Jimmy Sharp v. The Walt Disney Company et al

Filing 33

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND [DKT. NO. 20 ] by Judge Stanley Blumenfeld, Jr: Plaintiff's motion to remand is GRANTED. SEE ORDER FOR DETAILS. MD JS-6. Case Terminated. (jgr)

JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JIMMY SHARP,

Case No. 2:23-cv-00820-SB-MAR

Plaintiff,
ORDER GRANTING
PLAINTIFF’S MOTION TO
REMAND [DKT. NO. 20]

v.
THE WALT DISNEY COMPANY et
al.,
Defendants.

Plaintiff Jimmy Sharp was a stunt performer and stunt coordinator on
popular television shows. After he participated in a human resources investigation
arising from a complaint into his billing practices made by Defendant Nissa
Diederich, he claims that Diederich retaliated against him, leading to his permanent
removal from all shows under her control. Plaintiff alleges that when Diederich
became the head of production at Defendant The Walt Disney Company, Plaintiff
was terminated from all productions run by Defendants. Plaintiff brought this case
in Los Angeles Superior Court alleging causes of action arising from his
termination and purported “blacklisting” by Defendants. Defendants removed this
action to federal court, and Plaintiff now moves to remand it to state court. Dkt.
Nos. 1, 20. For the reasons described below, Plaintiff’s motion is granted.
I.
Plaintiff worked on various productions for Twentieth Century Fox Film
Corporation (referred to by Plaintiff, as Fox or Fox Studios), which was acquired
by Defendant The Walt Disney Company (Disney). Dkt. No. 30 (FAC) ¶ 1, 13;
Dkt. No. 5 ¶ 5. Plaintiff alleges that, in 2017, Diederich made an internal
complaint at Fox that Plaintiff was billing improperly and being favored because
his father was the head of production. FAC ¶ 16. The human resources (HR)
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department conducted a formal investigation and concluded that Plaintiff did not
violate any policies or engage in improper conduct (HR Investigation). FAC ¶ 18.
Plaintiff alleges that Diederich then “set out on a campaign to retaliate” against
him by making misrepresentations about him and “blacklist[ing]” him from
working on additional productions. FAC ¶ 22. Plaintiff alleges that Diederich’s
conduct is evidenced by his history of working on certain shows and for certain
producers, and that he was subsequently not given those same opportunities. FAC
¶¶ 22–24 (alleging that Plaintiff worked as the stunt coordinator on many shows
created by Ryan Murphy and that Diederich’s acts “caused Jimmy to never work
on another Ryan Murphy show”). Plaintiff alleges that when his father stepped
down as head of production, Defendant Diederich replaced his father and
“mounted a campaign to deliberately disrupt” Plaintiff’s employment
opportunities. FAC ¶ 27. Diederich allegedly removed Plaintiff from a
preapproved list of stunt coordinators and successfully threatened third parties not
to hire him. FAC ¶ 28–32. Plaintiff alleges that as a result of Diederich’s conduct,
he suffered financial, physical, and emotional harm. FAC ¶ 34.
Plaintiff brought four causes of action against Defendants in state court: (1)
retaliatory discharge and wrongful termination in violation of public policy under
California Labor Code § 1102.5; (2) intentional interference with prospective
economic advantage, (3) negligent interference with prospective economic
advantage, and (4) misrepresentation preventing employment in violation of
California Labor Code § 1050. Defendants assert that, as a stunt coordinator and
stunt performer and member of the Screen Actors Guild-American Federation of
Television and Radio Artists (SAG-AFTRA), Plaintiff’s employment was
governed by four collective bargaining agreements (together, CBAs) incorporated
into Plaintiff’s personal service agreements to work on various productions. See
Dkt. No. 5 at Exs. A–D. Defendants removed this case on the theory that
Plaintiff’s claims require the Court to interpret the CBAs and are therefore
preempted under § 301(a) of the Labor Management Relations Act. Dkt. No. 1.
This motion followed, which Defendants oppose. Dkt. No. 23. At the hearing on
this motion, Plaintiff represented that his first cause of action was limited to
retaliation based on Diederich’s blacklisting him from future employment, rather
than any termination by Defendants in violation of his employment contracts.
Plaintiff filed a First Amended Complaint, limiting the first cause of action to
“retaliation” under Labor Code § 1102.5.

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II.
Removal to federal court is proper where the federal court would have
original subject matter jurisdiction over the complaint. 28 U.S.C. § 1441. “The
removal statute is strictly construed, and any doubt about the right of removal
requires resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc.,
553 F.3d 1241, 1244 (9th Cir. 2009). A case must be remanded to state court if it
appears at any time before final judgment that the court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c).
Although a federal question must normally appear on the face of the
complaint, there is an exception to this rule for complete preemption—i.e., where a
federal statute has such strong preemptive force over a state law claim that “any
claim purportedly based on that pre-empted state law is considered, from its
inception, a federal claim, and therefore arises under federal law.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 393 (1987). The complete preemption doctrine extends
to claims preempted by § 301 of the LMRA. Castillo v. Long Beach Mem’l Med.
Ctr., 132 F. Supp. 3d 1194, 1198 (C.D. Cal. 2015). Section 301 provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce as defined in this chapter, or between any such labor
organizations, 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). This provision has been construed to cover state suits that
require interpretation of labor agreements. Balcorta v. Twentieth Century-Fox
Film Corp., 208 F. 3d 1102, 1108 (9th Cir. 2000).
To determine whether the LMRA preempts a cause of action, courts in the
Ninth Circuit employ a two-part test. Burnside v. Kiewit Pac. Corp., 491 F.3d
1053, 1059 (9th Cir. 2007). First, a court determines “whether the asserted cause
of action involves a right conferred upon an employee by virtue of state law, not by
a CBA. If the right exists solely as a result of the CBA, then the claim is
preempted, and . . . [the] analysis ends . . . .” Id. However, if “the right exists
independently of the CBA, [a court] must still consider whether it is nevertheless
substantially dependent on analysis of a collective-bargaining agreement. If such
dependence exists, then the claim is preempted by section 301; if not, then the

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claim can proceed under state law.” Id. at 1059–60 (internal quotations and
citations omitted).
The first part of the Burnside test is not contested. That is, Defendants do
not contend that the CBAs confer any rights that were allegedly violated in this
case. Rather, the jurisdictional dispute between the parties focuses on the second
part of the Burnside test—namely, whether the claims asserted in the complaint
will require an interpretation of the CBAs. A claim is “substantially dependent on
analysis of a collective bargaining agreement” if it requires a court to “interpret”
the agreement. Balcorta, 208 F. 3d at 1108. Interpretation means “something
more” than “look[ing] at,” “consider[ing],” “refer[ring] to,” or “apply[ing]” the
agreement. Id. “[R]eading and applying relevant, unambiguous provisions of [a]
CBA” does not involve interpretation. See Kobold v. Good Samaritan Regional
Med. Ctr., 832 F.3d 1024, 1040 (9th Cir. 2016) (holding that application of
unambiguous terms in a CBA is not interpreting the agreement).
Defendants contend that each claim brought by Plaintiff requires an
interpretation of the CBAs. Plaintiff’s first claim in the FAC is for retaliation
under California Labor Code § 1102.5 based on his participation in the HR
Investigation. To assert a retaliation claim, “[P]laintiff must establish, by a
preponderance of the evidence, that retaliation for an employee’s protected
activities was a contributing factor in a contested employment action.” Killgore v.
SpecPro Pro. Servs., LLC, 51 F.4th 973, 982 (9th Cir. 2022) (quoting Vatalaro v.
Cnty. of Sacramento, 79 Cal. App. 5th 367, 379 (2022)). California courts have
interpreted an adverse employment action to include any actions that materially
affect the terms and conditions of a person’s employment. See Patten v. Grant
Joint Union High Sch. Dist., 134 Cal. App. 4th 1378 (2005), disapproved of on
other grounds by Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703
(2022).
Plaintiff alleges that after the HR Investigation and subsequent change of
leadership at Fox, Diederich removed Plaintiff from a list of preapproved stunt
coordinators and threatened producers not to hire him. Plaintiff alleges that, as a
result of those actions, he was not hired to work on productions on which he
previously had worked. Defendants contend that once work on a certain project
ended, it was within their rights to choose not to hire Plaintiff for further work.
However, Plaintiff’s allegations are not just that he was not rehired, but that he was
not rehired because of allegedly retaliatory actions by Diederich. Defendants do
not address how the Court will be required to interpret the CBAs to determine
whether Diederich’s actions were improper or whether Plaintiff was prevented
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from further employment in retaliation for his participation in the investigation.
Therefore, Defendants have not met their burden to show that the Court will need
to interpret any specific provision of the CBAs to conclude whether Defendants
retaliated against Plaintiff in violation of § 1102.5. See Abrego v. The Dow Chem.
Co., 443 F.3d 676, 684 (9th Cir. 2006) (noting the “near-canonical rule that the
burden on removal rests with the removing defendant”).
Plaintiffs remaining claims likewise do not require the Court to interpret the
CBAs. The Court considers together Plaintiff’s intentional and negligent
interference with economic advantage causes of action. Claims for intentional
interference with economic advantage require the plaintiff to show “(1) the
reasonable probability of a business opportunity, (2) the intentional interference by
defendant with that opportunity, (3) proximate causation, and (4) damages, all of
which must be considered in light of a defendant’s privilege to compete or protect
his business interests in a fair and lawful manner.” Navellier v. Sletten, 262 F.3d
923, 939 (9th Cir. 2001) (internal citations omitted). Negligent interference with
economic advantage requires a plaintiff to demonstrate that “(1) an economic
relationship existed between the plaintiff and a third party which contained a
reasonably probable future economic benefit or advantage to plaintiff; (2) the
defendant knew of the existence of the relationship and was aware or should have
been aware that if it did not act with due care its actions would interfere with this
relationship and cause plaintiff to lose in whole or in part the probable future
economic benefit or advantage of the relationship; (3) the defendant was negligent;
and (4) such negligence caused damage to plaintiff in that the relationship was
actually interfered with or disrupted and plaintiff lost in whole or in part the
economic benefits or advantage reasonably expected from the relationship.” N.
Am. Chem. Co. v. Superior Ct., 59 Cal. App. 4th 764, 786 (1997).
Both causes of action require Plaintiff to prove that he had an economic
relationship or business opportunity that was harmed by Defendants’ negligent or
intentional conduct. Plaintiff alleges that Diederich “blacklisted” him by placing
him on a “do not hire list” and removing him from a list of approved stunt
coordinators, see Dkt. Nos. 25-2, FAC ¶ 32, and that Defendants’ refusal to
continue to hire him disrupted his expectation that he would receive future work
(created by previous employment on certain productions). The preapproved stunt
coordinator list is not described or enumerated in the CBAs, and Defendants only
conclusorily assert that Plaintiffs’ claims require interpretation of the CBA.
Defendants rely on Hernandez v. Pac. Mar. Ass’n, 379 F. App’x 668 (9th Cir.
2010), in which the Ninth Circuit affirmed the district court’s finding that
removing the plaintiff from a dispatch list for laborers required interpretation of the
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relevant CBAs. However, in that case, explicit rules incorporated into the relevant
CBAs governed the dispatch list. Here, by contrast, Defendants have not pointed
to a provision of the relevant CBAs that describes how studios use and select
employees from preapproved lists. Whether Plaintiff had an economic opportunity
by virtue of his placement on the list and whether that opportunity was interfered
with by his subsequent removal from the list do not require interpretation of the
CBAs. Plaintiff also alleges that Diederich told various producers that they were
not permitted to hire Plaintiff. FAC ¶¶ 29–32. Defendants similarly point to no
provision in the CBA that permits or prohibits that conduct. Therefore, the Court
finds that Plaintiff’s second and third causes of action are not preempted.
Plaintiff’s fourth cause of action can also be determined without
interpretation of the CBAs. Plaintiff brings a claim under California Labor Code §
1050, which makes it unlawful for a person to prevent a former employee from
obtaining employment by making misrepresentations about them or their
employment. See also Cal. Lab. Code. § 1054. Plaintiff alleges that Diederich told
producers they were not allowed to hire Plaintiff for future jobs. FAC ¶¶ 29–32.
Defendants have not cited any applicable CBA provision that addresses whether a
studio executive can encourage producers not to hire a stunt performer or
coordinator, whether a stunt performer or coordinator can be added to the list of
preapproved workers, or whether participants in an HR investigation can share
details of those investigations (the alleged misrepresentations Diederich made to
producers). Therefore, Plaintiff’s § 1050 claim is not preempted because it does
not appear to require an interpretation of any applicable CBA provision.
***
Because Defendants have not demonstrated that resolving Plaintiff’s claims
will require the Court to interpret the CBAs governing Plaintiff’s employment,
Plaintiff’s motion to remand is GRANTED.
IT IS SO ORDERED.
Date: April 28, 2023

___________________________
Stanley Blumenfeld, Jr.
United States District Judge

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