Jurado v. Eleven-Fifty Corp.

• Citation: 630 F. Supp. 569
• Decision Date: 30 December 1985
• Docket Number: No. CV 82-4359.,CV 82-4359.
• Parties: Valentine JURADO, a.k.a. Val Valentine, Plaintiff, v. ELEVEN-FIFTY CORPORATION, a Delaware corporation, d.b.a. Radio Station KIIS-FM Los Angeles; Pacific and Southern Company, Inc., a Delaware corporation: Combined Communications Corporation, an Arizona corporation; Gannett Company, Inc., a Delaware corporation, Defendants.
• Court: U.S. District Court — Central District of California

630 F. Supp. 569

Valentine JURADO, a.k.a. Val Valentine, Plaintiff, v. ELEVEN-FIFTY CORPORATION, a Delaware corporation, d.b.a. Radio Station KIIS-FM Los Angeles; Pacific and Southern Company, Inc., a Delaware corporation: Combined Communications Corporation, an Arizona corporation; Gannett Company, Inc., a Delaware corporation, Defendants.

No. CV 82-4359.

United States District Court, C.D. California.

December 30, 1985.

William A. Snyder of Snyder & Rios, Newport Beach, Cal., for plaintiff.

Robert L. Murphy and Diane J. Gideon of Manatt, Phelps, Rothenberg, and Tunney, Los Angeles, Cal., for defendants.

MEMORANDUM OPINION AND ORDER THEREON GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

REA, District Judge.

This matter is before the Court on defendants' Motion for Summary Judgment, filed May 20, 1985, and heard by the Court on July 29, 1985. The Court has considered the Motion, the briefs in support of the Motion, the briefs filed in opposition to the Motion, the affidavits, declarations, transcripts, and exhibits in support of and in opposition to the Motion, the entire record of the case, the oral arguments of counsel, and their supplemental briefing.

IT IS HEREBY ORDERED that defendants' Motion for Summary Judgment is GRANTED in full for all reasons set forth therein as well as the following memorandum opinion.

OVERVIEW

The history of this case is rather tortured and convoluted. For this reason, an extensive background of the earlier activity in this case is necessary to an understanding of the Court's grant of summary judgment. Specifically, an extended background is necessary to clarify for the record exactly which claims are still before the Court, and which are not. Plaintiff, particularly, demonstrates a profound confusion on this point. Prior to the instant motion for summary judgment, this case has earlier been the subject of three motions to dismiss and an earlier motion for summary judgment. As a result of these motions, the plaintiff's lawsuit now consists of four counts drawn from the original nine of the first amended complaint, and the Title VII claims of the Revised Supplemental Complaint. Despite the Court's labors to narrow the issues, plaintiff's memorandum of contentions of fact and law, prepared for the pretrial conference in this case, ironically, sets forth fifty five contentions of fact and one hundred and seventy eight contentions of law. Before the Court can proceed to rule on the issues raised by the instant motion, the Court must make clear what remains in this case.

BACKGROUND

The original complaint in this action was filed on August 24, 1982. It contained nine counts, as follows:

1. a claim based upon the Labor Management Relations Act for failure to adhere to a collective bargaining agreement;

2. a claim based upon 42 U.S.C. §§ 1981 & 1982, and the Thirteenth Amendment to the U.S. Constitution;

3. a claim based upon the state law cause of action for breach of the Implied Covenant of Good Faith and Fair Dealing in Employment;

4. a claim based upon the state law tort of Wrongful Discharge;

5. a claim based upon the state law tort of Intentional Interference with Contractual Relations;

6. a claim based upon 42 U.S.C. § 1985(3), and the First, Thirteenth, and Fourteenth Amendments to the U.S. Constitution;

7. a claim based upon 42 U.S.C. § 1986;

8. a claim based upon the state Unruh Act, 51 Cal.Gov. and Comm.Code §§ 12940(a) and 12948 Cal.Civ.Code § 51, Cal.Gov.Code §§ 12940(a) and 12948;

9. a claim based upon the state law tort of Intentional Infliction of Emotional Distress.

The factual allegations of the original complaint, and as developed in later filings, are straightforward. In a nutshell, they told the following story. Plaintiff Valentine Jurado (whose performing name is Val Valentine and who will hereafter be referred to as Jurado), was a staff announcer, or "disc jockey" on a radio station owned by defendant Eleven-Fifty Corporation, d.b.a. Radio Station KIIS-FM (hereafter KIIS). The other defendants are Pacific and Southern Co., Inc., which allegedly owns all of the KIIS-FM stock, Combined Communications Inc., of which Pacific and Southern is a subsidiary, and Gannett, which owns a controlling share of Combined Communications stock. Jurado had initially used only English in his broadcasts, but later joined in an agreement with KIIS to also use some Spanish words and phrases as a part of his English language radio program. KIIS-FM was told by a consultant that this approach was bad for their ratings, caused listener confusion as to the nature of the channel, and should be dropped. Don Benson, KIIS's program director later came to the same conclusion, and told Jurado to cease speaking Spanish on the air.¹ At the same time, Jurado's program hours were slightly altered. Jurado refused to stop speaking Spanish.² Plaintiff was thereafter terminated.

Before the filing of the original complaint on Aug. 24, 1982, Jurado had initiated a grievance procedure through his union, AFTRA, which had a collective bargaining agreement with KIIS.³ On November 12, 1981, AFTRA filed a request for arbitration under this collective bargaining agreement. Although it appears that KIIS was initially unwilling to arbitrate, they later agreed to do so and the arbitration was set for Nov. 12, 1982. The issues to be decided at this arbitration were two:

1. Did the respondents violate their collective bargaining agreement with Los Angeles Local of (AFTRA) by the failure to pay Val Valentine sums due him and by discharging Val Valentine?

2. If so, what are the appropriate remedies?

While the arbitration was being set, the defendants filed a Motion to Dismiss or Stay Judicial Proceedings Pending Arbitration in this Court, heard on Nov. 8, 1982. As a result of this motion, the Court ordered, on Nov. 10, 1982, that the District Court action be stayed pending the disposition of the arbitration. The Court took the motion to dismiss under submission. Arbitration began on Nov. 12, 1982, and was continued to Nov. 22, 1982. The parties resolved the arbitration before decision by the arbitration panel. They settled a dispute concerning translation fees, and entered a stipulation (also referred to as the "the settlement"), dated Nov. 22, 1982. Only the stipulation is of concern to the Court. The stipulation provided, inter alia, that AFTRA would withdraw its request for arbitration; that Jurado would not assert a claim for breach of the duty of fair representation against AFTRA; and that defendants would not raise as a defense to Jurado's District Court lawsuit Jurado's failure to exhaust his contractual remedy of arbitration concerning any claims arising from retaliation.⁴

Having resolved the arbitration, the parties stipulated to lift the stay imposed by the Court on Nov. 10, 1982. On Jan. 3, 1983, the Court heard argument on the submitted motion to dismiss. The Court ordered the original complaint dismissed with leave to amend. See Order Granting Defendants' Motion to Dismiss (filed Jan. 11, 1983). As set forth therein, the Court found that Count 1, based upon the Labor Management Relations Act, had to be dismissed for Jurado's failure to exhaust his contractual remedies under arbitration. The Court found that Jurado fell outside any exception to this rule. The Court recognized that parties to a contract dispute may mutually agree to waive arbitration, thereby forcing the dispute into the judicial arena. See United Steelworkers of America v. Mesker Bros. Indus., Inc., 457 F.2d 91 (8th Cir.1972). Nevertheless, the Court found that no waiver had been alleged. The Court specifically noted that language in the Nov. 22 stipulation, quoted at footnote 4, was not a waiver of arbitration. That language limited itself to waiving arbitration insofar as Jurado claimed that he was discharged in retaliation for participating in collective bargaining negotiations. Such a claim was not the basis for Count 1, and the Court ordered it dismissed.

The Court found that Count 2 also had to be dismissed. Count 2 set forth a claim based upon violations of the Civil Rights Act, 42 U.S.C. §§ 1981, 1982. Section 1981 provides a cause of action for employment discrimination on the basis of race. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Plaintiff's allegations were not based upon race. Rather he alleged that he was discharged for willfully refusing to abide by his employer's instructions to cease broadcasting in the Spanish language. See original complaint ¶¶ 49-51. A voluntary refusal to abide by such an instruction does not suffice to establish a claim under § 1981. Garcia v. Gloor, 618 F.2d 264 (5th Cir.1980, cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981). Section 1982 protects the rights of all citizens to "inherit, purchase, lease, sell, hold, or convey real and personal property." Its provisions plainly did not extend to Jurado's claims, which sounded in employment discrimination, or possibly in breach of contract.

Count 6 alleged violation of civil rights under 42 U.S.C. § 1985(3), which proscribes conspiracies to discriminate against citizens on the basis of race. The Court found that Count 6 failed to allege the necessary element of a racially based animus as the motivation for the conspiracy, especially since the reason for Jurado's termination was his voluntary refusal to abide by a programming directive, and ordered dismissal. Count 7 alleged a negligent failure to prevent the conspiracy alleged in Count 6 under 42 U.S.C. § 1986. Because Count 6 failed to allege facts sufficient to state a cause of action, Count 7 also had to be dismissed.

The remaining counts of the Complaint were based upon state law. As the Court had already found that there was no diversity of citizenship, these could only be brought in this Court upon the doctrine of pendent jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16...