Columbia Sussex Management, LLC v. City of Santa Monica

• Court: District Court, C.D. California
• Decided: December 18, 2019
• Docket: 2:19-cv-09991-ODW-SK
• Status: Unknown

Opinion

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8 United States District Court 9 Central District of California

11 COLUMBIA SUSSEX MANAGEMENT, Case № 2:19-CV-09991-ODW (SKx) LLC, and CW HOTEL LIMITED 12 PARTNERSHIP, individually and on behalf of all other hotel owners and ORDER DENYING MOTION FOR 13 managers operating hotels in Santa Monica, California, PRELIMINARY INJUNCTION [24] 14 and VACATING DECEMBER 23 15 Plaintiffs, HEARING

v. 16

17 CITY OF SANTA MONICA,

18 Defendant. 19 I. INTRODUCTION 20 Plaintiffs Columbia Sussex Management, LLC, and CW Hotel Limited 21 Partnership (“Plaintiffs”) sued the City of Santa Monica (“City”) seeking a finding 22 that Santa Monica Municipal Code (“SMMC”) Chapter 4.67.030(a) (the “Ordinance”) 23 is unconstitutional, invalid, and preempted. (First Am. Compl. (“FAC”) ¶ 4, ECF 24 No. 4.) Plaintiffs move with expedited briefing for a preliminary injunction to prevent 25 the Ordinance from taking effect (“Motion”). (See Mot. Prelim. Inj. (“Mot.”), ECF 26 No. 24.) For the reasons below, the Court DENIES Plaintiffs’ Motion.1 27 1 Having carefully considered the papers filed in connection with the Motion, the Court deems the 28 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the Court VACATES the motion hearing on December 23, 2019, at 10:00 a.m. 1 II. FACTUAL BACKGROUND 2 On September 10, 2019, the Santa Monica City Council adopted Chapter 4.67, 3 including the Ordinance, with the stated purpose “to Enhance Protection of Hotel 4 Workers in the Local Hospitality Industry.” (FAC ¶ 18.) Entitled “Measures to 5 Provide Fair Compensation for Workload,” the Ordinance limits hotel employees who 6 clean guest rooms (“Room Attendants”) from cleaning more than a specified square 7 footage of floor space during their scheduled shift. (Mot. 1; FAC ¶ 20 (quoting the 8 Ordinance).) At hotels with fewer than forty rooms, Room Attendants may not be 9 required to clean more than 4000 square feet in an eight-hour workday. SMMC 10 § 4.67.030(a). At hotels with forty or more rooms, Room Attendants may not be 11 required to clean more than 3500 square feet in an eight-hour workday. Id. If a Room 12 Attendant is required to exceed these limits, the hotel employer must compensate the 13 Room Attendant at twice the regular rate of pay for all hours worked in that workday. 14 Id. The Ordinance may be waived “pursuant to a bona fide collective bargaining 15 agreement.” Id. § 4.67.110. As relevant here, Chapter 4.67 will take effect on 16 January 1, 2020. Id. § 4.67.130. 17 On November 21, 2019, Plaintiffs filed this class action lawsuit on behalf of 18 “all of the other 40 hotels located within Santa Monica.” (See Compl., ECF No. 1; 19 FAC ¶ 45.) Plaintiffs seek declaratory and injunctive relief, including findings that 20 the Ordinance is unconstitutional, invalid, and preempted. (FAC ¶¶ 47–66.) On 21 November 27, 2019, the parties stipulated to an expedited briefing schedule for 22 Plaintiffs’ Motion. (Stipulation, ECF No. 17.) Accordingly, on December 2, 2019, 23 Plaintiffs moved for a preliminary injunction to prevent the Ordinance from going into 24 effect as scheduled. (See Mot.) The City opposed and Plaintiffs replied. (Opp’n to 25 Mot. (“Opp’n”), ECF No. 26; Reply, ECF No. 32.) The Court now addresses 26 Plaintiffs’ Motion. 27 28 1 III. LEGAL STANDARD 2 A preliminary injunction is an “extraordinary remedy that may only be awarded 3 upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. 4 Def. Council, 555 U.S. 7, 22 (2008); see Earth Island Inst. v. Carlton, 626 F.3d 462, 5 469 (9th Cir. 2010) (discussing that plaintiffs “face a difficult task in proving that they 6 are entitled to this ‘extraordinary remedy’”). Pursuant to Federal Rule of Civil 7 Procedure 65, a court may grant preliminary injunctive relief to prevent “immediate 8 and irreparable injury.” Fed. R. Civ. P. 65(b). To obtain this relief, a plaintiff must 9 establish the “Winter” factors: (1) “he is likely to succeed on the merits”; (2) “he is 10 likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance 11 of equities tips in his favor”; and (4) “an injunction is in the public interest.” Am. 12 Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) 13 (quoting Winter, 555 U.S. at 20). 14 In the Ninth Circuit, the Winter factors may be evaluated on a sliding scale: 15 “serious questions going to the merits, and a balance of hardships that tips sharply 16 towards the plaintiff can support issuance of a preliminary injunction, so long as the 17 plaintiff also shows that there is a likelihood of irreparable injury and that the 18 injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 19 1127, 1135 (9th Cir. 2011) (internal quotation marks omitted). Thus, “[r]egardless of 20 how the test for a preliminary injunction is phrased, the moving party must 21 demonstrate irreparable harm.” Am. Passage Media Corp. v. Cass Commc’ns, Inc., 22 750 F.2d 1470, 1473 (9th Cir. 1985). “The court may issue a preliminary injunction 23 or a temporary restraining order only if the movant gives security in an amount that 24 the court considers proper to pay the costs and damages sustained by any party found 25 to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). 26 IV. REQUESTS FOR JUDICIAL NOTICE 27 As a preliminary matter, both parties request that the Court take judicial notice 28 of various documents. Federal Rule of Evidence 201 allows a court to take judicial 1 notice of a fact that “is not subject to reasonable dispute because it: (1) is generally 2 known within the trial court’s territorial jurisdiction; or (2) can be accurately and 3 readily determined from sources whose accuracy cannot reasonably be questioned.” 4 Fed. R. Evid. 201(b); United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003). 5 Plaintiffs request judicial notice of four documents but provide no support for 6 the authenticity of the documents or the propriety of judicial notice. (See Pls.’ Req. 7 for Judicial Notice (“RJN”), ECF No. 24-3.) Accordingly, the Court DENIES 8 Plaintiffs’ request. The City requests judicial notice of SMMC Chapter 4.63 and 9 California Code of Regulation, title 8, section 3345. (City’s RJN, ECF No. 27.) The 10 Court DENIES the City’s request as moot because “the Court need not judicially 11 notice these authorities in order to consider them.” Otero v. Zeltiq Aesthetics, Inc., 12 No. CV 17-3994-DMG (MWRx), 2018 WL 3012942, at *1 (C.D. Cal. June 11, 2018.) 13 V. DISCUSSION 14 Plaintiffs move for a preliminary injunction to prevent the challenged portions 15 of the Ordinance from taking effect on January 1, 2020. (Mot. 1–2.) Plaintiffs 16 challenge only section 4.67.030(a) (“Ordinance” or “Workload Limitation”) and its 17 corresponding collective bargaining waiver provision, section 4.67.110 (“Waiver”); 18 Plaintiffs challenge no other part of the Chapter. (Mot. 1 n.1.) Plaintiffs contend the 19 putative class of Santa Monica hotel owners and operators will be irreparably harmed 20 if these provisions are permitted to take effect on January 1, 2020. (Mot. 2.) They 21 argue the Ordinance is (1) preempted by the National Labor Relations Act, 29 U.S.C. 22 § 151 et seq. (“NLRA”) under Machinists preemption; (2) invalid under the dormant 23 Commerce Clause (“DCC”); and (3) preempted by the California Occupational Health 24 and Safety Act of 1973, Cal. Lab. Code § 6300 et seq. (“CalOSHA”). (Mot. 2.) 25 A. Irreparable Harm 26 “[P]laintiffs seeking preliminary injunctive relief [must] demonstrate that 27 irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. A 28 mere possibility of irreparable harm is insufficient. Id. “[A] party is not entitled to a 1 preliminary injunction unless he or she can demonstrate more than simply damages of 2 a pecuniary nature.” Regents of Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 519 3 (9th Cir. 1984) (citing Los Angeles Mem. Coliseum Comm’n v. NFL, 634 F.2d 1197, 4 1202 (9th Cir. 1980)); but see Herb Reed Enters., LLC v. Florida Entm’t Mgmt., 736 5 F.3d 1239, 1250 (9th Cir. 2013) (discussing, in the trademark context, that “[e]vidence 6 of loss of control over business reputation and damage to goodwill could constitute 7 irreparable harm”). “[P]laintiff must demonstrate potential harm which cannot be 8 redressed by a legal or an equitable remedy following a trial. The preliminary 9 injunction must be the only way of protecting the plaintiff from the harm.” Campbell 10 Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992). 11 Plaintiffs argue they will suffer irreparable harm because they will have to pay 12 their current Room Attendants double their current rate, or hire and pay additional 13 Room Attendants, because their Room Attendants currently clean more than the 14 permitted square footage under the Ordinance. (Mot. 6.) They contend that additional 15 administrative costs will also result from the need to track Room Attendants’ assigned 16 square footage. (Mot. 7.) Plaintiffs argue this additional cost may result in loss of 17 customers and customer goodwill “if [Plaintiffs and the putative class are] forced to 18 pass along their increased costs to their customer base.” (Mot. 6.) 19 First, Plaintiffs’ alleged harm is merely pecuniary, and insufficient to support a 20 preliminary injunction, to the extent Plaintiffs argue such harm is the result of paying 21 current Room Attendants more, paying additional Room Attendants, or incurring 22 additional administrative costs. See Idaho v. Coeur d’Alene Tribe, 794 F3d 1039, 23 1046 (9th Cir. 2015) (“Purely economic harms are generally not irreparable, as money 24 lost may be recovered later, in the ordinary course of litigation.”) 25 Next, Plaintiffs’ alleged harm is speculative, and again fails to support a 26 preliminary injunction, to the extent Plaintiffs argue such harm results from lost 27 customers or customer goodwill. Plaintiffs argue they will lose customers and 28 customer goodwill “if forced to pass along their increased costs to their customer 1 base.” (Mot. 6.) That is, if Plaintiffs elect to pass costs along to their customers, they 2 believe they may lose customers or goodwill as a result. Plaintiffs offer insufficient 3 facts or evidence to support this belief.2 Such unsupported speculation “does not rise 4 beyond the mere ‘possibility’ of harm.” Int’l Franchise Ass’n, Inc. v. City of Seattle, 5 803 F.3d 389, 412 (9th Cir. 2015) (quoting Winter, 555 U.S. at 22); see also Regents 6 of Univ. of Cal., 747 F.2d at 523 (“It is . . . well-settled that a preliminary injunction 7 cannot be issued to prevent a mere speculative injury.”). Further, the alleged harm is 8 self-inflicted, as the choice to pass any additional costs on to clientele is Plaintiffs, and 9 Plaintiffs submit nothing that suggests the other putative class member-Santa Monica 10 hotels will elect to do the same. 11 Even were it not speculative, Plaintiffs’ argument that damage to customer 12 goodwill constitutes irreparable harm is not persuasive. “‘[E]conomic and 13 reputational injuries’ are generally not irreparable” because they “can be adequately 14 compensated at a later date, in the ordinary course of litigation.” Woodfin Suite 15 Hotels, LLC v. City of Emeryville, No. C. 06-1254 SBA, 2006 WL 2739309, at *11 16 (N.D. Cal. Aug. 23, 2006). In Woodfin, a hotel company sought a preliminary 17 injunction against an ordinance, similar to the Ordinance here, that required the hotel 18 employer to pay time and a half for room cleaners who cleaned more than 5000 square 19 feet in a standard workday. Id. at *1. The hotel plaintiff in Woodfin made the 20 argument, similar to Plaintiffs here, that loss of customer goodwill constituted a threat 21 of irreparable harm. Id. at *11. Here, as in Woodfin, “Plaintiffs’ reliance on 22 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001) to 23 support this proposition is misplaced, because it is a trademark case, and irreparable 24 2 Plaintiffs submit the Declaration of Damien Hirsch (“Hirsch Decl.”), general manager for the JW 25 Marriott Santa Monica Le Merigot, and employee of Plaintiff Columbia Sussex Management, LLC. (Hirsch Decl. ¶ 1, ECF No. 24-2.) To begin, Hirsch’s declaration is wholly conclusory, and 26 inadequate to support a likelihood of irreparable injury. See Am. Passage, 750 F.2d at 1473. Hirsch simply concludes that the contemplated additional costs will be more than $1 million per year and 27 “the price of a room stay . . . will increase by roughly 5-8%” but provides no support for these 28 figures. (Hirsch Decl. ¶ 8.) What is more, nothing in Hirsch’s Declaration supports the notion that customers will no longer stay at Plaintiffs’ hotel because Plaintiffs elect to raise room rates. 1 injury may be presumed from a showing of the likelihood of success on the merits . . . 2 in trademark cases.” Id. at *11 (citing GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 3 1199, 1205 n.4 (9th Cir. 2000)). Simply put, Plaintiffs have not shown that the harm 4 they claim cannot be adequately compensated at a later time. 5 Finally, Plaintiffs argue the constitutional violation itself constitutes irreparable 6 harm. (See Mot. 5–6.) To the contrary, irreparable injury is not automatically 7 presumed merely because a constitutional violation is alleged. DISH Network Corp. v. 8 FCC, 653 F.3d 771, 776 (9th Cir. 2011) (“While a First Amendment claim certainly 9 raises the specter of irreparable harm . . . proving the likelihood of such a claim is not 10 enough to satisfy Winter.”) (internal quotation marks omitted). Such a presumption 11 would be inconsistent with the Supreme Court’s requirement for a showing of 12 irreparable harm. See Winter, 555 U.S. at 22 (discussing that permitting a preliminary 13 injunction on the “possibility” of irreparable harm was “too lenient”). Instead, a 14 plaintiff must still establish the likelihood of irreparable harm absent a preliminary 15 injunction, as well as the other Winter factors. See DISH Network, 653 F.3d at 776. 16 Plaintiffs cite American Trucking Associations for the proposition that “a 17 constitutional violation alone, coupled with the damages incurred, can suffice to show 18 irreparable harm.” 559 F.3d at 1058. However, in American Trucking, “the damages 19 incurred” constituted extreme economic injury, destruction of the plaintiffs’ business 20 or severe disruption “in ways that most likely cannot be compensated with damages 21 alone.” Id. No comparable injury is alleged here: Plaintiffs assert lost customers and 22 customer goodwill from an anticipated 5–8% increase in cost-of-stay. (Mot. 6; Hirsch 23 Decl. ¶ 8.) Finally, the constitutional violation at issue is clearly not of the type—free 24 speech, association, and privacy—that is of such qualitative importance as to be 25 presumptively irreparable if lost. See Latta v. Otter, 771 F.3d 496, 500 (9th Cir. 2014) 26 (finding gay couples would suffer irreparable injury if their constitutional right to 27 marry were stayed pending appeal). Accordingly, Plaintiffs have not established that 28 “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. 1 Even under the sliding scale approach, a plaintiff must still show a likelihood of 2 irreparable injury. As Plaintiffs have failed to do so here, Plaintiffs have not 3 established that they are entitled to a preliminary injunction. 4 B. Likelihood of Success on the Merits 5 Even had Plaintiffs established a likelihood of irreparable injury, a preliminary 6 injunction is not appropriate because Plaintiffs have not shown a likelihood of success 7 on, or serious questions going to, the merits. 8 To warrant a preliminary injunction, Plaintiffs must show they are likely to 9 succeed on the merits and meet the other Winter factors, or raise serious questions 10 going to the merits and show that the balance of hardships tips sharply in their favor. 11 All. for the Wild Rockies, 632 F.3d at 1135. Plaintiffs argue they are likely to succeed 12 on the merits because the Ordinance is (1) preempted by the NLRA; (2) invalid under 13 the DCC; and (3) preempted by CalOSHA. (Mot. 8–19.) 14 1. NLRA Preemption 15 The NLRA does not contain an express preemption clause, but the Supreme 16 Court has articulated two preemption principles under the NLRA, one of which is 17 “Machinists” preemption. Am. Hotel and Lodging Assn. v. City of Los Angeles, 834 18 F.3d 958, 963 (9th Cir. 2016) (“AHLA”); Associated Builders v. Nunn, 356 F.3d 979, 19 987 (9th Cir. 2004) (“Nunn”). “Machinists preemption prohibits states from imposing 20 restrictions on labor and management’s ‘weapons of self-help’ that were left 21 unregulated in the NLRA because Congress intended for tactical bargaining decisions 22 and conduct ‘to be controlled by the free play of economic forces.’” Nunn, 356 F.3d 23 at 987 (quoting Lodge 76, Int’l Ass’n of Machinists v. Wis. Emp’t Relations Comm’n, 24 427 U.S. 132, 140 (1976)); see also AHLA, 834 F.3d at 963 (noting “‘weapon[s] of 25 self-help,’ such as a strike or lock-out”). 26 In contrast, state minimum “benefit protections” such as minimum wages are 27 not subject to Machinists preemption “because they do not alter the process of 28 collective bargaining.” AHLA, 834 F.3d at 964. Thus, “state action that intrudes on 1 the mechanics of collective bargaining is preempted, but state action that sets the stage 2 for such bargaining is not.” Id. 3 Plaintiffs argue that, because unions can waive the Ordinance, the Ordinance 4 and the Waiver provision are subject to Machinists preemption because they 5 “improperly tilt the labor-management playing field.” (Mot. 9.) The Court disagrees. 6 The Ordinance limits the floor space a Room Attendant may be required to clean in a 7 workday to prevent excessive workloads and allows for collective bargaining as to 8 that limitation. SMMC §§ 4.67.030(a), 4.67.110. The Ordinance “do[es] not regulate 9 the mechanics of labor dispute resolution,” but instead “provide[s] the ‘backdrop’ for 10 negotiations,” similar to other state minimum labor standards. AHLA, 834 F.3d at 963 11 (citing Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 757 (1985)); id. at 965 (rejecting 12 argument that collective bargaining opt-out provision warranted preemption). Thus, 13 the Workload Limitation is a minimum labor standard and a “valid exercise of states’ 14 police power to protect workers.” Id. at 963 (citing Fort Halifax Packing Co. v. 15 Coyne, 482 U.S. 1, 21–22 (1987)). 16 Plaintiffs rely on Chamber of Commerce v. Bragdon, 64 F.3d 497 (9th Cir. 17 1995) for the argument that the Workload Limitation “target[s] particular workers in a 18 particular industry” and thus “affect[s] the bargaining process in a way that is 19 incompatible with the general goals of the NLRA.” (Mot. 10.) However, following 20 Bragdon, the Ninth Circuit has “explained on several occasions that the NLRA does 21 not . . . pre-empt minimum labor standards simply because they are applicable only to 22 particular workers in a particular industry.” Nunn, 356 F.3d at 990. “It is now clear in 23 this Circuit that state substantive labor standards . . . are not invalid simply because 24 they apply to particular trades, professions, or job classifications rather than to the 25 entire labor market.” Id. 26 Accordingly, the Court finds that Plaintiffs have not established a likelihood of 27 success on the merits, or serious question going to the merits, that the Ordinance is 28 preempted by NLRA under Machinists preemption. 1 2. Dormant Commerce Clause 2 Plaintiffs next argue the Ordinance is invalid because it indirectly discriminates 3 against interstate commerce, in violation of the DCC. (Mot. 11–15.) 4 “The primary purpose of the [DCC] is to prohibit ‘statutes that discriminate 5 against interstate commerce’ by providing benefits to ‘in-state economic interests’ 6 while ‘burdening out-of-state competitors.’” Ass’n des Eleveurs de Canards et d’Oies 7 di Quebec v. Harris, 729 F.3d 937, 947 (9th Cir. 2013) (“Canards”) (quoting Nat’l 8 Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1148 (9th Cir. 2012) 9 (“Optometrists”)). Plaintiffs concede that the Ordinance does not directly 10 “discriminate against interstate commerce on its face,” arguing instead that the 11 indirect effects inflict a substantial burden. (Mot. 12.) Where a statute regulates 12 evenhandedly but has indirect effects on interstate commerce, the Pike balancing test 13 applies. See Rosenblatt v. City of Santa Monica, 940 F.3d 439, 451 (9th Cir. 2019) 14 (citing Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)). An ordinance will be upheld 15 under the Pike balancing test where it “effectuates a legitimate local public interest” 16 “unless the burden imposed on interstate commerce is clearly excessive in relation to 17 the putative local benefits.” Id. (quoting Pike, 397 U.S. at 142). 18 “[A] state regulation does not become vulnerable to invalidation under the 19 [DCC] merely because it affects interstate commerce.” Optometrists, 682 F.3d at 20 1148 (citing S. Pac. Co. v. Ariz., 325 U.S. 761, 767 (1945)). To the contrary, “there 21 must be a substantial burden on interstate commerce.” Id. “The party challenging the 22 regulation . . . must establish that the burdens that the regulation imposes on interstate 23 commerce clearly outweigh the local benefits . . . .” Rosenblatt, 940 F.3d at 452. 24 Plaintiffs contend the Ordinance will require them to pay Room Attendants 25 more or hire more Room Attendants, and that Plaintiffs will pass that increased cost 26 on to their primarily out-of-state clientele. Thus, Plaintiffs contend, the Ordinance 27 substantially burdens interstate commerce because it will cause out-of-state travelers 28 to pay more to stay in Santa Monica hotels. (Mot. 12–13; Reply 8.) However, 1 Plaintiffs fail to support that any guests have been deterred, how many guests will be 2 deterred, or that the 5–8% cost-of-stay increase Plaintiffs intend to pass on to their 3 customers will prevent customers from traveling to Santa Monica altogether. In short, 4 Plaintiffs fail to show that the increased cost will result in a substantial burden on 5 interstate commerce. See Rosenblatt, 940 F.3d at 453 (finding plaintiff failed to allege 6 the magnitude of the burden or how any lost fraction of business significantly 7 burdened interstate commerce); Pac Nw. Venison Producers v. Smitch, 20 F.3d 1008, 8 1015 (9th Cir. 1994) (finding plaintiff failed to support the extent of the burden on 9 interstate commerce). 10 Further, as the City points out, the Ninth Circuit in Rosenblatt recently 11 recognized that “‘only a small number of . . . cases invalidating laws under the [DCC] 12 have involved laws that were genuinely nondiscriminatory’ but still imposed a clearly 13 excessive burden on interstate commerce.” Id. at 452 (quoting Chinatown 14 Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1146 (9th Cir. 2015)). “These cases 15 address state ‘regulation of activities that are inherently national or require a uniform 16 system of regulation’—most typically, interstate transportation” such as interstate 17 trucking or professional sports leagues. Id.; see also Canards, 729 F.3d at 952. In 18 contrast, the Ordinance regulates local work conditions, protecting hotel employees 19 from excessive workloads. It does not interfere with activity that is inherently 20 national or that requires a uniform system of regulation. As such, Plaintiffs have not 21 shown that the Ordinance substantially burdens interstate commerce.3 22 Accordingly, the Court finds that Plaintiffs have not established a likelihood of 23 success on the merits, or serious questions going to the merits, that the Ordinance is 24 invalid under the DCC. 25 3. CalOSHA Preemption 26 Lastly, Plaintiffs argue the Ordinance is preempted by CalOSHA because it is a 27 3 As Plaintiffs have not met their burden to establish that the Ordinance substantially burdens 28 interstate commerce, the Court does not reach the Ordinance’s local benefits. See Canards, 729 F.3d at 952–53. 1 health and safety statute, not a labor standards overtime provision, as the City 2 contends. (Mot. 15–19; Opp’n 21.) 3 CalOSHA, in conjunction with California Labor Code Section 142.3, vests the 4 California Occupational Safety and Health Standards Board (the “Standards Board”) 5 with the sole authority to adopt occupational safety and health standards. (Mot. 17.) 6 In Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893 (1993), the California 7 Supreme Court set out the standard for state preemption of a local ordinance as 8 follows: 9 Under . . . the California Constitution, a county or city may make and enforce within its limits all local, police, sanitary, and other ordinances 10 and regulations not in conflict with general laws. If otherwise valid local 11 legislation conflicts with state law, it is preempted by such law and is 12 void. A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by 13 legislative implication. Local legislation is ‘duplicative’ of general law 14 when it is coextensive therewith. Similarly, local legislation is ‘contradictory’ to general law when it is inimical thereto. Finally, local 15 legislation enters an area that is ‘fully occupied’ by general law when the 16 Legislature has expressly manifested its intent to ‘fully occupy’ the area or when it has impliedly done so . . . . 17 18 Id. at 897–98 (internal quotation marks and citations omitted). 19 Plaintiffs argue that the Legislature intended the Standards Board’s decisions to 20 fully-occupy the field and so the Workload Limitation, as an occupational health and 21 safety provision, must be preempted. (Mot. 16–17.) Alternatively, Plaintiffs argue 22 that the Workload Limitation concerns excessive work rate, which the Standards 23 Board regulates through the requirement to maintain a musculoskeletal injury 24 prevention program (“MIPP”), thus impliedly preempting the Ordinance. (Mot. 17– 25 18.) The City responds that the Workload Limitation is a compensation provision, not 26 an occupational health and safety provision, because it requires additional 27 compensation for additional work. (Opp’n 21–25.) The City notes that Plaintiffs cite 28 no California workplace health and safety standard that permits an employer to 1 impose unsafe working conditions on employees so long as they are paid more. 2 (Opp’n 21.) 3 The City points to other courts that have considered and rejected Plaintiffs’ 4 arguments under similar facts. (Opp’n 21 (citing Cal. Hotels & Lodging Ass’n v. City 5 of Oakland, 393 F. Supp. 3d 817 (N.D. Cal. 2019) (“CHLA”); Woodfin, 2006 WL 6 2739309, at *18).). In CHLA, the court considered an Oakland ordinance, similar to 7 the Ordinance here, that imposed maximum workload requirements for hotel workers 8 and required additional payment when employees cleaned more than a specified 9 square footage (“Room Cleaner Provision”). Id. at 821. The court in CHLA rejected 10 the very arguments Plaintiffs put forward here. Compare CHLA, 393 F. Supp. 3d at 11 824–27 with (Mot. 16–20). The court found no field preemption because “[b]oth 12 CalOSHA and the Labor Code explicitly leave room for local control of aspects of 13 employment unrelated to safety and health.” CHLA, 393 F. Supp. at 826. The Court 14 also found the Room Cleaner Provision was an overtime provision addressing 15 compensation, not an occupational health and safety provision designed to prevent 16 injuries like the MIPP, which does not address compensation. Id. at 826–27. 17 The Court finds the reasoning in CHLA persuasive. First, CalOSHA leaves 18 room for additional local action in regulating places of employment unrelated to safety 19 and health, so there is no field preemption. Id. at 826 (citing T-Mobile W. v. San 20 Francisco, 6 Cal. 5th 1107, 1122 (2019)). Second, the Ordinance here concerns 21 compensation for work done, requiring additional compensation for additional square 22 feet cleaned; it says nothing regarding potential injuries or injury risks. See SMMC 23 § 4.67.030(a). In contrast, MIPP concerns preventing musculoskeletal injuries and 24 disorders, addresses the nature of potential injuries, and requires evaluations of 25 physical injury risks. CHLA, 393 F. Supp. at 826 (quoting 8 Cal. Code. Regs. § 3345). 26 It says nothing regarding compensation. As in CHLA, “[t]hese differences are not . . . 27 distinctions without a difference.” Id. 28 1 Accordingly, the Court finds that Plaintiffs have not established a likelihood of 2 || success on the merits, or serious question going to the merits, that the Ordinance is 3 || preempted by CalOSHA. 4 VI. CONCLUSION 5 Plaintiffs have not established that there is a likelihood of irreparable harm in 6 || the absence of a preliminary injunction, or that they are likely to succeed on the 7 || merits. Nor have they raised serious questions going to the merits. Accordingly, the 8 || Court need not reach the balance of hardships or the public interest.* See All. for the Wild Rockies, 632 F.3d at 1135 (“‘[S]Jerious questions going to the merits’ and a 10 || balance of hardships that tips sharply towards the plaintiff can support issuance of a 11 || preliminary injunction, so long as the plaintiff also shows that there is a likelihood of 12 || irreparable injury and that the injunction is in the public interest.”) (emphasis added). 13 | Accordingly, the Court finds that Plaintiffs have not satisfied the difficult task to 14 || establish that they are entitled to the extraordinary remedy of a preliminary injunction. 15 For the reasons discussed above, the Court DENIES Plaintiffs’ Motion for a 16 || preliminary injunction. (ECF No. 24.) 17 18 IT IS SO ORDERED. 19 20 December 18, 2019 ae “Sy ee a 22 . 3 OTIS D. WRIGHT, II UNITED STATES’DISTRICT JUDGE 24

* Plaintiffs do not address the public interest factor in their moving papers and expressly consider it 26 || for the first time in reply. (See generally Mot.; Opp’n 11; Reply 3-4.) Generally, courts decline to 7 consider arguments raised for the first time in reply. See, e.g., FT Travel-New York, LLC v. Your Travel Center, Inc., 112 F. Supp. 3d 1063, 1079 (C.D. Cal. 2015) (refusing to consider argument 28 || raised for first time in reply). Accordingly, even were the Court to reach the issue, the Court declines to consider Plaintiffs’ argument as to the public interest.