Knutsson v. Ktla, LLC
| Decision Date | 04 September 2014 |
| Docket Number | B251567 |
| Citation | 176 Cal.Rptr.3d 376,228 Cal.App.4th 1118 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kurt KNUTSSON et al., Plaintiffs and Respondents, v. KTLA, LLC, Defendant and Appellant. |
OPINION TEXT STARTS HERE
APPEAL from an order of the Superior Court of Los Angeles County, Steven J. Kleifield, Judge. Affirmed. (Super. Ct. No. BC500792)
Barnes & Thornburg, Stephen R. Mick and Christian A. Jordan, Los Angeles, for Defendant and Appellant.
Judith Salkow Shapiro, Moskowitz Law Group and Karen Moskowitz, Los Angeles, for Plaintiffs and Respondents.
Defendant, KTLA, LLC, appeals from an order denying its motion to compel arbitration. Plaintiffs, Kurt Knutsson and his company, Woojivas, Incorporated, entered into a personal service agreement to act as a technology reporter with defendant, a television broadcaster. The personal service agreement is subject to a three-step grievance and arbitration provision in a collective bargaining agreement. The collective bargaining agreement is between Mr. Knutsson's union, the American Federation of Television and Radio Artists Los Angeles Local (the union), and defendant. The union is not a party to this appeal.
After the personal service agreement was terminated, plaintiffs filed suit alleging contract breach, age discrimination, unfair business practices, and misappropriation of Mr. Knutsson's likeness claims. Defendant moved to compel arbitration. The trial court denied defendant's motion to compel arbitration. We affirm the order denying the motion to compel arbitration. We conclude: defendant has forfeited the right to compel compliance with the collective bargaining agreement's non-arbitration provisions in the three-step grievance process; the arbitration provisions of the three-step grievance process do not allow defendant to compel arbitration between it and plaintiffs; and the trial court, not an arbitrator, resolves the substantive arbitrability issue, notwithstanding the holding in John Wiley & Sons, Inc. v. Livingston (1986) 376 U.S. 543, 546–547, 84 S.Ct. 909, 11 L.Ed.2d 898 (John Wiley ).
Plaintiffs filed their complaint on February 11, 2013. Plaintiffs sued defendant and various local television stations owned or affiliated with its parent company, the Tribune Broadcasting Company. Defendant is a California corporation operating a television station in Los Angeles. Mr. Knutsson is a technology reporter. Woojivas, Incorporated is a California corporation belonging to Mr. Knutsson.
Plaintiffs allege the following. In 1995, Mr. Knutsson established himself as a technology reporter for national and local television programs. He syndicated his technology reports. Mr. Knutsson had used his time, effort, and money: promoting “Kurt the CyberGuy” at technical and broadcast shows; advertising in journals; and traveling throughout the United States. In the middle of 1996, Mr. Knutsson proposed to defendant that it provide broadcast facilities and support for the production of programming. Mr. Knutsson would appear as “Kurt the CyberGuy” and report on consumer technology. In return, Mr. Knutsson provided his services at a lower rate than normal and gave defendant the right to broadcast his technology segments. By the end of 1996, Mr. Knutsson's efforts led to the syndication of the Kurt the CyberGuy reports to four stations.
By 2008, plaintiffs' segments were appearing three or more times per week on two dozen television stations. Plaintiffs' segments were prominently featured on all Web sites of all these stations and received millions of Internet hits. From 1997 through 2008, plaintiffs continued their association with defendant, during which the working arrangement would sometimes be memorialized in writing.
In 2008, defendant entered into a written agreement with Woojivas, Incorporated. Woojivas, Incorporated agreed to furnish Mr. Knutsson's services and defendant was to employ him for five years at a specified salary. Mr. Knutsson would: report on consumer technology and computers; broadcast as the CyberGuy; and develop Web site content under the CyberGuy brand. Defendant additionally agreed to pay Woojivas, Incorporated 20 percent of net revenue derived from new business generated during the 2008 agreement that was attributable to sponsors introduced by Mr. Knutsson. If defendant generated substantial additional revenue by exploiting his Web site content on other media platforms not related to defendant, they would negotiate in good faith additional amounts of payment. The agreement prohibited use of the CyberGuy brand as an endorsement. The agreement provided that defendant did not own the CyberGuy designation.
On December 30, 2010, defendant sent a letter to Mr. Knutsson giving notice that it intended to terminate the 2008 agreement at the end of March 31, 2011, after three years. The letter did not state defendant intended to terminate its association with Mr. Knutsson nor advising it would take Kurt the CyberGuy off the air. Mr. Knutsson believed he would continue as a technology reporter if he agreed to take less money.
On February 14, 2011, Mr. Knutsson received a phone call from defendant's news director, Jason Ball, and its human resources director, Barbara Lopez–Nash. Mr. Ball informed Mr. Knutsson that he would not return to the television station and February 14, 2011, was Mr. Knutsson's last day on the air. Mr. Ball sent an e-mail to that effect and also advised that other local television stations would be notified the next day regarding Mr. Knutsson's departure.
On February 15, 2011, defendant included in its news broadcast a report on consumer technology featuring Rich DeMuro. Mr. DeMuro broadcasted his segment from the same studio used by Kurt the CyberGuy with the same format and style. Mr. Knutsson was not mentioned. Defendant never issued a press release or announced to the public that Mr. Knutsson and Kurt the CyberGuy were no longer part of the television station. Plaintiffs believed none of the other affiliated television stations issued any such announcement.
Mr. DeMuro provided technology reports for defendant in the same manner and style as the Kurt the CyberGuy reports. Plaintiffs believed the other television stations also did the same. Defendant and the affiliated television stations continued to feature CyberGuy or Kurt the CyberGuy on their Web sites. The sites were designed such that a user searching for CyberGuy broadcasts or stories online would be led to reports provided by Mr. DeMuro. Plaintiffs believed defendant manipulated the content descriptions such that persons seeking Mr. Knutsson were routed to defendant's Web sites featuring Mr. DeMuro. Plaintiffs allege such practices of Web site misdirection have continued in part.
Plaintiffs allege: contract breach by failing to pay Woojivas, Incorporated a share of advertising revenue and impliedly or explicitly using Mr. Knutsson and the Kurt the CyberGuy brand as an endorsement; misappropriation of his name and likeness in violation of Civil Code section 3344; unfair business practices in violation of Business and Professions Code section 17200; common law misappropriation; and age discrimination in violation of the Fair Employment and Housing Act. Plaintiffs sought damages and attorney's fees, costs of suit and other just and proper relief.
On May 17, 2013, defendant filed its motion to compel arbitration. Defendant cited three agreements: the September 1, 2008 collective bargaining agreement between defendant and the union; the April 1, 2008 personal services agreement (personal services agreement) between defendant and Woojivas, Incorporated; and the April 1, 2008 Knutsson letter. Plaintiffs refused to stipulate to arbitration as of May 6, 2013.
The terms of the personal services agreement stated: The staff newspersons agreement is the aforementioned collective bargaining agreement. The April 1, 2008 Knutsson letter provides, “I [Mr. Knutsson] agree to be personally bound by the provisions of the [personal services] agreement that apply to me, or that impose obligations or warranties on Woojivas Corporation.”
Under the collective bargaining agreement, there is a mandatory procedure for resolution of grievances filed between defendant and any employee. The grievance and arbitration provision provides:
The collective bargaining agreement's grievance procedure consists of three steps. Step 1 allows the union or an employee to resolve a grievance by discussion with the supervisor.1 Step 2 permits resolution of the grievance if the union is dissatisfied with the supervisor's resolution of the matter. Step 2 only permits the union to formally present a grievance to a department manager.2
Step 3 of the grievance procedure can potentially lead to arbitration. However, as in...
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