FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASHLEY JUDD, an individual,

Plaintiff-Appellant,

v.

HARVEY WEINSTEIN, an individual,

Defendant-Appellee.

No. 19-55499

D.C. No.

2:18-cv-05724-

PSG-FFM

OPINION

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted May 8, 2020

Pasadena, California

Filed July 29, 2020

Before: Mary H. Murguia and Morgan Christen, Circuit 

Judges, and Sidney H. Stein,* District Judge.

Opinion by Judge Murguia

* The Honorable Sidney H. Stein, United States District Judge for 

the Southern District of New York, sitting by designation.
2 JUDD V. WEINSTEIN

SUMMARY**

California Law / Sexual Harassment

The panel reversed the district court’s dismissal of a 

sexual harassment claim under California Civil Code section 

51.9 brought by actor Ashley Judd against producer Harvey 

Weinstein.

The panel held that, as alleged, section 51.9 plainly 

encompassed Judd and Weinstein’s relationship, which was 

“substantially similar” to the “business, service, or 

professional relationship[s]” enumerated in the statute. Cal. 

Civ. Code § 51.9(a)(1)(F) (1996). The panel held further 

that their relationship consisted of an inherent power 

imbalance wherein Weinstein was uniquely situated to 

exercise coercion or leverage over Judd by virtue of his 

professional position and influence as a top producer in 

Hollywood. The panel concluded that the California 

Supreme Court would reach the same conclusion, obviating 

the need to certify the question. 

The panel rejected Weinstein’s arguments. The panel 

held that the fact that the traditional balance of power in a 

relationship may be flipped in some scenarios did not negate 

the reality that a power imbalance nevertheless tended to 

exist in these relationships under normal circumstances. The 

panel also held that there was more than enough to allege a 

professional relationship at the time of the alleged 

harassment.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
JUDD V. WEINSTEIN 3

The panel held that whether Judd and Weinstein’s 

relationship was in fact an employment relationship outside 

the purview of section 51.9 was a question for the trier of 

fact. The panel remanded for further proceedings.

COUNSEL

Theodore J. Boutrous (argued) Jr., Theane D. Evangelis, 

Michael H. Dore, Lauren M. Blas, and Marissa B. Moshell, 

Gibson Dunn & Crutcher LLP, Los Angeles, California, for 

Plaintiff-Appellant.

Phyllis Kupferstein (argued), Kupferstein Manuel LLP, Los 

Angeles, California, for Defendant-Appellee.

Diane F. Boyer-Vine, Legislative Counsel; Robert A. Pratt, 

Principal Deputy Legislative Counsel; Brent W. Westcott, 

Deputy Legislative Counsel; Office of Legislative Counsel, 

Sacramento, California; for Amicus Curiae California State 

Senate.

Duncan W. Crabtree-Ireland and Danielle S. Van Lier, 

Screen Actors Guild-American Federation of Television and 

Radio Artists, Los Angeles, California, for Amicus Curiae 

Screen Actors Guild-American Federation of Television and 

Radio Artists.
4 JUDD V. WEINSTEIN

OPINION

MURGUIA, Circuit Judge:

Ashley Judd appeals the district court’s dismissal of her 

sexual harassment claim under section 51.9 of the California 

Civil Code. Judd alleged that, in the late 1990s, Harvey 

Weinstein, then an influential and well-connected 

Hollywood producer, sexually harassed her during a general 

business meeting. Judd further alleged that, after she 

rebuffed his sexual advances, Weinstein derailed her 

potential involvement in the film adaptation of The Lord of 

the Rings book trilogy by telling director Peter Jackson and 

producer Fran Walsh that he had a “bad experience” with 

Judd and that she was “a nightmare to work with.” The 

district court granted Weinstein’s motion to dismiss for 

failure to state a claim under section 51.9. We have 

jurisdiction under 28 U.S.C. § 1291, and we reverse.

I

Judd alleged the following facts, which we presume to 

be true on appeal. See Mier v. Owens, 57 F.3d 747, 750 (9th 

Cir. 1995).

In late 1996 or early 1997, Weinstein invited Judd to a

breakfast meeting at the Peninsula Hotel in Beverly Hills, 

California. At the time, Weinstein was an influential and 

well-connected Hollywood producer,1 and Judd was a young 

aspiring actor in the early stages of her career. Judd had 

1 By this time, Weinstein enjoyed broad commercial and critical 

success through projects such as Scandal (1989); Sex, Lies, and

Videotape (1989); Tie Me Up! Tie Me Down! (1989); The Crying Game 

(1992); Pulp Fiction (1994); and Flirting with Disaster (1996).
JUDD V. WEINSTEIN 5

previously landed a small role in the 1995 film Smoke, which 

was produced by Miramax, a production company cofounded by Weinstein. The meeting was meant to be a 

“general” business meeting, not a job interview for any 

particular role. These kinds of general meetings—a form of 

business development by which actors can expand their 

professional relationships with studio executives, producers, 

casting directors, and other individuals who may link 

directly or indirectly to future work opportunities—are 

common in Hollywood. An influential producer like

Weinstein would be in a position to offer a type of service 

by recommending the actor to a director looking to fill a role.

When Judd arrived at the hotel, she was directed not to 

the dining room or a conference room, but rather to

Weinstein’s private hotel room, where the two were alone. 

Instead of discussing film roles or Judd’s professional 

aspirations, Weinstein—who was clad in a bathrobe—asked 

Judd if he could give her a massage, which Judd refused. 

Weinstein then asked Judd to watch him shower, which she 

again refused. Judd believed that Weinstein intended to 

physically assault her. Feeling “cornered” and “desperate to 

escape without angering a man who had the ability to end 

her budding career,” Judd engaged in a mock bargain with 

Weinstein during which she suggested that she would allow 

Weinstein to touch her only if she won an Academy Award 

in one of his films. Weinstein countered, “[W]hen you get 

nominated,” to which Judd replied, “No, when I win.” Judd 

then quickly left the hotel room.

In 1997, director Peter Jackson and producer Fran Walsh 

were considering adapting J.R.R. Tolkien’s The Lord of the 

Rings book trilogy into a series of films. Because of a 

licensing requirement, any adaptation of the trilogy had to 

be offered first to Miramax, which Jackson and Walsh did. 
6 JUDD V. WEINSTEIN

As a result of this arrangement, Miramax developed The

Lord of the Rings films for approximately eighteen months, 

with Weinstein involved in many casting discussions for the 

films.

In 1998, Jackson and Walsh invited Judd to a private 

meeting during which they discussed their vision for the 

films, sharing confidential creative details about the films in 

the process. Jackson and Walsh asked Judd which of two 

major roles she would prefer. Jackson and Walsh liked Judd 

and intended to cast her in their films, which were set to 

begin principal photography in 1999.

Shortly after the meeting with Judd, Jackson and Walsh 

expressed their enthusiasm for casting her to Weinstein. 

Weinstein responded that Miramax had a “bad experience” 

with Judd in the past, that she was “a nightmare to work 

with,” and that they should avoid her “at all costs.” 

Although Weinstein’s statements did not fit their impression 

of Judd from their meeting, Jackson and Walsh believed the 

statements were genuine and ultimately did not cast Judd in 

The Lord of the Rings films or any of their other films as a 

direct result of the statements. The Lord of the Rings film 

trilogy was a blockbuster success, earning more than 

$2.5 billion in global ticket sales and thirty Academy 

Awards nominations, ultimately winning seventeen such 

awards.

In late 2017, various media outlets reported allegations 

of sexual harassment and assault against Weinstein by 

numerous women, including Judd. Following these public 

allegations, Jackson revealed in a media interview that he 

chose not to cast Judd in The Lord of the Rings films because 

of Weinstein’s statements about Judd’s professionalism. 

Jackson explained,
JUDD V. WEINSTEIN 7

At the time, we had no reason to question 

what [Miramax was] telling us—but in 

hindsight, I realise [sic] that this was very 

likely the Miramax smear campaign in full 

swing. I now suspect we were fed false 

information about [Judd], and as a direct 

result [her name was] removed from [The 

Lord of the Rings] casting list.

It was only after this interview that Judd learned why she 

was not cast in The Lord of the Rings films nearly a decade 

earlier.

In April 2018, Judd filed an action in the Los Angeles 

County Superior Court asserting four causes of action: 

(1) defamation; (2) sexual harassment in professional 

relationships under section 51.9 of the California Civil Code; 

(3) intentional interference with prospective economic 

advantage; and (4) violations of California’s Unfair 

Competition Law. After removing the action to federal 

district court based on diversity jurisdiction, Weinstein filed 

a motion to dismiss the complaint in its entirety for failure to 

state a claim under Federal Rule of Civil Procedure 12(b)(6), 

which the district court granted in part and denied in part. 

The district court granted the motion as to the sexual 

harassment claim with leave to amend, and denied the 

motion as to the remainder of Judd’s claims. After Judd filed 

an amended complaint, the district court granted Weinstein’s 

second motion to dismiss Judd’s sexual harassment claim—

this time with prejudice—and entered final judgment 

pursuant to Federal Rule of Civil Procedure 54(b) shortly 

thereafter. Judd timely appealed.
8 JUDD V. WEINSTEIN

II

We review de novo an order granting a motion to dismiss 

under Federal Rule of Civil Procedure 12(b)(6) for failure to 

state a claim, accepting as true all well-pleaded allegations 

of material fact and construing those facts in the light most 

favorable to the non-moving party. Puri v. Khalsa, 844 F.3d 

1152, 1157 (9th Cir. 2017).

We also review de novo the district court’s application 

of state law. Salve Regina Coll. v. Russell, 499 U.S. 225, 

231 (1991) (“[A] court of appeals should review de novo a 

district court’s determination of state law.”). “Federal courts 

are required to ‘ascertain from all the available data what the 

state law is and apply it rather than to prescribe a different 

rule, however superior it may appear from the viewpoint of 

“general law” and however much the state rule may have 

departed from prior decisions of the federal courts.’” 

Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1266 (9th Cir. 

2017) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 

237 (1940)). Where the state’s highest court has not 

squarely addressed an issue, we must “predict how the 

highest state court would decide the issue using intermediate 

appellate court decisions, decisions from other jurisdictions, 

statutes, treatises, and restatements as guidance.” Lewis v. 

Tel. Emps. Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996) 

(quoting Ariz. Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 

988, 991 (9th Cir. 1995)).

The question presented by this appeal is one of first 

impression under California law. Therefore, we are tasked 

with predicting how the California Supreme Court would 

resolve it.
JUDD V. WEINSTEIN 9

III

To determine whether Judd has stated a claim for sexual 

harassment under section 51.9, we begin our analysis with 

the statute’s plain language. See Larkin v. Workers’ Comp. 

Appeals Bd., 358 P.3d 552, 555 (Cal. 2015) (“In interpreting

a statute, we begin with its text, as statutory language 

typically is the best and most reliable indicator of the 

Legislature’s intended purpose.”); see also United States v. 

Gallegos, 613 F.3d 1211, 1214 (9th Cir. 2010). Unless the

statute clearly expresses otherwise, we interpret statutory

terms in accordance with their ordinary meaning. See Satele 

v. Superior Court, 444 P.3d 700, 704 (Cal. 2019) (“It is well 

settled that the proper goal of statutory construction ‘is to 

ascertain and effectuate legislative intent, giving the words 

of the statute their usual and ordinary meaning.’” (quoting 

People v. Ramirez, 201 P.3d 466, 470 (Cal. 2009))); see also

United States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015). 

“We consider the language in the context of the entire statute 

and the statutory scheme of which it is a part, harmonizing 

provisions relating to the same subject matter, to the extent 

possible.” Satele, 444 P.3d at 704 (citations omitted); see 

also United States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 

1995). “If the plain, commonsense meaning of a statute’s 

words is unambiguous, the plain meaning controls.” 

Holland v. Assessment Appeals Bd. No. 1, 316 P.3d 1188, 

1193 (Cal. 2014) (quoting Fitch v. Select Prods. Co., 

115 P.3d 1233, 1236 (Cal. 2005)); see also Gallegos, 

613 F.3d at 1214.

Enacted in 1994, section 51.9 prohibits sexual 

harassment in “a wide variety of business relationships 

outside the workplace.” Hughes v. Pair, 209 P.3d 963, 974 

(Cal. 2009). To state a claim for sexual harassment under 

the 1996 version of section 51.9—the version applicable to 
10 JUDD V. WEINSTEIN

this appeal—a plaintiff must plead the following four 

elements:

(1) There is a business, service, or 

professional relationship between the 

plaintiff and defendant. Such a 

relationship may exist between a plaintiff 

and a person, including, but not limited 

to, any of the following persons:

(A)Physician, psychotherapist, or 

dentist. . . .

(B) Attorney, holder of a master’s degree 

in social work, real estate agent, real 

estate appraiser, accountant, banker, 

trust officer, financial planner loan 

officer, collection service, building 

contractor, or escrow loan officer.

(C) Executor, trustee, or administrator.

(D)Landlord or property manager.

(E) Teacher.

(F) A relationship that is substantially 

similar to any of the above.

(2) The defendant has made sexual advances, 

solicitations, sexual requests, or demands 

for sexual compliance by the plaintiff that 

were unwelcome and persistent or severe, 

continuing after a request by the plaintiff 

to stop.
JUDD V. WEINSTEIN 11

(3) There is an inability by the plaintiff to 

easily terminate the relationship without 

tangible hardship.

(4) The plaintiff has suffered or will suffer 

economic loss or disadvantage or 

personal injury as a result of the conduct 

described in paragraph (2).

Cal. Civ. Code § 51.9(a) (1996).2

In no uncertain terms, section 51.9 imposes liability for 

sexual harassment in any “business, service, or professional 

relationship” that is “substantially similar” to the 

enumerated examples. Id. According to Weinstein, his 

relationship with Judd cannot be “substantially similar” to 

any of the enumerated examples because they are so 

idiosyncratic that there appears to be no rhyme or reason 

explaining the examples included in the statute. We 

disagree.

It is clear that each of the enumerated examples consists 

of a relationship wherein an inherent power imbalance exists 

such that, by virtue of his or her “business, service, or 

professional” position, one party is uniquely situated to 

exercise coercion or leverage over the other. This is the key 

element common to every example in the statute. For 

example, teachers can exercise coercive power over their 

students because they control their students’ grades. 

2 Effective January 1, 2019, section 51.9 was amended to add, 

among other things, “[d]irector or producer” to the list of persons 

covered by the statute. Cal. Civ. Code § 51.9(a)(1)(H) (2019). We take 

no view on whether the amendment clarified or modified existing law, 

as Judd’s sexual harassment claim plainly falls within the scope of the 

1996 version of the statute.
12 JUDD V. WEINSTEIN

Similarly, landlords can exercise coercive power over their 

tenants because they control access to the tenant’s security 

deposits and, at least to some extent, access to the premises. 

Notably, “nothing in the language of section 51.9 . . .

requires a fiduciary relationship.” C.R. v. Tenet Healthcare 

Corp., 169 Cal. App. 4th 1094, 1109 (2009).

The potential for abuse of one’s “business, service, or 

professional” position that characterizes the enumerated 

relationships in section 51.9 also exists in the producer-actor 

relationship. As the Screen Actors Guild-American 

Federation of Television and Radio Artists explained in its 

amicus curiae brief, in the film industry today, “a small cadre 

of top producers and executives still hold considerable 

power to make or break actors’ careers,” since “Hollywood 

is a relationship-driven industry and relationships with one 

or more of its gatekeepers often is critical for an actor to 

access the opportunities to compete for the most coveted 

roles.” Judd’s allegations provide a well-defined example of 

such a scenario. She described Weinstein as “a dominant 

figure in the film business and the gatekeeper to many 

desirable roles and film projects,” such that Judd “believed 

that alienating or offending him could damage her career.” 

Indeed, Judd alleged that Weinstein himself understood the 

extent of his influence and cachet in the industry by 

commenting in one interview that “[i]f styles of filmmaking 

are changing radically, I feel like the godfather of that 

change—that’s the Miramax legacy.”

Accordingly, under the facts alleged, the relationship 

between Judd and Weinstein was characterized by a 

considerable imbalance of power substantially similar to the 

imbalances that characterize the enumerated relationships in 

section 51.9. That is, by virtue of his professional position 

and influence as a top producer in Hollywood, Weinstein 
JUDD V. WEINSTEIN 13

was uniquely situated to exercise coercive power or leverage 

over Judd, who was a young actor at the beginning of her 

career at the time of the alleged harassment. Moreover, 

given Weinstein’s highly influential and “unavoidable” 

presence in the film industry, the relationship was one that 

would have been difficult to terminate “without tangible 

hardship” to Judd, whose livelihood as an actor depended on 

being cast for roles. Cal. Civ. Code § 51.9(a)(3) (1996).

Weinstein contends, however, that framing the statute’s 

enumerated relationships as characterized by a power 

imbalance is untenable because such an imbalance does not 

always apply in each relationship. Weinstein posits that, for 

example, a building contractor—one of the enumerated 

persons in section 51.9, id. § 51.9(a)(1)(B)—might in some 

situations exercise power over a homeowner during a 

kitchen demolition, but might in other situations find himself 

or herself in a vulnerable position when the homeowner 

refuses to pay the agreed-upon contract price. Of course, 

each inquiry into whether a particular relationship falls 

within the scope of section 51.9 must be informed by the 

specific facts of that case. See id. § 51.9(a)(1) (a covered 

relationship between a plaintiff and defendant “may exist” 

(emphasis added)); Tenet Healthcare, 169 Cal. App. 4th at 

1106 (“Depending on the facts, a certified nurse assistant can 

have a service or professional relationship with a patient, as 

can other hospital staff.” (emphasis added)). But the fact that 

the traditional balance of power in a relationship may be 

flipped in some scenarios does not negate the reality that a 

power imbalance nevertheless tends to exist in these 

relationships under normal circumstances.

Weinstein further contends that, even if he had a 

relationship with Judd that falls within the scope of section 

51.9, no such relationship existed at the time of their 
14 JUDD V. WEINSTEIN

encounter at the Peninsula Hotel. The argument is 

unavailing. Judd’s claim arises out of the alleged retaliation 

that followed their meeting, not merely Weinstein’s sexual 

advances. Notably, Weinstein does not argue that a 

professional relationship did not exist at the time of the 

alleged retaliation. On the contrary, Judd alleged that 

Weinstein stated publicly after news broke of the sexual 

harassment and assault allegations against him that 

“[a]round the time of Rings, Mr. Weinstein cast Ms. Judd in 

Frida and years later, in Crossing Over.” In any event, Judd 

sufficiently alleged a “business, service, or professional 

relationship” at the time of the alleged harassment: Judd 

alleged that she established a professional relationship with 

Weinstein after working on the 1995 Miramax film Smoke, 

and went to the Peninsula Hotel in hopes of building upon 

that existing relationship to discuss future professional 

endeavors. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(“A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct 

alleged.”). Moreover, Judd alleged that “at the time of the 

harassment, [she] was discussing potential roles in films 

produced or distributed by Weinstein or Miramax.” This is 

more than enough to allege a professional relationship at the 

time of the alleged harassment.

Finally, we pause briefly to address the district court’s

conclusion that the relationship between Judd and Weinstein 

cannot be substantially similar to any of the enumerated 

examples because it “centered around employment or 

potential employment,” and that section 51.9 applies only to 

relationships outside the workplace. See Hughes, 209 P.3d 

at 974 (“[Section 51.9] covers a wide variety of business 

relationships outside the workplace . . . .”). Whether Judd 

and Weinstein’s relationship was in fact an employment 
JUDD V. WEINSTEIN 15

relationship outside the purview of section 51.9 is a question 

for the trier of fact. Cf. Dynamex Operations W., Inc. v. 

Superior Court, 416 P.3d 1 (Cal. 2018). Under the facts 

alleged—namely, that the general meeting at the Peninsula 

Hotel was “not a job interview for any particular role,” but 

rather a form of business development by which Judd could 

expand her professional relationship with Weinstein—

Judd’s sexual harassment claim survives dismissal.

In sum, we conclude that, as alleged, section 51.9 plainly 

encompasses Judd and Weinstein’s relationship, which was 

“substantially similar” to the “business, service, or 

professional relationship[s]” enumerated in the statute. Cal. 

Civ. Code § 51.9(a)(1)(F) (1996). As in the enumerated 

relationships, their relationship consisted of an inherent 

power imbalance wherein Weinstein was uniquely situated 

to exercise coercion or leverage over Judd by virtue of his 

professional position and influence as a top producer in 

Hollywood. We have no difficulty concluding that the 

California Supreme Court would reach the same conclusion, 

obviating the need to certify the question.3 See Lewis, 

87 F.3d at 1545. Therefore, the district court erred when it 

dismissed Judd’s sexual harassment claim under section 

51.9.

IV

Because we conclude that Judd has sufficiently pled a 

claim under section 51.9, we reverse the district court’s 

dismissal of Judd’s claim under that section and remand for 

3 We note that Judd and Weinstein agree that certification to the 

California Supreme Court is unnecessary to resolve this appeal.
16 JUDD V. WEINSTEIN

further proceedings on the merits consistent with this 

opinion.

REVERSED and REMANDED. Defendant-Appellee 

must bear all costs.