1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAN DIEGO COUNTY LODGING Case No.: 20-cv-2151-WQH-MDD

ASSOCIATION,

12

ORDER

Plaintiff, 13 v. 14

THE CITY OF SAN DIEGO,

15 Defendant. 16 17 HAYES, Judge: 18 The matter before the Court is the Motion to Intervene filed by Proposed Intervenor 19 Unite Here Local 30. (ECF No. 13). 20 I. BACKGROUND 21 On November 3, 2020, Plaintiffs San Diego County Lodging Association 22 (“SDCLA”) and California Employment Law Council (“CELC”) filed a Complaint against 23 Defendant The City of San Diego (“City”). (ECF No. 1). Plaintiffs allege that on September 24 8, 2020, the City passed the “City of San Diego COVID-19 Building Service and Hotel 25 Worker Recall Ordinance” (the “Ordinance”). (Id. ¶¶ 1, 11). Plaintiffs allege that the 26 Ordinance requires that owners of hotels with at least 200 guest rooms offer employees 27 laid off after March 4, 2020, their old position, or a similar position, before hiring new 28 applicants. Plaintiffs allege that the Ordinance requires that when two or more workers are 1 entitled to the same position, the employer must first offer the position to whomever 2 worked at the hotel the longest. Plaintiffs allege that “[a]ny covered employee who believes 3 their employer violated the Ordinance can sue for hiring and reinstatement rights, the 4 greater of actual or statutory damages, punitive damages, and attorneys’ fees and costs.” 5 (Id. ¶ 15). Plaintiffs allege that the Ordinance denies employers the contractual right to 6 terminate employees at-will and impairs the benefits of severance agreements. Plaintiffs 7 allege that the Ordinance may require courts to interpret collective bargaining agreements, 8 which is preempted by the Labor Management Relations Act (“LMRA”). 9 Plaintiffs bring the following claims against the City: 1) declaratory relief based on 10 the Contracts Clause of the United States and California Constitutions: employment 11 contract; 2) declaratory relief based on the Contracts Clause of the United States and 12 California Constitutions: severance agreements; 3) declaratory relief based on the Due 13 Process Clause of the United States and California Constitutions; 4) declaratory relief 14 based on federal preemption of the Ordinance by the LMRA; 5) declaratory relief based on 15 violation of Article XI, § 7 of the California Constitution: Cal. Lab. Code § 2922; 6) 16 declaratory relief based on violation of Article XI, § 7 of the California Constitution: Cal. 17 Civ. Code § 3294; and 7) declaratory relief based on violation of Article XI, § 7 of the 18 California Constitution: Cal. Code Civ. Proc. § 1002.5. Plaintiffs seek declaratory relief 19 voiding the Ordinance, an injunction permanently enjoining “‘laid-off employee[s]’—as 20 that term is defined in the Ordinance—from taking any action under, enforcing any 21 provisions of, or demanding a covered employer abide by the requirements set by, the 22 Ordinance,” and attorneys’ fees and costs. (Id. at 15-16). 23 On January 14, 2021, Plaintiff CELC filed a Notice of Voluntary Dismissal. (ECF 24 No. 8). SDCLA is the only remaining Plaintiff. 25 On February 4, 2021, Plaintiff SDCLA filed a Motion for Summary Judgment. (ECF 26 No. 11). On February 5, 2021, Defendant City filed a Motion to Dismiss. (ECF No. 12). 27 The Motion for Summary Judgment and Motion to Dismiss are pending. (See ECF No. 18). 28 1 On February 5, 2021, Proposed Intervenor Unite Here Local 30 (“Local 30”) filed 2 a Motion to Intervene. (ECF No. 13). Local 30 seeks to intervene as of right as a defendant 3 in this action pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. In the 4 alternative, Local 30 seeks permissive intervention pursuant to Rule 24(b). 5 On March 1, 2021, SDCLA filed an Opposition to the Motion to Intervene. (ECF 6 No. 19). On March 8, 2021, Local 30 filed a Reply. (ECF No. 21). On March 9, 2021, the 7 City filed a Notice of Joinder to the Motion to Intervene. (ECF No. 23). 8 II. DISCUSSION 9 Local 30 contends that it meets the requirements for intervention as of right under 10 Rule 24(a)(2) of the Federal Rules of Civil Procedure. Local 30 contends that the Motion 11 to Intervene is timely, members of Local 30 are direct beneficiaries of the Ordinance, and 12 the remedies Plaintiff SDCLA seeks would impact the rights of Local 30’s members. Local 13 30 contends that its interests are not adequately represented by Defendant City. Local 30 14 contends that the interests of Local 30’s members “in recall under the Ordinance differs 15 from that of the general public.” (ECF No. 13 at 24). Local 30 contends that it has a distinct 16 interest in ensuring that collective bargaining agreements are not used to deny members 17 the rights that they enjoy under the Ordinance. Local 30 contends that it has particular 18 knowledge of the hotel industry and expertise in federal labor preemption and the 19 constitutionality of local employment laws that the City may lack. Local 30 contends that, 20 alternatively, it meets the requirements for permissive intervention. 21 SDCLA contends that Local 30 fails to make a compelling showing that the City 22 will not adequately represent the interests of Local 30’s members. SDCLA contends that 23 the City and Local 30 share the same objective of upholding the validity of the Ordinance. 24 SDCLA contends that the City is interested in defending the interests of all beneficiaries 25 of the Ordinance, including union members. SDCLA contends that the City is “capable and 26 willing to make” the same arguments Local 30 would in attacking the LMRA preemption 27 claims,” as demonstrated by the City’s Motion to Dismiss, which is “nearly identical” to 28 the proposed motion to dismiss that Local 30 seeks to file. (ECF No. 19 at 10). SDCLA 1 contends that the City has extensive experience defending ordinances against court 2 challenges and could obtain specialized knowledge through the normal course of discovery 3 or by calling on Local 30 to provide evidence. SDCLA contends that Court should further 4 deny permissive intervention because Local 30’s presence would be redundant and impair 5 the efficiency of this case. 6 Rule 24 of the Federal Rules of Civil Procedure provides for two types of 7 intervention: intervention as of right and permissive intervention. See Fed. R. Civ. P. 24. 8 Rule 24(a) states: 9 On timely motion, the court must permit anyone to intervene who: . . . 10 (2) claims an interest relating to the property or transaction that is the subject 11 of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless 12 existing parties adequately represent that interest. 13 Fed. R. Civ. P. 24(a). To intervene as of right under Rule 24(a)(2), 14 (1) the application for intervention must be timely; (2) the applicant must have 15 a significantly protectable interest relating to the property or transaction that 16 is the subject of the transaction; (3) the applicant must be so situated that disposition of the action may, as a practical matter, impair or impede the 17 applicant’s ability to protect that interest; and (4) the applicant’s interest must 18 be inadequately represented by the existing parties in the lawsuit.

19 Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 837 (9th Cir. 1992) (“Glickman”) 20 (citing Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1493 (9th Cir. 21 1995), overruled in part on other grounds by Wilderness Soc’y v. U.S. Forest Serv., 630 22 F.3d 1173 (9th Cir. 2011)), as amended (May 30, 1996). 23 “In evaluating whether these requirements are met, courts ‘are guided primarily by 24 the practical and equitable considerations.’” United States v. City of Los Angeles, 288 F.3d 25 391, 397 (9th Cir. 2002) (quoting Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 26 1998)). “Further, courts generally ‘construe[ ] [the Rule] broadly in favor of proposed 27 intervenors.’” Id. (alterations in original) (quoting United States ex rel. McGough v. 28 1 Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992)). “‘A liberal policy in favor of 2 intervention serves both efficient resolution of issues and broadened access to the courts. 3 By allowing parties with a practical interest in the outcome of a particular case to intervene, 4 we often prevent or simplify future litigation involving related issues; at the same time, we 5 allow an additional interested party to express its views before the court.’” Forest 6 Conservation Council, 66 F.3d at 1496 n.8 (quoting Greene v. United States, 996 F.2d 973, 7 980 (9th Cir. 1993) (Reinhardt, J., dissenting)). 8 The Court concludes that the Motion to Intervene filed by Local 30 is timely, Local 9 30 has a “significantly protectable interest” in this action, and “disposition of the action 10 may . . . impede or impair [Local 30]’s ability to protect that interest.” Glickman, 82 F.3d 11 at 837 (citing Forest Conservation Council, 66 F.3d at 1493). 12 Courts consider three factors in determining the adequacy of representation: 13 (1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is 14 capable and willing to make such arguments; and (3) whether a proposed 15 intervenor would offer any necessary elements to the proceeding that other parties would neglect. 16

17 Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (citing California v. Tahoe Reg’l 18 Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986)), amended by 2003 U.S. App. LEXIS 19 9156 (9th Cir. May 13, 2003), and 2003 U.S. App. LEXIS 9169 (9th Cir. May 13, 2003). 20 “The requirement of inadequate representation ‘is satisfied if the applicant shows that the 21 representation of his interest [by existing parties] may be inadequate.’” City of Los Angeles, 22 288 F.3d at 398 (alteration in original) (quoting Trbovich v. United Mine Workers, 404 23 U.S. 528, 538 n.10 (1972)). 24 “The most important factor in determining the adequacy of representation is how the 25 interest [of the proposed intervenor] compares with the interests of existing parties.” 26 Arakaki, 324 F.3d at 1086 (citing 7C CHARLES ALLEN WRIGHT, ARTHUR R. MILLER & 27 MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1909 (2d ed. 1986)). “When an 28 applicant for intervention and an existing party have the same ultimate objective, a 1 presumption of adequacy of representation arises.” Id. (citing League of United Latin Am. 2 Citizens v. Wilson, 131 F.3d 1297, 1305 (9th Cir. 1997)). “There is also an assumption of 3 adequacy when the government and the applicant are on the same side.” Id. (citing City of 4 Los Angeles, 288 F.3d at 401-02)). 5 In Californians for Safe & Competitive Dump Truck Transportation v. Mendoca, 6 152 F.3d 1184 (9th Cir. 1998), the International Brotherhood of Teamsters (“IBT”) moved 7 to intervene as a defendant in a lawsuit by public works contractors and an association of 8 motor carriers challenging the State’s enforcement of the prevailing wage law. 152 F.3d at 9 1186. The Court of Appeals for the Ninth Circuit held that the district court properly 10 granted IBT’s motion for intervention as of right. Id. at 1189. The court stated, “[B]ecause 11 the employment interests of IBT’s members were potentially more narrow and parochial 12 than the interests of the public at large, IBT demonstrated that the representation of its 13 interests by the named defendants-appellees may have been inadequate.” Id. at 1190; 14 accord Allied Concrete & Supply Co. v. Baker, 904 F.3d 1053, 1068 (9th Cir. 2018) 15 (holding that IBT was entitled to intervene as a defendant as of right in a lawsuit by a group 16 of concrete suppliers challenging an amendment to the prevailing wage law to include 17 delivery drivers of ready-mix concrete and stating, “IBT’s interests are potentially more 18 narrow than the public’s at large, and the State’s representation of those interests ‘may have 19 been inadequate’” (quoting Mendonca, 152 F.3d at 1190)). 20 In this case, members of Proposed Intervenor Local 30 are among the hotel 21 employees directly affected by the Ordinance. (See Browning Decl., ECF No. 13-1 ¶ 4). 22 Local 30 lobbied to pass the Ordinance and has an interest in upholding the Ordinance to 23 protect its members. (See id. ¶¶ 6-7). In addition, Local 30 has an interest “in ensuring that 24 its members who work at hotels covered by collective bargaining agreements containing 25 ‘just-cause’ or seniority-recall clauses should not be deprived of rights under the Ordinance 26 that are enjoyed by non-union employees[.]” (Id. ¶ 5). The City represents the public 27 generally, including non-union hotel employees who benefit from the Ordinance and hotel 28 employers and applicants to hotel positions who claim to be harmed by the Ordinance. The 1 || broad interest of the City in upholding the Ordinance generally is distinct from the narrower 2 ||interest of Local 30 in protecting its members who benefit from the Ordinance. The 3 ||interests of Local 30 are “potentially more narrow than the public’s at large,” so the 4 ||representation of Local 30’s interests by the City may be inadequate. Allied Concrete & 5 || Supply Co., 904 F.3d at 1068. The Court concludes that Local 30 meets the requirements 6 intervention as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. 7 || Local 30 is entitled to intervene as a defendant in this action. 8 CONCLUSION 9 IT IS HEREBY ORDERED that the Motion to Intervene filed by Proposed 10 || Intervenor Unite Here Local 30 (ECF No. 13) is granted. Local 30 shall file the proposed 11 motion to dismiss attached to the Motion to Intervene (ECF No. 13-6) within three (3) days 12 || of the date of this Order. SDCLA shall file any opposition to Local 30’s motion to dismiss 13 || within fourteen (14) days of the date the motion to dismiss is filed. Local 30 shall file any 14 reply within seven (7) days of the date the opposition is filed. 15 || Dated: May 3, 2021 itt Z. Ma 16 Hon. William Q. Hayes 7 United States District Court 18 19 20 21 22 23 24 25 26 27 28