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XAVIER BECERRA
Attorney General of California
TAMAR PACHTER
Supervising Deputy Attorney General
JOSE A. ZELIDON-ZEPEDA
Deputy Attorney General
State Bar No. 227108
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 510-3879
Fax: (415) 703-1234
E-mail: Jose.ZelidonZepeda@doj.ca.gov
Attorneys for Defendant Attorney General Xavier
Becerra, in his official capacity
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
AMERICAN SOCIETY OF JOURNALISTS
AND AUTHORS, INC.; ET AL.,
v.
XAVIER BECERRA, IN HIS OFFICIAL
CAPACITY AS ATTORNEY GENERAL OF
THE STATE OF CALIFORNIA.
2:19-cv-10645-PSG
DEFENDANT’S OPPOSITION TO
PLAINTIFFS’ APPLICATION FOR
TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW
CAUSE WHY A PRELIMINARY
INJUNCTION SHOULD NOT
ISSUE
Date: TBD
Time: TBD
Judge: Hon. Philip S. Gutierrez
Trial Date: None.
Action Filed: December 17, 2019
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TABLE OF CONTENTS
Page
i
Introduction ................................................................................................................ 1
Background ................................................................................................................ 1
Legal Standard ........................................................................................................... 3
Argument ................................................................................................................... 4
I. Plaintiffs Are Not Likely to Succeed on the Merits of Their First
Amendment Claims............................................................................... 4
II. Plaintiffs’ Delay Warrants Denying Temporary Restraining
Order. .................................................................................................... 8
III. The Public Interest Weights Against a Temporary Restraining
Order. .................................................................................................. 10
Conclusion ............................................................................................................... 11
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TABLE OF AUTHORITIES
Page
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CASES
Alliance for the Wild Rockies v. Cottrell
632 F.3d 1127 (9th Cir. 2011) ............................................................................... 4
Allied Concrete and Supply Company v. Baker
904 F.3d 1053 (9th Cir. 2018) ............................................................................... 5
Arkansas Writers Project Inc. v. Ragland
481 U.S. 221 (1987) .............................................................................................. 7
Burford v. Sun Oil Co.
319 U.S. 315 (1943) ............................................................................................ 11
Carey v. Brown
447 U.S. 455 (1980) .............................................................................................. 4
Coalition for Econ. Equity v. Wilson
122 F.3d 718 (9th Cir. 1997) ................................................................................. 9
Desert Outdoor Advertising, Inc. v. City of Moreno Valley
103 F.3d 814 (9th Cir. 1996) ................................................................................. 7
Dynamex Oper. W. v. Super. Ct.
4 Cal. 5th 903 (Cal. 2018) ................................................................................. 1, 2
FCC v. Beach Communications, Inc.
508 U.S. 307 (1993) .............................................................................................. 4
First Franklin Fin. Corp. v. Franklin First Fin. Ltd.
356 F. Supp. 2d 1048 (N.D. Cal. 2005)................................................................. 9
Foti v. City of Menlo Park
146 F.3d 629 (9th Cir. 1998) ................................................................................. 6
Fund for Animals v. Lujan
962 F.2d 1391 (9th Cir. 1992) ............................................................................. 10
Giving Back Fund Inc. v. Miami Marketing Group LLC
No. CV 10-9705, 2011 WL 13217774 (C.D. Cal. Jan. 20, 2011) ..................... 4, 8
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TABLE OF AUTHORITIES
(continued)
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Golden Gate Restaurant Ass’n v. City & Cty. of San Francisco
512 F.3d 1112 (9th Cir. 2008) ............................................................................. 10
Gonzales v. San Gabriel Transit
40 Cal. App. 5th 1131 (Cal. Ct. App. 2019) ......................................................... 2
Harwin v. Goleta Water District
953 F.2d 488 (9th Cir. 1991) ................................................................................. 7
In re Intermagnetics America, Inc.
101 B.R. 191 (C.D. Cal. 1989) .......................................................................... 4, 9
Kiva Health Brands LLC v. Kiva Brands Inc.
402 F. Supp.3d 877 (N.D. Cal. 2019) .................................................................... 9
Kobell v. Suburban Lines, Inc.
731 F.2d 1076 (3d Cir. 1984) ................................................................................ 9
Ladd v. Law & Tech. Press
762 F.2d 809 (9th Cir. 1985) ................................................................................. 7
Lydo Enters. v. City of Las Vegas
745 F.2d 1211 (9th Cir. 1984) ............................................................................... 4
Maryland v. King
567 U.S. 1301 (2012) ...................................................................................... 9, 10
Merrifield v. Lockyer
547 F.3d 978 (9th Cir. 2008) ................................................................................. 5
Metromedia Broad. Corp. v. MGM/UA Entm’t Co, Inc.
611 F. Supp. 415 (C.D. Cal. 1985) ........................................................................ 9
Mission Power Eng’g Co. v. Continental Casualty Co.
883 F. Supp. 488 (C.D. Cal. 1995) ................................................................ 4, 8, 9
of N.L.R.B. v. Cal. Pac. Medic. Ctr.
991 F.2d 536 (9th Cir. 1993) ................................................................................. 9
Police Department of City of Chicago v. Mosley
408 U.S. 92 (1972) ................................................................................................ 4
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TABLE OF AUTHORITIES
(continued)
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S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations
48 Cal. 3d 341 (Cal. 1989) .................................................................................... 2
Stormans, Inc. v. Selecky
586 F.3d 1109 (9th Cir. 2009) ............................................................................. 10
Turner Broad. Sys. v. FCC
512 U.S. 512 U.S. 622, 643 (1994) ....................................................................... 6
Vaccaro v. Sparks
No. SACV 11-00164, 2011 WL 318039 (C.D. Cal. Jan. 28, 2011)...................... 3
Vance v. Bradley
440 U.S. 93 (1979) ................................................................................................ 7
Wagner v. Federal Election Commission
793 F.3d 1 (D.C. Cir. 2015) ................................................................................... 5
Weinberger v. Romero-Barcelo
456 U.S. 305 (1982) ............................................................................................ 10
Williford v. Ocwen Loan Servicing LLC
No. CV 09-06464, 2011 WL 13187265 (C.D. Cal. July 15, 2011) ...................... 8
Winter v. Nat. Res. Def. Council, Inc.
555 U.S. 7 (2008) .................................................................................................. 3
STATUTES
California Labor Code
§ 2750.3(c)(1) ........................................................................................................ 2
§§ 2750.3(c)(2)(B)(i)-(vi) ...................................................................................... 6
§ 2750.3(c)(2)(B)(ix) ......................................................................................... 2, 6
§ 2750.3(c)(2)(B)(x) .......................................................................................... 2, 6
§ 2750.3, subd. (a)(1) ............................................................................................ 2
§ 3351(i) ................................................................................................................ 2
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TABLE OF AUTHORITIES
(continued)
Page
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CONSTITUTIONAL PROVISIONS
United States Constitution
First Amendment .......................................................................................... passim
Fourteenth Amendment ..................................................................................... 3, 4
OTHER AUTHORITIES
California Assembly Bill 5 ......................................................................................... 1
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1
INTRODUCTION
This case challenges Assembly Bill 5 (AB 5), a California law enacted on
September 18, 2019, and which went into effect on January 1, 2020. AB 5 is the
Legislature’s attempt to ensure that employees who are improperly misclassified as
independent contractors receive the appropriate benefits guaranteed by state labor
laws. Plaintiffs challenge this law on Equal Protection and First Amendment
grounds.
Plaintiffs waited three months to file suit against a law enacted in September
2019. They waited another two weeks before seeking preliminary relief, without
explaining this delay. This delay by itself warrants denying the requested
temporary restraining order. More importantly, their legal claims lack merit. For
these reasons, the Court should deny the Plaintiffs’ request for a temporary
restraining order.
BACKGROUND
In 2018 the California Supreme Court held that courts should apply the
“ABC” test to determine whether a worker is properly classified as an employee for
certain purposes. Dynamex Oper. W. v. Super. Ct., 4 Cal. 5th 903, 916 (Cal. 2018).
Under this test, a worker may be classified an independent contractor, rather than an
employee, only if the hiring entity establishes: (a) that the worker is “free from the
control and direction of the hirer in connection with the performance of the work,
both under the contract for the performance of such work and in fact;” (b) that the
worker “performs work that is 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 business of the same nature as the work performed
for the hiring entity.” Id. at 916-17. If the hiring entity cannot satisfy all three
elements, the worker is presumptively an included employee, rather than an
excluded independent contractor. Id. at 964.
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On September 18, 2019, the California Legislature codified the ABC test
adopted in Dynamex by enacting AB 5, which became effective January 1, 2020.
Cal. Lab. Code, § 2750.3, subd. (a)(1). The Legislature intended through AB 5 “to
ensure workers who are currently exploited by being misclassified as independent
contractors instead of recognized as employees have the basic rights and protections
they deserve under the law.” Gonzales v. San Gabriel Transit, 40 Cal. App. 5th
1131, 1140 n.4 (Cal. Ct. App. 2019), citation omitted.
Under AB 5, the ABC test is the statutory standard for ascertaining whether a
worker is an employee or an independent contractor in contexts beyond those at
issue in Dynamex, including (among other things) workers’ compensation,
unemployment insurance, and disability insurance. Cal. Lab. Code, § 3351(i). AB
5 also provides statutory exemptions for certain categories of workers, which
remain subject to the so-called Borello standard.1 Id. 2750.3(c)(1). As relevant
here, AB 5 provides exemptions for “a contract for ‘professional services,’” which
includes: (1) “services provided by a still photographer or photojournalist who do
not license content submissions to the putative employer more than 35 times per
year;” and (2) “services provided by a freelance writer, editor, or newspaper
cartoonist who does not provide content submissions to the putative employer more
than 35 times per year.” Id. 2750.3(c)(2)(B)(ix) & (x). The exemption provided to
photographers and photojournalists does not apply “to an individual who works on
1 Under the Borello standard the key question to assess whether an individual
is an employee is “whether the person to whom service is rendered has the right to
control the manner and means of accomplishing the result desired.” S.G. Borello &
Sons, Inc. v. Dep’t of Industrial Relations, 48 Cal. 3d 341, 350 (Cal. 1989). Borello
additionally utilizes numerous secondary indicia that inform the assessment of
classifying workers: (a) whether the one performing services is engaged in a
distinct occupation or business; (b) the kind of occupation; (c) the skill required in
the particular occupation; (d) whether the principal or the worker supplies the
instrumentalities, tools, and the place of work; (e) the length of time for which
services are to be performed; (f) the method of payment; (g) whether or not the
work is a part of the regular business of the principal; and (h) whether or not the
parties believe they are creating an employer-employee relationship. Id. at 351.
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motion pictures, which includes, but is not limited to” projects for theatrical,
television, internet, broadcast news, etc. Id. § 2750(c)(2)(B)(ix).
The complaint alleges that AB 5 “limits freelancers’ ability to record, sell, or
publish audio content.” (ECF No. 1 at 6 ¶ 30.) Specifically, they claim that AB 5
burdens their free speech rights by limiting the exemption from the ABC test to 35
submissions. (ECF No. 1 at 7 ¶ 36.) They claim that without the exemption,
Plaintiffs will be classified as employees, which allegedly “brings significant new
costs and disadvantages.” (Id.) This is because employee status means that
employers will have to pay unemployment taxes, workers’ compensation, etc.,
which will in turn “make Plaintiffs’ members’ work more costly—and thus less
attractive—to the client-turned-employer.” (Id.) They also contend that the
exclusion of videography from the exemption for “professional services” is
unconstitutional. (Id. at 14 ¶¶ 83-85.)
Plaintiffs bring free speech, free press, and equal protections claims under the
First and Fourteenth Amendments to the Constitution, and seek declaratory and
injunctive relief. (ECF No. 1 at 9 ¶¶ 50, 52.)
LEGAL STANDARD
“An application for a temporary restraining order involves the invocation of a
drastic remedy which a court of equity ordinarily does not grant, unless a very
strong showing is made of a necessity and desirability of such action.” Vaccaro v.
Sparks, No. SACV 11-00164, 2011 WL 318039, at *1 (C.D. Cal. Jan. 28, 2011)
(quoting Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 978, 980 (D.D.C.
1952)). Similar standards govern issuance of both temporary restraining orders and
preliminary injunctions. Plaintiffs must demonstrate that they are likely to succeed
on the merits of their claims, that they are likely to suffer irreparable harm without
preliminary relief, that the balance of equities tips in their favor, and that an
injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
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7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th
Cir. 2011).
Delay in seeking preliminary relief “is a factor to be considered in weighing
the propriety of relief.” Lydo Enters. v. City of Las Vegas, 745 F.2d 1211, 1213
(9th Cir. 1984) (preliminary injunction context). Thus, delay in seeking a
temporary restraining order has been found sufficient cause to deny relief. Giving
Back Fund Inc. v. Miami Marketing Group LLC, No. CV 10-9705, 2011 WL
13217774, at *4 (C.D. Cal. Jan. 20, 2011). The movant must also establish that “it
is without fault in creating the crisis that requires ex parte relief, or that the crisis
occurred as a result of excusable neglect.” Mission Power Eng’g Co. v. Continental
Casualty Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995); In re Intermagnetics
America, Inc., 101 B.R. 191, 193 (C.D. Cal. 1989).
ARGUMENT
I. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF
THEIR FIRST AMENDMENT CLAIMS.
Plaintiffs argue that a temporary restraining order should issue because they
are likely to succeed on their equal protection and First Amendment claims. This
argument fails.
Initially, Plaintiffs misstate the applicable legal standard, arguing that
“arbitrary distinctions drawn by AB 5 between different kinds of freelancers are
subject to strict scrutiny.” (ECF No. 27-1 at 15-16.) This is incorrect. Absent a
suspect class, distinctions drawn in legislation are subject to rational basis review.
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Plaintiffs rely on
Police Department of City of Chicago v. Mosley, 408 U.S. 92 (1972), but that case
involved a challenge to a local anti-picketing ordinance, directly regulating speech.
See also Carey v. Brown, 447 U.S. 455 (1980) (addressing First and Fourteenth
Amendment challenges to a picketing statute). By contrast, AB 5 does not directly
regulate speech, and Plaintiffs do not claim otherwise. Rather, AB 5 provides
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statutory exemptions from an overarching state scheme governing labor regulations.
See Wagner v. Federal Election Commission, 793 F.3d 1, 33 (D.C. Cir. 2015).
“Although the Court has on occasion applied strict scrutiny in examining equal
protection challenges in cases involving First Amendment rights, it has done so
only when a First Amendment analysis would have itself required such scrutiny.”
Id. at 32. As the Court of Appeal noted in a challenge to a statute regulating
campaign contributions, where “there is no doubt that the interests invoked in
support of the challenged classification are legitimate, and no doubt that the
classification was designed to vindicate those interests rather than disfavor a
particular speaker or viewpoint, the challengers ‘can fare no better under the Equal
Protection Clause than under the First Amendment itself.’” Id. (quoting City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 55 n.4 (1986)). Here, there is no
doubt that the State has a legitimate interest in ensuring that employees receive all
the protections under labor law. Dynamex, 4 Cal. 5th at 912-13 (describing
consequences of employee status)
Under rational basis, Plaintiffs are unlikely to succeed on their equal
protection claim. In Allied Concrete and Supply Company v. Baker, 904 F.3d 1053
(9th Cir. 2018), the plaintiffs challenged a California law that covered delivery
drivers of ready-mix concrete under the state’s prevailing wage laws, and the Ninth
Circuit rejected the equal protection claim. Id. at 1060. The challenged statutory
classification is “presumed constitutional,” and the plaintiffs thus are required to
“negative every conceivable basis which might support it.” Id. (citation omitted).
Plaintiffs argue that the AB 5 statutory exemption fails even under rational basis,
but provide no reasoned support for this argument other than a stray citation to
Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008), and a request to “incorporate
by reference” the arguments in their motion for a preliminary injunction. (ECF No.
27-1 at 15-16.) But as the Ninth Circuit as explained, Merrifield involved a
“unique set of facts,” where the challenged legislative classification “actually
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contradict[ed]” the purposes of the statute, or otherwise suggested “improper
favoritism.” Allied Concrete & Supply Co., 904 F.3d at 1065-66. The same is not
true or alleged here.
Plaintiffs’ First Amendment claims are also unlikely to succeed on the merits.
The complaint alleges that AB 5’s exemption for “professional services”
improperly discriminates based on the content of speech, and the medium of
expression a speaker uses. (ECF No. 27-1 at 16.) “As a general rule, laws that by
their terms distinguish favored speech from disfavored speech on the basis of the
ideas or views expressed are content based.” Turner Broad. Sys. v. FCC, 512 U.S.
512 U.S. 622, 643 (1994). On the other hand, “laws that confer benefits or impose
burdens on speech without reference to the ideas or views expressed are in most
instances content neutral.” Id. Usually, a regulation’s purpose or justification will
be evident on its face. Id. at 642.
Here, the “professional services” exemption to AB 5 does not reference an
idea or viewpoint, or otherwise reflect a bias for or against any speech or viewpoint;
it instead hinges on whether the individual providing the service is a still
photographer, photojournalist, freelance writer, editor, or newspaper cartoonist.
Cal. Lab. Code § 2750.3(c)(2)(B)(ix) & (x). Plaintiffs argue, without any support,
that the “ability to freelance rises or falls based on whether expression is deemed
marketing or editorial, graphic design, or photography, grant writing or news
reporting.” (ECF No. 27-1 at 17-18.) These appear to be references to the statutory
exemptions under AB 5 for occupations other than those covering Plaintiffs. Cal.
Lab. Code § 2750.3(c)(2)(B)(i)-(vi). But Plaintiffs do not explain how these other
statutory exemptions demonstrate that the exemption for freelance authors is
content-based rather than the Legislature’s effort to ensure fair treatment for
employees.
Plaintiffs also argue that AB 5 somehow singles out “the press as a whole” for
unfavorable treatment because it purportedly “den[ies] full freedom to freelance
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only to those writers and photographers who do not fit within the content-based
exemptions for fine artist, marketing, graphic design, and grant writing,” (ECF at
27-1 at 18), but again fail to point to any aspect of AB 5 that predicates the
statutory exemptions on the substance of a communication. Cf. Foti v. City of
Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998) (upholding First Amendment
challenge to local regulation prohibiting signs on public property but exempting
real estate, safety, traffic, and other signs); see also Desert Outdoor Advertising,
Inc. v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir. 1996) (First Amendment
challenge to general sign regulation exemptions based on content). As explained
above, the exemptions for freelance writers and still photographers do not hinge on
any aspect of the content they produce.
Plaintiffs rely on Arkansas Writers Project Inc. v. Ragland, 481 U.S. 221
(1987), which addressed a state law that exempted from taxation newspapers and
“religious profession, trade and sports” publications. The Court concluded that this
scheme impermissibly hinged on the content of the publication. Id. at 230; see also
Ladd v. Law & Tech. Press, 762 F.2d 809, 815 (9th Cir. 1985) (rejecting First
Amendment challenge to copyright law requirement that a publisher deposit two
copies of its publication with the Library of Congress because the requirement “is
not triggered by the publication of ideas”). Plaintiffs’ reliance on Harwin v. Goleta
Water District, 953 F.2d 488 (9th Cir. 1991), is similarly unavailing because that
case involved a discriminatory contribution limitation. Id. at 491.
Lastly, Plaintiffs argue that AB 5’s exclusion of “video recording”
impermissibly regulates the medium of expression. (ECF No. 27-1 at 18.) AB 5
excludes from the statutory exemption “an individual who works on motion
pictures, which includes, but is not limited to,” projects for theatrical, television,
internet, broadcast news, etc. Cal. Lab. Code § 2750(c)(2)(B)(ix). But, as courts
have pointed out, a plaintiff challenging a legislative classification “must convince
the court that the legislative facts on which the classification is apparently based
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could not reasonably be conceived to be true by the governmental decisionmaker.”
Vance v. Bradley, 440 U.S. 93, 111 (1979). Although Plaintiffs contend generally
that video recording is protected by the First Amendment, they do not provide any
support that it is somehow accorded special treatment under case law.
II. PLAINTIFFS’ DELAY WARRANTS DENYING TEMPORARY
RESTRAINING ORDER.
Plaintiffs cannot establish that a temporary restraining order is appropriate
here because they unduly delayed in seeking relief, and have not explained this
delay. AB 5 was enacted and signed by the Governor on September 18, 2019.
Plaintiffs did not file suit or seek injunctive relief until December 17, 2019, three
months after the challenged law was approved, and less than 15 days before AB 5’s
effective date. Plaintiffs’ ex parte application does not address this lapse of time or
otherwise explain the delay in seeking relief. (See generally ECF No. 27-1.)
A party seeking a temporary restraining order must establish, in addition to
likelihood of success on the merits, that it is “without fault in creating the crisis that
requires ex parte relief.” Mission Power Eng’g Co., 883 F. Supp. at 492. “It is the
creation of the crisis—the necessity for bypassing regular motion procedures—that
requires explanation.” Id. at 493. Plaintiffs do not attempt to meet this
requirement, and instead argue that they attempted to confer with Defendants’
counsel on December 27, 2019, four days before they filed the motion. (ECF No.
27 at 4.)2 Plaintiffs do not explain why they waited almost three months to file suit
against AB 5, even though it was approved in September 2019, and subsequently
did not file their application for a temporary restraining order until one day before
the law goes into effect (that day being an intervening holiday).
2 Although Plaintiffs’ motion asserts that they “first reach[ed] out on
December 23,” (ECF No. 27 at 4), this is belied by their Notice to Counsel, which
states that “on Monday, December 23, Plaintiffs’ counsel Caleb Trotter attempted
to determine who in the Attorney General’s office was serving as counsel for
Defendant in this case, but he was unable to so determine,” and subsequently left a
voicemail for Defendants’ counsel on December 27. (ECF No. 27-2.)
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Ex parte relief is an extreme remedy, and should be denied when the movant
delays seeking preliminary relief. Giving Back Fund Inc., 2011 WL 13217774, at
*4; Williford v. Ocwen Loan Servicing LLC, No. CV 09-06464, 2011 WL
13187265, at *3 (C.D. Cal. July 15, 2011). This is particularly so when the ex parte
application does not adequately explain “the necessity for bypassing regular motion
procedures.” Mission Power Eng’g Co., 883 F. Supp. at 492. “Ex parte
applications are not intended to save the day for parties who have failed to present
requests when they should have.” In re Intermagnetics America, Inc., 101 B.R. at
193.
The same principle applies to preliminary injunction requests. As the Ninth
Circuit has noted, a plaintiff’s “long delay before seeking a preliminary injunction
implies a lack of urgency and irreparable harm.” Miller for and on behalf of
N.L.R.B. v. Cal. Pac. Medic. Ctr., 991 F.2d 536, 544 (9th Cir. 1993) (citation
omitted); see also Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1091 n.27 (3d
Cir. 1984) (“[T]he district court may legitimately think it suspicious that the party
who asks to preserve the status quo through interim injunctive relief has allowed
the status quo to change through unexplained delay.”). Indeed, courts in this
Circuit have found unexplained delays of three months in seeking injunctive relief
supported a finding of lack of irreparable harm. First Franklin Fin. Corp. v.
Franklin First Fin. Ltd., 356 F. Supp. 2d 1048, 1055 (N.D. Cal. 2005); see also
Metromedia Broad. Corp. v. MGM/UA Entm’t Co, Inc., 611 F. Supp. 415, 427
(C.D. Cal. 1985) (concluding that four month delay warranted denying injunctive
relief); Kiva Health Brands LLC v. Kiva Brands Inc., 402 F. Supp.3d 877, 898-99
(N.D. Cal. 2019) (same).
Moreover, the State will suffer irreparable injury if this Court enjoins AB 5’s
enforcement. “[A]ny time a State is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of irreparable injury.”
Maryland v. King, 567 U.S. 1301, ___, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in
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chambers) (citation omitted); Coalition for Econ. Equity v. Wilson, 122 F.3d 718,
719 (9th Cir. 1997) (“[I]t is clear that a state suffers irreparable injury whenever an
enactment of its people or their representatives is enjoined.”). Plaintiffs contend
that they need not make any further showing of irreparable injury because they have
alleged a “colorable” First Amendment claim, (ECF No. 27-1), but as explained
above, their claims lack merit.
Lastly, the balance of equities tips against a temporary restraining order
because Plaintiffs seek to change the status quo. The ABC test has been the “status
quo” since AB 5 went into effect on January 1. Plaintiffs seek to alter this status
quo. Golden Gate Restaurant Ass’n v. City & Cty. of San Francisco, 512 F.3d
1112, 1116 (9th Cir. 2008). Plaintiffs have not established harm sufficient to
outweigh the injury their requested injunction would inflict on the State.
III. THE PUBLIC INTEREST WEIGHTS AGAINST A TEMPORARY
RESTRAINING ORDER.
Plaintiffs must also establish that the public interest warrants a temporary
restraining order, but merely argue generally that protecting First Amendment
rights is in the public interest. (ECF No. 27-1 at 21.) Plaintiffs’ perfunctory
analysis fails because the public interest weighs heavily against enjoining state law.
“In cases where the public interest is involved, the district court must also
examine whether the public interest favors the plaintiff.” Fund for Animals v.
Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992); see also Weinberger v. Romero-
Barcelo, 456 U.S. 305, 312 (1982) (“In exercising their sound discretion, courts of
equity should pay particular regard for the public consequences in employing the
extraordinary remedy of injunction.”). The public interest is involved when an
injunction impacts individuals beyond the parties. Stormans, Inc. v. Selecky, 586
F.3d 1109, 1139 (9th Cir. 2009).
As noted above, courts hold that states suffer harm when enforcement of their
laws is enjoined. Maryland v. King, 567 U.S. 1301, ___, 133 S. Ct. 1, 3 (2012)
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(Roberts, C.J., in chambers) (citation omitted). Where, as here, “responsible public
officials” have considered the public interest and enacted a statute, the public
interest weighs against enjoining such legislation. Golden Gate Restaurant Ass’n,
512 F.3d at 1126-27. “[I]t is in the public interest that federal courts of equity
should exercise their discretionary power with proper regard for the rightful
independence of state governments in carrying out their domestic policy.” Burford
v. Sun Oil Co., 319 U.S. 315, 318 (1943).
CONCLUSION
For these reasons, the Court should deny Plaintiffs’ ex parte application for a
temporary restraining order and request for an order to show cause for preliminary
injunctive relief.
Dated: January 2, 2020 Respectfully submitted,
XAVIER BECERRA
Attorney General of California
TAMAR PACHTER
Supervising Deputy Attorney General
/s/ Jose A. Zelidon-Zepeda
JOSE A. ZELIDON-ZEPEDA
Deputy Attorney General
Attorneys for Defendant Attorney
General Xavier Becerra, in his official
capacity
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CERTIFICATE OF SERVICE
Case Name: American Society of Journalists
and Authors, Inc. et al v. Xavier
Becerra
Case No. 2:19-cv-10645
I hereby certify that on January 2, 2020, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
DEFENDANT’S OPPOSITION TO PLAINTIFFS’ APPLICATION FOR
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY
A PRELIMINARY INJUNCTION SHOULD NOT ISSUE
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on January 2, 2020, at San Francisco,
California.
M. Mendiola /s/ M. Mendiola
Declarant Signature
SA2019106422
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