Ronald Saxe v. Cast & Crew Payroll, LLC et al

Filing 34

MINUTES (In Chambers): ORDER DENYING PLAINTIFF'S MOTION TO REMAND TO LOS ANGELES SUPERIOR COURT 21 by Judge S. James Otero. For the foregoing reasons, the Court DENIES Plaintiff's Motion to Remand the instant lawsuit to the Superior Court. Because Plaintiff's Motion is DENIED, the Court also DENIES Plaintiff's request for attorney's fees and costs associated with bringing the Motion. (lom)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

DATE: August 4, 2015

CASE NO.: CV 15-01872 SJO (VBKx)
TITLE:

Ronald Saxe v. Cast & Crew Payroll, LLC et al.

========================================================================
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
Victor Paul Cruz
Courtroom Clerk

Not Present
Court Reporter

COUNSEL PRESENT FOR PLAINTIFF:

COUNSEL PRESENT FOR DEFENDANTS:

Not Present

Not Present

========================================================================
PROCEEDINGS (in chambers): ORDER DENYING PLAINTIFF'S MOTION TO REMAND TO
LOS ANGELES SUPERIOR COURT [Docket No. 21]
This matter is before the Court on Plaintiff Ronald Saxe's ("Plaintiff") Motion to Remand to Los
Angeles Superior Court ("Motion" or "Motion to Remand"), filed May 7, 2015. Defendants WAD
Productions, Inc. ("WAD"), Cast & Crew Production Payroll, LLC ("Cast & Crew"), Telepictures
Productions Inc. ("Telepictures"), and Edward Glavin ("Glavin") (collectively, "Defendants") filed
an opposition to the Motion ("Opposition") on May 18, 2015, to which Plaintiff filed a Reply on
May 22, 2015. On June 22, 2015, the attorneys for the parties appeared for a Scheduling
Conference wherein they and the Court discussed Plaintiff's pending Motion, as well as the
viability of Plaintiff's claims. On June 23, 2015, and with leave of the Court, Plaintiff filed a First
Amended Complaint ("FAC"), which includes only two of the seven causes of action stated in his
original complaint. With regard to the issue of remand, Defendants filed a supplemental brief in
opposition to Plaintiff's Motion to Remand ("Supplemental Brief" or "Brief") on July 8, 2015, to
which Plaintiff filed a reply ("Reply Brief") on July 13, 2015. For the following reasons, the Court
DENIES Plaintiff's Motion to Remand.
I.

FACTUAL AND PROCEDURAL BACKGROUND

In the FAC, Plaintiff alleges the following. Plaintiff is a 65-year-old man who was employed by
Removing Defendants, as well as Defendant A Very Good Production ("AVGP"), for approximately
10 years before his termination. (First Am. Compl.("FAC") ¶ 1, ECF No. 30; see also Notice of
Removal ("Notice"),1 ECF No. 1.)2 Collectively, Defendants, along with co-defendant AVGP, were

1

The Notice lists the correct names for Cast & Crew and Glavin. (See Notice 2.)

2

AVGP did not join in the removal. (See generally Notice.) The Court addresses the
parties' contentions regarding the implications of AVGP's failure to join in the removal, (see

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Plaintiff's co-employers. (FAC ¶ 2.) Defendants WAD and Cast & Crew were listed as Plaintiff's
employers on his paychecks, while AVGP and Telepictures ("Employers") managed and controlled
Plaintiff's work. (FAC ¶¶ 2-3.) Defendant Glavin was Plaintiff's supervisor and the producer of the
show on which Plaintiff worked: The Ellen Degeneres Show (the "Show"). (FAC ¶¶ 1, 3.)
In 2003, Defendants hired Plaintiff as an assistant camera operator for the Show. (FAC ¶ 5.)
Plaintiff's job responsibilities included charging camera batteries, preparing the camera for daily
operation, running the camera cable, and assisting in other tasks as needed. (FAC ¶ 5.)
Throughout the course of his employment, Plaintiff: (1) received raises, insurance, and benefits;
and (2) was promised continued employment for each season of the Show. (FAC ¶ 5.) Plaintiff
did not have any disciplinary write-ups and received verbal praise for his work from his supervisors
and other cameramen. (FAC ¶ 5.)
In February 2009, Plaintiff suffered injuries at work and, as a result, became disabled. (FAC ¶ 6.)
Plaintiff informed his Employers of his injuries and obtained workers' compensation benefits, but
was never evaluated for accommodation and was required to work as if he did not have
restrictions. (FAC ¶ 6.) Plaintiff alleges that after he became disabled, Defendants perceived him
as too old, slow, and prone to injury, and needed a pretext to prevent him from returning to the
Show for its eleventh season. (FAC ¶ 6.)
According to Plaintiff, the Show is known for its "liberal content, free wheeling style, and dancing
audience members." (FAC ¶ 5.) In January 2013, during a break in taping, Plaintiff noticed an
audience member in the front row dancing dangerously close to the edge of the aisle. (FAC ¶ 7.)
Fearing that she would fall, Plaintiff warned her, "Be careful, you could hurt your pretty backside."
(FAC ¶ 7.) The total interaction between Plaintiff and the audience member occurred in a matter
of seconds. (FAC ¶ 7.) A crew member, "Chip," later asked Plaintiff about his interaction with the
audience member, and Plaintiff jokingly told Chip about the comment. (FAC ¶ 7.)
After the taping, Plaintiff was summoned to Glavin's office. (FAC ¶ 8.) Glavin questioned Plaintiff
about his interaction with the audience member, and commented that Chip had said that Plaintiff
told the audience member, "Don't shake your ass, you'll get the camera guys excited." (FAC ¶ 8.)
Plaintiff was shocked and told Glavin he had actually told her, "Be careful, you could hurt your
pretty backside." (FAC ¶ 8.) He also told Glavin he did not make any statement he believed to
be offensive about or to the audience member. (FAC ¶ 8.) Following this exchange, Glavin
accused Plaintiff of being a liar and told him not to come back the next day. (FAC ¶ 8.) Plaintiff
maintains that at no point in his employment had Defendants informed him that he could not speak
with audience members. (FAC ¶ 8.)

Mot. 4-6, ECF No. 21; Opp'n 3-5, ECF No. 25; Reply 2, 4-5, 7, ECF No. 27), below.

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When Plaintiff told Glavin he was "making something out of nothing," Glavin reprimanded Plaintiff,
saying, "For ten years we've had a lot of patience. We've trained you, kept you here for ten years.
We've stuck by you. We've gotta move on, pay you for your work." (FAC ¶ 8.) When Plaintiff
asked, "You're gonna fire me?," Glavin responded, "Time to find someone else to do that job."
(FAC ¶ 8.) Plaintiff was in shock and proceeded to plead with Glavin, saying that he needed the
work to support his family and, "Without [the job], I have nothing." (FAC ¶ 8.) Plaintiff was
distressed and humiliated by this incident. (FAC ¶ 8.)
When Glavin called Plaintiff back into his office several hours later, he informed Plaintiff that his
decision to terminate Plaintiff was on hold. (FAC ¶ 9.) Plaintiff continued to perform his work, but
remained worried that Defendants would find a reason to fire him. (FAC ¶ 10.) On May 31, 2013,
the Show's tenth season ended. (FAC ¶ 11.) Between May and August 2013, Plaintiff continued
to receive medical treatment for his ongoing disability and sought the workers' compensation
benefits to which he was entitled. (FAC ¶ 11.) On August 21, 2013, when his work was scheduled
to resume, Plaintiff received a phone message from the Show informing him that he was not to
return to work for the eleventh season. (FAC ¶ 12.) On information and belief, Plaintiff alleges
that (1) he was replaced by a much younger worker and (2) his interaction with the audience
member was a pretext for Defendants' real motives for terminating him: his age, disability, and
perceived disability. (FAC ¶¶ 12, 14, 17.)
Plaintiff filed the instant lawsuit in the Superior Court of California for the County of Los Angeles
("Superior Court") on December 9, 2014. (See generally Notice, Ex.1 ("Compl."), ECF No. 1-1.)3
Removing Defendants removed the action to this Court on March 13, 2015.4 (See generally
Notice.) On June 22, 2015, the parties' attorneys appeared before the Court for a Scheduling
Conference at which they and the Court also discussed Plaintiff's instant Motion. (See Mins. of
Scheduling Conference ("Conf. Mins."), ECF No. 28.) At the Scheduling Conference, the Court
granted Plaintiff's oral motion to dismiss five of his seven original causes of action for: (1) breach
of express and implied contract (against all Defendants except Glavin) (Compl. ¶¶ 26-32, ECF
No. 1); (2) breach of the covenant of good faith and fair dealing (against all Defendants except

3

In both the Complaint and FAC, Plaintiff asserts that he is a member of the IATSE-600
cinematographers union, and that he has exhausted any and all administrative
prerequisites to suit. (Compl. ¶ 15; FAC ¶ 15.)
4

Although there was a notable delay between Plaintiff's filing of the Complaint in the
Superior Court and Defendants' removal to this Court, because Plaintiff did not serve the
Complaint on Telepictures, Glavin, Cast & Crew, and WAD until either February 13, 2015,
or February 18, 2015, (Decl. of Robyn M. First Coltin ("First Coltin Decl.") ¶¶ 3-6, ECF
No. 1; Notice ¶ 4), removal was timely. See 28 U.S.C. § 1446(b).

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Glavin) (Compl. ¶¶ 33-41); (3) intentional infliction of emotional distress ("IIED") (against all
Defendants) (Compl. ¶¶ 51-57); (4) violation of California's Unfair Competition Law ("UCL"), Cal.
Bus. & Prof. Code §§ 17200, et seq. (against all Defendants except Glavin) (Compl. ¶¶ 58-60);
and (5) intentional misrepresentation (fraud), negligent misrepresentation, and concealment
(against all Defendants). (Compl. ¶¶ 69-72.) Thus, the FAC, filed June 23, 2015, includes
Plaintiff's two remaining claims for: (1) wrongful termination in violation of public policy (against
all Defendants except Glavin) (FAC ¶¶ 42-50); and (2) discrimination in violation of California's Fair
Employment and Housing Act (the "FEHA"), Cal. Gov. Code §§ 12900, et seq. (against all
Defendants). (FAC ¶¶ 61-68; see generally Conf. Mins.)
As stated in the Notice, Defendants removed the lawsuit to this Court on the grounds
that: (1) Plaintiff's claims are preempted by Section 301(a) of the Labor Management Relations
Act ("LMRA"), 29 U.S.C. § 185(a); and (2) any non-preempted cause of action falls within the
Court's pendent jurisdiction because each of Plaintiff's claims arise out of a common nucleus of
operative fact. (See Notice ¶¶ 7-31.) More specifically, Defendants contend that the LMRA's
Section 301(a) ("§ 301") preempts Plaintiff's remaining wrongful termination and FEHA claims
because they require interpretation and application of the terms of the collective bargaining
agreements ("CBAs") governing Plaintiff's employment. (Br. 3-9, ECF No. 32.) Alternatively,
Defendants argue that even if Plaintiff's remaining claims are not preempted by § 301, the Court
should exercise supplemental jurisdiction over these claims because: (1) this action was
removable at the time of removal; (2) several of Plaintiff's claims in his original Complaint were
preempted by § 301; and (3) Plaintiff's wrongful termination and FEHA claims arise from the same
facts as his purportedly preempted claims. (Br. 9-12.)
In his pleadings, Plaintiff requests that the Court remand this lawsuit to the Superior Court on the
grounds that: (1) AVGP did not join in the removal; and (2) Defendants have failed to demonstrate
(a) how the CBAs apply to Plaintiff's claims and (b) that Plaintiff's claims are substantially
dependent upon the construction of the CBAs. (See generally Mot; Reply; Reply Br., ECF No. 33.)
Plaintiff also requests that the Court award him the attorney's fees and costs associated with
bringing the Motion to Remand. (Mot. 8; Reply 10.)5
II.

DISCUSSION
A.

Legal Standard for Remand

5

Plaintiff's ten-page Reply fails to comply with this Court's five-page limit for reply briefs.
(See Initial Standing Order ("ISO") ¶ 21, ECF No. 12.) However, in order to fully consider
the parties' arguments for the purpose of adjudicating this Motion, the Court elects to
consider Plaintiff's overlong pleading in its entirety.

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"It is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, "[a] federal court is presumed to lack
jurisdiction in a particular case unless the contrary affirmatively appears." Stock W., Inc. v.
Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (citation
omitted). Lack of subject matter jurisdiction may be raised by any party at any time, and it is never
waived. See United States v. Cotton, 535 U.S. 625, 630 (2002); Miguel v. Country Funding Corp.,
309 F.3d 1161, 1163-64 (9th Cir. 2002).
"If at any time before final judgment it appears that the district court lacks subject matter
jurisdiction," it must remand the case. See 28 U.S.C. § 1447(c). The Ninth Circuit has held that
"a court may raise the question of subject matter jurisdiction, sua sponte, at any time during the
pendency of the action." Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002). Courts must
"strictly construe the removal statute against removal jurisdiction" and reject federal jurisdiction
"if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992). "The strong presumption against removal jurisdiction means that the
defendant always has the burden of establishing that removal is proper." Id. (internal quotation
marks omitted); see, e.g., Melchor v. Foster Poultry Farms, Inc., No. CV 12-00339 GSA, 2012 WL
1836289, at *7 (E.D. Cal. May 21, 2012) (stating that defendant's burden in a removal case based
on § 301 preemption was high); Saucedo v. Felbro, Inc., No. CV 07-06572 DDP, 2007 WL
4391506, at *1, 3 (C.D. Cal. Dec. 5, 2007) (same); Romo v. Shimmick Constr. Co., No.
CV 14-02403 JCS, 2014 WL 6450249, at *6-7 (N.D. Cal. Nov. 14, 2014) (same).
B.

Plaintiff's Alleged Failure to Meet and Confer

As an initial matter, Defendants argue that the Motion should be denied due to Plaintiff's failure
to meet and confer prior to filing the Motion. (Opp'n 2-3.) Although parties are generally required
to meet and confer prior to the filing of a motion pursuant to Local Rule 7-3 and the Court's ISO,
in the interest of adjudicating the parties' arguments on the merits, the Court declines to deny the
Motion on this basis.
C.

AVGP's Failure to Join in the Removal

In the Motion, Plaintiff contends that the fact that Defendant AVGP did not join in the removal,
standing alone, warrants remand. (Mot. 5-6.) Defendants maintain that AVGP: (1) is a "sham
defendant"; (2) is not a legal entity that can be sued; and (3) has not been served with the
summons and complaint. (See Opp'n 4-5; Decl. of Kevin Yorn in Supp. of [Opp'n] ¶ 2, ECF
No. 25-4; Decl. of Robyn M. Coltin in Supp. of Opp'n ("Second Coltin Decl.") ¶¶ 17-19, Exs. N-P,

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ECF No. 25-1; see also Notice ¶ 5; First Coltin Decl. ¶¶ 15-17.)6 Thus, Defendants state that
AVGP was not required to join in the removal. (Opp'n 4-5; Notice ¶ 5.)
Generally, 28 U.S.C. § 1446 "requires all proper defendants to join or consent to the removal
notice." Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999) (citations
omitted), overruled on other grounds by Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th
Cir. 2006). As indicated, Defendants raise several challenges to the propriety of AVGP being
named as a defendant in the Complaint. (See Opp'n 4-5.)
More fundamentally, however, the Court declines to remand on this basis because Plaintiff's
challenge to AVGP's failure to join the removal is untimely. The failure to join all proper
defendants in a removal petition is a procedural defect. See Emrich v. Touche Ross & Co., 846
F.2d 1190, 1193 n.1 (9th Cir. 1988); Esposito v. Home Depot USA, Inc., 590 F.3d 72, 75-77 (1st
Cir. 2009). "A remand motion based on a defect in removal procedure must be filed within 30
days after the notice of removal is filed." N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines
Steel Co., 69 F.3d 1034, 1037 (9th Cir. 1995) (citing 28 U.S.C. § 1447(c)) (footnote omitted).
Thus, "[a]fter the expiration of the thirty-day period following the filing of the removal notice, the
right to object to non[-]jurisdictional defects in the removal process is considered waived."
Esposito, 590 F.3d at 75 (citation and quotation marks omitted). Here, Defendants' Notice of
Removal was filed March 13, 2015. (See generally Notice.) Accordingly, Plaintiff's last day to
timely file a motion to remand based on procedural defects was April 12, 2015. The Motion to
Remand was filed May 7, 2015. (See generally Mot.) Because Plaintiff's challenge to any alleged
procedural defect is untimely, the Court declines to remand the case to the Superior Court on this
basis. See 28 U.S.C. § 1447(c); Council of Laborers, 69 F.3d at 1037.
D.

Section 301 Preemption

Section 301 provides that "[s]uits for violation of contracts between an employer and a labor
organization representing employees . . . may be brought in any district court of the United States
having jurisdiction of the parties, without respect to the amount in controversy or without regard
to the citizenship of the parties." 29 U.S.C. § 185(a). Courts in the Ninth Circuit employ a two-part
inquiry to determine whether legal claims are preempted by § 301. See Burnside v. Kiewit Pac.
Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). First, courts must examine whether "the asserted
cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA."
Id. "If the right exists solely as a result of the CBA, then the claim is preempted, and [the court's]
analysis ends there." Id. (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985);

6

The Court has reviewed and considered Plaintiff's Objections to Evidence ("Objections")
filed concurrently with the Reply. (ECF No. 27-1.) Plaintiff's Objections are overruled.

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Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987)). Alternatively, if the right asserted in the
cause of action "exists independently of the CBA, [the courts] must still consider whether it is
nevertheless 'substantially dependent on analysis of a collective-bargaining agreement.'"
Burnside, 491 F.3d at 1059 (citing Caterpillar, 482 U.S. at 394; Lueck, 471 U.S. at 212).
In order to determine whether a right is conferred upon an employee solely be virtue of the CBA,
courts consider "the legal character of a claim, as independent of rights under the
collective-bargaining agreement." Burnside, 491 F.3d at 1053 (emphasis in original) (citations and
quotation marks omitted). Because the well-pleaded complaint rule "makes the plaintiff the master
of the claim," Caterpillar, 482 U.S. at 392, "reliance on the CBA as an aspect of a defense is not
enough to 'inject[] a federal question into an action that asserts what is plainly a state-law claim.'"
Burnside, 491 F.3d at 1060 (citation omitted); see also Cramer v. Consol. Freightways, Inc., 255
F.3d 683, 691 (9th Cir. 2001) ("If the claim is plainly based on state law, § 301 preemption is not
mandated simply because the defendant refers to the CBA in mounting a defense.") (citation
omitted). "The plaintiff's claim is the touchstone for this analysis [and] the need to interpret the
CBA must inhere in the nature of the plaintiff's claim." Cramer, 255 F.3d at 691 (citation omitted).
In order for a plaintiff's claims to be preempted by § 301, "adjudication of the claim[s] must require
interpretation of a provision of the CBA." Cramer, 255 F.3d at 691-92. Further, because
"reference to or consideration of the terms of a collective-bargaining agreement is not the
equivalent of interpreting the meaning of the terms," Ramirez v. Fox Television Station, Inc., 998
F.2d 743, 749 (9th Cir. 1993), "as long as the state-law claim can be resolved without interpreting
the [collective bargaining] agreement itself, the claim is 'independent' of the agreement for § 301
pre-emption purposes." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410 (1988). Thus,
"[c]auses of action that only tangentially involve a provision of a collective-bargaining agreement,"
as well as "causes of action which assert nonnegotiable state-law rights independent of any right
established by contract" are not preempted by § 301. Ramirez, 998 F.2d at 748 (citations, internal
quotation marks, and original formatting omitted). This is because "Congress did not intend for
section 301 to preempt 'state rules that proscribe conduct, or establish rights and obligations,
independent of a labor contract.'" Paige v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir. 1987)
(citation omitted).
Here, Defendants maintain that Plaintiff's wrongful termination and FEHA claims each require
interpretation of the CBAs and are therefore preempted by § 301. (Br. 3-9; see also Notice ¶ 15.)
The Court examines this contention below.
1.

Wrongful Termination in Violation of Public Policy

With regard to his first cause of action for wrongful termination, Plaintiff alleges that his Employers
terminated him based on his age, permanent disability, and petitions for accommodation and

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workers' compensation benefits in violation of California law and public policy. (FAC ¶¶ 42-50.)
In their Supplemental Brief, Defendants maintain that Plaintiff's first cause of action is preempted
by § 301. (Br. 6-8.)
In general, state statutes, regulations, or public policy may limit an employer's right to terminate
its employee regardless of whether a collective bargaining agreement exists between the
employee and the employer. See Paige, 826 F.2d at 863. Under such circumstances, "the tort
of wrongful discharge in violation of public policy exists independent of any contractual right." Id.
Thus, a plaintiff's claim, including a wrongful termination claim, "is not preempted if it poses no
significant threat to the collective bargaining process and furthers the state interest in protecting
the public transcending the employment relationship." Jackson v. S. Cal. Gas Co., 881 F.2d 638,
644 (9th Cir. 1989) (quoting Young, 830 F.2d at 1001) (quotation marks omitted). By contrast, a
wrongful termination claim is preempted under § 301 when it "is not based on any genuine state
public policy . . . or . . . is bound up with interpretation of the collective bargaining agreement and
furthers no state policy independent of the employment relationship." Jackson, 881 F.2d at 643-44
(quoting Young, 830 F.2d at 1002) (quotation marks omitted).
Defendants contend that the Court must "interpret the [CBAs] to determine whether Plaintiff was
terminated or simply not rehired following expiration of his term of employment." (Br. 4.) To
support this argument, Defendants have proffered evidence beyond the facts alleged in the FAC7
showing the following. Plaintiff was employed by WAD8 as a Camera Utility ("Utility"). (Notice

7

"[E]mployees frequently attempt to avoid federal law by basing their complaint on state
law [and] disclaiming any reliance on the provisions of the collective bargaining agreement."
Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1472 (9th Cir. 1984),
overruled on other grounds by Lueck, 471 U.S. 202; see also Cramer, 209 F.3d at 1128
(stating that the courts "may look beyond facts pleaded in complaint to ascertain facts that
would appear in a 'well pleaded' complaint") (citation omitted). "To determine whether
[§] 301 preempts a state . . . claim, [the courts] do not look to how the complaint is cast."
Hyles v. Mensing, 849 F.2d 1213, 1216 (9th Cir. 1988). "Rather, [the courts] inquire
whether 'the claim can be resolved only by referring to the terms of the CBA.'" Id. (quoting
Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 999 (9th Cir. 1987)).
8

Although WAD is the Defendant that is a party to the CBAs (Notice ¶ 14), "[§] 301(a)
does not contain any requirement that the parties to an action brought thereunder must
also be the parties to the allegedly breached contract." Painting & Decorating Contractors
Ass'n of Sacramento v. Painters & Decorators Joint Comm. of the E. Bay Cntys., Inc., 707
F.2d 1067, 1071 (9th Cir. 1983). Instead, "[a]ll that is required for jurisdiction to be proper
under § 301(a) is that the suit be based on an alleged breach of contract between an

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¶ 10; Decl. of Derek Westervelt in Supp. of Opp'n ("Westervelt Decl.") ¶ 4, ECF No. 25-5.)
Additionally, Plaintiff was represented by Local 600 of the International Alliance of Theatrical Stage
Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States, Its
Territories and Canada ("IATSE"), a labor organization under the LMRA (the "Union"). (Westervelt
Decl. ¶ 5, Ex. A; see also FAC ¶ 15; Notice ¶ 11.) At all relevant times, the applicable bargaining
agreements between WAD and the Union were the: (1) WAD Productions – 'The Ellen Degeneres
Show' Memorandum of Agreement, effective for each season of the Show ("MOA");
(2) Producer – IATSE and MPTAAC Basic Agreement of 2012, effective between August 1, 2012,
and July 31, 2015 ("Basic Agreement"); (3) Producer – IATSE and MPTAAC Videotape Electronics
Supplemental Basic Agreement of 2012, effective between October 1, 2012, and September 30,
2015 ("Videotape Agreement"); and (4) Supplemental Digital Production Agreement of October 1,
2012 Between Producer and International Alliance of Theatrical Stage Employees, effective
between October 1, 2012, and September 30, 2015 ("Digital Agreement") (collectively, the
"Agreements"). (Notice ¶ 12; Westervelt Decl. ¶¶ 5-6, Exs. A (MOA), B (Basic Agreement),
C (Videotape Agreement), D (Digital Agreement).) The MOA incorporates the Basic Agreement,
Videotape Agreement, and Digital Agreement by reference and makes each of the WAD
Agreements applicable to covered employees. (MOA ¶ 2, Ex. A.)
In their pleadings, Defendants argue that adjudicating Plaintiff's wrongful termination claim
requires interpretation of the CBAs for the following reasons. First, to make out a claim for
wrongful termination, Plaintiff must show that he was terminated. (Br. 3.) Second, under
California law, "the non-renewal of an employment contract or refusal to re-hire an individual after
the employee’s term of employment has expired is not a 'termination' and cannot support a tort
claim for wrongful termination." (Br. 3.) Third, under Articles 15 and 22 of the Videotape
Agreement, Plaintiff's guaranteed employment as a Utility was only daily or weekly, and therefore
"it was entirely within the Show’s discretion to decide whether or not it wanted to rehire Plaintiff
to work on the Show for another day or week or hire someone else in his place." (Br. 4; see
Videotape Agreement 21-27, 30-31.)9
Article 22(d) of the Videotape Agreement states that "the guaranteed length of employment shall
be daily or weekly. A guarantee for a longer term shall be specifically set forth in writing. An
employee may be replaced following the completion of the guaranteed period of employment."

employer and a labor organization and that the resolution of the lawsuit be focused upon
and governed by the terms of the contract." Id. (citing Castanada v. Dura-Vent Corp., 648
F.2d 612, 616 (9th Cir. 1981)).
9

Each citation to the Agreements refers to the page number in the agreement itself rather
than the pagination provided by Defendants for all Agreements.

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(Videotape Agreement 31.) Based on these provisions, Defendants argue that Plaintiff's wrongful
termination claim is preempted because the Court must interpret the CBAs to determine whether
Plaintiff was terminated or "simply not rehired following the expiration of his term of employment."
(Br. 4.) The Court agrees.
In their pleadings, (see Opp'n 13; Br. 3-4), Defendants cite several federal and state court cases
holding that "[i]n California, an employee whose fixed-term contract is not renewed cannot state
a claim for wrongful termination in violation of public policy."10 Wells v. Bd. of Trustees of Cal.
State Univ., 393 F. Supp. 2d 990, 997 (N.D. Cal. 2005) (citing Motevalli v. L.A. Unified Sch. Dist.,
122 Cal. App. 4th 97, 112-13 (2004); see also Touchstone Television Prods. v. Super. Ct., 208
Cal. App. 4th 676, 680 (2012) ("Decisional law does not allow a plaintiff to sue for wrongful
termination in violation of public policy based upon an employer's refusal to renew an employment
contract.") (citing Daly v. Exxon Corp., 55 Cal. App. 4th 39, 63 (1997)). This is because "under
a fixed-term contract, the employment is terminated by [the] expiration of its appointed term."
Touchstone, 208 Cal. App. 4th at 681 (citing Cal. Lab. Code § 2920(a); Daly, 55 Cal. App. 4th at
63; Motevalli, 122 Cal. App. 4th at 102; Wells, 393 F. Supp. 2d at 997) (quotation marks and
original formatting omitted). Thus, under California law, "a decision not to renew a contract set
to expire is not actionable in tort." Touchstone, 208 Cal. App. 4th at 682 (citations omitted).
In each of the cases cited above, the plaintiff had an employment contract for a fixed term. See
Touchstone, 208 Cal. App. 4th at 678, 682 (employment contract with option to renew on annual
basis); Motevalli, 122 Cal. App. 4th at 102-03, 112-13 (employment contract for 2000-2001 school
year); Wells, 393 F. Supp. 2d at 997 (one-year employment contract); Daly, 55 Cal. App. 4th at
41, 45 (one-year employment contract). Based on these fixed terms, the courts found that if the
employer elected not to renew the employee's contract, the employer "did not terminate
[the employee's] employment. Instead [the employee's] employment expired at the end of [the
contract term] because [the employer] decided not to exercise its contractual option to hire [the
employee] for another [term]." Touchstone, 208 Cal. App. 4th at 683. In other words, the
employer's conduct "[did] not involve a decision to terminate an employee but, instead, a decision
not to rehire an employee whose contract would expire on its own terms." Id.; see also Motevalli,
122 Cal. App. 4th at 113 ("[T]he plaintiff's use of the term 'wrongful termination' was a misnomer
in that there was no termination, only a nonrenewal of the employment contract.") (citation
omitted).
Here, Defendants argue that the Court must interpret Article 22(d) of the Videotape Agreement
in order to determine whether Plaintiff's Employers terminated him or merely elected not to renew

10

Plaintiff's Reply Brief neither acknowledges nor attempts to distinguish his case from
these authorities. (See generally Reply Br.)

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his fixed-term employment contract. (Br. 4.) The Court agrees. Although Defendants do not cite,
and the Court has not found, case law interpreting the application of this principle in the context
of § 301 preemption, the above-cited authorities make clear that a claim for wrongful termination
in violation of public policy will not lie where (1) the employee's employment contract is for a fixed
term and (2) the employer elects not to renew the employee's contract once that fixed term
expires. See Wells, 393 F. Supp. 2d at 997; Touchstone, 208 Cal. App. 4th at 680. Here, the
Videotape Agreement provides both that (1) "the guaranteed length of employment shall be daily
or weekly" and (2) "[a]n employee may be replaced following the completion of the guaranteed
period of employment." (Videotape Agreement 31.) The Basic Agreement includes the same
language. (Basic Agreement 94.) Thus, the Agreements appear to terminate a covered
employee's employment at the end of a day- or week-long term unless the employer renews the
employee's contract.
As indicated above, because "[P]laintiff's claim is the touchstone for th[e premption] analysis, the
need to interpret the CBA must inhere in the nature of the plaintiff's claim." Cramer, 255 F.3d at
691 (citation omitted). Here, at minimum, the Court must interpret the Agreements' provisions
imposing a fixed day- or week-long term of employment, to determine whether Plaintiff may state
a claim for wrongful termination in violation of public policy under California law. See id.
Accordingly, Plaintiff's wrongful termination claim properly remains in federal court.
2.

FEHA Claim

Plaintiff's second cause of action is for violation of the FEHA. (FAC ¶¶ 61-68.) Defendants argue
that Plaintiff's FEHA claim is preempted because adjudicating this claim would require the Court
to the CBAs in order to determine whether Defendants had a legitimate, non-discriminatory reason
for their allegedly wrongful employment action under McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), and its progeny. (Br. 9.) However, as indicated above, the Ninth Circuit has made
clearly that "reliance on the CBA as an aspect of a defense is not enough to 'inject[] a federal
question into an action that asserts what is plainly a state-law claim.'" Burnside, 491 F.3d at 1060
(citation omitted); see also Cramer, 255 F.3d at 691 ("If the claim is plainly based on state law,
§ 301 preemption is not mandated simply because the defendant refers to the CBA in mounting
a defense.") (citation omitted). Because "[P]laintiff's claim is the touchstone for th[e preemption]
analysis, the need to interpret the CBA must inhere in the nature of [his FEHA] claim." See
Cramer, 255 F.3d at 691 (citation omitted). Further, the Ninth Circuit has "consistently held that
state law discrimination claims under the FEHA do not require courts to interpret the terms of a
CBA and are therefore not preempted by § 301." Schrader v. Noll Mfg. Co., 91 Fed. App'x 553,
555 (9th Cir. 2004) (citing Ackerman v. W. Elec. Co., 860 F.2d 1514, 1517 (9th Cir. 1988); Chmiel
v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1286-87 (9th Cir. 1989); Cook v. Lindsay Olive
Growers, 911 F.2d 233, 240 (9th Cir. 1990); see also Ramirez, 998 F.2d at 749). Since
Defendants' may not commandeer Plaintiff's FEHA claim in asserting their defense thereto, and

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the Ninth Circuit has repeatedly held that FEHA claims are not preempted by § 301, Defendants'
preemption argument fails.
Alternatively, Defendants argue that the Court has supplemental jurisdiction over the FEHA claim
pursuant to 28 U.S.C. § 1367 ("§ 1367"). (Opp'n 19-20.) Congress enacted § 1367 "to provide
a statutory basis for pendent, ancillary, and pendent-party jurisdiction." Exec. Software N. Am.,
Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 24 F.3d 1545, 1555 (9th Cir. 1994), overruled on other
grounds by Cal. Dept. of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008). Section
1367(a) provides that:
Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States
Constitution.
28 U.S.C. § 1367(a). Thus, "[i]f the court has original jurisdiction over a single claim in the
complaint, it has original jurisdiction over a 'civil action' within the meaning of § 1367(a), even if
the civil action over which it has jurisdiction comprises fewer claims than were included in the
complaint." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 559 (2005). Overall,
"[o]nce the court determines it has original jurisdiction over the civil action, it can turn to the
question whether it has a constitutional and statutory basis for exercising supplemental jurisdiction
over the other claims in the action." Id.
In interpreting § 1367, the Supreme Court has recognized the new limits the statute imposes on
judicial discretion when determining whether to exercise supplemental jurisdiction. See id.
("Section 1367(a) commences with the direction that §§ 1367(b) and (c), or other relevant statutes,
may provide specific exceptions, but otherwise § 1367(a) is a broad jurisdictional grant.").
Similarly, the Ninth Circuit has held:
By use of the word 'shall,' the statute makes clear that if power is conferred under
section 1367(a), and its exercise is not prohibited by [§] 1367(b), a court can decline
to assert supplemental jurisdiction over a pendent claim only if one of the four
categories specifically enumerated in [§] 1367(c) applies . . . . Accordingly, unless
a court properly invokes a [§] 1367(c) category in exercising its discretion to decline
to entertain pendent claims, supplemental jurisdiction must be asserted.

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Exec. Software, 24 F.3d at 1555-56 (collecting cases). Like the Supreme Court, the Ninth Circuit
has rejected non-statutory bases for declining to exercise supplemental jurisdiction. Id. at
1556-57.
a.

Plaintiff's FEHA Claim Falls Within the Court's Supplemental
Jurisdiction

Claims preempted under § 301 are within a district court's original jurisdiction. See Avco Corp.
v. Aero Lodge No. 735, Int'l Ass'n of Machinists & Aerospace Workers, 390 U.S. 557, 561-62
(1968) ("Title 28 U.S.C. [§] 1337 says that '[t]he district courts shall have original jurisdiction of any
civil action or proceeding arising under any Act of Congress regulating commerce' . . . . [and i]t is
that original jurisdiction that a [§] 301 action invokes.") (citation omitted); Scott v. Machinists Auto.
Trades Dist. Lodge No. 190 of N. Cal., 827 F.2d 589, 591 (9th Cir. 1987) (affirming district court's
determination that it had original jurisdiction over the plaintiff's claims preempted by § 301).
Accordingly, because § 301 preempts Plaintiff's wrongful termination claim, this Court has original
jurisdiction over that claim.
As indicated, in order for this Court to have supplemental jurisdiction over Plaintiff's
non-preempted FEHA claim, the FEHA claim must form part of the same case or controversy as
the claim preempted under § 301. See Exxon Mobil, 545 U.S. at 552; 28 U.S.C. § 1367(a). In the
§ 301 context, a preempted claim need only be asserted within the same complaint as a
non-preempted claim to satisfy this requirement. See Beneficial Nat'l Bank v. Anderson, 539 U.S.
1, 8 n.3 (2003) ("[A] state claim can . . . be removed through the use of the supplemental
jurisdiction statute, 28 U.S.C. § 1367(a), provided that another claim in the complaint is
removable."); Hernandez v. Pac. Mar. Ass'n, 379 Fed. App'x 668, 671 (9th Cir. 2010) ("Because
the plaintiff's state law claims . . . [were] preempted by [§] 301 of the LMRA, the district court had
federal question jurisdiction over at least some of the plaintiff's claims [and s]ubject matter
jurisdiction over the balance of the claims in the amended complaint was proper under 28 U.S.C.
§ 1367(a).").
Here, Plaintiff asserts his non-preempted claim as part of the same complaint as his preempted
claim. (See generally FAC.) Further, both claims arise from the same conduct on the part of his
Employers. (See generally FAC.) Thus, Plaintiff's non-preempted claim under FEHA clearly falls
within the Court's supplemental jurisdiction, and the Court may not decline to exercise
supplemental jurisdiction over this claim unless it has a statutory basis for doing so. See Exec.
Software, 24 F.3d at 1556-57 (collecting cases).
///

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b.

The Exceptions Outlined in § 1367 Do Not Apply to the Exercise of
Supplemental Jurisdiction Over Plaintiff's Non-Preempted Claim

Finally, the Court's supplemental jurisdiction inquiry shifts to exceptions under §1367(c). As
previously stated, "unless a court properly invokes a section 1367(c) category in exercising its
discretion to decline to entertain pendent claims, supplemental jurisdiction must be asserted."
Exec. Software, 24 F.3d at 1556 (collecting cases). Section § 1367(c) permits courts to decline
to exercise supplemental jurisdiction over a claim if:
(1) [T]he claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
28 U.S.C. § 1367(c). Plaintiff does not address any of these exceptions or argue that they apply
in the instant matter. (See generally Mot.; Reply; Reply Br.)
Here, there is no indication that Plaintiff's non-preempted FEHA claim presents novel or complex
issues of California law. Thus, §1367(c)(1) does not apply to the Court's exercise of supplemental
jurisdiction over Plaintiff's non-preempted claims. The Court also finds that § 1367(c)(2), which
applies where a claim over which the district court lacks jurisdiction "substantially predominates"11
those claims over which the court has original jurisdiction, is inapplicable to the facts of this case.
This is because: (1) of Plaintiff's two remaining claims, one is preempted; and (2) the claim that
is not preempted arises out of the same core facts on which the preempted claim is based. (See
generally FAC.) Additionally, Section 1367(c)(3) does not apply because the Court has not
dismissed any of the claims over which it has original jurisdiction; Plaintiff voluntarily dismissed
five of his seven claims at the Scheduling Conference. (See generally Conf. Mins.) Finally, with
regard to § 1367(c)(4), the Court finds no compelling reasons to decline jurisdiction, and Plaintiff
does not present any in his pleadings. (See generally Mot.; Reply; Reply Br.) Accordingly, the
Court DENIES Plaintiff's Motion to Remand as to both causes of action alleged in the FAC.

11

Although Plaintiff's FEHA claim may have "substantially predominated" if his wrongful
termination were based exclusively on violation of FEHA, according to his FAC, Plaintiff's
wrongful termination claim is based on numerous California "policies" stated
in: "FEHA . . . , the Labor Code, the Business & Professions Code, [the] Americans with
Disabilities Act . . . , the [Age Discrimination in Employment Act], [t]he Health & Safety
Code, and common laws." (FAC ¶ 44.)

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III.

RULING

For the foregoing reasons, the Court DENIES Plaintiff's Motion to Remand the instant lawsuit to
the Superior Court. Because Plaintiff's Motion is DENIED, the Court also DENIES Plaintiff's
request for attorney's fees and costs associated with bringing the Motion.

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