Opinion
Case No. 2:19-CV-09991-ODW (SKx)
2020-08-28
COLUMBIA SUSSEX MANAGEMENT, LLC, and CW Hotel Limited Partnership, individually and on behalf of all other hotel owners and managers operating hotels in Santa Monica, California, Plaintiffs, v. CITY OF SANTA MONICA, Defendant.
Diana L. Dowell, Peter B. Maretz, Stokes Wagner ALC, Los Angeles, CA, Jamie Lee Santos, Stokes Wagner, San Diego, CA, George M. Vinci, Jr., Pro Hac Vice, Neal R. Troum, Pro Hac Vice, Spector Gadon Rosen Vinci PC, Philadelphia, PA, for Plaintiffs. Kirsten R. Galler, George S. Cardona, Santa Monica City Attorneys Office, Santa Monica, CA, for Defendant.
Diana L. Dowell, Peter B. Maretz, Stokes Wagner ALC, Los Angeles, CA, Jamie Lee Santos, Stokes Wagner, San Diego, CA, George M. Vinci, Jr., Pro Hac Vice, Neal R. Troum, Pro Hac Vice, Spector Gadon Rosen Vinci PC, Philadelphia, PA, for Plaintiffs.
Kirsten R. Galler, George S. Cardona, Santa Monica City Attorneys Office, Santa Monica, CA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT [42]
OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Defendant City of Santa Monica ("Defendant" or "City") moves to dismiss Plaintiffs Columbia Sussex Management, LLC, and CW Hotel Limited Partnership's ("Plaintiffs") Second Amended Complaint ("SAC") (the "Motion"). (See Mot., ECF No. 42.) Plaintiffs opposed and the City replied. (See Opp'n to Mot. ("Opp'n"), ECF No. 44; Reply, ECF No. 47.) With the Court's permission, Plaintiffs filed a surreply in opposition to the Motion. (See Surreply, ECF No. 51.) For the reasons that follow, the Court GRANTS the City's Motion. II. BACKGROUND
Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78 ; C.D. Cal. L.R. 7-15.
On September 10, 2019, the Santa Monica City Council adopted Santa Monica Municipal Code ("SMMC") Chapter 4.67, including section 4.67.030(a) (the "Ordinance" or "Workload Limitation Provision"), with the stated purpose "to Enhance Protection of Hotel Workers in the Local Hospitality Industry." (SAC ¶¶ 1, 18, ECF No. 39.) Entitled "Measures to Provide Fair Compensation for Workload," the Workload Limitation Provision prevents hotel employees who clean guest rooms ("Room Attendants") from cleaning more than a specified square footage of floor space during their scheduled shift without receiving additional compensation. (SAC ¶ 20 (quoting the Workload Limitation Provision).) At hotels with fewer than forty rooms, Room Attendants may not be required to clean more than 4000 square feet in an eight-hour workday without additional pay. SMMC § 4.67.030(a). At hotels with forty or more rooms, Room Attendants may not be required to clean more than 3500 square feet in an eight-hour workday without additional pay. Id. If a Room Attendant is required to exceed these limits, the hotel employer must compensate the Room Attendant at twice the regular rate of pay for all hours worked in that workday. Id. The Workload Limitation Provision may be waived "pursuant to a bona fide collective bargaining agreement." Id. § 4.67.110.
Chapter 4.67 became effective on January 1, 2020. Id. § 4.67.130. Any person who violates provisions of Chapter 4.67, including the Workload Limitation Provision, is liable for actual damages or for statutory damages including a $100 penalty per employee, per day, with treble penalties for willful violations. Id. § 4.67.120(c). Chapter 4.67 also provides hotel employees a private right of action to seek damages and recover penalties for alleged violations, attorneys’ fees, and costs if they are the prevailing party in a civil action. Id. § 4.67.120(d). Plaintiffs estimate they will spend roughly $1 million annually on additional Room Attendant labor costs and administrative costs to monitor compliance with the Workload Limitation Provision, and these expenses will trickle down to "predominantly out-of-state" hotel guests leading to fewer repeat customers and lost revenue. (SAC ¶¶ 29–31.)
In enacting this Ordinance, the Santa Monica City Council sought to "ensur[e] that hotel workers receive fair compensation when their work assignments exceed proscribed limits" and "promote the public interest [by] enabl[ing] hotel workers to receive fair pay for honest work, to perform their work in a manner that adequately protects their personal wellbeing, and to meet personal and family obligations." (SAC Ex. 2 ("Ordinance") 2, ECF No. 39-2.) The city council stressed that, "given that tourism is one of the largest industries in the City and in the entire region, establishing the foregoing safety and security measures [and] fair compensation ... for hotel workers will not only improve worker safety and working conditions, but also benefit the local and regional economy overall, and thereby promote the public health, safety, and welfare." (Ordinance 3.)
On November 21, 2019, Plaintiffs filed this class action lawsuit on behalf of "all of the other 40 hotels located within Santa Monica," challenging the validity of portions of the Ordinance. (SAC ¶ 62; see also Compl., ECF No. 1; First Am. Compl., ECF No 4.) Specifically, Plaintiffs assert five causes of action for: (1) declaratory relief; (2) Machinists preemption under the National Labor Relations Act, 29 U.S.C. § 151 et seq. ("NLRA"); (3) violation of the dormant Commerce Clause ("DCC"); (4) preemption under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("OSHA") and the California Occupational Health and Safety Act of 1973, Cal. Lab. Code § 6300 et seq. ("CalOSHA"); and (5) violation of civil rights under 42 U.S.C. § 1983. (SAC ¶¶ 64–78.)
On December 2, 2019, Plaintiffs moved for a preliminary injunction to prevent the Workload Limitation Provision from going into effect in January 2020 as scheduled. (See Mot. Prelim. Inj., ECF No. 24.) On December 18, 2019, the Court denied Plaintiffs’ request for preliminary injunctive relief because Plaintiffs failed to show a likelihood of success on the merits or irreparable harm. (See Prelim. Inj. Order 14, ECF No. 34.) The City now moves to dismiss the SAC in its entirety arguing that Plaintiffs’ federal claims lack merit and requesting that the Court decline supplemental jurisdiction over Plaintiffs’ remaining state claim. (See generally Mot.)
III. LEGAL STANDARD
A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988). To survive a dismissal motion, a complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. Jones , 319 F.3d 483, 494 (9th Cir. 2003). The factual "allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).
The determination of whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. A court is generally limited to the pleadings and must construe all "factual allegations set forth in the complaint ... as true and ... in the light most favorable" to the plaintiff. Lee v. City of Los Angeles , 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001).
IV. REQUEST FOR JUDICIAL NOTICE
In conjunction with the Motion, the City requests that the Court take judicial notice of a Los Angeles Superior Court ruling granting summary judgment in California Hotels & Lodging Ass'n v. City of Long Beach , No. 19LBCV00055 (L.A. Super. Jan. 8, 2020) ("CHLA Long Beach Opinion"). (See Req. for Judicial Notice ("RJN") Ex. 1, ECF No. 43-1.) Plaintiffs did not oppose the City's request.
Federal Rule of Evidence 201 allows a court to take judicial notice of a fact that "is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b) ; see United States v. Ritchie , 342 F.3d 903, 909 (9th Cir. 2003) ("A court may consider certain materials ... [including] matters of judicial notice" when ruling on a Rule 12(b)(6) motion to dismiss.). Thus, the Court may take judicial notice of court orders and other matters of public record. See Reyn's Pasta Bella, LLC v. Visa USA, Inc. , 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of pleadings, memoranda, and other court documents).
Accordingly, the Court GRANTS the City's unopposed RJN and takes judicial notice of the CHLA Long Beach Opinion, but not the truth of the facts contained therein. Lee , 250 F.3d at 690.
V. DISCUSSION
Plaintiffs’ suit challenges only the Workload Limitation Provision and its corresponding collective bargaining waiver provision, section 4.67.110 ("Waiver"); Plaintiffs challenge no other part of Chapter 4.67. (Opp'n 1 n.1.) Plaintiffs seek declaratory and injunctive relief, including findings that the Workload Limitation Provision is unconstitutional, invalid, and preempted. (SAC ¶¶ 64–78.)
The City urges the Court to dismiss the SAC on several bases. Specifically, the City argues: (1) the Workload Limitation Provision is not preempted by federal or state health and safety laws; (2) the Workload Limitation Provision is not preempted by the NLRA; (3) the Workload Limitation Provision does not violate the DCC; (4) Plaintiffs cannot maintain a derivative section 1983 claim because there is no underlying constitutional violation; and (5) the Court should decline to exercise supplemental jurisdiction over Plaintiffs’ alternative request for declaratory relief. (Mot. 1–2.) The Court will address each argument in turn.
A. OSHA and CalOSHA Preemption (Claim 4)
First, the City argues the Workload Limitation Provision is not preempted by OSHA or CalOSHA because it is a labor standards overtime provision, not a health and safety statute, as Plaintiffs contend. (Mot. 6–12; Opp'n 18–23.)
Although the SAC includes cursory allegations of OSHA preemption, the parties agree that CalOSHA supplanted its federal counterpart once it was approved. (Mot. 9 n.3; Opp'n 19); see also 38 Fed. Reg. 10717–10720 (May 1, 1973) (OSHA approved CalOSHA after determining that California's comprehensive occupational safety and health regulatory scheme was at least as effective as OSHA in protecting workers).
CalOSHA, in conjunction with California Labor Code Section 142.3, vests the California Occupational Safety and Health Standards Board (the "Standards Board") with the sole authority to adopt occupational safety and health standards. See California Hotels & Lodging Ass'n v. City of Oakland , 393 F. Supp. 3d 817, 824 (N.D. Cal. 2019) (" CHLA Oakland "). In Sherwin-Williams Co. v. City of Los Angeles , 4 Cal. 4th 893, 16 Cal.Rptr.2d 215, 844 P.2d 534 (1993), the California Supreme Court set out the standard for state preemption of a local ordinance as follows:
Under ... the California Constitution, a county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void. A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. Local legislation is ‘duplicative’ of general law when it is coextensive therewith. Similarly, local legislation is ‘contradictory’ to general law when it is inimical thereto. Finally, local legislation enters an area that is ‘fully occupied’ by general law when the Legislature has expressly manifested its
intent to ‘fully occupy’ the area or when it has impliedly done so ....
Id. at 897–98, 16 Cal.Rptr.2d 215, 844 P.2d 534 (internal quotation marks and citations omitted).
The City moves for dismissal, arguing that the Workload Limitation Provision is not an occupational safety and health standard, but rather a compensation provision because it requires additional compensation for additional work. (Mot. 6–8.) The City further argues that the Workload Limitation Provision's enactment does not intrude on the prerogatives of the Standards Board. (Mot. 6–8.) The City insists the Workload Limitation Provision does not prohibit the assignment of "unsafe" levels of work, as a safety and health standard normally would. (Mot. 6–8.) Instead, the Workload Limitation Provision is a form of overtime protection designed to effectuate Chapter 4.67's prohibition against mandatory overtime and to prevent hotel employers from simply increasing a Room Attendant's workload during an eight-hour shift. (Mot. 7–8); see also SMMC § 4.67.030(c).
Plaintiffs oppose the Motion, arguing that the legislature intended the Standards Board's decisions to fully-occupy the field of safety and health standards, and so the Workload Limitation Provision, as an occupational health and safety provision, must be preempted. (Opp'n 18–23.) Alternatively, Plaintiffs argue that the Workload Limitation Provision concerns excessive hotel housekeeper work rates, which the Standards Board regulates through the requirement that hotels maintain a musculoskeletal injury prevention program ("MIPP"), thus impliedly preempting the Workload Limitation Provision. (Opp'n 20.)
Other courts have considered and rejected Plaintiffs’ arguments under similar facts, and though not binding, their reasoning persuades this Court that the Workload Limitation Provision in this case is an overtime law, and is thus not preempted by state laws regulating only health and safety. See CHLA Oakland , 393 F. Supp. 3d at 827 (granting motion to dismiss because CalOSHA did not preempt Oakland workload compensation provision); CHLA Long Beach Opinion, No. 19LBCV00055 at 5 (granting summary judgment in favor of City because CalOSHA did not preempt Long Beach workload compensation provision); Woodfin Suite Hotels LLC v. City of Emeryville , No. C 06-1254-SBA, 2006 WL 2739309, *18 (N.D. Cal. Aug 23, 2006) (" Woodfin ") (denying preliminary injunction because state wage and hour laws did not preempt Emeryville workload compensation provision).
In CHLA Oakland , the court considered a similar ordinance that imposed maximum workload requirements for hotel workers and required additional payment when employees cleaned more than a specified square footage. CHLA Oakland , 393 F. Supp. 3d at 821. The court found no field preemption because "CalOSHA ... explicitly leave[s] room for local control of aspects of employment unrelated to safety and health." Id. at 826. The court also found the Oakland workload limitation provision was an overtime law addressing compensation, not an occupational health and safety standard designed to prevent injuries like the MIPP, which does not address compensation. Id. at 826–27.
Similarly, in CHLA Long Beach , the court considered whether CalOSHA preempted another workload limitation provision analogous to the one at issue here. It provided, in pertinent part:
A hotel employer shall not require a room cleaner to clean rooms amounting to more than 4,000 square feet of floorspace, or more than the maximum floor space otherwise specified in this Section, in any one, eight-hour workday unless
the hotel employer pays the room cleaner twice his or her regular rate of pay for all hours worked by the room cleaner during the workday.
Long Beach Municipal Code § 5.49.040. Relying on the reasoning in CHLA Oakland , the court also concluded the Long Beach workload limitation provision was not preempted because it was an overtime law. CHLA Long Beach Opinion at 2–5. In Woodfin , the City of Emeryville adopted a similar provision that was likewise found to be an overtime law. See Woodfin , 2006 WL 2739309, *1. The voter-approved measure there required hotels with more than 50 rooms to pay time-and-a-half to room cleaners who cleaned more than 5,000 square feet in an eight-hour work day. Id. The plaintiff argued that the ordinance was preempted by state wage and hour laws that placed an overtime premium solely on the number of hours worked. Id. at *18. The Woodfin court disagreed and held that the Emeryville provision did "not alter the overtime premium payment for the number of hours worked, it only add[ed] an occasion for which overtime premium must be paid[.]" Id. Although the issue of CalOSHA preemption was not raised in Woodfin , its reasoning characterizing this type of workload limitation provision as an overtime law, rather than a health and safety standard, is instructive.
The Court finds the reasoning in CHLA Oakland , CHLA Long Beach , and Woodfin persuasive. As a preliminary matter, CalOSHA leaves room for additional local action in regulating places of employment unrelated to health and safety, so there is no field preemption. CHLA Oakland , 393 F. Supp. 3d at 826 (citing T-Mobile W. v. San Francisco , 6 Cal. 5th 1107, 1122, 245 Cal.Rptr.3d 412, 438 P.3d 239 (2019) ). Plaintiffs point to the Standards Board's requirement that an effective MIPP include worksite evaluations addressing "safety and health risks including excessive work-rate" as evidence that CalOSHA—specifically Cal. Code Regs. tit. 8, § 3345(c)(4)(E) —preempts the Workload Limitation Provision. (Opp'n 20.) However, the Workload Limitation Provision here concerns compensation for work done, requiring additional payment for additional square feet cleaned; it is silent regarding unsafe working conditions or potential injury risks, and does not forbid the development of a MIPP. See SMMC § 4.67.030(a). On the other hand, the MIPP concerns preventing musculoskeletal injuries and disorders, addresses the nature of potential injuries, and requires evaluations of physical injury risks. CHLA Oakland , 393 F. Supp. 3d at 826 (quoting Cal. Code Regs. tit. 8, § 3345 ). It does not address what wages must be paid to hotel workers based on the amount of square footage cleaned. As the court in CHLA Oakland held, "[t]hese differences are not ... distinctions without a difference." Id.
Plaintiffs next argue that the Workload Limitation Provision is a health and safety standard because it "effectively regulates the amount of room space hotel cleaners in non-union hotels can clean in a given day, i.e. , their workloads." (Opp'n 19.) However, the Workload Limitation Provision does not prescribe workload maximums for Room Attendants; it requires only that they receive additional compensation if certain square footage limitations are exceeded. Plaintiffs are permitted to require their Room Attendants to clean as much or as little square footage as they desire, so long as the Room Attendants are compensated accordingly. Plaintiffs cite no California workplace health and safety standard that permits an employer to impose unsafe working conditions on its employees if they are paid more. Additionally, the Court is unpersuaded that CalOSHA preempts the Workload Limitation Provision merely because both regulations include enforcement mechanisms. Compare SMMC § 4.67.120(c) (prescribing civil penalties for violations) with Cal. Code Regs. tit. 8, §§ 334–36 (same).
Plaintiffs further argue that CalOSHA impliedly preempts the Workload Limitation Provision because it unduly burdens transient citizens. (Surreply 6–7.) The California Supreme Court has recognized an "indicia of intent" for implied preemption when "the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the locality." Sherwin-Williams Co. , 4 Cal. 4th at 898, 16 Cal.Rptr.2d 215, 844 P.2d 534 (internal quotation marks omitted). Plaintiffs allege that "CalOSHA at least partially covers the field of occupational safety and health, and the adverse effects of the Ordinance will fall primarily on transient citizens who will pay higher prices for Santa Monica hotel stays." (SAC ¶ 41.) Plaintiffs estimate they will spend roughly $1 million annually on additional Room Attendant labor costs and claim they will pass these costs along to their "predominantly out-of-state clientele." (Opp'n 14–16 (citing SAC ¶¶ 30–31.) However, these allegations do not plausibly show that the Workload Limitation Provision will adversely affect transient citizens of this state as required to establish implied preemption under Sherwin-Williams Co.
Accordingly, the Court GRANTS the City's Motion because Plaintiffs do not plausibly allege that the Workload Limitation Provision is a health and safety standard or an unduly burdensome regulation, subject to CalOSHA preemption.
B. NLRA Preemption (Claim 2)
Second, the City argues the Workload Limitation Provision is not preempted by the NLRA because it is a labor standards overtime provision that only incidentally alters the relative bargaining strength of hotel employers and unions. (Mot. 12–17; Opp'n 6–13.)
The NLRA does not contain an express preemption clause, but the Supreme Court has articulated two preemption principles under the NLRA, one of which is " Machinists " preemption. Am. Hotel and Lodging Assn. v. City of Los Angeles , 834 F.3d 958, 963 (9th Cir. 2016) (" AHLA "); Associated Builders v. Nunn , 356 F.3d 979, 987 (9th Cir. 2004) (" Nunn "). " Machinists preemption prohibits states from imposing restrictions on labor and management's ‘weapons of self-help’ that were left unregulated in the NLRA because Congress intended for tactical bargaining decisions and conduct ‘to be controlled by the free play of economic forces.’ " Nunn , 356 F.3d at 987 (quoting Lodge 76, Int'l Ass'n of Machinists v. Wis. Emp't Relations Comm'n , 427 U.S. 132, 140, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976) ); see also AHLA , 834 F.3d at 963 (noting " ‘weapon[s] of self-help,’ such as a strike or lock-out").
In contrast, state minimum "benefit protections" such as minimum wages are not subject to Machinists preemption "because they do not alter the process of collective bargaining." AHLA , 834 F.3d at 964. Thus, "state action that intrudes on the mechanics of collective bargaining is preempted, but state action that sets the stage for such bargaining is not." Id.
Plaintiffs argue that, because unions can waive the Workload Limitation Provision, the Workload Limitation Provision and the Waiver are subject to Machinists preemption because they "tip[ ] the scales in Santa Monica union-hotel negotiations decidedly and unfairly in favor of the union" by "effectively impos[ing] a sanction on hotels that do not unionize." (Opp'n 6, 13.) As the Court ruled in its Order denying preliminary injunctive relief, the Court disagrees. The Workload Limitation Provision restricts the floor space a Room Attendant may be required to clean in a workday to prevent excessive workloads without adequate compensation, and allows for collective bargaining as to that limitation. SMMC §§ 4.67.030(a), 4.67.110. "The Supreme Court has made clear ... that the NLRA ‘cast[s] no shadow on the validity of these familiar and narrowly drawn opt-out provisions.’ " AHLA , 834 F.3d at 965 (quoting Livadas v. Bradshaw , 512 U.S. 107, 132 & n.26, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) ). Indeed, "[c]onsistent with the NLRA's goal of promoting collective bargaining, courts have long upheld state laws that permit only unions to opt out of state labor standards." Interpipe Contracting, Inc. v. Becerra , 898 F.3d 879, 889 (9th Cir. 2018) (collecting cases).
Plaintiffs insist the Workload Limitation Provision at issue here differs from other ordinances that have been upheld because it "directly pressures hotels without collective bargaining agreements to enter a CBA" by imposing "an unconscionable economic and competitive burden on Santa Monica hotels that can only be avoided by bargaining with a union." (SAC ¶¶ 54, 56 (emphasis added).) Plaintiffs rely on Golden State Transit Corp. v. City of Los Angeles , 475 U.S. 608, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986) to support the argument that an ordinance "directed toward altering the bargaining positions of employers or unions" is subject to Machinists preemption. (Opp'n 7–8.) In Golden State Transit Corp. , the city conditioned the renewal of a taxi company's franchise on the company promptly settling a labor dispute with a union. Id. at 615–16, 106 S.Ct. 1395. Although the city did not participate in substantive settlement discussions, the Supreme Court deemed the city's insistence on a settlement as an impermissible intrusion into the bargaining process. Id. at 618, 106 S.Ct. 1395. In the present case, the City makes no such express demand that Plaintiffs unionize.
Plaintiffs also argue that the Workload Limitation Provision disrupts the labor-management playing field by combining "square footage requirements and draconian sanctions that can only be waived (and are always waived) by the union." (Opp'n 11.) But, as the City points out, the Ninth Circuit has found this type of indirect pressure to unionize insufficient to trigger Machinists preemption. See, e.g. , Viceroy Gold Corp. v. Aubry , 75 F.3d 482, 489–90 (9th Cir. 1996) (rejecting argument that combination of "onerous" overtime requirements and CBA waiver created impermissible incentive to unionize); id. at 490 (explaining that overtime law may provide "an incentive to unionize or to remain non-union, depending on the difference between the contracted for and statutory overtime pay," but "potential benefit or burden in application does not invalidate an ‘opt-out provision’ ") (quoting Nat'l Broad. Co. v. Bradshaw , 70 F.3d 69, 73 (9th Cir. 1995) ).
Plaintiffs next dispute the City's assertion that the Workload Limitation Provision is "union neutral," contending that it "de facto applies differently to union and non-union employees" because certain CBAs allegedly contain boilerplate language allowing for Waivers. (Opp'n 1, 5, 9; Reply 5.) However, the plain language of the Waiver provision demonstrates that it applies equally to union and non-union employees since it "may be waived pursuant to a bona fide collective bargaining agreement." SMMC § 4.67.110 (emphasis added). That some hotel employers and employees have agreed to opt out of the Workload Limitation Provision as a matter of course shows only that the statute facilitates collective bargaining. Ultimately, the parties dictate the terms of their CBAs; the Ordinance does not. See Fortuna Enters., L.P. v. City of Los Angeles , 673 F. Supp. 2d 1000, 1011–12 (C.D. Cal. 2008) (finding that exemption for employers who entered into collective bargaining agreement did not undercut minimum living wage standard which "merely form[ed] the backdrop for collective bargaining"; and that the parties were "then allowed to negotiate their own agreements ... strengthen[ed] the case that the statute work[ed] no intrusion on collective bargaining") (quoting Fort Halifax Packing Co. v. Coyne , 482 U.S. 1, 22, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) ).
The Workload Limitation Provision and its corresponding Waiver "do not regulate the mechanics of labor dispute resolution," but instead "provide the ‘backdrop’ for negotiations," similar to other state minimum labor standards. AHLA , 834 F.3d at 963 (internal quotation marks omitted) (citing Metro. Life Ins. Co. v. Mass. , 471 U.S. 724, 757, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) ); id. at 965 (rejecting argument that collective bargaining opt-out provision warranted preemption); see also Fort Halifax , 482 U.S. at 21, 107 S.Ct. 2211 (cautioning that preemption "should not be lightly inferred in this area, since the establishment of labor standards falls within the traditional police power of the State"). Plaintiffs have not alleged the Workload Limitation Provision is anything other than a minimum labor standard and a "valid exercise of states’ police power to protect workers." AHLA , 834 F.3d at 963 (citing Fort Halifax , 482 U.S. at 21–22, 107 S.Ct. 2211 ). Accordingly, the Court GRANTS the Motion to Dismiss Plaintiffs’ Machinists preemption claim under the NLRA.
C. Dormant Commerce Clause (Claim 3)
Third, the City argues the Workload Limitation Provision does not violate the DCC because it does not discriminate against interstate commerce, and the City's legitimate interest in protecting hotel workers outweighs any alleged burden on interstate commerce. (Mot. 17–21; Opp'n 14–18.)
"The primary purpose of the [DCC] is to prohibit ‘statutes that discriminate against interstate commerce’ by providing benefits to ‘in-state economic interests’ while ‘burdening out-of-state competitors.’ " Ass'n des Eleveurs de Canards et d'Oies di Quebec v. Harris , 729 F.3d 937, 947 (9th Cir. 2013) (" Canards ") (quoting Nat'l Ass'n of Optometrists & Opticians v. Harris , 682 F.3d 1144, 1148 (9th Cir. 2012) (" Optometrists ")). Plaintiffs concede that the Workload Limitation Provision does not directly "discriminate against interstate commerce on its face," arguing instead that the indirect effects inflict a substantial burden. (Opp'n 14.) Where a statute regulates evenhandedly but has indirect effects on interstate commerce, the Pike balancing test applies. See Rosenblatt v. City of Santa Monica , 940 F.3d 439, 451 (9th Cir. 2019) (citing Pike v. Bruce Church, Inc. , 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) ). An ordinance will be upheld under the Pike balancing test where it "effectuates a legitimate local public interest" "unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits." Id. (quoting Pike , 397 U.S. at 142, 90 S.Ct. 844 ).
"[A] state regulation does not become vulnerable to invalidation under the [DCC] merely because it affects interstate commerce." Optometrists , 682 F.3d at 1148 (citing S. Pac. Co. v. Ariz. , 325 U.S. 761, 767, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945) ). To the contrary, "there must be a substantial burden on interstate commerce. " Id. "The party challenging the regulation ... must establish that the burdens that the regulation imposes on interstate commerce clearly outweigh the local benefits ...." Rosenblatt , 940 F.3d at 452.
Plaintiffs allege the Workload Limitation Provision will require them to pay Room Attendants more or hire more Room Attendants, and that Plaintiffs will pass that increased cost on to their primarily out-of-state clientele. (SAC ¶¶ 29–31.) Thus, Plaintiffs contend, the Workload Limitation Provision substantially burdens interstate commerce because it will cause out-of-state travelers to pay more to stay in Santa Monica hotels. (Opp'n 15.) However, the SAC is devoid of facts alleging that a significant number of hotel guests have been or will be deterred by the cost-of-stay increase Plaintiffs intend to pass on to their customers, or that a large number of Santa Monica hotels will similarly elect to pass these costs on to guests. While Plaintiffs allege the Workload Limitation Provision may cause some hotels "to keep rooms unfilled if they are unable to resolve ... staffing issues," Plaintiffs do not allege that Santa Monica tourists will ultimately have limited accommodation options. (SAC ¶ 25.) Nothing in the SAC suggests that visitors are barred from staying in Santa Monica hotels that elect not to pass through costs, hotels that obtain Waivers, or vacation rentals. In short, Plaintiffs fail to show that the increased cost for some hoteliers will result in a substantial burden on interstate commerce. See Rosenblatt , 940 F.3d at 453 (finding plaintiff failed to allege the magnitude of the burden or how any lost fraction of business significantly burdened interstate commerce); Pac. Nw. Venison Producers v. Smitch , 20 F.3d 1008, 1015 (9th Cir. 1994) (" PNVP ") (finding plaintiff failed to support the extent of the burden on interstate commerce).
Plaintiffs further allege that "[t]he averred health and safety benefit to workers in Santa Monica provided by the provisions of the Ordinance is moreover not supported or supportable and has not been demonstrated by any research or evidence." (SAC ¶ 26.) Plaintiffs claim the City conducted "no study or analysis" in determining that Room Attendants should be required to clean only 3500 or 4000 square feet in an eight-hour workday without additional pay, and that these "numbers were simply rough approximations of what other cities had enacted in comparable ordinances." (Id. ¶¶ 32, 57.) But "in the context of dormant commerce clause ... the Supreme Court has frequently admonished that courts should not second-guess the empirical judgments of lawmakers concerning the utility of legislation." PNVP , 20 F.3d at 1017 (internal quotation marks omitted); Am. Hotel & Lodging Ass'n v. City of Los Angeles , 119 F. Supp. 3d 1177, 1194 (C.D. Cal. 2015) (noting "it is not the role of the courts to interject into matters of legislative economic policy"). Courts are rather to "presume the law serves the city's legitimate interests; it is [Plaintiffs’] burden to plausibly allege otherwise." Rosenblatt , 940 F.3d at 452.
Accordingly, the Court GRANTS the Motion because Plaintiffs present no plausible allegations that the Workload Limitation Provision will not advance its stated policy purpose—to prevent hotel workers from being assigned overly burdensome workloads without fair compensation—or that its local benefits do not outweigh any alleged burden on interstate commerce.
D. Section 1983 (Claim 5)
Local government entities may be liable pursuant to Section 1983 only for a deprivation of constitutional rights resulting from an official policy or custom. Monell v. Dep't of Social Servs. , 436 U.S. 658, 690–94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "[T]o establish liability for governmental entities under Monell , a plaintiff must prove: (1) that the plaintiff possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional violation." Dougherty v. City of Covina , 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks and alterations omitted).
Plaintiffs do not oppose dismissal of their § 1983 claim. (Reply 10; see generally Opp'n; Surreply.) "Failure to oppose constitutes a waiver or abandonment of the issue." Heraldez v. Bayview Loan Servicing, LLC , No. CV 16-1978-R, 2016 WL 10834101, at *2 (C.D. Cal. Dec. 15, 2016), aff'd , 719 F. App'x 663 (9th Cir. 2018) (citing Stichting Pensioenfonds ABP v. Countrywide Fin. Corp. , 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) ). Further, because the Court has concluded that the SAC fails to adequately allege an underlying constitutional violation, the Court GRANTS the Motion and dismisses Plaintiffs’ Monell claim against the City. See Villegas v. Gilroy Garlic Festival Ass'n , 541 F.3d 950, 957 (9th Cir. 2008) (where "there is no constitutional violation, there can be no municipal liability").
E. Declaratory Relief (Claim 1)
Plaintiffs alternatively seek a declaratory judgment, asking the Court to decide whether the Ordinance "permits room attendants to perform additional non-room-cleaning work without receiving double pay for the day." (SAC ¶ 66.)
As the Court has dismissed all of Plaintiffs’ pending federal claims, the Court declines to exercise supplemental jurisdiction over the remaining state law claim. See 28 U.S.C. § 1367(c)(3) ; see also United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ("Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.")
Therefore, the Court GRANTS the Motion and dismisses Plaintiffs’ alternative claim seeking declaratory relief.
To the extent the claim for declaratory relief is brought under the Declaratory Judgment Act, 28 U.S.C. § 2201, it is axiomatic that the Act "does not itself confer federal subject matter jurisdiction." Fid. & Cas. Co. v. Reserve Ins. Co. , 596 F.2d 914, 916 (9th Cir. 1979).
F. Leave to Amend
In general, a court should liberally allow a party leave to amend its pleading. See Fed. R. Civ. P. 15(a). However, the Court may deny leave to amend where amendment would be futile. Gardner v. Martino , 563 F.3d 981, 990 (9th Cir. 2009). When "any amendment would be futile, there is no need to prolong the litigation by permitting further amendment." Chaset v. Fleer/Skybox Int'l, LP , 300 F.3d 1083, 1088 (9th Cir. 2002) (affirming the trial court's denial of leave to amend where plaintiffs could not cure a basic flaw).
Given the Court's finding that the Workload Limitation Provision is a minimum labor standard exempt from Machinists preemption, as a matter of law, further amendment would not cure the legal deficiencies of Plaintiffs’ NLRA claim. Leave to amend is thus inappropriate as to Plaintiffs’ NLRA preemption claim. As Plaintiffs do not oppose dismissal of their § 1983 claim, they have abandoned that claim; leave to amend is thus also inappropriate as to it. Finally, as to Plaintiffs’ claims for CalOSHA preemption, violation of the DCC, and declaratory relief, the Court finds further amendment would be futile. Plaintiffs have amended twice, most recently with the benefit of the Court's Preliminary Injunction Order and Defendant's prior motion to dismiss, both of which addressed the same issues raised again here. Yet Plaintiffs’ SAC still fails to state a plausible claim and Plaintiffs propose no amendment to cure the deficiencies in either their Opposition or Surreply. Therefore, the Court DISMISSES Plaintiffs’ SAC without leave to amend .
VI. CONCLUSION
For the foregoing reasons, the Court GRANTS the City's Motion to Dismiss Plaintiffs’ Second Amended Complaint with prejudice . The Clerk of the Court shall close the case.