Rowell Dismiss

Case 2:15-cv-02442-JAK-AGR Document 90 Filed 05/13/15 Page 1 of 33 Page ID #:580
JOHN P. LECRONE (State Bar No. 115875)

johnlecrone@dwt.com
ELIZABETH
J. CARROLL (State Bar No. 234751)
2
betsycarroll@dwt.com
3 MATTHEW D. PETERSON (State Bar No. 251490)
matthewpeterson@dwt.com
1
DAVIS WRIGHT TREMAINE LLP

5 865 South Figueroa Street, 24th Floor
Los Angeles, California 90017-2566
6 Telephone: (213) 633-6800
Fax: (213) 633-6899
7
Attorneys for Defendants

8 SONY PICTURES TELEVISION INC.,
SONY PICTURES ENTERTAINMENT INC.
9 AND CBS CORPORATION
10
11
UNITED STATES DISTRICT COURT
12
CENTRAL DISTRICT OF CALIFORNIA
13
14
15
16
17
18
19
20
21
)
)
)
Plaintiff,
)
)
vs.
)
SONY PICTURES TELEVISION INC., ))
SONY PICTURES ENTERTAINMENT, )
INC., BELL DRAMATIC SERIAL
)
COMPANY, L.P., BELL-PHILLIP
)
TELEVISION PRODUCTION INC.,
CORDAY PRODUCTIONS, INC., and ))
CBS CORPORATION,
)
)
Defendants.
)
VICTORIA ROWELL,
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MOTION TO DISMISS FIRST AMENDED COMPLAINT

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Case No. 15-cv-02442 JAK (AGRx)

DEFENDANTS SONY PICTURES
TELEVISION INC., SONY
PICTURES ENTERTAINMENT
INC. AND CBS CORPORATIONS
NOTICE OF MOTION AND
MOTION TO DISMISS THE FIRST
AMENDED COMPLAINT
Date:
Time:
Courtroom:
September 21, 2015

8:30 a.m.
750
NOTICE OF MOTION AND MOTION
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on September 21, 2015 at 8:30 a.m., or as soon
thereafter as the matter may be heard, in the Courtroom of the Honorable John A.
Kronstadt of the United States District Court, Central District, Courtroom 750, 255
East Temple Street, Los Angeles, California 90012, Defendants Sony Pictures
Television Inc., Sony Pictures Entertainment Inc. and CBS Corporation
(Defendants) will move the Court to dismiss all claims asserted against Defendants
by Plaintiff Victoria Rowell in her First Amended Complaint, pursuant to Rule
10
12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the claims do
11
not state a claim upon which relief can be granted.
12
The Motion will be based on this Notice of Motion, the Memorandum of
13
Points and Authorities in support thereof, the pleadings and other files herein; and
14
such other written and oral argument as may be presented to the Court.
15
16
This motion is made following the conference of counsel pursuant to L.R. 7-3
which took place on May 5, 2015.
17
18
DATED: May 13, 2015
19
20

JOHN P. LECRONE
ELIZABETH J. CARROLL
MATTHEW D. PETERSON
21
By:
22
/S/
John P. LeCrone

SONY PICTURES TELEVISION INC.,
SONY PICTURES ENTERTAINMENT
INC. and CBS CORPORATION
23
24
25
26
27
28
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865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
Fax: (213) 633-6899
TABLE OF CONTENTS
I.
Page
INTRODUCTION .......................................................................................... 1
II.
FACTUAL BACKGROUND ......................................................................... 2
2
3
4
A.
Plaintiffs Allegations ........................................................................... 2
B.
Procedural History ................................................................................ 4
III.
ARGUMENT .................................................................................................. 5
A.
Plaintiffs Claim That Sony Pictures And CBS Denied Her

Employment On Y&R Fails Because Plaintiff Was Not Denied An
Open Position On That Program............................................................ 6
B.
Plaintiffs Claim That CBS Denied Her Employment On B&B

Also Fails Because Plaintiff Was Not Denied An Open Position On
B&B .................................................................................................. 10
C.
Defendants Alleged Decision To Not Hire Plaintiff and Creative

Decisions for Y&R and B&B Are Protected By The First
Amendment And Thus Is Not Actionable ........................................... 11
8
9
10
11
12
13
14
15
1.
The First Amendment Prohibits Civil Claims That Seek To

Restrict Or Compel Speech ...................................................... 12
2.
Casting Decisions Are Creative Expression Protected By

The First Amendment .............................................................. 12
3.
Plaintiffs Claims Are Barred By The First Amendment ........ 16
16
17
18
19
D.
20
21
22
23
Plaintiffs Claim That CBS Orchestrat[ed] [the] Withdrawal of

Sponsorship from the Program in Which [Plaintiff] Was Mistress
of Ceremonies Fails, Because Plaintiff Fails to Allege Facts
Necessary to State A FEHA Or Section 1981 Retaliation Claim ...... 19
1.
Plaintiff Fails to Plead Sufficient Facts In Support Of These

Claims ................................................................................... 20
2.
Plaintiffs Allegations and Speculation Demonstrate She Is

Not Entitled to Relief ............................................................... 21
3.
FEHA Does Not Apply To Events Outside Of California....... 24
24
25
26
27
28
IV.
CONCLUSION ............................................................................................. 25
i

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TABLE OF AUTHORITIES
1
2
Page
CASES
3
4
Abagninin v. AMVAC Chem. Corp.,

545 F.3d 733 (9th Cir. 2008) ........................................................................... 10, 11
Albrecht v. Lund,
6
845 F.2d 193 (9th Cir. 1988) .......................................................................... passim
7
Alvarez v. Hill,
518 F.3d 1152 (9th Cir. 2008) ................................................................................. 5
8
9
Anderson v. CRST Intl, Inc.,

No. CV 14-368 DSF MANX, 2015 WL 1487074, at *4
10
(C.D. Cal. Apr. 1, 2015)................................................................................... 24, 25
11
12
13
14
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ........................................................................................... 5, 20
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................................. 5, 8
15
Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ........................................................................................... 5, 20
16
17
Campbell v. Arco Marine, Inc.,

42 Cal. App. 4th 1850 (1996) ................................................................................ 24
18
19
20
21
Claybrooks v. ABC, Inc.,

898 F. Supp. 2d 986 (M.D. Tenn. 2012) ......................................................... passim
Doran v. Salem Inn, Inc.
422 U.S. 922 (1975) ............................................................................................... 13
22
23
Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ............................................................................................... 13
24
25
Forman v. Davis,
371 U.S. 178 (1962) ......................................................................................... 10, 11
26
Gomez v. American Bldg. Maintenance,

27
940 F. Supp. 255 (N.D. Cal. 1996) .......................................................................... 9
28
ii
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Grosjean v. American Press Co.,

1
297 U.S. 233 (1936) ............................................................................................... 13
2
Guillory v. Princess Cruise Lines, Ltd.,

No. B192233, 2007 WL 102851 (Cal. Ct. App. Jan. 17, 2007) ...................... 24, 25
3
4
5
6
7
8
Guz v. Bechtel Natl, Inc.,

24 Cal. 4th 317 (2000) ................................................................................. 7, 10, 11
Holms v. Petrovich Development Co., LLC,
191 Cal. App. 4th 1047 (2011) .............................................................................. 23
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C.,
132 S. Ct. 694 (U.S. 2012) ..................................................................................... 18
9
10
Hunter v. CBS Broad. Inc.,

221 Cal. App. 4th 1510 (2013) .............................................................................. 19
11
Hurley v. Irish-American Gay, Lesbian & Bisexual Group Of Boston,

12
515 U.S. 557 (1995) ............................................................................. 14, 15, 18, 19
13
Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) ................................................................................................. 12
14
15
Ingels v. Westwood One Broadcasting Services, Inc.,

129 Cal. App. 4th 1050 (2005) .................................................................. 13, 16, 19
16
17
18
19
Jacobson v. Schwarzenegger,
357 F. Supp. 2d 1198 (C.D. Cal. 2004) ................................................................. 22
Jenkins v. Georgia,
418 U.S. 153 (1974) ............................................................................................... 12
20
21
Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ............................................................................................... 12
22
Joseph Burstyn, Inc. v. Wilson,

23
343 U.S. 495 (1952) ............................................................................................... 13
24
Lumia v. Roper Pump Co.,

724 F.Supp. 694 (N.D. Cal. 1989) ......................................................................... 23
25
26
Lyle v. Warner Bros. Television Prods.,

38 Cal. 4th 264 (2006) (Chin, J., concurring) ........................................................ 18
27
28
iii
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Manatt v. Bank of Am., NA,

1
339 F.3d 792 (9th Cir. 2003) (Section 1981 claim are analyzed under
the same principles as those in Title VII cases) ....................................... 1, 7, 21, 23
2
3
Martinez v. Marin Sanitary Service,

349 F. Supp. 2d 1234 (N.D. Cal. 2004) ............................................................... 7, 8
4
5
McDermott ex rel NLRB v. Ampersand Publishing, LLC,

593 F. 3d 950 (9th Cir. 2010) ................................................................................ 18
6
7
McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ................................................................................................. 7
Miami Herald Publg. Co., Div. of Knight Newspapers, Inc. v. Tornillo,

9
418 U.S. 241 (1974) ............................................................................................... 18
10
Morgan v. Regents of Univ. of Cal.,

88 Cal. App. 4th 52 (2000) .......................................................................... 1, 21, 23
11
12
NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ............................................................................................... 12
13
14
15
16
Nelson v. McClatchy Newspapers,

131 Wash. 2d 523 (Wash. 1997) ...................................................................... 15, 16
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ............................................................................................... 12
17
18
Pacific Gas & Electric Co. v. Public Utilities Commn of Cal.,

475 U.S. 1 (1986) ............................................................................................. 15, 18
19
Parish v. Consolidated Engineering Lab,

20
1997 WL 835162 (N.D. Cal. Oct. 6, 1997) ............................................................. 9
21
Passaic Daily News v. NLRB,

736 F.2d 1543 (D.C. Cir. 1984) ............................................................................. 16
22
23
Patterson v. McLean Credit Union,

491 U.S. 164 (1989), superseded by statute on other grounds as
24
recognized in Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) ........ 7, 10, 11
25
26
27
28
Raine v. City of Burbank,

135 Cal. App. 4th 1215 (2006) ................................................................................ 9
Ray v. Henderson,
217 F.3d 1234 (9th Cir. 2000) ............................................................................... 23
iv
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Roberts v. McAfee, Inc.,

1
660 F.3d 1156 (9th Cir. Cal. 2011) .......................................................................... 1
2
Sada v. Robert F. Kennedy Med. Ctr.,

56 Cal. App. 4th 138 (1997) .............................................................................. 7, 11
3
4
5
6
7
8
Saul v. United States,

928 F.2d 829 (9th Cir. 1991) .......................................................................... passim
Sch. Bd. of Nassau Cnty., Fla. v. Arline,
480 U.S. 273 (1987) ................................................................................................. 9
Schacht v. United States,
398 U.S. 58 (1970) ................................................................................................. 12
9
10
Schad v. Borough of Mount Ephraim,

452 U.S. 61 (1981) ................................................................................................. 12
11
Scholar v. Pac. Bell,

12
No. C89-0309-DLJ, 1990 WL 364626 (N.D. Cal. Apr. 27, 1990)
affd, 963 F.2d 264 (9th Cir. 1992).................................................................. 7, 8, 9
13
14
15
16
Schreiber Distributing Co. v. Serv-Well Furniture Co.,

806 F.2d 1393 (9th Cir. 1986) ........................................................................ passim
Sistare-Meyer v. Young Mens Christian Assn.,
58 Cal. App. 4th 10 (1997) .................................................................................... 23
17
Small v. Feather River Coll.,

No. 2:10-CV-3026-JAM-GGH, 2011 WL 1670236
(E.D. Cal. May 3, 2011) ........................................................................................... 7
19
18
20
Snyder v. Phelps,
562 U.S. 443 (2011) ............................................................................................... 12
21
22
23
24
Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) ............................................................................................... 12
Spence v. Washington,
418 U.S. 405 (1974) ............................................................................................... 14
25
26
27
28
Swierkiewicz v. Sorema N. A.,

534 U.S. 506 (2002) ................................................................................................. 8
Tamkin v. CBS Broad. Inc.,
193 Cal. App. 4th 133 (2011) ................................................................................ 19
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Thomas v. Collins,
1
323 U.S. 516 (1945) ............................................................................................... 13
2
United States v. United Foods, Inc.,

533 U.S. 405 (2001) ............................................................................................... 18
3
4
5
6
7
8
Vernon v. State,
116 Cal. App. 4th 114 (2004) ................................................................................ 21
West Virginia Bd. Of Ed. v. Barnette,
319 U.S. 624 (1943) ......................................................................................... 17, 18
Wooley v. Maynard,
430 U.S. 705 (1977) ............................................................................................... 18
9
10
STATUTES
42 U.S.C.
1981 .............................................................................................................. passim
12
12101 ..................................................................................................................... 9
11
13
California Civil Procedure Code

425.16 .................................................................................................................... 4
14
15
California Government Code

12940(a) .............................................................................................................. 21
16
12940 et seq. ................................................................................................. 4, 21
17
18
RULES
Federal Rule of Civil Procedure

8(a)(2) ..................................................................................................................... 20
20
12(b)(6) ............................................................................................................ 1, 4, 5
19
21
22
CONSTITUTIONAL PROVISIONS
Cal. Const., Article I, 2 ............................................................................................ 12
23
24
United States Constitution, First Amendment ..................................................... passim
25
26
27
28
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1
2
MEMORANDUM OF POINTS AND AUTHORITIES

Defendants Sony Pictures Television Inc., Sony Pictures Entertainment Inc.
(collectively Sony Pictures), and CBS Corporation (CBS), submit their motion to
dismiss the First Amended Complaint of Plaintiff Victoria Rowell (Plaintiff)
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Along with Sony
Pictures and CBS, Plaintiff also named Bell Dramatic Serial Company, L.P., Bell-
Phillip Television Production Inc., and Corday Productions Inc. as defendants in the
lawsuit, and all six parties are referred to collectively as Defendants.

I.
9
10
INTRODUCTION
This lawsuit is nothing more than a blatant attempt by Plaintiff to force her
11
way back onto a daytime television soap opera after she voluntarily resigned from
12
her role in 2007. Plaintiff boldly asks this Court to order Defendants to put her back
13
on television, and she complains about why she believes Defendants have not already
14
done so. Plaintiffs allegations in her First Amended Complaint, however, fail to
15
state any cognizable claims against either Sony Pictures or CBS, even though Sony
16
Pictures and CBS already identified these same deficiencies in the prior motion to
17
dismiss filed in the Southern District of New York in response to Plaintiffs initial
18
Complaint. Plaintiff subsequently filed the operative First Amended Complaint with
19
this Court seeking another bite at the apple. Plaintiffs claims are still barred as a
20
matter of law, however, and yet again fail in their entirety and should be dismissed.
21
To begin, Plaintiff cannot state a claim against either Sony Pictures or CBS for
22
failure to hire or rehire her for employment under the California Fair Employment
23
and Housing Act (FEHA) or federal law, because Plaintiff does not and cannot
24
show that there was any open position for which Plaintiff actually applied in the
25
period relevant to this First Amended Complaint. This defect renders each of
26
Plaintiffs claims against Sony Pictures and CBS unviable as a matter of law.
27
28
In addition, Plaintiffs failure to hire or rehire claims are barred by the First
Amendment of the United States Constitution and the California Constitution.
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Casting and script-writing decisions, such as those about which Plaintiff now
complains, constitute protected free speech. For this independent reason as well,
Plaintiffs claims cannot survive.
The most substantial change Plaintiff made in her first amended complaint is
to allege for the first time that she suffered retaliation in violation of FEHA and
federal law, based upon the fact that after she filed this lawsuit, she received less
compensation than expected for serving as mistress of ceremonies at an event in
Alabama after certain corporate sponsors (a bank and a retailer) allegedly withdrew
their support for that event. Plaintiff attempts to pin the blame for this alleged loss of
10
sponsorships upon CBS though she does not, and indeed cannot, allege any facts to
11
substantiate this bald accusation. Not only is this new theory patently absurd, but
12
Plaintiff again fails to include any facts that would establish any wrongful conduct by
13
CBS. Further, Plaintiffs allegations must fail as a matter of law because: (1) CBS
14
was not Plaintiffs employer for this event; (2) Plaintiff did not suffer an adverse
15
employment action; and (3) with respect to Plaintiffs FEHA claim, California law
16
does not apply to alleged adverse employment actions occurring in other states. For
17
all of these reasons, these new claims also fail as a matter of law.
18
Each of these deficiencies is fatal to Plaintiffs claims and cannot be remedied
19
through amendment. Despite this being her second attempt, Plaintiff still does not,
20
and cannot, assert plausible claims that could entitle her to relief. Accordingly, Sony
21
Pictures and CBS Motion to Dismiss should be granted and the First Amended
22
Complaint dismissed without further leave to amend.

II.
23
FACTUAL BACKGROUND
24
A.
25
Plaintiff is an actress who appeared for many years on the daytime soap opera
26
Plaintiffs Allegations
The Young and the Restless (Y&R). See Plaintiffs First Amended Complaint
27
28
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(FAC) 1.1 She was hired on Y&R in 1990, and left the program voluntarily in
2007. Id. 20, 35.

Plaintiff alleges that beginning in early 2010, she attempted to be rehired on
3
4
Y&R, and also purportedly sought employment on another daytime soap opera, The
Bold and the Beautiful (B&B). Id. 56. Plaintiff alleges that her efforts continued
through 2014. Id. 58-84. Yet, Plaintiff admittedly never actually applied, or even
auditioned, for any role on Y&R after leaving the show in 2007. Id. 57; see
generally, id. Instead, she alleges she asked Defendants on several occasions if they
would create a new position for her by writing the character she had formerly played,
10
Drucilla Winters, back in to the Y&R story line. Id. 56, 58, 63, 64, 66, 67, 68, 69,
11
77, 83. Specifically, Plaintiff wanted Defendants to create a story line for Drucilla
12
Winters, and to cast Plaintiff in the role, and Defendants never agreed to do so. Id.
13
Plaintiff also alleges that her agent submitted her for one potential role on
14
B&B in May 2013, but that role never actually made it on the show. Id. 82.
15
Plaintiff never applied for any other role on B&B. See generally, id. Plaintiff alleges
16
in the FAC that Defendants have rejected [Plaintiffs] attempts to be re-employed to
17
resume her character . . . on Y&R, and have rejected her attempts to obtain
18
crossover re-employment to resume her [Y&R] character . . . on B&B or to take on a
19
new character on B&B, and that she has been refused for consideration for
20
employment on Y&R and B&B. FAC 113-114, 120-121.

Finally, Plaintiff alleges additional retaliation occurred after she initially filed
21
22
this lawsuit. See id. 98-110. She contends that, through her production company,
23
she entered into an agreement with a company called LeMont Scott Group to
24
participate in a series of speaking engagements. Id. 99, 101. The first speaking
25
engagement was held on February 27, 2015, in Alabama, where Plaintiff served as
26
Mistress of Ceremonies (the Alabama Event). Id. 100-101. Plaintiff was
27
28
Sony Pictures and CBS accept Plaintiffs allegations only for this Motion.
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compensated for her appearance and her travel arrangements paid for. Id. 101.
Plaintiff alleges that the Alabama Event was funded through corporate sponsorships,
including from Wells Fargo, Wal-Mart, and a third, unnamed entity. Id. 102, 104-
105. Plaintiff alleges that after she filed her lawsuit, these three sponsors decided to
no longer support the Alabama Event. Id. 104-105. Plaintiff then speculates,
without any factual allegations, that [u]pon information and belief, CBS
orchestrated the withdrawal in order to retaliate further against her. Id. 106.
Plaintiff still attended the Alabama Event, and was still paid for her appearance, but
alleges she received $3,000.00 less. Id. 107.
10
Based on these allegations, Plaintiff asserts claims for retaliation in violation
11
of FEHA, Cal. Govt Code 12940 et seq., and 42 U.S.C. section 1981 (Section
12
1981), a portion of the Civil Rights Act of 1866. She seeks multiple forms of relief,
13
including an order directing Defendants to re-employ [Plaintiff] on Y&R and an
14
order directing Defendants Bell and CBS to re-employ [Plaintiff] on B&B, along
15
with various unspecified damages. Id. at p. 34.
16
B.
Procedural History
17
Prior to bringing this action, Plaintiff filed a complaint with the California
18
Department of Fair Employment and Housing (DFEH), and the Equal Employment
19
Opportunity Commission on or about August 28, 2013, against certain of the
20
Defendants. FAC 6. The DFEH then issued a right to sue letter to Plaintiff on or
21
about August 19, 2014. FAC 6. Plaintiff filed her original Complaint on February
22
11, 2015, in the Southern District of New York. Dkt. No. 1. She served CBS on
23
February 17, 2015, and Sony Pictures on February 24, 2015. Dkt. Nos. 4, 8, 9. On
24
March 10, 2015, Sony Pictures and CBS filed a motion to change venue, motion to
25
dismiss pursuant to Rule 12(b)(6), and special motion to strike under Californias
26
anti-SLAPP law, California Civil Procedure Code section 425.16. Dkt. Nos. 16-24.
27
28
On March 25, 2015, Plaintiff and Defendants submitted a stipulation to change

venue, transferring the case to this Court. Dkt. No. 51. The court in the Southern
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District of New York entered an order pursuant to this stipulation and transferred the
case the same day. Dkt. No. 52.
On March 24, 2015, Plaintiff filed a second complaint with the DFEH,
alleging retaliation by CBS in connection with the Alabama Event. FAC 8. The
DFEH again issued a right to sue letter to Plaintiff the same day. Id.
Plaintiff filed her First Amended Complaint on April 21, 2015. Dkt. No. 75.
III.
ARGUMENT
A complaint that does not present sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face properly should be dismissed.
10
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
11
550 U.S. 544, 570 (2007)). A plaintiff must plead facts sufficient to nudge their
12
claims across the line from conceivable to plausible. Iqbal, 556 U.S. at 680
13
(quoting Twombly, 550 U.S. at 570). A court is not bound to accept as true a legal
14
conclusion couched as a factual allegation. Id. at 678. When a plaintiff does not
15
nudged [her] claims across the line [her] complaint must be dismissed.
16
Twombly, 550 U.S. at 570.
17
To determine whether a pleading adequately states a plausible claim for relief,
18
the court must first take note of the elements a plaintiff must plead to state a claim.
19
Ashcroft, 556 U.S. at 675. For purposes of Rule 12(b)(6), the term claim means a
20
set of facts that, if established, entitle the pleader to relief. Twombly, 550 U.S. at
21
555; see also Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (Notice pleading
22
requires the plaintiff to set forth in his complaint claims for relief, not causes of
23
action, statutes or legal theories. (emphasis omitted)).
24
Here, because the allegations and labels are vague and inconsistent, it is not
25
clear what actual claims Plaintiff is trying to make, or against which of the
26
Defendants she is asserting them. FAC at p. 31:15-33:28. However, it appears
27
Plaintiff is asserting six distinct claims:
28
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(1) Retaliation in violation of FEHA for Defendants refusal to rehire Plaintiff
on Y&R (asserted against all Defendants except CBS);
(2) Retaliation in violation of 42 U.S.C. section 1981 for Defendants refusal
to rehire Plaintiff on Y&R (asserted against all Defendants);
(3) Retaliation in violation of FEHA for defendants Bell Dramatic Serial
Company, L.P. and Bell-Phillip Television Production Inc.s (together Bell)
and CBS refusal to hire Plaintiff on B&B (asserted against Bell only);
(4) Retaliation in violation of 42 U.S.C. section 1981 for defendants Bell and
CBS refusal to hire Plaintiff on B&B (asserted against CBS and Bell only);
10
(5) Retaliation in violation of FEHA for defendant CBS orchestration of
11
withdrawal of sponsorships from the program in which [Plaintiff] was mistress
12
of ceremonies (asserted against CBS only); and
13
(6) Retaliation in violation of 42 U.S.C. section 1981 for defendant CBS
14
orchestration of withdrawal of sponsorships from the program in which
15
[Plaintiff] was mistress of ceremonies (asserted against CBS only).
16
FAC at p. 31:15-33:28. As discussed below, each of these claims fail as to Sony
17
Pictures and/or CBS for multiple, independent reasons.
18
19
20
A.
Plaintiffs Claim That Sony Pictures And CBS Denied Her

Employment On Y&R Fails Because Plaintiff Was Not Denied An
Open Position On That Program
Plaintiff claims that she has been retaliated against due to Defendants
21
refusal to reemploy her on Y&R. FAC 111-117. This claim must fail at the
22
outset because Plaintiff fails to allege facts to support an essential element of this
23
claim under either FEHA or Section 1981: that she ever actually applied for an open
24
position on the program. And in fact, Plaintiff concedes she did not. FAC 57.
25
Accordingly, Plaintiffs first two claims related to Y&R must be dismissed.
26
In order to state a prima facie case for unlawful failure to hire under FEHA,
27
a plaintiff must establish the following, specific elements: (1) plaintiff was a member
28
of a protected class; (2) plaintiff was qualified for the position sought; (3) the denial
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of an available job; and (4) some other circumstance suggest[ing] discriminatory
motive. Guz v. Bechtel Natl, Inc., 24 Cal. 4th 317, 355 (2000); see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (prima facie failure to hire case
requires showing that complaining party applied and was qualified for a job for
which the employer was seeking applicants) (emphasis added); Sada v. Robert F.
Kennedy Med. Ctr., 56 Cal. App. 4th 138, 149 (1997) (prima facie case for failure to
hire requires plaintiff to show (i) that he belongs to a [protected class]; (ii) that he
applied and was qualified for a job for which the employer was seeking applicants;
(iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection,
10
the position remained open and the employer continued to seek applicants from
11
persons of complainants qualifications (emphasis added, citations omitted)).
12
Similarly, in a failure to hire claim brought under Section 1981, a plaintiff
13
must prove that she applied for and was qualified for an available position, that she
14
was rejected, and that after she was rejected respondent either continued to seek
15
applicants for the position, or filled the position with another person. Patterson v.
16
McLean Credit Union, 491 U.S. 164, 186-187 (1989), superseded by statute on other
17
grounds as recognized in Rivers v. Roadway Express, Inc., 511 U.S. 298, 306309
18
(1994) (emphasis added, citations omitted); see also Scholar v. Pac. Bell, No. C89-
19
0309-DLJ, 1990 WL 364626, at *6 (N.D. Cal. Apr. 27, 1990) affd, 963 F.2d 264
20
(9th Cir. 1992) (same); see also Martinez v. Marin Sanitary Service, 349 F. Supp. 2d
21
1234, 1256-57 (N.D. Cal. 2004) (prima facie showing for Section 1981 claim
22
requires plaintiff to show (1) [he] belongs to a protected class; (2) [he] was
23
qualified for the employment position for which he applied; (3) [he] was subjected to
24
adverse employment action (i.e., he was not [hired]); and (4) similarly situated
25
individuals who did not belong to [plaintiffs] protected class were treated more
26
favorably (emphasis added citations omitted)); Small v. Feather River Coll., No.
27
2:10-CV-3026-JAM-GGH, 2011 WL 1670236, at *4 (E.D. Cal. May 3, 2011)
28
(same); see generally, Manatt v. Bank of Am., NA, 339 F.3d 792, 797 (9th Cir. 2003)
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(Section 1981 claim are analyzed under the same principles as those in Title VII
cases); Martinez v. Marin Sanitary Service, 349 F. Supp. 2d 1234, 1256 (N.D. Cal.
2004) (The standards articulated under Title VII govern employment discrimination
claims brought pursuant to Section 1981.)
For example, in Scholar, the court refused to allow a plaintiff to amend her
complaint to add a Section 1981 claim based on its determination that the proposed
amended complaint alleges no available position which plaintiff applied and was
qualified for, nor do any of plaintiffs declarations indicate that she was applying for
a specific position. 1990 WL 364626, at *6 (emphasis added). Indeed, at the time
10
of the alleged adverse employment action, the plaintiff was not in the process of
11
applying for [any] position. Id. at *1.
12
Though a plaintiff bringing an employment discrimination lawsuit need not
13
plead specific facts establishing a prima facie case of discrimination, Swierkiewicz
14
v. Sorema N. A., 534 U.S. 506, 508 (2002), he or she still must plead enough facts to
15
state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570 (noting
16
that the ruling in Swierkiewicz did not change the law of pleading but instead
17
struck down a heightened pleading standard for Title VII cases [that] was contrary
18
to the Federal Rules structure of liberal pleading requirements (citation omitted)).
19
Meeting this standard requires alleging enough facts to nudge[] their claims across
20
the line from conceivable to plausible. Id.
21
Here, Plaintiff never alleges she ever actually applied for an open position on
22
Y&R after she left the program in 2007, and fails even to allege that there was ever
23
an open position for which she was qualified. See generally, FAC. Indeed, aside
24
from one exception that did not involve Y&R, Plaintiff admits that her efforts to be
25
rehired did not involve applying for an open position. Id. 57. The FAC describes
26
the numerous attempts of Plaintiff and those acting on her behalf to ask Defendants if
27
she could return to Y&R, but she never alleges she actually applied for any
28
position. See e.g., id. 56, 58, 63, 64, 66, 67, 68, 69, 77, 83. Plaintiff even
8
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complains about another actress, Debbi Morgan, being hired on Y&R, but never
alleges that she applied for the position that Ms. Morgan gained (which was for a
different character than Plaintiff had formerly played on the same program for many
years), or that she was qualified for that role. See id. 62, 70. Thus, as in Scholar,
Plaintiffs admissions, and the FACs allegations show that Plaintiff did not, in fact,
apply for an available position on Y&R. Scholar, 1990 WL 364626, at *6.

Instead, what Plaintiff appears to have wanted was for Defendants to acquiesce
7
8
when she asked, repeatedly, that they create a position for her. There is no
requirement under FEHA or Section 1981 that employers create new positions under
10
any circumstances, including when asked. See generally, Raine v. City of Burbank,
11
135 Cal. App. 4th 1215, 1227 (2006) (under FEHA, employer not required to create a
12
new position to accommodate an employee); Gomez v. American Bldg. Maintenance,
13
940 F. Supp. 255, 260 (N.D. Cal. 1996) (same, under Americans with Disabilities
14
Act of 1990, 42 U.S.C. 12101 et seq.); Parish v. Consolidated Engineering Lab,
15
1997 WL 835162, *8 (N.D. Cal. Oct. 6, 1997) (same); cf. Sch. Bd. of Nassau Cnty.,
16
Fla. v. Arline, 480 U.S. 273, 289, n. 19 (1987). Indeed, that cannot be the law, as it
17
would open the floodgates for plaintiffs who manufacture failure to hire claims by
18
requesting positions that do not exist.2 This is especially the case with regard to the
19
creative and specialized nature of the dramatic work here.
20
2
For the same reasons, Plaintiffs anticipated argument that she should be excused
from actually applying for an open position must also be rejected. Plaintiff admits
22 her efforts to be rehired did not involve applying for an open position for which
Defendants were actively seeking candidates, but in the same paragraph contends
23 known characters return to soap operas without going through an application and
audition process for an open position. FAC 57 (emphasis added). Plaintiff then
24 alleges that, [s]ometimes, representatives of a star reach out to representatives of a
production company, and a role on a show results. Id. (emphasis added).
21
25
Based on these allegations, it is anticipated Plaintiff will argue that she does not have
26 to satisfy the open position elements of FEHA and Section 1981 claims because
she is a star or because sometimes actors with known characters get jobs
27 without actually applying for them. Plaintiffs argument ignores the fact that, when a
program has decided to reprise the role of a former character, this does constitute an
28 open position that satisfies the requirements of FEHA and Section 1981. As such,
these cases are distinguishable and do not excuse Plaintiffs failure to state a claim
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Plaintiff never applied for an open position on Y&R and never applied for an
open position on Y&R for which she was qualified. Her allegations therefore fail to
include facts to state a plausible claim for failure to hire under either FEHA or
Section 1981, and her claims related to Y&R must be dismissed. Patterson, 491 U.S.
at 186-187; Guz, 24 Cal. 4th at 355. Moreover, because any amendment of this claim
would be futile, the dismissal should be with prejudice. Saul v. United States, 928
F.2d 829, 843 (9th Cir. 1991) (proper to deny leave to amend where the amendment
would be futile); Albrecht v. Lund, 845 F.2d 193, 195-96 (9th Cir. 1988) (proper to
deny leave to amend where deficiencies are a matter of substantive law where
10
additional facts would not repair the defects); Schreiber Distributing Co. v. Serv-
11
Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (dismissal without leave to
12
amend proper where the allegation of other facts consistent with the challenged
13
pleading could not possibly cure the deficiency).

Finally, it is particularly appropriate to deny leave to amend here, as
14
15
Defendants raised this clear deficiency in response to the original Complaint [Dkt. 21
16
at 5-8], and Plaintiff did nothing in the FAC to address it. Accordingly, there is no
17
reason to grant leave to amend. Forman v. Davis, 371 U.S. 178, 182 (1962) (failure
18
to cure deficiencies previously identified proper grounds for dismissal without leave
19
to amend); Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008).
B.
21
Plaintiffs Claim That CBS Denied Her Employment On B&B Also

Fails Because Plaintiff Was Not Denied An Open Position On B&B
Plaintiffs third and fourth claims allege that CBS and Bell retaliated against
22
her by refusing to employ her on B&B, though only the Section 1981 cause of action
23
is asserted against CBS. FAC 118-124.3 As with her claims related to Y&R, she
20
24
here. Moreover, the argument Plaintiff attempts to make clearly is not the law, and
Plaintiff will be unable to cite any authority for this argument. Moreover, Plaintiffs
position cannot be the law, as courts considering FEHA and Section 1981 claims
26 would be forced to make determinations about the nature of various industries,
professions or positions, and/or the stature or popularity of a particular plaintiff, in
27 order to determine if the open position element applies.
25
28
The claims related to B&B are not asserted against either Sony Pictures defendant.
10

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again fails to allege she ever actually applied for an open position on B&B for which
she was qualified and which eventually went to another applicant. Accordingly,
Plaintiffs claim against CBS related to B&B must also be dismissed.
The First Amended Complaint describes numerous attempts of Plaintiff and
those acting on her behalf to obtain employment on B&B, but does not allege she
actually applied for any position. See e.g., id. 56, 59, 63, 64, 65. The First
Amended Complaint also contains a single allegation about a role on B&B that
Plaintiffs agent submitted her for. FAC 82. However, Plaintiff admits that the
role Plaintiff was submitted for never materialized as a character on the program.
10
Id. Thus, Plaintiff admits that she was not denied an available job or available
11
position. Guz, 24 Cal. 4th at 355; Patterson, 491 U.S. at 186-87. Plaintiff further
12
admits that B&B did not continue[] to seek applicants, and did not fill the position
13
with another individual, which is also a necessary element of a failure to hire claim
14
under state and federal law. Sada, 56 Cal. App. 4th at 149; Patterson, 491 U.S. at
15
186-87. Based on these deficiencies, Plaintiff again fails to plead sufficient facts to
16
state a plausible claim related to CBS alleged failure to hire her on B&B under
17
Section 1981 and this claim must be dismissed. Saul, 928 F.2d at 843; Albrecht, 845
18
F.2d at 195-96; Schreiber Distributing Co., 806 F.2d at 1401. And again, Defendants
19
raised this deficiency in challenging the original Complaint [Dkt. 21 at 8-9], yet
20
Plaintiff made no effort to address or remedy this failing in the FAC, and thus there is
21
no reason to believe Plaintiff can remedy this deficiency through further amendment.
22
Forman, 371 U.S. at 182; Abagninin, 545 F.3d at 742.
23
24
25
26
27
C.
Defendants Alleged Decision To Not Hire Plaintiff and Creative

Decisions for Y&R and B&B Are Protected By The First
Amendment And Thus Is Not Actionable
There can be no dispute that choices about story and characters made in scripts
are protected under the First Amendment. Similarly, decisions about the actors who
may be cast on television programs, like Y&R and B&B, directly relate to the
28
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characters the actors play and the stories that are told. Casting decisions, therefore,
are a critical part of the creative process that is also protected by the First
Amendment. Plaintiffs attempt to hold Defendants liable for their casting decisions,
and to have this Court force Defendants to put her back on Y&R and/or on B&B,
thus violate the First Amendment, and cause all of her claims regarding Y&R and
B&B to fail as a matter of law.

1.
The First Amendment Prohibits Civil Claims That Seek To
7
Restrict Or Compel Speech
6
8
9
The First Amendment to the United States Constitution directs that Congress
shall make no law . . . abridging the freedom of speech. U.S. Const. Amend. I.
10
Similarly, the California Constitution states that A law may not restrain or abridge
11
liberty of speech or press. Cal. Const., Art. I, 2. The First Amendment shields
12
protected speech and expression from private litigation as well as statutory
13
restrictions and criminal penalties. See New York Times Co. v. Sullivan, 376 U.S.
14
254, 277 (1964) (What a State may not constitutionally bring about by means of a
15
criminal statute is likewise beyond the reach of its civil law ...). Thus, civil lawsuits
16
between private parties cannot apply anti-discrimination laws in a manner that
17
restricts First Amendment freedoms, as doing so constitutes prohibited government
18
action. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 n. 51 (1982); see
19
also Snyder v. Phelps, 562 U.S. 443 (2011) ([t]he Free Speech Clause of the First
20
Amendment . . . can serve as a defense) (citing Hustler Magazine, Inc. v. Falwell,
21
485 U.S. 46, 50-51 (1988))).

22
2.
Casting Decisions Are Creative Expression Protected By The
First Amendment
23
24
25
26
27
Television programs, along with motion pictures, radio broadcasts, and live
entertainment are protected ... and fall within the First Amendment guarantee.
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66 (1981) (citing Joseph
Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Schacht v. United States, 398 U.S. 58
(1970); Jenkins v. Georgia, 418 U.S. 153 (1974); Southeastern Promotions, Ltd. v.
28
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Conrad, 420 U.S. 546 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205
(1975); Doran v. Salem Inn, Inc. 422 U.S. 922 (1975)). Media content published
and sold for profit is still a form of expression whose liberty is safeguarded by the
First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (citing
Grosjean v. American Press Co., 297 U.S. 233 (1936); Thomas v. Collins, 323 U.S.
516, 531 (1945)).
In similar fashion, California state courts have held that casting decisions are
an exercise of free speech. Ingels v. Westwood One Broadcasting Services, Inc., 129
Cal. App. 4th 1050, 1064 (2005) is especially instructive because, as in this case, it
10
featured a plaintiff who sought to use an anti-discrimination law to punish a media
11
outlet for failing to allow him air time. After finding that a radio call-in show would
12
otherwise be subject to the states law prohibiting discrimination in the provision of
13
public accommodations, the court affirmed that media outlets have a First
14
Amendment right to control the content of their program, subject to strict scrutiny.
15
Id. at 1074. It held that the broadcasters choice of which callers to allow on the air
16
is part of the content of speech, and therefore regulations of those choices were
17
subject to the highest levels of scrutiny. Id. In the face of such scrutiny, a plaintiff,
18
the Court held, must demonstrate a compelling interest. Id. The plaintiff could not
19
make such a showing and his claim was barred by the First Amendment. Id.
20
In perhaps the most on-point federal court decision on this topic, the U.S.
21
District Court in Nashville likewise concluded that casting decisions are clearly
22
protected under the First Amendment. The plaintiffs in Claybrooks v. ABC, Inc., 898
23
F. Supp. 2d 986 (M.D. Tenn. 2012) represented by the same attorneys who
24
represent Plaintiff here sued the producers of the reality television programs The
25
Bachelor and The Bachelorette, claiming that the defendants violated federal anti-
26
discrimination laws (specifically, Section 1981, the same federal law Plaintiff claims
27
was violated here) by not choosing the plaintiffs, African-American males, to be
28
contestants on The Bachelor. See id. at 988-990. The court noted that no federal
13
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court ha[d previously] addressed the relationship between anti-discrimination laws
and the First Amendment within the context of casting decisions for an
entertainment program. Id. at 996.
The Claybrooks court began its analysis by noting that Supreme Court
precedent establishes that conduct constitutes protected speech if it is sufficiently
imbued with elements of communication to fall within [the First Amendments]
scope. Id. at 997 (quoting Spence v. Washington, 418 U.S. 405, 409-410 (1974)).
The court then rejected the plaintiffs contention that Section 1981 should only be
applied where a court determined its enforcement would actually affect the
10
particular shows message, as doing so would embroil courts in questioning the
11
creative process behind any television program or other dramatic work, and would
12
threaten[] to chill otherwise protected speech. Id. at 997-998. Instead, the court
13
found that casting decisions are a necessary component of any entertainment shows
14
creative content, reasoning that the producers of a television program, a movie, or
15
a play could not effectuate their creative vision, as embodied in the end product
16
marketed to the public, without signing cast members. Id. at 999. The court found
17
there is no difference, for purposes of the First Amendment, between casting
18
decisions and the end product, which itself is indisputably protected as speech by the
19
First Amendment, because regulating the casting process necessarily regulates the
20
end product. Id. The court concluded that casting and the resulting work of
21
entertainment are inseparable and must both be protected to ensure that the
22
producers freedom of speech is not abridged. Id. (emphasis in original).
23
The court in Claybrooks relied heavily on the U.S. Supreme Courts decision
24
in Hurley v. Irish-American Gay, Lesbian & Bisexual Group Of Boston, 515 U.S.
25
557 (1995), where the Court held the First Amendment trumped the plaintiffs claim
26
that the defendants violated a Massachusetts antidiscrimination law by refusing to
27
permit members of a gay and lesbian group to march in a St. Patricks day parade in
28
Boston. Hurley, 515 U.S. at 559. In Hurley, the Court noted that a speaker has the
14
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autonomy to choose the content of his own message, which inherently involves
choices of what to say and what to leave unsaid. Id. at 573 (quoting Pacific Gas &
Electric Co. v. Public Utilities Commn of Cal., 475 U.S. 1, 11 (1986)). Irrespective
of a speakers motives, the First Amendment guarantees the choice of a speaker not
to propound a particular point of view, and that choice is presumed to lie beyond the
governments power to control. Id. at 575.
Applying this reasoning to the casting decision-making context, the court in
Claybrooks concluded that rather like a composer, [television producers] are
entitled to select the elements (here the cast members) that support whatever
10
expressive message the [s]hows convey or are intended to convey, and therefore,
11
regardless of whether enforcing Section 1981 would frustrate, enhance, or be
12
entirely consistent with the message that a show conveys, the First Amendment
13
protects the producers right unilaterally to control their own creative content.
14
Claybrooks, 898 F. Supp. 2d at 1000 (citing Hurley, 515 U.S. at 574).
15
While Claybrooks may have been the first federal case to consider and
16
definitively rule upon the degree of First Amendment protection afforded to casting
17
decisions vis--vis suits for race discrimination, it is one of a number of cases in
18
which courts have dismissed employment discrimination claims based on the
19
exercise of free speech. For example, in Nelson v. McClatchy Newspapers, 131
20
Wash. 2d 523 (Wash. 1997), the Washington Supreme Court held that a newspapers
21
policy of requiring its reporters to abstain from political activity was protected by the
22
First Amendment even though the policy violated the states Fair Campaign Practices
23
Act. The plaintiff, an activist and frequent participant in political fora,
24
demonstrations, and classes for political causes including highly visible support for
25
gay and lesbian rights, feminist issues, and abortion rights, sued the paper after it
26
changed her position from reporter to copy editor based upon her political activity.
27
Id. at 527-528. This, the court found, was a clear violation of Washington law.
28
However, the newspaper could not be liable because its actions were protected by the
15
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First Amendment; [e]ditorial integrity and credibility are core objectives of editorial
control and thus merit protection under the free press clauses. Id. at 540.
Similarly, in Passaic Daily News v. NLRB, 736 F.2d 1543, 1557 (D.C. Cir.
1984), the D.C. Circuit observed that [t]he Supreme Court has implied consistently
that newspapers have absolute discretion to determine the contents of their
newspapers. The court overturned an order of the National Labor Relations Board,
which sought to force the newspaper to resume printing an employees columns
because that order impermissibly attempt[ed] to compel the Company to publish
what it prefers to withhold in violation of the First Amendment and decline to
10
enforce this part of the order. Id. at 1549. While finding that the NLRBs
11
objectives may be valid, the court held that:
12
13
14
15
16
17
18
[V]alid objectives are insufficient to permit the Board to require the

Company to publish Stoddards column. Implementation of a remedy that
requires governmental coercion gives rise to a confrontation with the First
Amendment. To enforce the Boards order would require this court to
recognize, for the first time, that government regulation of the material to go
into a newspaper can be exercised consistent with the First Amendment
guarantees of a free press as they have evolved to this time.
Id. at 1558 (citations omitted) (emphasis added).
The court refused to uphold the NLRBs order because it coerced the
19
newspaper to engage in speech against its will. The Washington Supreme Court, in
20
Nelson, concisely summarized the implications of the D.C. Circuits opinion,
21
rhetorically asking [i]f a newspaper cannot be required to publish a particular
22
reporters work, how can it be constitutionally required to employ the individual as a
23
reporter? Nelson, 131 Wash. 2d 523 at 539-540.
24
25
3.
Plaintiffs Claims Are Barred By The First Amendment
Though not binding, the facts and reasoning in Claybrooks and Ingels, and the
26
rationales for First Amendment protection of employment decisions in Nelson and
27
Passaic Daily News, are directly applicable here. Plaintiff is attempting to impact the
28
messages of both Y&R and B&B by asking the Court to dictate what story lines and
16
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characters are depicted on the shows, and to further dictate whom should be cast on
the show specifically, Plaintiff. Indeed, Plaintiffs claims impact the First
Amendment even more than those of the plaintiffs in Claybrooks. In Claybrooks, the
plaintiffs desired to be cast as The Bachelor, the central position on a reality
television program where women compete for the affections of this sole man.
Claybrooks, 898 F. Supp. 3d at 989. The role of The Bachelor already existed
on the program The Bachelor, and thus the analysis centered on the plaintiffs
complaint that they were not selected to fill an already-existing role. Id.
By contrast here, Plaintiff is not complaining that she was not chosen for an
10
existing part on either Y&R or B&B. Instead, she argues that Defendants must alter
11
the scripts and storylines for Y&R or B&B either to create a new character or
12
recreate one that has not been on the air in almost eight years, and alleges she has
13
been discriminated against because Defendants have not already done so. FAC
14
113-114, 120-121, Prayer For Relief A and B. Were Plaintiff to succeed on her
15
claims and receive the relief requested, Defendants would be compelled to change
16
the messages of these programs by writing characters and/or storylines so that
17
Plaintiff can have a role on the show directly influencing the content being
18
portrayed on Y&R or B&B, and/or be punished for not doing so.
19
Thus, Plaintiff seeks to not only affect casting decisions which, per
20
Claybrooks, are protected even when producers decide who will fill a preexisting
21
role, but goes further in attempting to use FEHA and Section 1981 to directly
22
influence the plot and broadcast content of Y&R and/or B&B. The decision to cast
23
or not to cast Plaintiff, and the decision as to characters and storylines on the
24
programs necessarily impact the content and speech of the programs and is protected
25
by the First Amendment. Indeed, any order directing Defendants to create a role or
26
story line on either Y&R or B&B for Plaintiff and to cast Plaintiff, as she requests
27
(FAC at p. p. 34, Prayer for Relief A, B), would constitute the Court compelling
28
Defendants speech in clear violation of the First Amendment. See e.g., West
17
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Virginia Bd. Of Ed. v. Barnette, 319 U.S. 624, 634 (1943) (First Amendment does
not le[ave] it open to public authorities to compel [a person] to utter a message
with which he does not agree); see also United States v. United Foods, Inc., 533 U.S.
405, 410-411 (2001) (First Amendment protections against compelled speech extend
to businesses).
The First Amendment absolutely protects Defendants rights to choose the
messages of Y&R and B&B, in both what is said and is not said, including what
characters are portrayed and not portrayed and what those characters story arcs are.
Hurley, 515 U.S. at 573, 575; see also Pacific Gas & Electric Co. v. Public Utilities
10
Commn, 475 U.S. 1, 10-12 (1986) (the State is not free to tell a newspaper in
11
advance what it can print and what it cannot); Wooley v. Maynard, 430 U.S. 705,
12
717 (1977) (New Hampshire law requiring motorists to display state motto Live
13
Free or Die on license plates unconstitutional); Miami Herald Publg. Co., Div. of
14
Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241, 258 (1974) (state law requiring
15
newspapers to provide a political candidate equal space in their publications to reply
16
to any criticism or attacks on his or her record unconstitutional); West Virginia Bd.
17
Of Ed. v. Barnette, 319 U.S. 624, 642 (1943) (state law requiring schoolchildren to
18
pledge allegiance to the United States flag unconstitutional).
19
Similarly, the First Amendment protects Defendants choices as to who is cast
20
on Y&R and B&B. Claybrooks, 898 F. Supp. 3d at 999; see also Hosanna-Tabor
21
Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 709-710 (U.S.
22
2012) (First Amendment Establishment and Free Exercise clauses precluded
23
application of federal employment discrimination laws to religious institutions
24
selection of its own ministers); McDermott ex rel NLRB v. Ampersand Publishing,
25
LLC, 593 F. 3d 950, 962 (9th Cir. 2010) (Telling the newspaper that it must hire
26
specified persons . . . is bound to affect what gets published. To the extent the
27
publishers choice of writers affects the expressive content of its newspaper, the First
28
Amendment protects that choice.); Lyle v. Warner Bros. Television Prods., 38 Cal.
18
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4th 264, 297 (2006) (Chin, J., concurring) (When, as here, the workplace product is
the creative expression itself, free speech rights are paramount.Lawsuits like this
one, directed at restricting the creative process in a workplace whose very business is
speech related, present a clear and present danger to fundamental free speech rights.
(emphasis in original)); Hunter v. CBS Broad. Inc., 221 Cal. App. 4th 1510, 1521
(2013); Tamkin v. CBS Broad. Inc., 193 Cal. App. 4th 133, 143 (2011); Ingels, 129
Cal. App. 4th at 1064.
8
9
In short, Plaintiff cannot use FEHA and Section 1981 to force her way back
onto daytime television, as allowing her to do so would essentially requir[e]
10
[Defendants] to alter the expressive content of Y&R and/or B&B, in violation of the
11
First Amendment. Hurley, 515 U.S. at 572-73. Accordingly, Plaintiff fails to state a
12
legally cognizable claim and her first four claims regarding Y&R and B&B must be
13
dismissed in their entirety with prejudice. Saul, 928 F.2d at 843; Albrecht, 845 F.2d
14
at 195-96; Schreiber Distributing Co., 806 F.2d at 1401.
15
16
17
D.
Plaintiffs Claim That CBS Orchestrat[ed] [the] Withdrawal of

Sponsorship from the Program in Which [Plaintiff] Was Mistress of
Ceremonies Fails, Because Plaintiff Fails to Allege Facts Necessary
to State A FEHA Or Section 1981 Retaliation Claim
18
Plaintiff could not bring FEHA claims against CBS regarding Y&R or B&B
19
due to her failure to name CBS in her DFEH complaint. FAC 117, 124. When
20
confronted with this defect via the motion to dismiss the original Complaint, Plaintiff
21
filed a new DFEH complaint (after filing this lawsuit) so that she could add new
22
allegations to the FAC regarding the Alabama Event. These claims, however,
23
amount to nothing more than a wild and inadequately-pled theory, and even the scant
24
allegations show these new claims are legally untenable.
25
As an initial point, and acknowledging the Court is limited on a motion to
26
dismiss to the matters in the complaint, CBS categorically denies all of Plaintiffs
27
allegations about the Alabama Event, including that CBS somehow orchestrat[ed]
28
the withdrawal of corporate sponsorship from an event at Miles College in order to

19
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retaliate further against Plaintiff for filing the lawsuit. CBS had no involvement
with the Alabama Event, and CBS did not, in any way, influence any of the Alabama
Events corporate sponsors. But putting aside the wholly unsubstantiated nature of
these allegations, Plaintiffs claims still fail as a matter of law.

1.
Plaintiff Fails to Plead Sufficient Facts In Support Of These
5
Claims
4
As noted above, a court, drawing on its judicial experience and common
sense, must decide whether the factual allegations, if assumed true, state a plausible
claim. Iqbal, 556 U.S. at 679. Not only is a court not bound to accept as true a
legal conclusion couched as a factual allegation, id. at 678, but where allegations are
10
conclusory [in] nature, they are disentitle[d] to the presumption of truth. Id. at
11
681. Such statements need not be considered by a court in deciding whether or not a
12
plaintiffs alleged facts are sufficient to nudge their claims across the line from
13
conceivable to plausible. Id. at 680 (quoting Twombly, 550 U.S. at 570).
14
Moreover, where the alleged facts do not permit the court to infer more than the
15
mere possibility of misconduct, the complaint has allegedbut it has not
16
show[n]that the pleader is entitled to relief. Id. at 679 (citing Fed. R. Civ.
17
Proc. 8(a)(2)).
18
Here, Plaintiff includes allegations regarding how she came to be involved in
19
the Alabama Event, and some of the details of the event itself. FAC 98-102. She
20
also alleges details regarding corporate sponsors withdrawing their support for the
21
Alabama Event as a result of Plaintiff filing this lawsuit. Id. 104-105. However,
22
when it comes to CBS, she has only speculation concluding that CBS must have
23
been involved, without pleading a single alleged fact to support this conclusion. Id.
24
106, 125-127. Indeed, the allegations and conclusions regarding the Alabama
25
Event do not show even a mere possibility of misconduct by CBS, let alone enough
26
to state a plausible claim under which Plaintiff could be entitled to relief. Iqbal,
27
556 U.S. at 679, 129 S. Ct. at 1950. Accordingly, these claims must be dismissed.
28
20
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2.
1
2
3
4
Even the scant allegations and limited alleged facts regarding the Alabama
Event demonstrate that, as a matter of law, Plaintiff cannot assert a retaliation
claim against CBS under FEHA or Section 1981. FAC at p. 32:15-17; 124.
5
6
7
8
9
10
11
12
13
To begin, in order to state a claim for retaliation under FEHA or Section 1981,
there must be an employer-employee relationship. See e.g., Morgan v. Regents of
Univ. of Cal., 88 Cal. App. 4th 52, 69 (2000) (elements of FEHA retaliation claim);
Manatt v. Bank of America, NA, 339 F.3d 792, 800 (9th Cir. 2003) (elements of
Section 1981 retaliation claim).4 Both prima facie cases require that the alleged
adverse action be made by an employer. Indeed, FEHA prohibits only an
employer from engaging in improper discrimination, and predicates potential
liability on the status of the defendant as an employer. Vernon v. State, 116 Cal.
App. 4th 114, 123 (2004) (citing Cal. Gov. Code 12940(a), 12926).
14
15
16
17
18
19
20
21
22
Plaintiffs Allegations and Speculation Demonstrate She Is

Not Entitled to Relief
In determining whether an employer/employee relationship exists, courts must

look at the totality of circumstances that reflect upon the nature of the work
relationship of the parties, with emphasis upon the extent to which the defendant
controls the plaintiffs performance of employment duties. Id. at 124 (citation
omitted). Factors for the court to consider include: payment of salary or other
employment benefits and Social Security taxes, the ownership of the equipment
necessary to performance of the job, the location where the work is performed, the
obligation of the defendant to train the employee, the authority of the defendant to
hire, transfer, promote, discipline or discharge the employee, the authority to
23
24
25
26
27
28
To state a prima facie case for retaliation under FEHA, a plaintiff must show:
(1) that she engaged in a protected activity; (2) that she was thereafter subjected to
adverse employment action by her employer; and (3) that there was a causal link
between the two. See e.g., Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52,
69 (2000). Retaliation under Section 1981 requires a plaintiff to establish (1) she
engaged in a protected activity; (2) her employer subjected her to an adverse
employment action; and (3) a causal link between the protected activity and adverse
action. See Manatt v. Bank of America, NA, 339 F.3d 792, 800 (9th Cir. 2003).
21

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establish work schedules and assignments, the defendants discretion to determine
the amount of compensation earned by the employee, the skill required of the work
performed and the extent to which it is done under the direction of a supervisor,
whether the work is part of the defendants regular business operations, the skill
required in the particular occupation, the duration of the relationship of the parties,
and the duration of the plaintiffs employment. Id. at 125 (citations omitted). Of
these factors, the extent of the defendants right to control the means and manner of
the workers performance is the most important. Id. at 126 (citations omitted).
Here, there are no allegations in the FAC that CBS was Plaintiffs employer
10
for the Alabama Event. Indeed, the terms employer, employee, or
11
employment do not appear anywhere in the allegations related to the Alabama
12
Event. FAC 98- 110, 125-128. Instead, Plaintiff specifically alleges that her
13
production company, Days Ferry Productions, entered into an agreement with
14
LeMont Scott Group. FAC 99-101. There are no allegations that the agreement
15
between Days Ferry Productions and LeMont Scott Group was even an employment
16
agreement. See id. Thus, there are no allegations that CBS had any connection to the
17
Alabama Event, no allegations that Plaintiffs compensation for the Alabama Event
18
in any way came from CBS, no allegations that CBS had any control over Plaintiffs
19
means and manner in the performance of her role as mistress of ceremonies. See
20
generally, id. That Plaintiffs past employment was allegedly somehow connected to
21
CBS does not allow Plaintiff to bring employment claims against CBS for alleged
22
events occurring long after any alleged employment connection ended.
23
Second, based on the allegations included in the FAC, it appears that Plaintiff,
24
through her production company, appeared at the Alabama Event as an independent
25
contractor, not as anyones employee (most importantly, not as CBS employee) and
26
therefore cannot state a claim under FEHA for employment retaliation. See, e.g.,
27
Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1213 (C.D. Cal. 2004) (anti-
28
discrimination provisions of [FEHA] do not cover independent contractors) (citing

22
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Sistare-Meyer v. Young Mens Christian Assn., 58 Cal. App. 4th 10, 17 (1997)
(independent contractors generally cannot bring statutory discrimination-based
actions against private parties who hire them); Lumia v. Roper Pump Co., 724
F.Supp. 694, 69798 (N.D. Cal. 1989) (same)).
Third, the purported effect of CBS alleged actions do not rise to the level of
an adverse employment action, and therefore, Plaintiff fails to adequately allege
facts necessary to state a prima facie case for retaliation under FEHA or Section
1981. See Morgan, 88 Cal. App. 4th at 69; Manatt, 339 F.3d at 800.
Under FEHA, an adverse employment action, requires a substantial
10
adverse change in the terms and conditions of the plaintiffs employment. Holms v.
11
Petrovich Development Co., LLC, 191 Cal. App. 4th 1047, 1063 (2011) (emphasis
12
added, citations omitted). Similarly, under Section 1981, an adverse employment
13
action is something reasonably likely to deter employees from engaging in
14
protected activity. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)
15
(emphasis added). Here, however, Plaintiff does not allege she was an employee
16
of CBS or that any alleged action by CBS had any impact on her employment. See
17
FAC 98- 110, 125-128. All she alleges is that she (apparently through her
18
production company) received a smaller amount of money from the LeMont Scott
19
Group, for her appearance at the Alabama Event, pursuant to her production
20
companys contract with the LeMont Scott Group. Id. 100-101, 107. There is
21
nothing about this alleged arrangement or the alleged loss that indicates any kind of
22
employment relationship or impact there upon an employment relationship.
23
Accordingly, the purported result of CBS alleged actions do not constitute an
24
adverse employment action for purposes of FEHA or Section 1981, and thus,
25
Plaintiff again cannot state the prima facie case under either statute.
26
Because the FACs allegations affirmatively show that CBS was not Plaintiffs
27
employer for the Alabama Event and that Plaintiff suffered no adverse employment
28
action, Plaintiffs claims for Retaliation in Violation of FEHA and Section 1981
23
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necessarily fail. Moreover, because Plaintiff affirmatively alleges that she appeared
at the Alabama event pursuant to an agreement between Days Ferry Productions and
LeMont Scott Group, any amendment to allege CBS was Plaintiffs employer would
be a sham, and thus dismissal should be with prejudice. Saul, 928 F.2d at 843;
Albrecht, 845 F.2d at 195-96; Schreiber Distributing Co., 806 F.2d at 1401.
3.
FEHA Does Not Apply To Events Outside Of California
Even if Plaintiff were somehow able satisfy the elements of a FEHA retaliation
7
8
claim, the FEHA claim must still be dismissed because there are no allegations that
any events related to the Alabama Event occurred within California. FAC 98-110,
10
125-128. Moreover, it is explicit that the alleged adverse action Plaintiff claims to
11
have suffered an alleged reduction in speaker fees occurred in Alabama, not
12
California. FAC 107. FEHA is inapplicable when the challenged conduct occurs
13
outside of California. Anderson v. CRST Intl, Inc., No. CV 14-368 DSF MANX,
14
2015 WL 1487074, at *4 (C.D. Cal. Apr. 1, 2015) (in sexual harassment claim under
15
FEHA, because all alleged harassment occurred outside California, plaintiff could
16
not state a FEHA claim, even though plaintiff and the alleged harasser were based in
17
California); Guillory v. Princess Cruise Lines, Ltd., No. B192233, 2007 WL 102851,
18
at *5 (Cal. Ct. App. Jan. 17, 2007) (We conclude that all material elements of
19
appellants cause of action occurred outside California, and we have found no
20
evidence of legislative intent that FEHA has extraterritorial application. We
21
therefore presume that it does not;)5; see also Campbell v. Arco Marine, Inc., 42
22
Cal. App. 4th 1850 (1996) (rejecting argument that FEHA should apply to all
23
California-based employers regardless of where the aggrieved employees resides and
24
regardless of where the tortious conduct took place). In Guillory, the court found no
25
26
Even though unpublished California Courts of Appeal decisions have no

precedential
value under California law, Federal Courts are not precluded from
27
considering such decisions as a possible reflection of California law. Roberts v.
28 McAfee, Inc., 660 F.3d 1156, 1167 n.6 (9th Cir. Cal. 2011) (citation omitted).
24
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evidence of California legislative intent for FEHA to apply extraterritorially. 2007
WL 102851 at *2-*5, *5. The court affirmed the trial courts determination that no
part of appellants employment was performed in California, and agreed that all of
the adverse employment actions, including the plaintiffs termination, occurred
outside of California. Id. at *1, *4-*5. The court rejected the arguments that FEHA
should apply because she was a resident of California and was hired in California.
Id. at *3-*4 (residency of a plaintiff is not a determining factor as to whether
FEHA applies extraterritorially). The court also rejected that where the decision was
made to terminate the plaintiff was relevant, and found the claim that the termination
10
decision was made in California was based on speculation. Id. at *4.
11
Here, as in Anderson and Guillory, the key events related to the Alabama
12
Event occurred outside California: the event itself was held in Alabama, and the
13
alleged reduction of fees occurred there as well. FAC 100, 107. Conversely,
14
there are no allegations that challenged conduct or material elements of
15
Plaintiffs claims regarding the Alabama Event occurred in California. See FAC
16
98-110, 125-128. Accordingly, the FEHA claim regarding the Alabama Event
17
must be dismissed, and because Plaintiff cannot change where the relevant events
18
took place, any amendment would be futile. Saul, 928 F.2d at 843; Albrecht, 845
19
F.2d at 195-96; Schreiber Distributing Co., 806 F.2d at 1401.
20
IV.
21
CONCLUSION
For the foregoing reasons, Sony Pictures and CBS respectfully request that the
22
Court dismiss the First Amended Complaint with prejudice and award costs,
23
attorneys fees, and such other relief as the Court deems appropriate.
24
DATED: May 13, 2015

By:
25
26
/S/
John P. LeCrone

SONY PICTURES TELEVISION INC.,
SONY PICTURES ENTERTAINMENT
INC. and CBS CORPORATION
27
28
25
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Case 2:15-cv-02442-JAK-AGR Document 90 Filed 05/13/15 Page 1 of 33 Page ID #:580

JOHN P. LECRONE (State Bar No. 115875)

DAVIS WRIGHT TREMAINE LLP

Attorneys for Defendants

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MOTION TO DISMISS FIRST AMENDED COMPLAINT

Case No. 15-cv-02442 JAK (AGRx)

September 21, 2015

Case 2:15-cv-02442-JAK-AGR Document 90 Filed 05/13/15 Page 2 of 33 Page ID #:581

NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Television Inc., Sony Pictures Entertainment Inc. and CBS Corporation

by Plaintiff Victoria Rowell in her First Amended Complaint, pursuant to Rule

not state a claim upon which relief can be granted.

The Motion will be based on this Notice of Motion, the Memorandum of

DATED: May 13, 2015

DAVIS WRIGHT TREMAINE LLP

Attorneys for Defendants

DAVIS WRIGHT TREMAINE LLP

Case 2:15-cv-02442-JAK-AGR Document 90 Filed 05/13/15 Page 3 of 33 Page ID #:582

FACTUAL BACKGROUND ......................................................................... 2

Plaintiffs Allegations ........................................................................... 2

Procedural History ................................................................................ 4

Plaintiffs Claim That Sony Pictures And CBS Denied Her

Plaintiffs Claim That CBS Denied Her Employment On B&B

Defendants Alleged Decision To Not Hire Plaintiff and Creative

The First Amendment Prohibits Civil Claims That Seek To

Casting Decisions Are Creative Expression Protected By

Plaintiffs Claims Are Barred By The First Amendment ........ 16

Plaintiffs Claim That CBS Orchestrat[ed] [the] Withdrawal of

Plaintiff Fails to Plead Sufficient Facts In Support Of These

Plaintiffs Allegations and Speculation Demonstrate She Is

FEHA Does Not Apply To Events Outside Of California....... 24

MOTION TO DISMISS FIRST AMENDED COMPLAINT

DAVIS WRIGHT TREMAINE LLP

Case 2:15-cv-02442-JAK-AGR Document 90 Filed 05/13/15 Page 4 of 33 Page ID #:583

Abagninin v. AMVAC Chem. Corp.,

Anderson v. CRST Intl, Inc.,

Bell Atlantic Corp. v. Twombly,

Campbell v. Arco Marine, Inc.,

Claybrooks v. ABC, Inc.,

Erznoznik v. City of Jacksonville,

Gomez v. American Bldg. Maintenance,

DAVIS WRIGHT TREMAINE LLP

Case 2:15-cv-02442-JAK-AGR Document 90 Filed 05/13/15 Page 5 of 33 Page ID #:584

Grosjean v. American Press Co.,

Guillory v. Princess Cruise Lines, Ltd.,

Guz v. Bechtel Natl, Inc.,

Hunter v. CBS Broad. Inc.,

Hurley v. Irish-American Gay, Lesbian & Bisexual Group Of Boston,

Hustler Magazine, Inc. v. Falwell,

Ingels v. Westwood One Broadcasting Services, Inc.,

Joseph Burstyn, Inc. v. Wilson,

Joseph Burstyn, Inc. v. Wilson,

Lumia v. Roper Pump Co.,

Lyle v. Warner Bros. Television Prods.,

DAVIS WRIGHT TREMAINE LLP

Case 2:15-cv-02442-JAK-AGR Document 90 Filed 05/13/15 Page 6 of 33 Page ID #:585

Manatt v. Bank of Am., NA,

Martinez v. Marin Sanitary Service,

McDermott ex rel NLRB v. Ampersand Publishing, LLC,

McDonnell Douglas Corp. v. Green,

Miami Herald Publg. Co., Div. of Knight Newspapers, Inc. v. Tornillo,