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`SUPERIOR COURT OF CALIFORNIA? g;
`
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`San Franck
`z.
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`COUNTY OF SAN FRANCISCO
`' 0" 00“"?Saper/ai‘cam
`OCT 2. 8 2020
`3y. A'AA‘OUET
`@pUty Clerk
`
`.
`Case No. CGC-20—587266
`
`‘ BENJAMIN VALDEZ, et al.,
`
`Plaintiffs,
`
`vs.
`
`UBER TECHNOLOGIES, INC., et a1.,
`
`Defendants.
`
`ORDER DENYING PLAINTIFFS’ EX
`PARTE APPLICATION FOR
`TEMPORARY RESTRAINING ORDER
`
`On October 22, 2020, plaintiffs in this case filed a putative class action against Uber
`
`Technologies, Inc. and associated entities under Labor Code §§ 1 101 and 1102. The suit alleges
`
`that Uber’s campaign for Proposition 22 on its driver app is unlawfill. Now, six days before the
`
`election that will decide Prop 22, plaintiffs mOve ex parte to enjoin all “coercive” campaigning
`
`on Uber’s app. The application for a temporary restraining order is denied.
`
`To begin, the request for extraordinary injunctive relief is belated. According to
`
`plaintiffs, Uber’s driver app campaign began in August. (Amd. Memo 3:12.) Why plaintiffs
`
`waited months to sue and seek injunctive relief is not explained, and such delay casts dOubt on
`
`their case. (See O’Connell v. Sup. Ct. (2006) 141 Cal.App.4th 1452, 1481; Lusk v. Krejci (1960)
`
`187 Cal.App.2d 553, 556.) Indeed, standing alone, delay in seeking injunctive relief can be the
`
`basis for its denial. (Id.)
`
`Turning to the familiar two-pronged test for whether a preliminary injunction should
`
`issue or not, both prongs favor Uber. (Butt v. State ofCalifornia (1992) 4 Ca1.4th 668, 677—78.)
`
`

`

`Importantly, “the relative interim harm to the parties from issuance or non-issuance” is
`
`the interim harm. (Id.) Here, that interim is the next six days. On November 3, Californians
`
`will vote Proposition 22 up or down, Uber’s campaign will ofnecessity end and thus any TRO
`
`'
`
`. enjoining Prop 22 campaigning would be effectively moot.
`
`Plaintiffs’ claimed interim harm is “political coercion” by Uber. (Amd. Memo 14:24.)
`
`However, plaintiffs’ papers point to no Uber driver who has been in any way punished for not
`
`cooperating with the Proposition 22 campaign or for advocating against it. Even drivers who
`
`complain about the Uber campaign claim minimal change to their behavior.1 No reason exists to
`
`believe that this lack of harm will change'during the six days Uber’s campaign continues.
`
`On the other hand, Uber claims harm from violation of core First Amendment rights —
`
`rights of both Uber and its drivers. Two features of the proposed TRO are particularly repugnant
`
`to free speech rights.
`
`V
`
`First, temporary restraining orders that “forbid speech activities” are' “classic examples of
`
`prior restraints,” and are “the most serious and the least tolerable infringement on First
`
`Amendment Rights.” (Alexander v. U.S. (1993) 509 U.S. 544, 550; Nebraska Press Ass ’n v.
`
`.
`
`Stuart (1976) 427 U.S. 539, 5 59‘.) As our California supreme court states, this is particularly true
`
`of injunctions against political speech. (Wilson v. Sup. Ct. (1975) 13 Cal.3d 652, 658.)
`
`Second, plaintiffs’ proposed TRO would require Uber to disseminate plaintifls ’ messages
`
`— e.g., to “inform” drivers that they have “the right to vote. . .against Proposition 22 or not vote at
`
`all.” (Not. 1:13-22.) This compelled political speech would “require even more immediate and
`
`1 See, e.g., Doe Dec. 117 (”I responded once to the pop-up that I support Proposition 22”); Castellanos Dec. 116
`(when pop-up allowed him to click “Yes on Prop 22" or ”0K," he clicked the latter).
`
`2
`
`

`

`,\/'
`
`\x/.
`
`urgent grounds” than the'compelled silence of a prior restraint. (Janus v. Am. Fed ’n (2018) 138
`
`S.Ct. 2448, 2464.)2
`
`Plaintiffs argue, without citation, that “Uber’s challenged communications lack First
`
`Amendment protection because they are false and misleading.” (Amd. Memo 12:27—28.)
`
`However, US. Supreme Court precedents “leave no doubt that the truth or falsity of a statement
`
`on a public issue is irrelevant to the question whether it should be repressed in advance of
`
`publication.” (Wilson, 13 Cal.3d at 658.)
`
`The TRO test’s other prong is “the likelihood that the moving party will ultimately
`
`prevail on the merits.” (Butt, 4 Cal.4th at 677—78.) The factors already addressed apply here as
`
`well. It is unlikely that plaintiffs will ultimately prevail on the merits.3
`
`Dated: October 28, 2020
`
`W 15. Le.
`
`..
`
`Richard B. Ulmer Jr.
`
`Judge of the Superior Court
`
`2 internal citations and quote marks are omitted from this order.
`3 This order assumes for argument‘s sake that Uber drivers are currently its employees.
`
`3
`
`

`

`CGC-20:587266
`INC., ET AL
`
`BENJAMIN VALDEZ, ET AL VS. UBER TECHNOLOGIES,
`
`I, the undersigned, certify that I am an employee of the Superior Court of California, County Of
`San Francisco and not a party to the above-entitled cause and that on October 28, 2020 I served the
`foregoing order denying Plaintiff’s ex parte application for temporary restraining order on
`each counsel of record or party appearing in propria persona by causing a copy thereof to be
`. served electronically by email sent to the email addresses indicated below.
`\
`
`Date: October 28, 2020
`
`IRLEY LE
`
`David Lowe,esq. of Rudy, Exelrod & Zeiff for
`Plaintiffs:
`
`dal@rez1aw.com
`
`Theodore J. Boutrous, Jr., esq. of Gibson, Dunn &
`Crutcher LLP for Defendants:
`
`tboutrous@gibsondunn.com
`
`Theane Evangelis Kapur, esq. of Gibson, Dunn &
`Crutcher LLP for Defendants:
`
`TEvangelis@gibsondunn.com
`
`Reynaldo Fuentes, esq. of Partnership for Working
`Families for OTHER:
`
`rey@forworkingfamilies.org
`
`Certificate of Service —
`
`Form C00005010
`
`

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