# Brian Bagwell v. CBS Broadcasting Inc

> District Court, C.D. California · November 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10036239

## Case

- **Court:** District Court, C.D. California
- **Decided:** November 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10036239

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10036239. Public record. Not legal advice.