GRANT NAPEAR v. BONNEVILLE INTERNATIONAL CORPORATION
No. 2:21-cv-01956-DAD-SCR
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 31, 2025
(Doc. Nos. 74, 95)
This matter is before the court on the motion for summary judgment filed on behalf of defendant on May 29, 2024. (Doc. No. 74.) The pending motion was taken under submission pursuant to Local Rule 230(g). (Doc. No. 88.) For the reasons explained below, defendant‘s motion for summary judgment will be granted.
BACKGROUND1
This case arises from plaintiff‘s allegations of retaliation and wrongful termination against defendant Bonneville International Corporation (“Bonneville”), his former employer. (Doc. No. 49.)
On October 31, 2019, plaintiff Napear signed an employment agreement with defendant Bonneville for a one-year term of employment from August 1, 2019 through July 31, 2020 (the “Employment Agreement”). (DUF ¶ 4.) Defendant is a media company that operates radio and television stations, websites, and podcasts offering news, sports, and other programming. (DUF ¶ 1.) Defendant‘s stated purpose is to build up, connect, inform, and celebrate communities and families.2 (DUF ¶ 2.) Defendant‘s radio station in Sacramento, KHTK, is the flagship home of the Sacramento Kings NBA basketball team. (DUF ¶ 3.) The centerpiece of the KHTK station is the broadcasting of Kings play-by-play and content related to the team. (Id.) Plaintiff was the host and on-air talent of a daily radio show at KHTK.3 (DUF ¶ 5; Doc. No. 95-1 at 2.) Defendant was the sole and exclusive owner of the Show and any content or rights related to it. (DUF ¶ 6.) Plaintiff was also employed by the Sacramento Kings as the play-by-play announcer for team. (DUF ¶ 7.)
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On June 1, 2020, before plaintiff was scheduled to go on the radio at 3:00 p.m., defendant placed him on administrative leave while it considered its next steps. (DUF ¶ 24.) Later that day, at 5:25 p.m., Darrell Brown, defendant‘s president at the time, emailed Steve Cottingim, defendant‘s senior vice president and market manager, and wrote: “Let‘s see what the Kings do before we move forward.” (DUF ¶¶ 23, 26; PUF ¶ 1; Doc. No. 78 at ¶ 1.) On June 2, 2020, at 12:27 p.m., John Rinehart, the President of Business Operations for the Sacramento Kings, texted Cottingim indicating that the Kings were planning to release the following statement: “We have parted ways with play-by-play announcer Grant Napear.” (DUF ¶¶ 23, 28.) Later that day, at 4:04 p.m., defendant sent plaintiff a termination notice. (DUF ¶ 34.)
B. Procedural Background
On May 11, 2023, plaintiff filed his operative second amended complaint (“SAC”). (Doc. No. 49.) This action now proceeds only on the following two claims asserted in the SAC: (1) retaliation under
LEGAL STANDARD
Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials,” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
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If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. See
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass‘n, 809 F.2d 626, 630 (9th Cir. 1987). Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.‘” Matsushita, 475 U.S. at 587 (citations omitted).
“In evaluating the evidence to determine whether there is a genuine issue of fact,” the court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party‘s obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff‘d, 810 F.2d 898 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record
ANALYSIS
As noted, defendant moves for summary judgment in its favor as to plaintiff‘s claims, asserting that both depend on whether defendant‘s termination of plaintiff as the on-air host of KHTK‘s daily radio show violated
A. Request to Seal
As noted above, on May 29, 2024, defendant filed a notice of its request to seal Exhibit 1 to the declaration of Steve Cottingim, consisting of the Employment Agreement, in support of its motion for summary judgment. (Doc. No. 79.) On December 23, 2024, the court denied defendant‘s request, finding that although defendant argued that the Employment Agreement contained sensitive information regarding defendant‘s employment policies and its salary, bonus, and benefits structure, defendant had failed to meet its burden of articulating compelling reasons justifying the sealing of the exhibit in its entirety. (Doc. No. 94 at 3–4.) The court observed that it “failed to see why seemingly innocuous portions of the Employment Agreement, such as the
All documents filed with the court are presumptively public. San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established that the fruits of pretrial discovery are, in the absence of a court order to the contrary, presumptively public.”). “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.‘” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc‘ns, Inc., 435 U.S. 589, 597 & n.7 (1978)).6
Two standards generally govern requests to seal documents. Pintos v. Pac. Creditors Ass‘n, 605 F.3d 665, 677 (9th Cir. 2010).
[J]udicial records attached to dispositive motions [are treated] differently from records attached to non-dispositive motions. Those who seek to maintain the secrecy of documents attached to dispositive motions must meet the high threshold of showing that “compelling reasons” support secrecy. A “good cause” showing under Rule 26(c) will suffice to keep sealed records attached to non-dispositive motions.
Kamakana, 447 F.3d at 1180 (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135–36 (9th Cir. 2003)). The reason for these two different standards is that “[n]ondispositive motions are often unrelated, or only tangentially related, to the underlying cause of action, and, as a result, the public‘s interest in accessing dispositive materials does not apply with equal force to non-dispositive materials.” Pintos, 605 F.3d at 678 (internal quotation marks omitted).
[T]he court must conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret. After considering these interests, if the court decides to seal certain judicial records, it must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.
Kamakana, 447 F.3d at 1178–79 (internal quotation marks and citations omitted). The party seeking to seal a judicial record bears the burden of meeting the “compelling reasons” standard. Id. at 1178.
While the terms “dispositive” and “non-dispositive” motions are often used in this context, the Ninth Circuit has clarified that the “compelling reasons” standard applies whenever the motion at issue “is more than tangentially related to the merits of a case.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). The court agrees with defendant that the “compelling reasons” standard applies here. (See Doc. No. 95 at 2–3.)
“In general, ‘compelling reasons’ sufficient to . . . justify sealing court records exist when such ‘court files might . . . become a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). “The mere fact that the production of records may lead to a litigant‘s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” Kamakana, 447 F.3d at 1179.
Here, defendant seeks permission to file its redacted copy of the Employment Agreement that withholds information regarding defendant‘s compensation of plaintiff and other employees, including information regarding salary, talent fees, bonuses, benefits, matching policies, severance policies, and licenses or rights of use. (Doc. No. 95 at 2–3.) Defendant argues that “[t]he release of such information could harm Bonneville‘s competitive position because, among other things, it would reveal Bonneville‘s business priorities and arm Bonneville‘s competitors with information to target Bonneville‘s employees and unfairly compete with Bonneville in the
Accordingly, defendant‘s request to file a redacted version of the Employment Agreement on the public docket (Doc. Nos. 95, 95-1) will be granted, and the Clerk of the Court is directed to maintain the unredacted version of the exhibit, submitted via email, under seal.
B. Plaintiff‘s Retaliation Claim
As noted, defendant argues that the court should grant summary judgment in its favor on plaintiff‘s retaliation claim brought under
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In 1937, “the California Legislature, recognizing that employers could misuse their economic power to interfere with the political activities of their employees, enacted Labor Code sections 1101 and 1102 to protect the employees’ rights.” Gay L. Students Ass‘n. v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 486–87 (1979) superseded by statute as stated in In re Marriage Cases, 43 Cal. 4th 757, 835 n.56 (2008).
Defendant argues that applying
To determine whether applying
1. Whether Plaintiff‘s Termination Constitutes Protected Speech
The First Amendment ensures that “Congress shall make no law . . . abridging the freedom of speech.”
The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.
Anderson, 621 F.3d at 1062; see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65–66, (1981) (“[P]rograms broadcast by radio and television . . . fall within the First Amendment guarantee[.]”); Project Veritas, 125 F.4th at 942 (“It is well established that audio recordings and audiovisual recordings are generally entitled to First Amendment protection.”) Such creative protected processes include choices as to who participates in the production of speech. McDermott v. Ampersand Pub., LLC, 593 F.3d 950, 962 (9th Cir. 2010) (“To the extent the publisher‘s choice of writers affects the expressive content of its newspaper, the First Amendment protects that choice.”) (citing Hurley, 515 U.S. at 572–73).
However, despite these guiding principles, “there is surprisingly little case law addressing the extent to which casting of creative performances qualifies as speech protected by the First Amendment.” Moore v. Hadestown Broadway Limited Liability Company, 722 F.Supp.3d 229, 261 (S.D.N.Y. 2024); see also Claybrooks v. Am. Broad. Companies, Inc., 898 F. Supp. 2d 986, 996 (M.D. Tenn. 2012) (“With respect to casting decisions for an entertainment program of any kind, it appears that no federal court has addressed the relationship between anti-discrimination laws and the First Amendment. . . . Accordingly, the court must analyze this issue of first impression in light of relevant First Amendment principles.”).
The few courts to have been called upon to address First Amendment protections for casting decisions made in the producing of a creative work have universally found that where “regulating the casting process necessarily regulates the end product . . . casting and the resulting work of entertainment are inseparable and must both be protected to ensure that the producers’ freedom of speech is not abridged.” Claybrooks, 898 F. Supp. 2d at 999; see also Green v. Miss
The court therefore concludes that the process of creating an expressive work (such as the Show involved in this case), which may involve decisions as to who participates in its presentation, is entitled to First Amendment protection when it cannot be separated from the expressive product. See Anderson, 621 F.3d at 1062 (noting that the Supreme Court in Hurley held that “the process involved in producing a parade,” including decisions as to which floats may participate, “cannot be meaningfully separated from the parade‘s expressive product in terms of the constitutional protection afforded”); see also Project Veritas, 125 F.4th at 943; American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 595–96 (7th Cir. 2012) (“By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.”).
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In his opposition to the pending motion, plaintiff does not attempt to argue that his role or his casting as the host of defendant‘s Show did not affect how the Show spoke or conveyed its message. Instead, plaintiff only argues that he was not subject to a casting decision termination because “[t]here was no evidence of Plaintiff‘s show changing creative direction or canceled (sic), so . . . there was no creative-based reason to fire [him].” (Doc. No. 86 at 11–12.) Plaintiff seems to suggest that in order for a casting decision to warrant constitutional protection under the First Amendment, there must be a change of creative direction within the work, or perhaps a threat of its cancellation without a change. Plaintiff points to no authority establishing such a requirement. In any event, the court is skeptical of plaintiff‘s argument in light of the decisions addressing the First Amendment protections to be afforded to those producing expressive product. See Hurley, 515 U.S. at 573 (“A speaker has the autonomy to choose the content of his own message.”); see also Boy Scouts of America v. Dale, 530 U.S. 640, 653 (2000) (“As we give deference to an association‘s assertions regarding the nature of its expression, we must also give deference to an association‘s view of what would impair its expression.”); McDermott, 593 F.3d at 962 (“Telling the newspaper that it must hire specified persons, namely the discharged employees, as editors and reporters constituting over 20 percent of its newsroom staff is bound to affect what gets published.”); Moore, 722 F.Supp.3d at 262 (“The First Amendment protects Hadestown‘s creative decision to express its preferred message regardless of whether it made the decision in its initial casting calls or after the unintended message was brought to its attention after several performances of the Musical, as was the case here.”).
However, even if a creative change were a requirement for First Amendment protections to attach to a termination decision, the court observes that defendant has indeed identified on summary judgment a “creative-based reason” for firing plaintiff. As noted, the centerpiece of the KHTK station is the Kings play-by-play and broadcast content related to the team. (DUF ¶ 3.) It is undisputed that plaintiff‘s Tweet elicited critical comments and reactions from individuals on Twitter, including from other former Kings players, and some of those responses reflected the
2. Enforcement of California Labor Code §§ 1101 and 1102
As noted above,
As discussed above, under the facts of this case, requiring defendant to retain plaintiff would alter defendant‘s speech and the message communicated through the Show, due in large part to plaintiff‘s significant and public role as the Show‘s host. Such compulsion is a “content-based regulation” and “warrants strict scrutiny.” Green, 52 F.4th at 791; see also Riley v. Nat‘l Fed‘n of the Blind of N. Carolina, Inc., 487 U.S. 781, 795 (1988) (“[M]andating speech that a speaker would not otherwise make necessarily alters the content of the speech.”); X Corp v. Bonta, 116 F.4th 888, 900 (9th Cir. 2024).12
“Content-based regulations ‘are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.‘” Green, 52 F.4th at 791 (quoting Reed, 576 U.S. at 163); see also Project Veritas, 125 F.4th at 946-47 (citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)). “Given the heightened concerns over chilling free speech, the Supreme Court has demanded that ‘precision . . . be the touchstone’ of any law regulating speech.” Green, 52 F.4th at 791 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)) (cleaned up). “Additionally, there must be ‘even more immediate and urgent grounds’ to uphold a law that forces ‘involuntary affirmation of objected-to beliefs.‘” Id. (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943)). In considering compelling interests to justify this state regulation, the court is not to rely on “broadly formulated interests” and instead “must scrutinize the asserted harm of granting specific exemptions.” Fulton v. City of Philadelphia, 593 U.S. 522, 541 (2021) (rejecting the defendant city‘s offer of its broad interests to uphold its nondiscrimination policies such as “maximizing the number of foster parents, protecting the City from liability, and ensuring equal treatment of prospective foster parents and foster children,” noting that the question “is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to [the petitioner].”).
Here, defendant argues that “no compelling interest is present” in this case because plaintiff‘s “alleged right to be free from political influence was impaired only to the limited extent that he could not continue to work at KHTK and associate the station with his choice of content.” (Doc. No. 75 at 20.) Plaintiff does not respond to defendant‘s argument in this regard, nor does he point to any interest that would justify the application of
The court agrees with defendant‘s framing, since any compelling interest to justify the restriction on defendant‘s speech must focus on
Accordingly, the court finds no compelling interest supports the denial of a narrow exception to the application of
C. Plaintiff‘s Wrongful Termination in Violation of Public Policy Claim
Defendant also moves for summary judgment in its favor as to plaintiff‘s claim for wrongful termination in violation of public policy, arguing that it is a “derivative claim” that depends on “whether Bonneville‘s termination of Mr. Napear violated Sections 1101 and 1102.” (Doc. No. 75 at 13.) Plaintiff also does not respond to this argument in his opposition to the pending motion. (Doc. No. 86.)
In its prior order resolving defendant‘s motion to dismiss plaintiff‘s first amended complaint, the court dismissed this claim ruling, in part, that plaintiff could only “proceed [upon
CONCLUSION
Accordingly,
- Defendant‘s renewed request to seal (Doc. No. 95) is GRANTED;
- Defendant‘s motion for summary judgment (Doc. No. 74) is GRANTED;
- Judgment shall be entered in favor of defendant; and
- The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated: March 31, 2025
DALE A. DROZD
UNITED STATES DISTRICT JUDGE
Notes
Employers that speak must necessarily speak through their employees; and when an employee or prospective employee says things—even off the job—that would undermine the employer‘s message, the employer must be able to stop using the employee as a speaker.
This is particularly true for employees such as broadcasting and print reporters, opinion columnists, actors, and the like. It should also be true for employers’ commercial spokespeople, who are supposed to be the public face of the employer. Though commercial speech is less protected than other speech, it is still protected to a considerable extent; and the ability to convey a commercial message through a spokesperson may be sharply undermined by public consciousness of the spokesperson‘s outside speech.
Eugene Volokh, Should the Law Limit Private-Employer-Imposed Speech Restrictions?, 2 Journal of Free Speech Law 269, 283 (2022) (emphasis added).