Bagdasarian Productions, LLC, et al v. Twentieth Century Fox Film Cor
FILED OPINION (HARRY PREGERSON, MICHAEL DALY HAWKINS and CARLOS T. BEA) DISMISSED.Judge: MDH Authoring, FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAGDASARIAN PRODUCTIONS, LLC, a
California limited liability
company, and JANICE KARMAN, an
TWENTIETH CENTURY FOX FILM
CORPORATION, a Delaware
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted
February 13, 2012—Pasadena, California
Filed March 26, 2012
Before: Harry Pregerson, Michael Daly Hawkins, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Hawkins
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BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX 3399
Gerard E. Harper, Paul, Weiss, Rifkind, Wharton & Garrison,
New York, New York, for the plaintiffs-appellants.
Louis A. Karasik, Alston & Bird, Los Angeles, California, for
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3400 BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX
HAWKINS, Senior Circuit Judge:
In an issue of first impression, we consider whether an
order compelling enforcement of a contractual agreement to
submit a dispute to a referee, and staying proceedings in the
interim, is immediately appealable. The dispute stems from a
written agreement between Plaintiffs Bagdasarian Productions, LLC and Janice Karman (collectively, “Plaintiffs”) and
Defendant Twentieth Century Fox Film Corporation (“Fox”),
regarding the popular “Alvin and the Chipmunks” movies.
The parties’ Purchase/Producer Agreement–Literary Material
(the “Agreement”) granted Fox various rights to develop and
produce movies based on the Alvin properties and engaged
Plaintiffs to render services in connection with the pictures on
a “work for hire” basis. The Agreement also contained a
forum selection/choice of law provision that any dispute
would be brought in California state or federal court and governed by California law. The Agreement further provided that
any dispute arising out of the Agreement would be submitted
to a general non-jury reference pursuant to California Code of
Civil Procedure § 638.1
When a dispute arose regarding certain services Karman
Section 638 provides:
A referee may be appointed upon the agreement of the parties
filed with the clerk, or judge, or entered in the minutes, or upon
the motion of a party to a written contract or lease that provides
that any controversy arising therefrom shall be heard by a referee
if the court finds a reference agreement exists between the parties:
(a) To hear and determine any or all of the issues in an action or
proceeding, whether of fact or of law, and to report a statement
(b) To ascertain a fact necessary to enable the court to determine
an action or proceeding.
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BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX 3401
provided in connection with Alvin and the Chipmunks, The
Squeakquel (“The Squeakquel”), Plaintiffs filed this action.
Fox moved to stay the case and to refer the dispute to a referee as the Agreement provided. The district court granted the
motion, whereupon Plaintiffs brought this interlocutory
appeal to contest the reference. Because we conclude we lack
jurisdiction at this stage of the proceedings, we dismiss the
FACTS AND PROCEDURAL HISTORY
In March 2004, Plaintiffs and Fox entered into the Agreement, which granted Fox rights to use pre-existing and futurecreated Alvin materials owned or controlled by Plaintiffs. The
Agreement defines the “Property” covered by the Agreement
That certain pre-existing property generally
known as “Alvin and the Chipmunks” a.k.a. “Chipmunks” a.k.a. “Chipmunks Go to the Movies,”
“Alvin and the Chipmunks Series,” “The Alvin
Show,” including various television series produced
commencing in 1961, 1983 through 1987, and 1988
through 1991, created and/or controlled by RossBagdasarian, Sr., Ross Bagdasarian, Jr., Janice Karman, Bagdasarian Productions, LLC, and any and all
associated characters (including Simon, Theodore,
Alvin and David Seville) now or hereafter created
and to the extent owned and/or controlled by Owner,
and any and all other plots, themes, titles, story lines,
names related thereto, and any and all other elements
relating to any of the foregoing, now existing or created hereafter.
The Agreement then grants Fox the following rights in the
the right to develop, produce, distribute, exhibit,
exploit, advertise, promote and publicize, throughout
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3402 BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX
the universe, in and by any and all manner, media,
devices, processes and technology now known or
hereafter devised, exclusively and in perpetuity, Theatrical Motion Pictures and Home Video Motion Pictures based on the Property, Merchandising Rights
and Commercial Tie-in Rights as set forth in Paragraphs 9(a),(b)(c), and (d), and the motion picture
and analogous and allied rights related thereto (collectively, “Motion Picture and Allied Rights”) in and
to the Property . . . .
In the same paragraph, Plaintiffs agree to
furnish Fox the services of Ross Bagdasarian . . . and
Janice Karman . . . (collectively, “Artist”), as producers in connection with the development and possible production of the theatrical motion picture
project(s) currently entitled “ALVIN AND THE
CHIPMUNKS.” Owner shall cause Artist to render
all services . . . customarily rendered by producers in
the motion picture industry, including supervision of
the screenplay materials required by Fox.
The Agreement also incorporated by reference the Standard
Terms and Conditions for Purchase of Literary Material
(“ST&C”), which provided, among other things, that the “results and proceeds of Artist’s services hereunder . . . are being
specially ordered by Fox for use as part of a motion picture
and shall be considered a ‘work made for hire’ by Fox and,
therefore, Fox shall be the author and copyright owner thereof
for all purposes throughout the universe.” The ST&C also
define “Literary Material” as “written matter, whether published or unpublished, in any form, including a novel, treatment, outline, screenplay, teleplay, story, manuscript, play or
otherwise, which may be included in or upon which a Motion
Picture may be based.”
Released in 2007, the first film enjoyed great financial success. Fox then began work on a second film, The Squeakquel.
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BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX 3403
According to the complaint, Fox contacted Plaintiffs and indicated it was searching for a story for The Squeakquel. Karman
prepared a thirty-three-page treatment which she pitched to
Fox in March 2008. Fox adopted this as a working draft and
Karman worked with Fox screenwriters on the treatment over
the next several months.
Disappointed with its own writer’s first draft of a screenplay, in October 2008 Fox asked Karman to re-write the
screenplay. Fox allegedly offered Karman additional compensation beyond that payable under the Agreement, but Karman
rejected the offers as insufficient and the parties never
reached an agreement. Nonetheless, the complaint alleges
Karman delivered a new screenplay to Fox and worked with
Fox writers to revise the working draft. Completed in April
2009, the final version contained many scenes, dialogue, and
other expressions contributed by Karman.
Plaintiffs then filed suit alleging: (1) Karman was a coowner of The Squeakquel screenplay and entitled to an
accounting of profits; (2) alternatively, Fox had infringed her
copyright in the screenplay; (3) Fox was unjustly enriched by
exploitation of Karman’s screenwriting and graphic design
services; and (4) Fox breached various contractual obligations
to Plaintiffs under the Agreement, pertaining to merchandising rights, compensation for the sequel, approval rights and
access to meetings.
In response, Fox moved to refer all these disputes pursuant
to California Code of Civil Procedure § 638 and to stay this
action. Fox’s motion was based on a provision in the ST&C,
Any claim or dispute arising out of this Agreement
shall be submitted to a general, non-jury reference
(“Referee”) to hear and decide all matters relating to
the claim or dispute pursuant to California Code of
Civil Procedure Sec. 638.
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3404 BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX
Determining that all of Plaintiffs’ claims arose out of the
Agreement or required interpretation of it, the district court
granted the motion to refer, staying proceedings in the meantime.
Finality of Order
 We must independently ascertain whether we have
jurisdiction to entertain an appeal. See Allstate Ins. Co. v.
Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004). We have jurisdiction to hear appeals from all “final decisions” of the district
courts. 28 U.S.C. § 1291. “So long as the matter remains
open, unfinished or inconclusive, there may be no intrusion
by appeal.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949).
 There is no traditional “final decision” or judgment
here. Instead, the court entered a stay pending the Section 638
reference. “[A] stay is not ordinarily a final decision for purposes of § 1291 . . . .” Moses H. Cone Mem. Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 10 n.11 (1983). However, courts
will in limited circumstances permit immediate appeal if the
stay order effectively puts the plaintiff “out of court”—
creating a substantial possibility there will be no further proceedings in the federal forum, because a parallel proceeding
might either moot the action or become res judicata on the
operative question. See id. (noting this usually occurs with
cases under “Colorado River, abstention, or a closely similar doctrine”); see also Lockyer v. Mirant Corp., 398 F.3d
1098, 1102-03 (9th Cir. 2005) (stay appealable where bankruptcy court proceeding might moot action); Intel Corp. v.
Advanced Micro Devices, Inc., 12 F.3d 908, 911-13 (9th Cir.
Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800
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BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX 3405
1983) (stay appealable where court stayed action under Colorado River doctrine).
 But here, Plaintiffs fail to explain how the reference
puts them “out of court.” The principal cases on which Plaintiffs rely to support this claim involve parallel proceedings.
That is not the case here. There is no ongoing, separate court
proceeding; rather, it is this very same proceeding which has
been referred, not to state court, but to a non-jury proceeding
before a referee. A decision by the referee cannot possibly
moot this action or be res judicata; rather, it will supply a
“statement of decision” under § 638(a), the basis for the currently nonexistent final judgment.
 Plaintiffs nonetheless argue they have been effectively
put out of court because there will be “no further merits
review by the district court.” Although they are correct that
with consensual references under Section 638, “the decision
of the referee . . . must stand as the decision of the court, and
. . . judgment may be entered thereon in the same manner as
if the action had been tried by the court,” Cal. Code Civ. P.
§ 644, the California reference statutes also state that the decision of any such referee “may be excepted to and reviewed in
like manner as if made by the court.” Id. § 645.
 The reference is thus not the effective end of these proceedings, because the case may be reviewed by the district
court upon a motion for new trial or other post-judgment
motions. See, e.g., Kajima Engineering & Constr., Inc. v. Pac.
Bell, 103 Cal. App. 4th 1397, 1401 (2002) (“[G]eneral reference ‘preserve[s] the court’s power regarding new trial
motions and other postjudgment remedies.’ ”) (quoting Nat’l
Union Fire Ins. Co. v. Nationwide Ins. Co., 69 Cal. App. 4th
709, 716 (1999)); Estate of Bassi, 234 Cal. App. 2d 529, 540
(1965) (“[I]n any event the court had power to review the
matter on motion for new trial even if it were a general reference.”); see also Ellsworth v. Ellsworth, 42 Cal. 2d 719, 72223 (1954) (referee’s decision may be attacked through a
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3406 BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX
motion for new trial in referring court); Calderwood v. Pyser,
31 Cal. 333, 337 (1866) (it is within referring court’s power
to set aside a referee’s erroneous conclusions of law and to
direct a proper judgment on the facts found).
Plaintiffs suggest in a footnote that a motion for new trial
is properly made before the Section 638 referee rather than
the referring court, citing Clark v. Rancho Santa Fe Ass’n,
216 Cal. App. 3d 606, 623-25 (1989). However, in Clark, the
parties had expressly stipulated that the referee’s decision
would be a “complete and final adjudication” of the matter.
Id. at 623. Here, the Agreement makes no mention of the
finality of the referee’s decision. Furthermore, even Clark
acknowledged that, under Calderwood, the referring court
would still have the authority to set the judgment aside and
correct errors of law. Id. at 625.
 Also unavailing is the Plaintiffs’ claim that the district
court contemplated no further proceedings. Although the
court’s order quoted the California Code provision that the
referee’s judgment must stand as the decision of the court, it
also quoted the provision that such decision may be “excepted
to and reviewed” as would any other court decision. Cal.
Code Civ. P. § 645. That the district court stayed the proceeding rather than dismissing it tells us it expects further involvement. In any event, as discussed further below, appeal of the
merits would also eventually lie in this court upon entry of a
final judgment in district court. Accordingly, because Plaintiffs fail to explain how the reference puts them effectively
“out of court,” we decline to treat the order as sufficiently
final to permit immediate appeal under 28 U.S.C. § 1291.
Collateral Order Doctrine
 Alternatively, Plaintiffs argue that the district court
order should be immediately appealable under the collateral
order doctrine. This doctrine allows for appeal of “a small
class of interlocutory orders” that do not terminate the litiga-
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BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX 3407
tion but sufficiently affect the litigation so as to be treated as
if final. Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982). These
include orders that (1) conclusively determine the disputed
questions, (2) resolve important questions separate from the
merits, and (3) are effectively unreviewable on appeal from a
final judgment in the action. Id.; see also Moses H. Cone, 460
U.S. at 11-12; Lockyer, 398 F.3d at 1103. If even one element
of this test is not met, there is no basis for immediate appeal.
Truckstop.net, LLC v. Spring Corp., 547 F.3d 1065, 1068 (9th
 Here, at a minimum, the third requirement is not satisfied. Plaintiffs could seek relief on appeal to this court, and,
if the referral pursuant to Section 638 were improper for any
reason, the error could be remedied by setting aside the decision and remanding to the district court for full proceedings
there. Plaintiffs contend this is not the case, and suggest our
decision in Johnson v. Wells Fargo Home Mortgage, 635 F.3d
401 (9th Cir. 2011), disapproved of any appellate review of
a Section 638 reference. But the question presented there was
whether the district court, under the Federal Arbitration Act
(“FAA”), could decline to rule on a party’s motion to vacate,
modify, or amend the arbitration award because it believed
the parties had agreed the award would be directly appealed
to the circuit court. Id. at 407. We concluded the district court
could not refuse to entertain the motion because the parties
did not agree that no district court review would occur, and,
even if they did, the FAA requires a judge “faced with proper
and timely motions to vacate and to confirm” an arbitral
award to “consider both motions and rule on them accordingly.” Id. at 410-11, 412. In passing, we noted that “some states
have instituted procedures that allow parties to select and
compensate a private individual at the trial court level, that is,
an arbitrator whose rulings are directly reviewed by appellate
courts as if they were decisions of a trial court” and cited Section 638 in a string cite. Id. at 408.
Johnson did not examine Section 638 and made no holding
with respect to it. Indeed, as discussed above, California
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3408 BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX
courts have consistently construed the provision as not disturbing the referring court’s ability to correct errors of law,
entertain motions for new trials, and so forth. If this case
came to us after the district court “rubber-stamped” the referee’s decision and declined to entertain any of the complaining
party’s post-judgment motions, then Johnson might have
some applicability. If anything, Johnson exemplifies why the
current appeal is premature: the referee has not rendered a
decision and the district court has not taken (or refused to
take) any further action on it.
Our ruling today is consistent with the treatment of orders
compelling or denying arbitration under the FAA. Interlocutory orders denying motions to compel arbitration may be
immediately appealed, whereas orders staying proceedings
pending arbitration (i.e., a grant of a motion to compel arbitration) are not immediately appealable. 9 U.S.C. § 16; see,
e.g., Ventress v. Japan Airlines, 486 F.3d 1111, 1119 (9th Cir.
2007) (order compelling arbitration and staying case not
appealable); Dees v. Billy, 394 F.3d 1290, 1294 (9th Cir.
2005) (“[A] district court order staying judicial proceedings
and compelling arbitration is not appealable.”); see also Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1153 (9th
Cir. 2004) (noting that this dichotomy in the FAA illustrates
intent to “move the parties to an arbitrable dispute out of court
and into arbitration as quickly and easily as possible”). An
appellate court may later remedy an improper referral to arbitration by vacating the award and remanding for district court
proceedings on the merits. See, e.g., Marchese v. Shearson
Hayden Stone, Inc., 734 F.2d 414 (9th Cir. 1984) (remanding
in part where district court should not have compelled arbitration on one claim in case).
Although there are some differences between arbitration
and Section 638 reference, both are forms of alternative dispute resolution designed to move disputes out of court and
lower the cost of trial proceedings. Plaintiffs offer no convincing reason why stays pending Section 638 reference proceed-
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BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX 3409
ings should be treated differently from stays pending
arbitration, since errors with either may be corrected later on
 The collateral order doctrine is to be construed very
narrowly. “We have held that ‘[t]his determination should not
be made lightly because the principle that appellate review
should be deferred pending the final judgment of the district
court is central to our system of jurisprudence.’ ” Truckstop.net, 547 F.3d at 1068 (quoting United States v. Amlani,
169 F.3d 1189, 1192 (9th Cir. 1999)). “Strict application of
the requirements is particularly important because, when a
court identifies an order as an appealable, collateral one, it
determines the appealability of all such orders.” SEC v. Capital Consultants LLC, 453 F.3d 1166, 1171 (9th Cir. 2006)
Thus, we are not to consider “the chance that the litigation at hand might be speeded, or a particular
injustic[e] averted, by a prompt appellate court decision” when we determine whether a particular order
is an appealable, collateral one. We must take a
broader view and determine if resolution of the kind
of claim in question must always be immediately
appealable under the collateral order doctrine.
Id. (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 868 (1994)). Here, because the alleged errors with
referring the dispute under Section 638 will not become “effectively unreviewable on appeal,” the requirements of the
collateral order doctrine are not satisfied, and the order is not
 In sum, we conclude that the district court’s order is
not final, the Plaintiffs have not been put “out of court” by the
order, and the collateral order doctrine is inapplicable because
the decision to refer can be reviewed and, if incorrect, later
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3410 BAGDASARIAN PRODUCTIONS v. TWENTIETH CENTURY FOX
remedied by this court.3 As such, the appeal is premature and
we lack jurisdiction over it under Section 1291.
Because of our conclusion, we do not decide whether the other requirements of the collateral doctrine test are satisfied. Nor do we express any
opinion on the merits of the district court’s decision to refer the matter
pursuant to Section 638.
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