants argue that the State of California

7 immune from suit in federal Court. Plaintiffs argue that “immunity does not apply

8 || when the plaintiff sues a state official in his or her official capacity.” ECF No. 9. The

9 || Court finds that under this applicable standard, while Xavier Becerra in his capacity as

10 || Attorney General may be properly named as a Defendant, the same cannot be said for the

11 State of California. Accordingly, even though all of Plaintiffs’ claims have been

12 || dismissed for reasons described above, the Court nevertheless notes that the State of

13 || California would otherwise be immune from this action.

14 CONCLUSION

15 The motion to dismiss is GRANTED. Plaintiffs are granted leave to amend within

16 || the next 20 days.

17

18 IT IS SO ORDERED.

19 ||Dated: August 17, 2020 3 sale Ot

20 Hon. Gonzalo P. Curiel

21 United States District Judge

22

23

24

25

26 || ——_———__——_

27 Ilo plaintiffs have additionally named Defendant “John Doe” as a placeholder designation for any

|| unidentified California official who has authority to enforce AB 5 against Plaintiffs. Compl. □□ 15.

20-cv-0284-GPC-JLB