AG says Uber, Postmates case for AB 5 injunction is ‘baseless’

In a response filed in federal court, Attorney General Xavier Becerra defended the Legislature's drafting of Assembly Bill 5 and claimed Uber's and Postmates' request for a preliminary injunction was without merit.

The companies' allegations that AB 5 violates equal protection clauses in the U.S. and California constitutions fail "because nothing in the law targets such companies, and plaintiffs fail to explain how it impermissibly discriminates," Becerra wrote in the response filed Friday. "At heart, plaintiffs question the wisdom and effectiveness of AB 5, but that is a legislative policy determination, not viable grounds for a constitutional challenge."

Uber and Postmates sued the state in the Central District of California two days before the employee-presumptive law's Jan. 1 start date, claiming it violates several clauses in both Constitutions. Earlier this month, lawyers for the companies filed a motion seeking a preliminary injunction. Both sides will argue the request before U.S. District Judge Dolly M. Gee of Los Angeles on Feb. 7. Olson v. California, 19-CV10956 (C.D. Cal., filed Dec. 30, 2019).

Becerra also claimed the companies' motion for the injunction was baseless, considering AB 5's three-prong "ABC" test to determine if a worker was an employee or an individual contractor has been effect since the California Supreme Court adopted the standard in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018).

"Plaintiffs waited until the last possible moment before AB 5 went into effect before filing suit, and now seek preliminary relief against a law that was passed over three months ago," Becerra wrote. "They do not persuasively explain any of this delay, which is alone sufficient reason to deny a preliminary injunction."

The February motion hearing will be the second the attorney's general office has faced involving AB 5 in as many months. Last week, U.S. District Judge Roger T. Benitez of San Diego granted the California Trucking Association a preliminary injunction enjoining AB 5 for trucking companies and independent owner-operator truck drivers.

In his opinion, Benitez agreed with the trucking companies' argument the independent truck drivers are exempt from AB 5 because the Federal Aviation Administration Authorization Act of 1994 preempts the state law. California Trucking Association v. Becerra, 18-CV02458 (S.D. Cal., filed Oct. 25, 2018).

The federal law prohibits states from enacting or enforcing any law, regulation or any other provisions that could affect the price, route or service of any motor carrier "with respect to the transportation of property."

Los Angeles County Superior Court Judge William F. Highberger came to a similar conclusion, ruling the FAAAA preempted AB 5 in California v. Cal Cartage Transportation Express LLC, BC689320 (L.A. Super Ct., filed Jan 8, 2018).

But Veena Dubal, an associate professor at UC Hastings College of the Law whose research focuses on the intersection of law and technology, said the trucker decisions are unrelated since they deal with motor carriers transporting property under the FAAAA.

"My sense is the Uber and Postmates' arguments are really a stretch," she said, likening the chances the companies will meet the imminent injury requirement needed for the injunction as "very small."

"The courts have recognized that legislatures can and must draw lines in order to pass laws," Dubal said. "The companies are using the cloak of the Constitution to try their political arguments in court. I'm skeptical this will go anywhere."