David Ettedgui v. WB Studio Enterprises Inc. et al

Filing 33

ORDER GRANTING MOTION TO REMAND 25 AND DENYING AS MOOT MOTIONS TO DISMISS AND TO CONSOLIDATE 24 , 26 by Judge Mark C. Scarsi. The Motion is GRANTED. This matter is REMANDED to the Superior Court of California for the County of Los Angeles Case No. 20BBCV00719. WB's motions to dismiss and to consolidate (ECF Nos. 24 , 26 ) and the motion to consolidate in Ettedgui I (ECF No. 41) are DENIED as moot. (lom)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVID ETTEDGUI, on behalf of
himself and on behalf of all persons
similarly situated,
Plaintiff,

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v.

Case No. 2:20-cv-11410-MCS-MAA
ORDER GRANTING MOTION TO
REMAND [25] AND DENYING AS
MOOT MOTIONS TO DISMISS AND
TO CONSOLIDATE [24, 26]

WB STUDIO ENTERPRISES INC., a
Corporation; and DOES 1 through 50,
inclusive,
Defendant.

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The Court rejected in David Ettedgui v. WB Studio Enterprises, Inc., Case No.

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2:20-cv-08053-MCS-MAA (Ettedgui I) the argument that section 301 of the Labor

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Management Relations Act (“LMRA”) preempts Plaintiff’s meal period claim. See

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Order Granting in Part and Denying in Part Mot. to Dismiss (“MTD Order”), ECF No.

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35. Pending in this matter, Ettedgui II, is a claim under California Labor Code § 2699,

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et seq. removed to this Court based on the deficient preemption theory in Ettedgui I.

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See Not. of Removal, ECF No. 1. Plaintiff’s instant Motion to Remand argues that the

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MTD Order means that the Court lacks subject matter jurisdiction over Ettedgui II.
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Mot., ECF No. 25. WB filed an Opposition and Plaintiff filed a Reply. Opp., ECF No.

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28; Reply, ECF No. 30. The Court deems the matter appropriate for decision without

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oral argument and vacates the hearing. Fed. R. Civ. P. 78(b); Local Rule 7-15. The

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Motion is granted and this matter is remanded. WB’s motion to dismiss (ECF No. 26),

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motion to consolidate (ECF No. 24), and motion to consolidate in Ettedgui I (ECF No.

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41) are denied as moot.

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I. BACKGROUND

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WB employed Plaintiff as a “Tour Guide/Floater” from December 4, 2019 to

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January 4, 2020. Compl. ¶ 6. Due to Plaintiff’s “rigorous” work schedule, he was

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sometimes unable to take meal breaks or rest periods. Id. ¶¶ 9, 11. WB required Plaintiff

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“to have [a] walkie talkie on [his] person,” which resulted in interrupted breaks. Id..

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Because of these interruptions and WB’s other violations, Plaintiff was not

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compensated for all hours worked. Id. ¶¶ 12, 17. WB terminated Plaintiff after he

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complained about WB’s practices. Id. ¶ 112. A collective bargaining agreement

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(“CBA”) “provides for a meal period to be not less than one-half hour and must be

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provided not later than six hours after either reporting for work or after the end of a

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prior meal period.” CBA, Not. of Removal ¶ 19. Article 30 of the CBA states in part:

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Penalty for Delayed Meals- Straight time allowance at the scheduled
Studio Hourly Base Rate for length of delay. Minimum allowance: onehalf (1/2) hour. Such allowance shall be in addition to the compensation
for work time during the delay, and shall not be applied as part of any
guarantee.

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Plaintiff brings a claim for civil penalties under Labor Code § 2699, et seq. for

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violations of California Labor Code §§ 201-204 210, 226(a), 226.7, 510, 512,

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558(a)(1)(2), 1194, 1197, 1197.1, 1198, 2802, and the applicable Wage Orders on

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behalf of himself and putative classes of other employees. See generally Compl.

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II. LEGAL STANDARD

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Federal courts are of limited jurisdiction and possess only that jurisdiction which

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is authorized by either the Constitution or federal statute. Kokkonen v. Guardian Life
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Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under 28 U.S.C. § 1331, federal courts have

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jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the

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United States.” 28 U.S.C. § 1331. A case “arises under” federal law if a plaintiff’s “well-

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pleaded complaint establishes either that federal law creates the cause of action” or that

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the plaintiff’s “right to relief under state law requires resolution of a substantial question

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of federal law in dispute between the parties.” Franchise Tax Bd. v. Constr. Laborers

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Vacation Tr. for S. Cal., 463 U.S. 1, 13 (1983). In determining whether removal is

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proper, a court should “strictly construe the removal statute against removal

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jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “Federal

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jurisdiction must be rejected if there is any doubt as to the right of removal in the first

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instance.” Id. The removing party therefore bears a heavy burden to rebut the

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presumption against removal. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th

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Cir. 2009) (“[T]he court resolves all ambiguity in favor of remand to state court.”).

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III.

EXTRINSIC EVIDENCE

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Both parties ask the Court to consider pleadings from Ettedgui I and other cases.

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See Pl.’s Req. for Judicial Not., ECF No. 25-2; see also WB’s Req. for Judicial Not.,

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ECF No. 28-1. WB seeks judicial notice of the CBA and Memorandums of Agreement

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between WB and the Professional Employees International Union, Local #174. See

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WB’s Req. for Judicial Not. The Court considers the CBA and Memorandums of

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Agreement, Johnson v. Sky Chefs, Inc., 2012 WL 4483225, at *1 n.1 (N.D. Cal. Sept.

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27, 2012) (“Courts routinely take judicial notice of the governing collective bargaining

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agreement where necessary to resolve issues of preemption”) (citation omitted), and the

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documents from Ettedgui I and other cases, but does not take judicial notice of

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reasonably disputed facts in them. United States v. Wilson, 631 F.2d 118, 119 (9th Cir.

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1980) (“[A] court may take judicial notice of its own records in other cases, as well as

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the records of an inferior court in other cases.”); Cousyn for Cousyn Grading and Demo

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Inc. v. Ford Motor Company, 2019 WL 3491930, at *4 (C.D. Cal. July 30, 2019)

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(“[E]ven when the court judicially notices the existence of a reliable source, it may not
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notice disputed facts contained within the source.”) (citation omitted).
IV.

DISCUSSION

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The parties agree that Ettedgui I’s meal period allegations are “nearly identical”

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to the Complaint’s allegations here. WB’s Mot. to Dismiss 3, ECF No. 26; Mot. 3 (“The

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factual premise for the meal period cause of action in the Related Class Action is the

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same as the factual premise for the meal period allegation in the PAGA Action.”).

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Notwithstanding Ettedgui I’s contrary determination, WB argues that removal was

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proper because section 301 preempts at least part of Plaintiff’s meal period claim. Opp.

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11-17. WB alternatively argues that the Court should consolidate Ettedgui I and II and

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exercise supplemental jurisdiction over Plaintiff’s state law claims. Id. 17-21.

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A. Preemption of Plaintiff’s Meal Period Claim

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As in Ettedgui I, Plaintiff’s meal period claim is premised on the allegations that

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he could not take timely off-duty breaks, was not given a second off-duty meal period

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or penalty pay, and was required to carry a walkie talkie during meal periods. Compl.

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¶¶ 11-12. “Courts in the Ninth Circuit apply a two-step analysis to determine whether

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LMRA preemption applies.” Buckner v. Universal Television, LLC, 2017 WL 5956678,

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at *1 (C.D. Cal. November 30, 2017) (citation omitted). First, courts assess “whether

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the asserted cause of action involves a right conferred upon an employee by virtue of

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state law” instead of a CBA; if the right exists solely because of the CBA then the claim

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is preempted. Id. (quoting Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1059 (9th

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Cir. 2007)). Second, “if the right exists independently of the CBA, [courts] must still

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consider whether it is nevertheless substantially dependent on analysis of a [CBA].” Id.

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WB contends that Plaintiff’s meal period claim is barred by section 512(d) of the

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Labor Code, which states:
If an employee in the motion picture industry… is covered by a valid
collective bargaining agreement that provides for meal periods and
includes a monetary remedy if the employee does not receive a meal period
required by the agreement, then the terms, conditions, and remedies of the
agreement pertaining to meal periods apply in lieu of the applicable
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provisions pertaining to meal periods of subdivision (a) of this
section, Section 226.7, and Industrial Welfare Commission Wage Orders
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WB specifically contends that the following CBA provision “includes a monetary
remedy if the employee does not receive a meal period required by the agreement”:
Penalty for Delayed Meals- Straight time allowance at the scheduled
Studio Hourly Base Rate for length of delay. Minimum allowance: onehalf (1/2) hour. Such allowance shall be in addition to the compensation
for work time during the delay, and shall not be applied as part of any
guarantee.
CBA Article 30.
Plaintiff avers that this provision pertains only to delayed meal periods, not
denied meal periods, and that his sole recourse for such denied meal periods therefore
lies in the Labor Code. Mot. 8-9. When assessing these arguments and provisions at the
pleading stage in Ettedgui I, the Court affirmed Plaintiff’s interpretation based on the
“CBA’s plain language read in light of section 512(d).” MTD Order 7-8 (citing Cal.
Labor Code § 512(d) (statutory exemption applies only if governing CBA “provides for
meal periods and includes a monetary remedy if the employee does not receive a meal
period required by the agreement.”)). The complaints in both matters seek recovery for
denied meal periods, a harm for which the CBA does not “include a monetary remedy”
whereas Labor Code section 512(a) does. See CBA Article 30. The Court could not
conclude in Ettedgui I that Plaintiff’s meal period claim is solely based on rights
conferred by the CBA. Id. 8 (citing Humble v. Boeing Co., 305 F.3d 1004, 1008 (9th
Cir. 2002) (“[D]efensive reliance on the terms of the CBA, mere consultation of the
CBA’s terms, or a speculative reliance on the CBA will not suffice to preempt a state
law claim.”)); see also Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987)
(explaining that “the plaintiff is the master of the complaint” and that if the defendant
could engineer “the forum in which the claim shall be litigated” based on the substance
of his defense, “the plaintiff would be master of nothing.”).
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Even if this determination were sound, WB argues, section 301 preempts the

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claim to the extent it is based on delayed meal periods, independently supplying

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jurisdiction. Opp. 11-17. But WB’s Notice of Removal in this action and Motion to

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Dismiss in Ettedgui I argue that section 301 completely preempts Plaintiff’s meal period

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claim, making no distinction between portions of that claim based on delayed meals and

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those based on missed or shortened meals. Only after denial of that argument did WB

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contend that jurisdiction exists because some of Plaintiff’s meal periods may be eligible

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for compensation under the CBA instead of state law. Neither WB’s post-hoc removal

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justification nor the possibility that some of Plaintiff’s meals were delayed instead of

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denied demonstrates that Plaintiff’s state law claims were properly removed in the first

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instance. Caterpillar, 482 U.S. at 398 (“The fact that a defendant might ultimately prove

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that a plaintiff's claims are pre-empted under the NLRA does not establish that they are

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removable to federal court.”).

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WB’s argument concedes that significant portions of Plaintiff’s meal period

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claim—i.e. missed or shortened meal periods—are evaluated under state law and thus

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are not preempted. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 n.12

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(1988) (“[A]s a general proposition, a state-law claim may depend for its resolution

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upon both the interpretation of a collective-bargaining agreement and a separate state-

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law analysis that does not turn on the agreement. In such a case, federal law would

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govern the interpretation of the agreement, but the separate state-law analysis would not

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be thereby pre-empted.”). WB cites no case denying remand based on post-removal

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suggestions that, given the right facts, one manifestation of an otherwise unremovable

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claim may trigger a CBA’s remedy. Given the present record and resolving ambiguity

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in favor of remand, WB’s retrospective “partial” preemption argument does not satisfy

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its heavy burden to show that section 301 completely preempts Plaintiff’s meal period

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claim. McCray v. Marriott Hotel Servs., Inc., 902 F.3d 1005, 1013 (9th Cir. 2018) (“As

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McCray has framed his claims (and argued them thus far), his case will rise or fall based

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on interpretation of the local ordinance, not interpretation of the CBA. The possibility
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that things could change down the road is simply not enough to warrant preemption

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now.”). The Court thus declines to recharacterize Plaintiff’s meal period claim as arising

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under federal law based on this theory. Placencia v. Amcor Packaging Distrib., Inc.,

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2014 WL 2445957, at *2-3 (C.D. Cal. May 12, 2014) (“Plaintiff, as the master of his

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complaint, has chosen to plead his overtime claim not under the CBA, but rather under

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California law. Amcor essentially argues Plaintiff can’t plead such a claim. That may

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be proper grounds for demurrer, but it is not sufficient grounds for removal here.”).

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WB next argues that Plaintiff’s entire meal period claim necessitates analysis of

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the CBA, a point rejected in Ettedgui I. MTD Order 9-10 (citing Cramer v. Consolidated

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Freightways, Inc., 255 F.3d 683, 691-92 (9th Cir. 2001) (“[A]lleging a hypothetical

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connection between the claim and the terms of the CBA is not enough to preempt the

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claim: adjudication of the claim must require interpretation of a provision of

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the CBA.”)). WB reasons the result here should be different because the Court is no

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longer confined to the pleadings and can now consider evidence that the parties and

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industry have long considered the CBA to encompass “all meal periods that are not

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received timely, including meal periods that are missed entirely.” Opp. 13 (citing Decl.

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of Silisha S. Platon ¶¶ 9-15, ECF No. 28-3).

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An executive’s claimed “understanding” that the CBA’s “Penalty for Delayed

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Meals” actually encompasses all meal periods cannot circumvent the CBA’s plain

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language or that Plaintiff seeks to remedy statutory harms—missed or shortened meal

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periods—omitted from that language. Valles v. Ivy Hill Corp., 410 F.3d 1071, 1076 (9th

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Cir. 2005) (“A claim brought in state court on the basis of a state-law right that is

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independent of rights under the collective-bargaining agreement, will not be preempted,

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even if a grievance arising from precisely the same set of facts could be pursued.”)

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(internal quotations and citation omitted). Testimony that WB historically paid more

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meal period penalties than the CBA required does not establish that the right to such

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penalties stems solely from the CBA, nor does it demonstrate that Plaintiff’s asserted

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rights are substantially dependent on analysis of the CBA. Bradford v. Prof'l Tech. Sec.
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Servs. Inc. (Protech), 2020 WL 2747767, at *8 (N.D. Cal. May 27, 2020) (finding that

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disputed CBA provisions including terms “on-duty” and “emergency situations” were

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unambiguous and rejecting “defendant’s argument that the CBA needed to be

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interpreted to determine what constitutes a meal period because that is ‘a question of

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state law, not contract interpretation.’”) (citation omitted). All told, WB’s recycled

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argument and new “evidence” does not alter the unambiguous CBA provision or the

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Court’s determination that Plaintiff’s meal period claim may be adjudicated without

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analyzing the CBA. MTD Order 10 (citing McGhee v. Tesoro Ref. & Mktg. Co. LLC,

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440 F. Supp. 3d 1062, 1069-70 (N.D. Cal. 2020) (“Defendants have not shown that any

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of those terms are ‘actively disputed.’ For example, Defendants appear to agree that

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under the CBAs, on-premise meal periods were paid, but all other meal breaks were

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unpaid. Whether this policy represents ‘discouragement’ of duty-free meal periods

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requires the Court to ‘consider’ the CBA provisions, not to interpret them.”)).

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Finally, WB argues that simply raising its preemption argument confers

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jurisdiction. Opp. 15-17. The Court disagrees, as its determination with respect to the

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two-step Burnside analysis means that WB’s preemption arguments must be litigated in

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state court. Caterpillar, 482 U.S. at 398-99 (“[T]he presence of a federal question, even

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a § 301 question, in a defensive argument does not overcome the paramount policies

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embodied in the well-pleaded complaint rule—that the plaintiff is the master of

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the complaint, that a federal question must appear on the face of the complaint, and that

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the plaintiff may, by eschewing claims based on federal law, choose to have the cause

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heard in state court.”) (citations omitted); Lingle, 486 U.S. at 413 n.12 (holding that

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plaintiff's claim was not completely preempted, and noting that state court

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on remand would have to apply federal law to remaining issues requiring interpretation

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of collective bargaining agreement); Cramer, 255 F.3d at 691 (“If the claim is plainly

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based on state law, § 301 preemption is not mandated simply because the defendant

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refers to the CBA in mounting a defense.”). WB has therefore failed to satisfy its heavy
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burden to rebut the presumption against removal. Gaus, 980 F.2d at 566; Hunter, 582

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F.3d at 1042.

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B. Supplemental Jurisdiction

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WB alternatively requests that the Court consolidate Ettedgui I and II and

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exercise supplemental jurisdiction over all state law claims. Opp. 15-17. WB’s request

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is denied because the Court adjudicates remand before consolidation and no

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independent jurisdictional basis exists in Ettedgui II. See, e.g., McCray, 902 F.3d at

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1014 (“[T]he district court didn’t have jurisdiction to hear this case, because the LMRA

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doesn’t preempt McCray’s claims. The district court therefore erred in denying

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McCray’s motion to remand this case to state court and shouldn’t have reached the

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merits of Marriott’s motion for summary judgment.”).

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V. CONCLUSION

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The Motion is GRANTED. This matter is REMANDED to the Superior Court

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of California for the County of Los Angeles Case No. 20BBCV00719. WB’s motions

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to dismiss and to consolidate (ECF Nos. 24, 26) and the motion to consolidate in

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Ettedgui I (ECF No. 41) are DENIED as moot. The Clerk of Court shall close the case.

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IT IS SO ORDERED.

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Dated: February 18, 2021

________________________________
MARK C. SCARSI
UNITED STATES DISTRICT JUDGE

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