Ziba Youssofi v. Credit One Financial

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZIBA YOUSSOFI,
Plaintiff-Appellant,
v.
CREDIT ONE FINANCIAL,
Defendant-Appellee.
No. 17-55275
D.C. No.
3:15-cv-01764-AJB-RBB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted March 16, 2018
San Francisco, California
Before: WALLACE and BERZON, Circuit Judges, and MUELLER,** District
Judge.
FILED
APR 04 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kimberly J. Mueller, United States District Judge for
the Eastern District of California, sitting by designation.

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Credit One Bank, N.A., (Credit One)1 moved to compel arbitration of Ziba
Youssofi’s claims arising out of Credit One’s collection calls to Youssofi.
Youssofi opposed the motion on the ground that she had not validly waived her
constitutional right to litigate her claims in court. We hold that enforcement of the
arbitration clause against Youssofi implicated no state action, and so no Petition
Clause right. Accordingly, no “knowing, intelligent, and voluntary” waiver of that
constitutional right was required before the arbitration agreement was enforced
against her. We therefore affirm.
“Because the First Amendment right to petition is a guarantee only against
abridgment by the government, state action is a necessary threshold” for a Petition
Clause claim. Roberts v. AT&T Mobility LLC, 877 F.3d 833, 837 (9th Cir. 2017)
(internal citations and quotation marks omitted), petition for cert. filed (Mar. 9,
2018) (No. 17-1287). For the heightened waiver standard to apply, see Leonard v.
Clark, 12 F.3d 885, 889 (9th Cir. 1993), Youssofi must demonstrate state action in
the alleged infringement of her Petition Clause rights.
“[N]o state action is present in simply enforcing [an arbitration] agreement.”
Duffield v. Robertson Stephens & Co., 144 F.3d 1182, 1201 (9th Cir. 1998),
1 Although the caption names “Credit One Financial,” Credit One Bank,
N.A., is the properly named defendant-appellee.
2

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overruled on other grounds by EEOC v. Luce, Forward, Hamilton & Scripps, 345
F.3d 742 (9th Cir. 2003). See Roberts, 877 F.3d at 838 n.1 (“It is well established
that judicially enforcing arbitration agreements does not constitute state action.”)
(citing Duffield, 144 F.3d. at 1202).
Nor was state action present in the enforcement of Youssofi’s arbitration
agreement because the district court applied a substantive rule of law “in a manner
alleged to restrict First Amendment freedoms.” Cohen v. Cowles Media Co., 501
U.S. 663, 668 (1991) (listing cases); New York Times Co. v. Sullivan, 376 U.S.
254, 265 (1964). Unlike the substantive laws at issue in Sullivan and Cohen,
which were state-created and state-imposed, “the requirement that [Youssofi]
actually arbitrate her lawsuit . . . is found in her private contract, not in federal
law.” Duffield, 144 F.3d at 1201; see Roberts, 877 F.3d at 844. Had Youssofi
abided by the agreement to arbitrate, see 9 U.S.C. § 4, there would have been no
involvement by the courts at all.
In the district court’s enforcement of her arbitration agreement, Youssofi
failed to demonstrate state action. The district court’s order granting Credit One’s
motion to stay proceedings and compel arbitration is AFFIRMED.
3

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