c. . SUPERIOR COURT OF CALIFORNIA 8:351:7er :1 :55 COUNTY OF SAN FRANCISCO -. n?/??urf 0 l. 2 2020 UR 7 ?x @pury Clerk BENJAMIN VALDEZ, et al., Case No. Plaintiffs, vs. ORDER DENYING EX PARTE APPLICATION FOR UBER TECHNOLOGIES, IN C., et a1., TEMPORARY RESTRAINING ORDER Defendants. On October 22, 2020, plaintiffs in this case ?led a putative class action against Uber Technologies, Inc. and associated entities under Labor Code 101 and 1102. The suit alleges that Uber?s campaign for PrOposition 22 on its driver app is unlawful. 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. Turning to the familiar two?pronged test for whether a preliminary injunction should issue or not, both prongs favor Uber. (Butt v. State of California (1992) 4 Cal.4th 668, 677?78.) Importantly, ?the relative interim harm to the parties from issuance or non-issuance? is the interim harm. Here, that interim is the next six days. On November 3, Californians will vote Proposition 22 up or down, Uber?s campaign will of necessity 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. 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. US. (1993) 509 US. 544, 550; Nebraska Press Ass ?n v. Stuart (1976) 427 US. 539, 559.) 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 plaintiffs messages e. to ?inform? drivers that they have ?the right to vote. . .against Proposition 22 or not vote at all.? (Not. This compelled political Speech would ?require even more immediate and 1 See, Doe Dec. 117 responded once to the pop-up that I support Proposition Castellanos Dec. 116 (when pop?up allowed him to click "Yes on Prop 22? or he clicked the latter). 2 urgent grounds? than the compelled silence of a prior restraint. (Janus v. Am. Fed ?n (2018) 138 2448, 2464.)2 Plaintiffs argue, without citation, that ?Uber?s challenged communications lack First Amendment protection because they are false and misleading.? (Amd. Memo 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 Richard B. Ulmer?Jr. Judge of the Superior Court 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 BENJAMIN VALDEZ, ET AL VS. UBER TECHNOLOGIES, INC., ET AL 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, 20201 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 David Lowe,esq. of Rudy, Exelrod Zeiff for Plaintiffs: dal@rezlaw.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 Certi?cate of Service Form C00005010