Judge: David S. Cunningham, Case: 21STCV26571, Date: 2023-04-25 Tentative Ruling

Case Number: 21STCV26571    Hearing Date: April 25, 2023    Dept: 11

21STCV26571 (California Civil Rigts Department)

Tentative Ruling Re: Briefing Re: Complex Determination

Date:                           4/25/23

Time:                          2:30 pm

Moving Party:           California Civil Rights Department (“CRD” or “Plaintiff”)

Opposing Party:        Activision Blizzard, Inc., et al. (collectively “Activision Defendants”)

Department:              11       

Judge:                        David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

CRD’s case is not complex.

BACKGROUND

This is a group action under Government Code section 12961.  (See Complaint, ¶ 24.)  CRD filed the case in its own name and on behalf of female employees of the Activision Defendants.  CRD alleges that the Activision Defendants subjected their female employees to sex-based discrimination and harassment.  (See CRD’s Brief, p. 1 [asserting that the Activision Defendants “engaged in discrimination on the basis of sex by failing to hire, select, or employ people because of their sex, discriminating against employees in compensation and terms of employment, and failing to prevent unlawful discrimination, harassment, or retaliation”].)     

Here, the Activision Defendants ask the Court to find that CRD’s case is complex.  On three prior occasions, the Court found that it is not complex.  (See 7/30/21 Minute Order, p. 1; see also 8/31/21 Minute Order, p. 1; 1/21/22 Minute Order, p. 1.)  The Activision Defendants ask the Court to take a fourth look at the issue. 

DISCUSSION

The Activision Defendants contend CRD’s case is complex because:

* CRD filed it as a group or class action under section 12961.  (See Activision Defendants’ Brief, p. 7.)

* The complaint seeks compensatory damages on behalf of a group or class.  (See ibid.)

* Certain procedural and legal issues need to be resolved early.  (See id. at pp. 8-11 [identifying two procedural issues: whether traditional certification requirements apply to CRD’s group or class claims and, if so, whether CRD is able to satisfy the traditional requirements]; see also id. at pp. 11-14 [identifying three legal issues: “[1] what statute of limitations applies; [2] whether CRD satisfied FEHA’s statutory pre-filing requirements; and [3] whether CRD can pursue claims on behalf of workers hired after its administrative investigation concluded”].)

* A complex judge is needed to manage discovery and discovery disputes.  (See id. at p. 14 [claiming a complex judge “familiar with the pre-trial class-action procedures could facilitate ‘efficient and economical’ discovery into CRD’s ‘group or class’ claims – discovery that, over the last 19 months, CRD has steadfastly refused to provide”]; see also id. at p. 15 [claiming supervision by a complex judge is necessary because “CRD has refused to provide even the most essential discovery” concerning the women’s identities and the damages sought].)

CRD disagrees and contends the case is not complex because:

* It is a government enforcement action.  (See CRD’s Brief, p. 3.)

* Government enforcement actions are not class actions, and traditional certifications requirements do not apply.  (See id. at pp. 3-5.)

* Other than commonality, the text of section 12961 does not require the traditional requirements to be met.  (See id. at p. 6.)

* There is no need to use complex case management tools.  (See id. at pp. 7-8 [arguing that (1) “because it is government enforcement action rather than a class action,” CRD is only required to show that “the challenged practices affected victims in a similar manner, not that common questions predominate or that there is an ascertainable class[,]” and (2) “[b]ecause CRD need only show that the practices it alleges affected victims ‘in a similar manner,’ the Court can hold a liability trial followed by a remedies phase’].)[1]

A “complex” case requires “exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel.” (Cal. Rules of Court, rule 3.400(a).) 

In deciding whether an action is a complex case under (a), the Court must consider, among other things, whether the action is likely to involve:

(1) Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to resolve;

(2) Management of a large number of witnesses or a substantial amount of documentary evidence;

(3) Management of a large number of separately represented parties;

(4) Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court; or

(5) Substantial postjudgment judicial supervision.

(Id. at rule 3.400(b).)

[A]n action is provisionally a complex case if it involves one or more of the following types of claims:

(1) Antitrust or trade regulation claims;

(2) Construction defect claims involving many parties or structures;

(3) Securities claims or investment losses involving many parties;

(4) Environmental or toxic tort claims involving many parties;

(5) Claims involving mass torts;

(6) Claims involving class actions; or

(7) Insurance coverage claims arising out of any of the claims listed in (c)(1) through (c)(6).

(Id. at rule 3.400(c).)

The first question is whether this case is provisionally complex.  To repeat, this is a group action under Government Code section 12961.  Section 12961 is written in the disjunctive, giving the director – here, the CRD – authority and discretion to prosecute the case as a “group or class” action:

(a) If an unlawful practice alleged in a verified complaint adversely affects, in a similar manner, a group or class of persons of which the aggrieved person filing the complaint is a member, or if the unlawful practice raises questions of law or fact which are common to such a group or class, the aggrieved person or the director may file the complaint on behalf and as representative of such a group or class.

(b) (1) A complaint filed pursuant to subdivision (a) may be investigated as a group or class complaint.

(2) If in the judgment of the director circumstances warrant, a complaint investigated as a group or class complaint pursuant to paragraph (1) shall be treated as a group or class complaint for purposes of conciliation, dispute resolution, or civil action.

(3) The director shall communicate in writing their determination to treat a complaint as a group or class complaint pursuant to paragraph (2) within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.

(Cal. Govt. Code § 12961, emphasis added.)  In light of this language, the Court finds that the traditional certification requirements do not apply and that the case is not provisionally complex because:

* The CRD chose to pursue the case as a group – i.e., representative – action, not as a class action.

* The statute (1) utilizes the word “or” throughout, (2) only mentions the commonality requirement, and (3) does not mention the other traditional requirements – e.g., ascertainability, typicality, and adequacy.

* The Activision Defendants fail to cite authority requiring the traditional requirements to be applied to a section 12961 group action.  (See Activision Defendants’ Brief, p. 9 [citing McCullah v. Southern California Gas Co. (2000) 82 Cal.App.4^th 495 [analyzing a FEHA class action], City of San Jose v. Superior Court (1974) 12 Cal.3d 447 [analyzing a class action under Code of Civil Procedure section 382], Wesson v. Staples the Office Superstore (2021) 68 Cal.App.5^th 746 [analyzing a representative action under Private Attorneys General Act (“PAGA”)], Fireside Bank v. Superior Court [analyzing a class action under section 382], Duran v. U.S. National Bank Assn. (2014) 59 Cal.4^th 1 [same], and South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4^th 861 [analyzing a representative action under the Unfair Competition Law].)

* Class actions are representative actions, but representative actions are not necessarily class actions.  (See, e.g., Arias v. Superior Court (2009) 46 Cal.4^th 969, 977 n.2 [instructing that “[t]here are two forms of representative actions: those that are brought as class actions and those that are not”].) 

* The traditional requirements do not apply to representative actions by default.  (See, e.g., id. at 982-983 [rejecting argument in a PAGA representative action that the traditional requirements “apply generally to any form of representative action unless the Legislature affirmatively precludes their application”].)

Next, as noted above, the Activision Defendants contend the case is complex because certain legal issues need to be decided early.

The Court disagrees.  The issues do not appear difficult or novel.  (See Activision Defendants’ Brief, pp. 11-14 [identifying three legal issues: “[1] what statute of limitations applies; [2] whether CRD satisfied FEHA’s statutory pre-filing requirements; and [3] whether CRD can pursue claims on behalf of workers hired after its administrative investigation concluded”].)  Assuming arguendo that they do, in fact, necessitate early resolution, they can be teed up via motions for summary adjudication, including, perhaps, motions for partial summary adjudication pursuant to Code of Civil Procedure section 437c(t).

The last argument – the case is complex because a complex judge is needed to manage discovery and discovery disputes – is a closer call.  The Activision Defendants represent that “dozens of discovery motions are pending.” (Id. at p. 15.) They claim “[t]wenty-four sets of written discovery[,]” “six noticed depositions,” and “more than a thousand discovery requests” are in dispute in the motions.  (Ibid.)  Without more, though, the presence of excessive discovery is not a sufficient reason to find the case complex, especially given that noncomplex judges have their own tools to deal with discovery problems – e.g., appointing discovery referees.  On balance, the argument fails to change the outcome.

Accordingly, the Court finds for a fourth time that CRD’s case is not complex.[2]