MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE.
On June 23, 2015, Todd Hall and Dan Rivera (collectively "plaintiffs") filed this action individually and on behalf of similarly situated individuals in Los Angeles Superior Court against Live Nation Worldwide, Inc ("Live Nation").
On July 31, 2015 Live Nation filed a motion to dismiss plaintiffs' first and third causes of action.
On October 24, 2013, the International Alliance of Theatrical Stage Employees — Local 33 ("IATSE") allegedly entered into a collective bargaining agreement ("CBA") with Live Nation Hollywood (the "2013 CBA").
Plaintiffs allege that they were hired by Live Nation on January 11, 2015 to work as stagehands on a television production of the "20th Annual Critics' Choice Movie Awards," which was broadcast live from the Hollywood Palladium on January 15, 2015 (the "Production").
Plaintiffs allege on information and belief that IATSE and Live Nation did not enter into a new contract governing live events that covered the Production between September 20, 2014 and January 15, 2015.
Plaintiffs' first and third claims for relief, which seek penalty wages, unpaid minimum wages, and overtime compensation under California Labor Code §§ 203, 510, and 1194 respectively, are asserted on behalf of a class of all individuals who were employed by Live Nation in connection with the Critics' Choice awards show on January 15, 2015 (the "Critics' Choice Class").
In its notice of removal, Live Nation alleges that although the prior collective bargaining agreement ("CBA") expired on September 30, 2014, Live Nation and IATSE entered into a new CBA on June 22, 2015, which explicitly covers work performed between October 1, 2014 to September 30, 2016.
Live Nation asks the court to take judicial notice of two documents related to its motion:
In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). A court normally must convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it "considers evidence outside the pleadings.... A court may, however, consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir.2003).
Under Rule 201 of the Federal Rules of Evidence, courts frequently take judicial notice of public filings. See Velazquez v. GMAC Mortg. Corp., 605 F.Supp.2d 1049, 1057-58 (C.D.Cal.2008) (taking judicial notice of documents recorded by the Los Angeles County Recorder's Office, including deeds of trust); see also Krug v. Wells Fargo Bank, N.A., No. 11-CV-5190 YGR, 2012 WL 1980860, *2 (N.D.Cal. June 1, 2012) (public records are judicially noticeable under Rule 201); Grant v. Aurora Loan Servs., Inc., 736 F.Supp.2d 1257, 1264 (C.D.Cal.2010) (noting that a "[party] provided a reference number for the document, showing that it was in fact recorded; this demonstrates that it is a public record"); Fimbres v. Chapel Mortg. Corp., No. 09-CV-0886-IEG (POR), 2009 WL 4163332, *3 (S.D.Cal. Nov. 20, 2009) (taking judicial notice of a deed of trust, notice of default, notice of trustee's sale, assignment of deed of trust, and substitution of trustee as each was a public record); Angulo v. Countrywide Home Loans, Inc., No. 1:09-V-877-AWI-SMS, 2009 WL 3427179, *3 n. 3 (E.D.Cal. Oct. 26, 2009) ("The Deed of Trust and Notice of Default are matters of public record. As such, this court may consider these foreclosure documents"). For this reason, the court takes judicial notice of the Certificate of Merger, which is dated and time stamped and was filed with the Delaware Secretary of State, Division of Corporations on May 23, 2009.
Further, because the motions to dismiss and remand raise the issue of complete preemption, and "[b]ecause complete preemption often applies to complaints drawn to evade federal jurisdiction, [the] court may look beyond the face of the complaint to determine whether the claims alleged as state law causes of action in fact are necessarily federal claims." Parrino v. FFIP, Inc., 146 F.3d 699, 704 (9th Cir. 1998), superseded by statute on other grounds as stated in Abrego Abrego v. Dow Chemical Co., 443 F.3d 676, 681 (9th Cir.
The court therefore grants Live Nation's request for judicial notice.
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory," or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th
The court need not, however, accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 555, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) ("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). Thus, a plaintiff's complaint must "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' ... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)" (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.2009) ("[F]or a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief," citing Iqbal and Twombly).
Live Nation contends that plaintiffs' first and third causes of actions must be dismissed because they are preempted by section 301(a) of the LMRA. Section 301(a) of the LMRA gives federal courts exclusive jurisdiction to hear "[s]uits for violation of contracts between an employer and a labor organization." 29 U.S.C. § 185(a). See Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for So. Cal., 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ("The preemptive force of § 301 is so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301"); see also Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 ("Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims `substantially dependent on analysis of a collective-bargaining agreement,'" quoting Electrical Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). Section 301 "mandate[s] resort to federal rules of law in order to ensure uniform interpretation of collective-bargaining agreements, and thus to promote the peaceable, consistent resolution of labor-management disputes." Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 404 n. 3, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).
To further the goal of uniform interpretation of labor contracts, the preemptive effect of § 301 has been extended beyond suits that allege the violation of a collective bargaining agreement. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) ("The interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform
Despite the broad preemptive effect of § 301, a claim that seeks to vindicate "nonnegotiable state-law rights ... independent of any right established by contract" is not within its scope. Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. 1904; see also Livadas v. Bradshaw, 512 U.S. 107, 123-24, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) ("[Section] 301 cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law.... [I]t is the legal character of a claim, as `independent' of rights under the collective-bargaining agreement ... that decides whether a state cause of action may go forward" (citations omitted));
Nor can a defendant invoke preemption merely by alleging a "hypothetical connection between the claim and the terms of the CBA," or a "creative linkage" between the subject matter of the suit and the wording of the CBA. Id. at 691-92. To prevail, "the proffered interpretation argument must reach a reasonable level of credibility." Id. at 692. A preemption argument is not credible "simply because the court may have to consult the CBA to evaluate [a plaintiff's claim]; [similarly,] `look[ing] to' the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption." Id. (quoting Livadas, 512 U.S. at 125, 114 S.Ct. 2068).
See also Humble v. Boeing Co., 305 F.3d 1004, 1007-08 (9th Cir.2002) (recognizing that Cramer "revised [the] framework for analyzing § 301 preemption and synthesized the considerations involved").
The Ninth Circuit has articulated a two-part test to determine whether a cause of action is preempted by the LMRA. Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1059 (9th Cir.2007). First, the court must determine "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 ... analysis ends.... If however, the right exists independently of the CBA, [the 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 claim can proceed under state law." Id. at 1059-60 (citations omitted).
Plaintiffs assert that their state claims are not preempted by the LMRA because there was no CBA in effect while they were employed. Live Nation notes the existence of two CBAs: the 2013 and 2015 agreements.
The 2013 CBA was in effect from October 1, 2012 to September 30, 2014.
CBAs are interpreted according to ordinary contract principles. M & G Polymers USA, LLC v. Tackett, ___ U.S. ___, 135 S.Ct. 926, 937, 190 L.Ed.2d 809 (2015) (applying ordinary contract principles in interpreting a collective bargaining agreement); Adair v. City of Kirkland, 16 Fed.Appx. 644, 646 (9th Cir.2001) (Unpub. Disp.) ("After reviewing the record, we conclude that the district court properly applied state law contract principles and relied on extrinsic evidence ... to determine that the parties [to the CBA] intended the salary to cover the briefing time as part of the officers' normally scheduled work day").
"The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties." CAL. CIV. CODE § 1636. Such intent is to be inferred, if possible, solely from the "written provisions of the contract." AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 822, 274 Cal.Rptr. 820, 799 P.2d 1253 (1990). If the contractual language is clear and explicit, it governs. CAL. CIV. CODE § 1638. See Admiral Ins. Co. v. Kay Auto. Distributors, Inc., 82 F.Supp.3d 1175, 1178 (C.D.Cal.2015) ("Under California law, `[t]he language of a contract is to govern its interpretation, if the language is clear and explicit.' `The words of a contract are to be understood in their ordinary and popular sense ... unless used by the parties in a technical sense, or unless a special meaning is given to them by usage,'" quoting CAL. CIV. CODE §§ 1638, 1644); Kramer
Courts have, in some cases, held that a CBA can be enforced beyond its expiration date where the parties have, through their actions, expressed an intent so to be bound. See, e.g., O'Connor Co. v. Carpenters Local Union No. 1408 of United Brotherhood of Carpenters & Joiners of Am., AFL-CIO, 534 F.Supp. 484, 485-86 (N.D.Cal.1982) ("It may also be true that the broad arbitration provisions of the 1977-1980 Agreement survived its termination because the parties so intended"), aff'd, 702 F.2d 824 (9th Cir.1983).
In this case, however, the parties' intent is clear from the face of the 2013 CBA. The contract not only sets forth an expiration date, but includes a clause explicitly stating that the agreement does not set precedent for or govern the rights or obligations of the parties beyond its expiration date. It is thus clear the parties intended that the 2013 CBA not apply beyond its expiration date of September 20, 2014. See Office and Professional Employees Insurance Trust Fund v. Laborers Funds Administrative Office, Inc., 783 F.2d 919, 921 (9th Cir.1986) ("Ninth Circuit cases foreclose us from finding that the district court had subject matter jurisdiction over that part of OPEIT's claim based on the expired CBA"); Lumber Production Industrial Workers Local No. 1054 v. West Coast Industrial Relations Ass'n, Inc., 775 F.2d 1042, 1046 (9th Cir. 1985)("It logically follows that an expired [collective bargaining] agreement cannot serve as the basis for a proper exercise of jurisdiction under section 301(a)"); Cement Masons Health and Welfare Trust Fund v. Kirkwood-Bly, Inc., 520 F.Supp. 942, 944-46 (N.D.Cal.1981) ("Plaintiffs cite no case, nor can we find any, which ha[s] permitted district courts to enforce properly expired collective bargaining agreements in a section 301 action"), aff'd, 692 F.2d 641 (9th Cir.1982).
Contrary to the plain language of the contract, Live Nation argues that the 2013 CBA governed the terms of plaintiffs' employment because it had a duty to continue the status quo under § 8(a)(5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 158(a)(5) and (d), until the parties bargained to impasse or reached a new agreement. Live Nation argues that this is sufficient to imply a contract extending the terms of the 2013 CBA and to preempt plaintiffs' state law claims. This misapprehends the applicable law. An employer's duty to maintain the status quo under § 8(a)(5) does not create a cause of action under section 301 that preempts state law claims. Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 27 (2d Cir.1988) ("We must conclude that the CBA must be considered defunct upon its expiration for all purposes except definition of the status quo. Therefore, after expiration of the CBA there is no contract subject to section 301 and there can be
In sum, the 2013 CBA did not govern the terms of plaintiffs' employment in January 2015 and cannot form the basis for an argument that plaintiffs' state law claims are preempted.
Live Nation next argues that the 2015 CBA applies retroactively to cover plaintiffs' employment in January 2015.
Plaintiffs contend the 2015 CBA agreement does not apply because it had not been negotiated at the time they worked for Live Nation. Employers and unions, however, can enter into a valid CBA that retroactively covers the bargaining period. See University of Hawaii Professional Assembly v. Cayetano, 183 F.3d 1096, 1100 (9th Cir.1999) (accepting without question that a new CBA applied retroactively because the contract so stated); Winery, Distillery & Allied Workers Union, Local 186 v. E & J Gallo Winery, Inc., 857 F.2d 1353, 1357-58 (9th Cir.1988) (holding that a new CBA applied retroactively to the period of bargaining even though this was not explicitly stated in the CBA); Mendez v. Mid-Wilshire Health Care Ctr., 220 Cal.App.4th 534, 542, 163 Cal.Rptr.3d 80 (2013) ("Moreover, while it is true that Mid-Wilshire had already fired Mendez when the second collective bargaining agreement was executed, the new agreement applied retroactively to a date prior to Mendez's termination"); see also Giles v. Univ. of Toledo, 286 Fed.Appx. 295, 302 (6th Cir.2008) (Unpub. Disp.) ("We have held that a union and an employer can contract to cover matters that
Having concluded that the 2015 CBA governed plaintiffs' employment in January 2015, the court next examines whether plaintiffs' claims are preempted by § 301 of the LMRA.
Plaintiffs' first cause of action seeks continuing wage penalties under Labor Code § 203, based on Live Nation's alleged failure to pay final wages in a timely fashion
Plaintiffs counter that the claim is not preempted because it is based on nonnegotiable state-law rights. California Labor Code § 201 states: "If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately." Labor Code §§ 201.5 and 201.9 set forth exceptions to this general rule that apply to employees in the entertainment industry. See CAL. LAB. CODE §§ 201.5, 201.9. See also id., § 203(a). Plaintiffs argue that § 201.5 applies,
Section 201.5 applies to employees involved in the production of motion pictures, including "the development, creation, presentation, or broadcasting of theatrical or televised motion pictures, television programs, commercial advertisements, music videos, or any other moving images, including, but not limited to, productions made for entertainment, commercial, religious, or educational purposes, whether these productions are presented by means of film, tape, live broadcast, cable, satellite transmission, Web cast, or any other technology that is now in use or may be adopted in the future." Id., § 201.5. Section 201.9 applies to individuals who are "employed at a venue that hosts live theatrical or concert events and are enrolled in and routinely dispatched to employment through a hiring hall or other system of regular short-term employment." Id., § 201.9.
The plain text of the statutes indicates that they are not mutually exclusive. Both statutes would appear to apply where, as here, an employee works on presentation of a live broadcast at a venue that hosts live theatrical or concert events. The complaint alleges that plaintiffs were involved in "the television production of the `20th Annual Critics' Choice Movie Awards,' broadcast[] live from the Hollywood Palladium."
Neither § 201.5 nor § 201.9 provides nonnegotiable state-law rights, however, as both expressly authorize employers and employees to set alternate rules for the final payment of wages in a collective bargaining agreement. CAL. LAB. CODE § 201.5(e) ("Nothing in this section prohibits the parties to a valid collective bargaining agreement from establishing alternative provisions for final payment of wages to employees covered by this section if those provisions do not exceed the time limitation established in Section 204");
Stated differently, under both §§ 201.5(e) and 201.9, § 201 does not apply
Section VII.B of the 2015 CBA states:
As can be seen, the provision explicitly waives the protections of Labor Code §§ 201 and 204 and establishes alternate terms for final wage payments. Based on plaintiffs' allegations and §§ 201.5(e) and 201.9, therefore, section VII.B applies, and the first cause of action is preempted by § 301.
Plaintiffs' third cause of action alleges failure to pay minimum and overtime wages in violation of Labor Code §§ 510 and 1194. Plaintiffs assert they "worked many hours without timely compensation for all the work they performed, as required by law," and that Live Nation "failed to timely pay plaintiff(s) and other members of the class their minimum and overtime wages as required by Sections 204, 510, and 1194 of the California Labor Code."
Labor Code § 204 provides in part that "when employees are covered by a collective bargaining agreement that provides different pay arrangements, those arrangements shall apply to the covered employees." The rights set forth in § 204 are therefore waivable. As noted, Section VII.B of the 2015 CBA explicitly waives rights under § 204 and sets forth alternate provisions.
Live Nation contends that although plaintiffs assert the third cause of action under §§ 204, 510, and 1194, the crux of plaintiffs' allegations is not that overtime was not paid or was paid in an improper amount, but rather that payment was not timely. As a result, it contends that the claim is preempted because the 2015 CBA supersedes the timeliness provisions of § 204 under § 204(c). Even were this not the case, §§ 510 and 1194 require enforcement of a CBA, rather than Labor Code provisions, where such an agreement exists. Section 510 "do[es] not apply to the payment of overtime compensation to an employee working pursuant to any of the following: ... [A]n alternative workweek schedule adopted pursuant to a collective bargaining agreement pursuant to Section 514." CAL. LAB. CODE § 510. Section 514, in turn, states: "Sections 510 and 511 do not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage." CAL. LAB. CODE § 514. The 2015 CBA establishes an alternate workweek in Article X, and provides for the wages, hours of work, and working conditions of employees in Article VIII. The same articles provide for overtime pay at well over 1.3 times the state minimum wage. Thus, the 2015 CBA meets the requirements of § 514, and applies in lieu of § 510.
Because under Labor Code §§ 204, 510, and 1194, a compliant CBA applies rather than the Labor Code, the 2015 CBA governs plaintiffs' third cause of action. The claim is therefore preempted.
The notice of removal and Live Nation's opposition to plaintiffs' motion to remand assert that the second, fourth, and fifth causes of action are also preempted by the LMRA and provide a further basis for federal question jurisdiction.
Plaintiffs' second cause of action alleges failure to provide accurate wage statements in violation of Labor Code § 226, and failure to maintain accurate records in violation of Labor Code § 1174. The allegations supporting the cause of action are conclusory recitations of the substance of those statutory provisions. The claim does, however, incorporate the factual allegations of the first cause of action. As a result, the court construes the claim as based on the fact that payments (and accompanying pay stubs) were purportedly not provided in a timely fashion, and that the wage information not timely recorded. Because the only facts incorporated in the claim concern the timeliness of payment, the court agrees that, as presently pled, the second cause of action is derivative of the first, requires interpretation of the CBA, and is preempted.
The fourth cause of action, which alleges violation of Business and Professions Code § 17200, is based on the allegedly unfair and unlawful business practices pled in the first, second, and third causes of action. Because determining whether defendant acted unfairly or unlawfully as alleged in these claim requires interpretation of the CBA, the fourth cause of action is preempted.
Finally, the fifth cause of action, which seeks civil penalties under Labor Code § 2699.3(a), pleads that plaintiffs are entitled to recover civil penalties due to the statutory violations alleged in the first three causes of action. Consequently, this claim is derivative of those claims, and is preempted for the same reasons they are preempted.
The fact that plaintiffs' first and third causes of action are preempted by § 301 is alone a sufficient basis for dismissal. See Allis-Chalmers Corp., 471 U.S. at 220, 105 S.Ct. 1904 ("We do hold that when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law," citing Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)); Tellez v. Pac. Gas & Elec. Co., 817 F.2d 536, 537 (9th Cir.1987)("Actions in federal or state court alleging breach of a labor contract must either be brought under
Even were the court to treat the causes of action as federal claims seeking to enforce the terms of the 2015 CBA, however, as presently alleged, they would fail because plaintiffs are subject to the CBA's grievance and arbitration provisions. Prior to filing suit, an employee seeking to vindicate personal rights under a collective bargaining agreement must first attempt to exhaust any mandatory or exclusive grievance procedures set forth in the agreement. See United Paperworkers Int'l. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) ("The courts have jurisdiction to enforce collective-bargaining contracts; but where the contract provides grievance and arbitration procedures, those procedures must first be exhausted and courts must order resort to the private settlement mechanisms without dealing with the merits of the dispute"); DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 163, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) ("Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement" (citations omitted)); Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1189 (9th Cir.2001) ("Insofar as Brown argues she was terminated in violation of the CBA, the agreement required her to pursue such claims in binding arbitration. Because she failed to seek redress as provided in the CBA, she cannot now resort to the courts to adjudicate these claims").
The 2015 CBA states that "[i]n the event of a grievance arising out of the terms and conditions of this [CBA], the parties agree that every effort shall be made to settle such grievance as harmoniously as possible through the following [three-step] procedure."
Plaintiffs have not alleged that they exhausted the grievance procedure prescribed by the 2015 CBA. Consequently, their first and third causes of action must be dismissed.
In the event the court remands the case, plaintiffs seek attorneys' fees under 28 U.S.C. § 1447(c). "Under 28 U.S.C. § 1447(c), `[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.'" Leon v. Gordon Trucking, Inc., No. CV 14-6574 MMM (MRWx), 2014 WL 7447701, *11 (C.D.Cal. Dec. 31, 2014). "`Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.'" Id. (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005)).
"Removal is not objectively unreasonable solely because the removing party's arguments lack merit and the removal is ultimately unsuccessful." Id. (citing Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir.2008)). "Rather, the court should assess `whether the relevant case law clearly foreclosed the defendant's basis of removal' by examining the `clarity of the law at the time of removal.'" Id. (quoting Lussier, 518 F.3d at 1066); see also Patel v. Del Taco, Inc., 446 F.3d 996, 999-1000 (9th Cir.2006) ("Del Taco's state court petition to confirm the arbitration award contained only one state law cause of action; it did not contain any federal claim that could provide the basis for a
The court has concluded that plaintiffs' first through fifth causes of action are preempted by § 301 of the LMRA; defendant thus properly removed on the basis that the court had federal question jurisdiction to hear the action. Consequently, there is no basis for awarding fees to plaintiffs.
For the reasons stated, the court dismisses plaintiffs' first and third causes of action with leave to amend. Plaintiffs may file an amended complaint within twenty (20) days of the date of this order if they are able to remedy the deficiencies the court has noted. The amended complaint should plead federal causes of action in lieu of state law claims, consistent with the court's findings herein regarding § 301 preemption. Plaintiffs may not plead additional claims or add allegations that are not intended to cure the specific defects the court has noted. Should any amended complaint exceed the scope of leave to amend granted by this order, the court will strike the offending portions under Rule 12(f). See FED.R.CIV.PROC. 12(f) ("The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading."); see also Barker v. Avila, No. 2:09-cv-00001-GEB-JFM, 2010 WL 3171067, *1-2 (E.D.Cal. Aug. 11, 2010) (striking an amendment to federal law claim where the court had granted leave to amend only state law claims).
Plaintiffs' motion to remand is denied. Their request for attorneys' fees is also denied.
As noted, the goal of contract interpretation is to give effect to the mutual intention of the parties. CAL. CIV. CODE § 1636. The court therefore will not disregard the 2015 CBA, as it appears that the parties intended that Live Nation be a party to that contract.
Courts can take judicial notice of newspaper articles when the facts recited in the articles are generally known within the territorial jurisdiction of the court or capable or accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. See, e.g., In re Am. Apparel, Inc. S'holder Litig., 855 F.Supp.2d 1043, 1063 (C.D.Cal.2012). As the facts in these articles are generally known within the territorial jurisdiction of the court, judicial notice is appropriate here. See Ritter v. Hughes Aircraft Co., 58 F.3d 454 (9th Cir.1995) (concluding that the district court properly took judicial notice of layoffs that had occurred at Hughes Aircraft based on a newspaper article because the fact that the layoffs occurred was "a fact which would be generally known in Southern California and which would be capable of sufficiently accurate and ready determination").
