                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 04 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ZIBA YOUSSOFI,                                   No.   17-55275

              Plaintiff-Appellant,               D.C. No.
                                                 3:15-cv-01764-AJB-RBB
 v.

CREDIT ONE FINANCIAL,                            MEMORANDUM*

              Defendant-Appellee.


                   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.




      *
             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.
      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
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.




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