Brian Bagwell v. CBS Broadcasting Inc

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

BRIAN BAGWELL, 2:19-CV-08423-DSF (AS)

Plaintiff,

Order DENYING Plaintiff’s

v. Motion to Remand (Dkt. 15)

and DENYING in part and

CBS CORPORATION, et al., GRANTING in part

Defendants. Defendant’s Motion to Dismiss

(Dkt. 14)

Defendant CBS Corporation (CBS)1 removed this case based

on federal question jurisdiction and diversity jurisdiction, Dkt. 1

(Notice), and moved to dismiss the Complaint in its entirety, Dkt.

14 (MTD). Plaintiff Brian Bagwell moves for remand, Dkt. 15

(MTR), and opposes the MTD, Dkt. 19. (Opp’n to MTD). CBS

opposes the MTR. Dkt. 20 (Opp’n to MTR). The Court deems this

matter appropriate for decision without oral argument. See Fed.

R. Civ. P. 78; Local Rule 7-15.

1 Defendant asserts that “Plaintiff has erroneously sued CBS Corporation,

which is not his employer. . . . CBS Broadcasting Inc. is Plaintiff’s employer.”

Notice ¶ 5. Plaintiff’s arguments are inconsistent in this regard. Compare

MTR at 8 (addressing the citizenship of CBS Broadcasting, Inc.) with id. at 9

(asserting Plaintiff is employed by CBS Corporation). CBS Corporation does

not challenge the Complaint on this basis. Therefore, for purposes of the

motions at issue, the Court uses the term CBS to refer to CBS Corporation

and CBS Broadcasting Inc.

I. FACTUAL BACKGROUND

Plaintiff is a 65-year-old African-American who has been

employed by CBS as a video editor for more than forty-one years.

Dkt. 1-1 (Compl.) ¶ 5. Plaintiff performed his work for CBS

pursuant to a collective bargaining agreement (the CBA) between

his union and CBS. Id. ¶ 30 & Exs. 2-3. The CBA contains

grievance and arbitration procedures designed to resolve

employment disputes. See id. Ex. 2 at 28-31, Ex. 3 at 28-32. In

January 2019, CBS Television City was sold to Hackman &

Associates Productions. Id. ¶ 6. As part of the Television City

sale, Plaintiff, along with other CBS employees who were

“working on anything production-related,” was “sold” to Hackman

without consent, agreement, or prior warning. Id. ¶ 7.2 Hackman

had no work for Plaintiff to do. Id. ¶ 9. The employees who were

not transferred to Hackman were offered a “double buyout.” Id. ¶

8. These employees were Caucasian and had less experience,

seniority, and qualifications than Plaintiff. Id. ¶ 11.

II. LEGAL STANDARD

“Federal courts are courts of limited jurisdiction” and

“possess only that power authorized by [the] Constitution and

statute . . . .” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,

377 (1994). A defendant may remove an action to federal court if

the federal court could exercise subject matter jurisdiction over

the action. 28 U.S.C. § 1441(a). “The removal statute is strictly

construed against removal jurisdiction” and “[t]he defendant bears

the burden of establishing that removal is proper.” Provincial

2 CBS points out that Plaintiff was not “sold” to Hackman, but rather was

“leased to a Hackman affiliate and ultimately would be employed by

Hackman.” MTD at 9 n.5. For purposes of this Order, the Court refers to

Plaintiff being transferred to Hackman, without drawing a conclusion about

the details of that transfer.

Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087

(9th Cir. 2009). If a defendant fails to meet its burden of

establishing the Court has subject matter jurisdiction, the suit is

remanded. 28 U.S.C. § 1447(c).

Rule 12(b)(6) allows an attack on the pleadings for failure to

state a claim on which relief can be granted. “[W]hen ruling on a

defendant’s motion to dismiss, a judge must accept as true all of

the factual allegations contained in the complaint.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, a court is

“not bound to accept as true a legal conclusion couched as a

factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

“Nor does a complaint suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. (quoting Twombly,

550 U.S. at 557) (alteration in original) (citation omitted). A

complaint must “state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570. This means that the complaint

must plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. There must be

“sufficient allegations of underlying facts to give fair notice and to

enable the opposing party to defend itself effectively . . . and

factual allegations that are taken as true must plausibly suggest

an entitlement to relief, such that it is not unfair to require the

opposing party to be subjected to the expense of discovery and

continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.

2011).

Ruling on a motion to dismiss will be “a context-specific task

that requires the reviewing court to draw on its judicial experience

and common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—

’that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679

(alteration in original) (citation omitted) (quoting Fed. R. Civ. P.

8(a)(2)).

As a general rule, leave to amend a complaint that has been

dismissed should be freely granted. Fed. R. Civ. P. 15(a).

However, leave to amend may be denied when “the court

determines that the allegation of other facts consistent with the

challenged pleading could not possibly cure the deficiency.”

Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,

1401 (9th Cir. 1986).

III. DISCUSSION

A. Diversity Jurisdiction

Federal courts have diversity jurisdiction where the amount

in controversy exceeds $75,000 and the action is between citizens

of different states. 28 U.S.C. §§ 1332, 1441. A corporation is a

citizen of both its state of incorporation and the state in which its

principal place of business is located. 28 U.S.C. § 1332(c)(1). The

parties do not dispute that the amount in controversy exceeds

$75,000, that Plaintiff is a citizen of California, or that CBS is

incorporated outside of California.3 The parties dispute, however,

whether CBS’s principal place of business is California or New

York.

A corporation’s “principal place of business” refers to “the

place where a corporation’s officers direct, control, and coordinate

the corporation’s activities.” Hertz Corp. v. Friend, 559 U.S. 77,

92-93 (2010). “[I]n practice it should normally be the place where

the corporation maintains its headquarters—provided that the

headquarters is the actual center of direction, control, and

3 CBS Corporation is a Delaware corporation and CBS Broadcasting Inc. is a

New York Corporation. Dkt. 1-3 (Oldis Decl.) ¶¶ 3-4.

coordination, i.e., the ‘nerve center,’ and not simply an office where

the corporation holds its board meetings.” Id. at 93.

CBS Senior Vice President of Human Resources for CBS

Corporation, Kevin Oldis, declared under penalty of perjury that

the “officers [of CBS Corporation and CBS Broadcasting Inc.]

direct, control and coordinate the corporation[s’] activities

primarily from New York” and that for both corporations the

“corporate headquarters and principal place of business are

located in New York.” Oldis Decl. ¶¶ 3-4. Oldis further declared

that “[t]he vast majority of the senior executives of CBS

Corporation have their primary offices in New York,” that

“finance, accounting, and human resources . . . are performed

primarily in New York,” and “the legal department . . . is located

primarily in New York.” Id. ¶ 3. Specifically, “CBS Corporation

has approximately thirteen senior executives who direct the

activities of the corporate entity . . . [and] approximately ten

reside and primarily work out of New York.” Dkt. 20-2 (Supp.

Oldis Decl.) ¶ 3.

Plaintiff, on the other hand, declared that no “employee from

the state of New York direct[ed], control[ed] or coordinate[d] the

corporation’s activities at CBS Television City in California,” Dkt.

15 (Bagwell Decl.) ¶ 12, and Plaintiff’s counsel declared that “CBS

Broadcasting, Inc[.] is incorporated in New York and it[s]

principal place of business is in California” and “CBS’s high level

officers who directed and controlled and coordinated the

corporation work and reside in the State of California.” Dkt. 15

(Haney Decl.) ¶¶ 9-10. CBS’s objections to this evidence, Dkt. 20-1

(Objs.) ¶¶ 5-6, are SUSTAINED.4

4 Defendant objected to many of the statements included in the declarations

submitted in support of Plaintiff’s MTR. The Court addresses only those

relevant to the Court’s analysis. To the extent the Court relies on a fact, it

Plaintiff also declares that two CBS executives, Michael

Klausman, former Executive Vice President and Chief Operating

Officer at CBS,5 and Glenn C. Oakley, the Executive Vice

President of Operations and Engineering at CBS, work and reside

in California.6 Bagwell Decl. ¶¶ 10-11. Plaintiff does not set forth

any foundation for these statements, and CBS’s objections to these

paragraphs, Objs. ¶¶ 1-2, are SUSTAINED. Moreover, that one

executive “had several conversations with plaintiff regarding his

employment status” and the other “had decision making authority

over Plaintiff’s employment status,” Bagwell Decl. ¶¶ 10-11, has

no bearing on whether the corporation’s officers direct, control,

and coordinate the corporation’s activities, and does not disprove

the evidence submitted by CBS that the majority of the officers

who control the corporation’s activities work out of the

corporations’ New York headquarters.

Plaintiff further states that he was employed in Los Angeles

for many years, Bagwell Decl. ¶ 13, that his paycheck lists CBS

Broadcasting Inc., with a Los Angeles address, see id., and that

has overruled any objection to the evidence supporting that fact. The Court

notes that the declarations by Plaintiff and his counsel both purport to be

based on “personal knowledge.” But it is apparent that neither actually has

personal knowledge of many of the facts stated – or at least no foundation for

that knowledge is established. Counsel is cautioned to be more careful in the

future about establishing foundation for facts asserted in declarations.

5 CBS asserts that Mr. Klausman “has never been Chief Operating Officer of

CBS Corporation or CBS Broadcasting Inc.” and has “never been an officer or

employee of CBS Corporation.” Supp. Oldis Decl. ¶ 6. However, it does not

dispute Mr. Klausman was employed by CBS Broadcasting Inc. and lives and

works in California.

6 CBS disputes that Mr. Oakley works or resides in California. Instead, Oldis

declares that Mr. Oakley “lives and primarily works in New York.” Supp.

Oldis Decl. ¶ 7.

his paycheck is “processed” in Los Angeles, id. ¶ 14. At best, this

evidence shows that CBS has a Los Angeles office that is listed as

the employer on the paycheck of its Los Angeles employees. It

does not show that the Los Angeles office is the “nerve center” of

CBS. This type of argument is one reason the Supreme Court

adopted the nerve center test, rather than a business activity test.

See Hertz, 559 U.S. at 95 (Because “a corporation’s general

business activities more often lack a single principal place where

they take place” and “the corporation may have several plants,

many sales locations, and employees located in many different

places,” equating the nerve center with a corporation’s

headquarters will be simpler to apply than attempting to

“determine which of these different business locales is the

‘principal’ or most important ‘place.’”).

Similarly, Plaintiff’s counsel’s declaration that “CBS

Broadcasting, Inc[.] has been located [i]n Los Angeles . . . for over

50 years” and “employs thousand[s] of employees in the state of

California,” Haney Decl. ¶ 11, is irrelevant to determining the

corporation’s principal place of business. The existence of a Los

Angeles office with thousands of employees does not mean that

location is the “nerve center.” See Starr Indem. & Liab. Co. v.

Rolls-Royce Corp., 725 F. App’x 592, 593-94 (9th Cir. 2018) (Even

if “the work of [one] office is essential to the most visible aspect of

[the corporation’s] corporate activities . . . this is not a reason to

supplant the corporate headquarters as the principal place of

business.”).

CBS has met its burden to demonstrate that there is

complete diversity among the parties.

B. Federal Question Jurisdiction & Preemption7

For the Court to have federal question jurisdiction over a

complaint, the complaint must arise under federal law. 28 U.S.C.

§ 1331. Ordinarily, “[t]o determine whether the claim arises

under federal law, [courts] examine the ‘well pleaded’ allegations

of the complaint and ignore potential defenses.” Beneficial Nat.

Bank v. Anderson, 539 U.S. 1, 6 (2003). However, there is an

exception to the well-pleaded complaint rule for federal statutes

that completely preempt a plaintiff’s state law claims. Id. at 8.

Here, Defendants assert that Plaintiff’s state law claims are

completely preempted under Section 301 of the Labor

Management Relations Act (LMRA), and, therefore, arise under

federal law.

Section 301(a) provides federal jurisdiction over “[s]uits for

violation of contracts between an employer and a labor

organization.” 29 U.S.C. § 185(a). “The preemptive force of

section 301 is so powerful as to displace entirely any state claim

based on a collective bargaining agreement, and any state claim

whose outcome depends on analysis of the terms of the

agreement.” Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993,

997 (9th Cir. 1987) (internal citations omitted). To determine if a

claim is preempted by Section 301, courts apply a two-step test.

First, the court considers “whether the asserted cause of action

involves a right conferred upon an employee by virtue of state law,

not by a CBA.” Burnside v. Kiewit Pac. Corp., 491 F.3d 1053,

1059 (9th Cir. 2007) (quoting Caterpillar Inc. v. Williams, 482 U.S.

386, 387 (1987). “If the right exists solely as a result of the CBA,

then the claim is preempted, and [the] analysis ends there.” Id. If

“the right exists independently of the CBA, [the court] must still

7 Although the Court has diversity jurisdiction, it must consider whether the

claims are preempted in deciding Defendant’s motion to dismiss.

consider whether it is nevertheless substantially dependent on

analysis of a collective bargaining agreement.” Id. (internal

quotation marks and citations omitted.) “If such dependence

exists, then the claim is preempted by section 301; if not, then the

claim can proceed under state law.” Id. at 1059-60. “A court’s

determination of whether a state law claim is preempted by §301

‘must focus . . . on whether [the state law claim] confers non-

negotiable state-law rights on employers or employees

independent of any right established by contract, or, instead,

whether evaluation of the [state law] claim is inextricably

intertwined with consideration of the terms of the labor contract.’”

Firestone v. S. Cal. Gas Co., 219 F.3d 1063, 1065 (9th Cir. 2000)

(alternations in original) (quoting Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 213 (1985)).

1. Age and Race Discrimination (First through

Fourth Causes of Action)

Plaintiff asserts four causes of action alleging that CBS

discriminated against him, or failed to prevent discrimination

against him, on the basis of race and age, by transferring him to

Hackman. See Compl. ¶¶10, 13-28. CBS concedes that generally

such claims are not preempted by the LMRA. See Opp’n to MTR

at 5; MTD at 6 n.4. CBS asserts, however, that the discrimination

claims here should be treated differently, see MTD at 5; Opp’n to

MTR at 5-6; Notice ¶¶ 9-10, because Plaintiff alleges he “was sent

to Hackman” not only “based on his race [and] age,” but also “to

get him out of the way because CBS knew that it had failed to pay

[Plaintiff] raises . . . to which he was contractually entitled

pursuant to his collective bargaining agreement,” Compl. ¶ 10.8

8 CBS notes additionally that the CBA also precludes race and age

discrimination. MTD at 6 n.3. But that is not relevant to the preemption

analysis. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 412-13

(1988) (“[T]he mere fact that a broad contractual protection against

Therefore, CBS argues, “[t]he central premise of this allegation is

that Defendant did not pay Plaintiff in accordance with the CBA

and so it discriminated against him.” MTD at 6; see also Opp’n to

MTR at 6 (same); Dkt. 21 (Reply) at 5 (same).

This misapprehends Plaintiff’s claims. Plaintiff alleges he

was “sold” to Hackman, rather than offered the buyout, at least in

part because of his age and race, and therefore was discriminated

against. The Court need not look to the CBA to determine if the

decision to transfer Plaintiff to Hackman constituted

discrimination based on race or age. This is not like the cases

cited by CBS. See Reply at 4-5. Plaintiff is not alleging a

discriminatory application of a CBA provision that requires

interpretation, cf. Madison v. Motion Picture Set Painters & Sign

Writers Local 729, 132 F. Supp. 2d 1244, 1253 (C.D. Cal. 2000) (To

prove discrimination, plaintiff would have to show that defendant

did not follow the grievance procedures in the CBA), nor is CBS

asserting a non-discriminatory reason for the adverse employment

action explicitly based on the CBA, cf. Audette v. Int’l

Longshoremen’s & Warehousemen’s Union, 195 F.3d 1107, 1112

(9th Cir. 1999) (“[N]on-discriminatory, legitimate, business

justification . . . necessarily implicate[s] provisions of the CBA”).

It is true that the Complaint contains a third purported

reason for which Plaintiff was transferred to Hackman: that CBS

owed him wages under the CBA. But that does not mean the race

and age discrimination claims are “substantially dependent on

discriminatory [] or retaliatory discharge may provide a remedy for conduct

that coincidentally violates state-law does not make the existence or the

contours of the state law violation dependent upon the terms of the private

contract.”); see also Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 969

(9th Cir. 2001), as amended (Aug. 27, 2001) (“That a claim involves an issue

theoretically subject to collective bargaining is irrelevant if the specific claim

at issue may be resolved without interpretation of the CBA”).

analysis” of the CBA. It only shows that there are three separate

reasons allegedly underlying the transfer to Hackman. Therefore,

because Plaintiff’s race and age discrimination claims are based

on a state law right that does not substantially depend on any

analysis or interpretation of the CBA, Causes of Action One

through Four are not preempted. See Ramirez v. Fox Television

Station, Inc., 998 F.2d 743, 748-49 (9th Cir. 1993) (Actions

asserting discrimination under FEHA are “independent of

collective-bargaining agreements,” are “‘nonnegotiable’ and

‘cannot be removed by private contract,’” and therefore CBAs

“neither create[] the right . . . nor . . . remove or alter that right.”

This is true even if the CBA “will likely be referred to by [the

parties] to determine the terms and conditions of her employment”

where the “underlying cause of action is that [the defendant]

discriminated against her in applying and/or altering those terms

and conditions.” (internal citations omitted)).

CBS additionally argues that the discrimination claims must

be dismissed because they do not sufficiently allege an “adverse

employment action.” MTD at 8 (quoting Horsford v. Bd. of

Trustees of Cal. State Univ., 132 Cal. App. 4th 359, 373 (2005)).

An adverse employment action extends beyond “termination or

demotion” to “the entire spectrum of employment actions that are

reasonably likely to adversely and materially affect an employee’s

job performance or opportunity for advancement in his or her

career.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1054

(2005). An adverse employment action is actionable if it results in

“changes in terms and conditions of employment” that are “both

substantial and detrimental.” Horsford, 132 Cal. App. 4th at 373.

“[T]he phrase ‘terms, conditions, or privileges’ of employment

must be interpreted liberally and with a reasonable appreciation

of the realities of the workplace in order to afford employees the

appropriate and generous protection against employment

discrimination that the FEHA was intended to provide.”

Yanowitz, 36 Cal. 4th at 1054.

Again, CBS appears to misunderstand Plaintiff’s claim.9

Plaintiff is not claiming that the failure to offer a buyout, standing

alone, is an adverse employment action, or that CBS’s failure to

give Plaintiff the choice between a buyout and “continued

employment” is an adverse employment action.10 Crucially,

Plaintiff alleges that Hackman had no work for Plaintiff to do.

Compl. ¶ 9; see also Opp’n to MTD at 21 (Plaintiff “changed job

duties[] and was assigned no work”). Therefore, he was not really

offered “continued employment” instead of the buyout, as CBS

argues. When an experienced employee is removed from his

position and “transferred to . . . a department in which he has no

training or expertise (and in which position he was inferably

expected to fail), the terms and conditions of employment have

been adversely changed” and “the changes were substantial and

detrimental.” Horsford, 132 Cal. App. 4th at 374; see also Yartzoff

v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (“Transfers of job

duties and undeserved performance ratings, if proven, would

constitute [cognizable] ‘adverse employment decisions’”); Patten v.

Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1389

(2005) (transfer from position as middle school principal in a large

underperforming school to a small high-achieving school “could be

9 Indeed, in the Reply at 7-8, CBS continues to ignore paragraph 9 of the

Complaint, which alleges the adverse action at issue, instead focusing only on

the paragraphs related to the buyout.

10 In a footnote, CBS appeared to understand this by acknowledging that,

rather than relying solely on the denial of a buyout, “Plaintiff’s allegations of

Defendant’s wrongdoing are focused on the fact that Plaintiff was identified

as an employee to be leased to Hackman.” MTD at 10 n.6. However, it did

not address whether being “leased” to Hackman was an adverse employment

action.

viewed unfavorably” because it “does not present the kinds of

administrative challenges an up-and-coming principal wanting to

make her mark would relish” even though “wages, benefits and

duties (as set forth by job descriptions) remained the same”; “the

transfer in reality was a demotion” and therefore there was a

triable issue of fact as to whether the transfer was an adverse

employment action). Being transferred to Hackman where

Plaintiff was not assigned any work is clearly a substantial and

detrimental change that may well affect his promotion

opportunities. See Opp’n to MTD at 22 (“Having no work or

responsibility . . . will not make [Plaintiff] available for promotion

opportunities”).

For this reason, even if the Court found the out-of-circuit

cases cited by CBS to be persuasive, they are inapplicable here

because in each case the employees who did not receive a buyout

or severance maintained their employment on similar conditions.

See Cooney v. Union Pac. R. Co., 258 F.3d 731, 733-34 (8th Cir.

2001) (No adverse employment action in denying a buyout

application where plaintiffs continued working for the employer

and retained the same responsibilities and compensation); Jones

v. Reliant Energy-ARKLA, 336 F.3d 689, 691-92 (8th Cir. 2003)

(An employer’s decision to give some employees, but not others,

the choice of maintaining employment or resigning with severance

is not an adverse employment action when the plaintiff did not

“suffer[] a reduction in responsibilities or pay” and did not argue

that relocation alone “constitutes an adverse employment

action.”); E.E.O.C. v. Sears, Roebuck & Co., 883 F. Supp. 211, 214

(N.D. Ill. 1995) (Employees who were given the choice to resign

and take a severance or retain their prior positions did not suffer

any adverse treatment because they kept their former jobs).

While “assignment to a less-preferred position alone” may

not “constitute[] an adverse employment action,” Malais v. Los

Angeles City Fire Dep’t, 150 Cal. App. 4th 350, 358 (2007),11

assignment to a position that does not offer any work goes beyond

mere preference. The cases cited by CBS are not persuasive.

Plaintiff’s continued employment at Hackman where he

received no work, if proven, would be sufficient to demonstrate an

actionable employment action. CBS’s motion to dismiss the First

through Fourth Causes of Action is DENIED.

2. Labor Code § 210 (Fifth Cause of Action)

Plaintiff alleges that CBS violated California Labor Code

Section 210 through its “intentional and willful failure to pay

Bagwell at the agreed-upon rate” and that “the amount of benefits

to which he was entitled was affected.” Compl. ¶ 32. California

Labor Code Section 210 provides a penalty to be recovered by the

Labor Commissioner for failure to pay wages pursuant to an

enumerated list of Labor Code Sections. Cal. Labor Code

§ 210(a).12 Specifically, Section 210 provides penalties for failing

11 In Malais, a firefighter was eligible to be assigned to either special duty or

platoon duty. 150 Cal. App. 4th at 354. “Both classes receive equal pay and

possess equal promotional opportunities,” but the firefighter wanted “only to

work in platoon duty,” where he was assigned prior to his disabling injury,

“because he prefers firefighting, the platoon work schedule, and the

atmosphere of working as part of a team of firefighters to the typical special

duty assignment business-office work environment.” Id. at 354-55. Despite

his preference, the firefighter was assigned to special duty. Id. at 355.

12 Additionally, any action under California Labor Code Section 210 must be

brought “in the name of the people of the State of California and the Labor

Commissioner.” Cal. Labor Code § 210(b). Plaintiff does not appear to have

brought his claims as a private attorney general; he brings them as

individual claims. See Opp’n to MTD at 18 (Plaintiff will “pursue [his]

unpaid wages under the Fifth Cause of Action under the California Labor

Code Wil[l]ful Failure to Pay”). Because CBS does not challenge the Fifth

Cause of Action on this ground, the Court does not address it. It is not the

to timely provide wages and for paying disparate wages based on

race or sex. See Cal. Labor Code § 201.3 (timing of pay periods for

temporary service employees), § 204 (timing of pay periods for

employees not addressed in any other section), § 204b (timing of

pay periods for employees paid on a weekly basis prior to provision

of services), § 204.1 (timing of pay periods for commissioned car

salesmen), § 204.2 (timing of pay periods for salaried professionals

who work more than 40 hours a week), § 205 (timing of pay

periods for agricultural and domestic workers who live at the

employer’s premises), § 205.5 (timing of pay periods for other

agricultural employees), and § 1197.5 (prohibiting wage

discrepancies based on race or sex).

The Complaint does not state which underlying Labor Code

provision was allegedly violated, and none of the enumerated

sections applies to an underpayment of wages or benefits owed

pursuant to a CBA. Plaintiff does not allege that he was not paid

according to the appropriate pay period schedule, or that he was

paid less than his colleagues due to his race, but rather that he

was not paid the amount owed to him pursuant to the CBA. Such

a claim is nothing more than a disguised breach of contract claim,

regardless of Plaintiff’s attempt to describe his claim as a violation

of the California Labor Code. See Newberry v. Pacific Racing

Association, et. al., 854 F.2d 1142, 1146 (9th Cir. 1988) (“The key

to determining the scope of section 301 preemption is not based on

how the complaint is framed, but whether the claims can be

resolved only by referring to the terms of the bargaining

agreement.”); see also Allis-Chalmers, 471 U.S. at 211 (finding the

preemptive effect of section 301 extends beyond suits alleging

contract violations so that form is not elevated over substance

allowing parties to evade the requirements of section 301). For

role of the Court to make parties’ arguments for them. See Indep. Towers of

Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

the same reasons as Plaintiff’s breach of contract action, discussed

below, the Fifth Cause of Action is preempted.13

Moreover, even if Plaintiff could allege that an applicable

Labor Code section was violated here, the claim would still be

preempted if the Court must interpret the CBA to determine

whether Plaintiff was receiving the correct pay. See Firestone,

219 F.3d at 1066 (state law claim for failure to pay a “premium

wage rate” for overtime work was preempted because the court

would need to interpret the CBA to determine what the “regular

rate” was in order to determine if plaintiffs were receiving a

“premium rate”). For example, penalties based on Section 210 for

a “willful or intentional violation” of the enumerated provisions

13 This does not mean that claims properly brought under Section 210 are

necessarily preempted. To the contrary, certain claims brought under that

section would avoid preemption under Livadas v. Bradshaw, 512 U.S. 107

(1994). In Livadas, a Safeway employee did not receive her final check until

three days after her discharge, contrary to California Labor Code Section 201,

which requires immediate payment of wages owed. Id. at 111. California

Labor Code Section 203 provides a penalty for employers who willfully violate

Section 201, requiring them to pay wages to the employee “at the same rate”

for the days between termination and receipt of their final check. Cal. Labor

Code § 203. Notably, the employee “did not dispute Safeway’s calculation of

the wages owed, but sought only the penalty for the employer’s late tender.”

Livadas, 512 U.S. at 112 n.4. The Supreme Court found that because “[t]he

only issue raised by [the employee’s] claim, whether Safeway ‘willfully

fail[ed] to pay’ her wages promptly upon severance, was a question of state

law, entirely independent of any understanding embodied in the” CBA, the

claim was not preempted. Id. at 124-25 (second alteration in original)

(citations omitted). In so holding, the Supreme Court noted that, “[t]here is

no indication that there was a ‘dispute’ in this case over the amount of the

penalty” and that a prior Supreme Court case has made clear that “when

liability is governed by independent state law, the mere need to ‘look to’ the

collective bargaining agreement for damages computation is no reason to hold

the state-law claim defeated by § 301.” Id. at 125.

would require the Court to calculate “25 percent of the amount

unlawfully withheld.” Cal. Labor Code § 210(a)(2). In an effort to

analogize his claims to Livadas and Burnside, Plaintiff asserts

that in calculating the amount unlawfully withheld, “[t]here is no

dispute as to what the terms are” and “CBS has not alleged there

is a dispute as to the actual terms of the CBA.” MTR at 7; see also

Opp’n to MTD at 18-19. However, CBS does dispute whether the

amount sought by Plaintiff “was the appropriate wage for Plaintiff

at any time during the relevant period or for the position he held.”

MTD at 7; see also Opp’n to MTR at 8. Therefore, even if Plaintiff

had adequately alleged a willful violation of Section 210, the Court

would need to consult more than just “a calendar,” see Opp’n to

MTD at 19; it would need to determine which position Plaintiff

was qualified for at what times under the CBA.

The Fifth Cause of Action is DISMISSED without leave to

amend.

3. Breach of Contract (Sixth Cause of Action)

Plaintiff alleges a breach of the CBA between his union and

CBS. Compl. ¶¶ 37-42. A breach of the CBA is the quintessential

preempted claim. See Alaska Airlines Inc. v. Schurke, 898 F.3d

904, 921 n.12 (9th Cir. 2018), cert. denied, 139 S. Ct. 1445 (2019)

(“Breach-of-contract claims are the paradigmatic example” of a

preempted state law claim); Cramer v. Consol. Freightways, Inc.,

255 F.3d 683, 689 (9th Cir. 2001), as amended (Aug. 27, 2001)

(“[T]he use of state contract law in CBA interpretation and

enforcement” is categorically preempted by Section 301). Plaintiff

effectively concedes as much. See Opp’n to MTD at 14

(“PLAINTIFF is willing to amend to remove” the Sixth Cause of

Action); id. at 18 (“Plaintiff will request permission for leave to

amend his complaint to dismiss PLAINTIFF’s Sixth Cause of

Action for Breach of Contract”).14 Therefore, Plaintiff’s breach of

contract claim is preempted by the LMRA and DISMISSED

without leave to amend. See Allis-Chalmers, 471 U.S. at 219-21

(Breach of contract claim preempted by Section 301 needs to “go

through the arbitration procedure established in the collective-

bargaining agreement before bringing suit in court” and therefore

must be dismissed if Plaintiffs “fail[] to make use of the grievance

procedure established in the” CBA).15

4. Unfair Competition (Seventh Cause of Action)

Plaintiff alleges that CBS’s conduct constitutes unfair

competition under the unlawful prong because “CBS has violated

statutes and public policies.” Compl. ¶¶ 47, 49. It is unclear

14 Elsewhere, Plaintiff asserts that “asking the state court to enforce the

Collective Bargaining Agreement certainly does not give rise to the

‘interpretation’ of the CBA.” MTR at 6; see also Opp’n to MTD at 17-18. This

is not only wrong, but ignores the first step of the analysis—i.e., whether the

right is conferred upon an employee by virtue of state law or a CBA. Plaintiff

cannot credibly assert that a claim “that he was not being paid in accordance

with the CBA . . . do[es] not depend on the CBA.” MTR at 7. Therefore,

Burnside does not save Plaintiff’s breach of contract claim. 491 F.3d at 1060-

61, 1074 (The right to be compensated for time spent traveling between a

designated meeting point and a jobsite existed as a matter of state law and

there is no dispute concerning which wage rate would apply if those hours

were found to be compensable).

15 Plaintiff does not dispute that the CBA provides for a mandatory grievance

procedure and arbitration for disputes “arising under” the CBA, which would

include an alleged breach of the terms of the CBA. See Opp’n to MTD at 19-

20 (“[T]he CBA expressly limits the application of other grievance procedures

to grievances relating to the CBA”); see also id. at 15, 18. However, Plaintiff

misapprehends the relevance of the grievance and arbitration clauses. See

Opp’n to MTD at 15-16, 19-20. CBS is not asserting them to establish

preemption, but merely to show that preempted claims should be dismissed,

rather than recharacterized as Section 301 claims to be heard by a federal

judge. See Reply at 7.

which statutes or public policies underlie Plaintiffs unfair

competition claim. To the extent Plaintiff refers to the

“fundamental public policies” expressed by “wage and hour laws,”

Compl. 4 46, he has not adequately alleged the violation of any

wage and hour law. Similarly, he has not alleged a claim for

violation of Section 210, the only specific Labor Code provision

addressed in the Complaint. However, to the extent Plaintiff's

unfair competition claim relies on a predicate FEHA violation,

Compl. { 47 (unfair competition to “depriv[e] Plaintiff of rights,

benefits, and privileges guaranteed to all employees under law’),

his unfair competition claims can proceed.

CBS’s motion to dismiss the Seventh Cause of Action is

DENIED to the extent it relies on violations of FEHA and not

unlisted or dismissed Labor Code violations.

IV. CONCLUSION

The motion to remand is DENIED. The motion to dismiss the

First through Fourth Causes of Action, and the Seventh Cause of

Action, is DENIED. Plaintiffs Fifth and Sixth Cause of Action are

DISMISSED without leave to amend.

IT IS SO ORDERED.

Date: November 25, 2019 A\oSe Ade, Jes Aen?

Dale S. Fischer

United States District Judge

10Q