                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 ASHLEY JUDD, an individual,                       No. 19-55499
                 Plaintiff-Appellant,
                                                      D.C. No.
                      v.                          2:18-cv-05724-
                                                     PSG-FFM
 HARVEY WEINSTEIN, an individual,
              Defendant-Appellee.                    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 co-
founded 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.
