1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL CROSSLEY; BART Case No.: 20-cv-0284-GPC-JLB BAILEY; LET THE VOTERS DECIDE, 12 LLC; V ALLEY DIRECT MARKETING ORDER GRANTING MOTION TO 13 LLC; IN THE FIELD, INC.; DISMISS DISCOVERY PETITION 14 MANAGEMENT LLC; PIR DATA [ECF No. 8] 15 PROCESSING INC.; CAROL YN OSTIC dba VOTER DIRECT, and CHRIS 16 BRENTLINGER dba BAY AREA 17 PETITIONS, 18 Plaintiffs, 19 v. 20 STATE OF CALIFORNIA; XAVIER BECERRA, in his capacity as Attorney 21 General of the State of California; and 22 “JOHN DOE,” in his/her official capacity 23 Defendants. 24 25 / / / 26 / / / 27 / / / 28 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 27 28 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 17 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 19 business. 20 Dynamex, 4 Cal. 5th 903 at 964. AB 5 applies the ABC test to the entirety of the 21 California Labor Code and the California Unemployment Insurance Code. Compl. ¶ 28. 22 AB 5 achieves this by adding a new provision incorporating the ABC test into Article 1 23 of the California Labor Code, Section 2750.3 and amending Section 606.5 of the 24 Unemployment Insurance Code to incorporate the ABC test into the definition of 25 “employee.” Id. ¶ 29. Any employer who fails to abide by AB 5’s requirements could be 26 found guilty of a misdemeanor or felony, and could be subject to fines up to $1,000 27 and/or imprisonment for up to thirty days. Id. ¶¶ 29-30, 41-42. 28 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 28 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 28 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. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 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 28 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 28 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. 28 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”). 27 28 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)). 27 28 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. 28 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 28 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 28 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. 19 20 21 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 26 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. 28 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