Judge: David S. Cunningham, Case: JCCP5261, Date: 2023-01-04 Tentative Ruling
Case Number: JCCP5261 Hearing Date: January 4, 2023 Dept: 11
Petition for
Coordination Re:
TRR
Wage and Hour Cases (JCCP 5261)
Date: 1-4-23
Time: 2:30 pm
Moving Party: The RealReal, Inc. (“Petitioner” or “TRR”)
Opposing Party: Jennifer Leighton (“Leighton”)
and Stephanie Dougal (“Dougal”) (jointly “Plaintiffs”)
Department: 11
Judge: David S. Cunningham III
________________________________________________________________________
TENTATIVE RULING
Petitioner’s petition for coordination
is denied.
Petitioner’s stay request is
denied.
BACKGROUND
Petitioner submitted a petition
to the Chairperson of the Judicial Council for pretrial coordination of two
cases (the “Included Actions”):
* Leighton v. The RealReal, Inc., Case No. 21STCV11208 (Los Angeles Superior Court); and
* Dougal v. The RealReal, Inc., Case No. CGC22600390 (San Francisco Superior Court).
The Included Actions are
representative “wage and hour” actions under the Private Attorneys General Act
(“PAGA”). Petitioner contends the cases involve “overlapping groups of
allegedly aggrieved [TRR] employees working in sales and allegedly
misclassified as exempt” and “cover overlapping relevant time periods.”
(Petitioner’s Brief, p. 4.)
The Chief Justice and Chair of
the Judicial Council issued an order assigning this Court to sit as the
coordination motion judge to determine whether the Included Actions are complex
and, if so, whether coordination is appropriate.
DISCUSSION
I. Complex Determination
Only “complex” cases may be
coordinated. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial
(The Rutter Group 2021) ¶ 12:374.5.) 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).)
Leighton has already been found to be not complex. (See
4/7/21 Minute Order, p. 1.) It is assigned to a non-complex
courtroom. (See 4/13/21 Minute Order, p. 1.)
Dougal was deemed complex on 8/1/22, but it was a class action at
that time. (See Orr Decl., ¶ 15.) Since then, the trial court has
compelled arbitration of Dougal’s individual claims, dismissed the class
claims, and stayed the PAGA representative claim pending the arbitration’s
completion. (See id. at ¶¶ 16-19.)
Under these circumstances, the Court
finds that the Included Actions, which are PAGA-only cases, are not complex,
and the petition should be denied.
II. Code of Civil Procedure Section 404.1
Section 404.1 states that a
petition for coordination should be granted if doing so will “promote the ends
of justice,” taking into account the following seven factors:
[W]hether the common question of fact or
law is predominating and significant to the litigation; the convenience of
parties, witnesses and counsel; the relative development of the actions and the
work product of counsel; the efficient utilization of judicial facilities and
manpower; the calendar of the courts; the disadvantages of duplicative and
inconsistent rulings, orders, or judgments; and the likelihood of settlement of
the actions without further litigation should coordination be denied.
(Code Civ. Proc. § 404.1.)
A. Predominating Common Questions
This factor favors denial. Leighton
alleges two unique Labor Code violations (see Petitioner’s Brief, p. 13), Dougal
alleges one unique Labor Code violation and includes a broader scope of
aggrieved employees (see id. at pp. 5, 8-9, 14), the limitations/recovery
periods are different (in Leighton, the pre-suit PAGA notice was
submitted on 1/6/21 (see Orr Decl., Ex. 1, ¶ 19), in Dougal, it was
submitted on 5/10/22 (see id. at Ex. 3, ¶ 101)), and the fact that Dougal
is stayed until the arbitration finishes lessens the potential overlapping
issues and the risk of inconsistent rulings. Individual issues
predominate.
The Court’s understanding is that Dougal
intends to move to lift the stay in Dougal for the limited purpose of
amending her complaint to narrow her PAGA cause of action to a single claim
regarding non-compliant commission agreements and to dismiss other claims that
overlap with Leighton’s case. (See,
e.g., Reply, p. 3.) If the Dougal
court ends up allowing the amendment, individual issues will predominate even
more.
B. Convenience of the Parties, Witnesses, and Counsel
This factor is neutral or favors
denial. Deciding common issues in one forum typically conveniences the
parties, witnesses, and counsel, but the situation here is different.
Given the non-complexity of the cases, the key differences, and the
predominating individual issues, and because the parties and counsel appear to
live and work in multiple counties (Los Angeles County, Orange County, San
Francisco County, and Alameda County), the Court is inclined to find that
coordination would be inconvenient.
C. Development of the Cases and the Work Product of Counsel
This factor favors denial. Leighton
is nearly two years old. There has been mediation and written discovery,
and trial is set to begin in September 2023 (the Leighton court recently
continued the trial date from 3/14/23 to September 2023). (See Reply, p. 2.) Dougal is
less than a year old. Written discovery has not commenced, and it is
stayed. The cases are at different stages.
In reply, Petitioner represents that Dougal’s
counsel recently submitted a new pre-suit PAGA notice on behalf of a TRR
employee named Melissa Morris (“Morris”).
Petitioner asserts:
The claims alleged [in the new pre-suit notice] appear to
be identical to those in the Dougal Action, and therefore also overlap
with the Leighton Action.
[Citation.] In doing so, counsel
for [] Dougal has made clear her resolve to litigate those claims which overlap
with the Leighton Action, either through the presently filed Dougal
Action or through yet another duplicative action.
(Reply, p. 3, underlined case names added;
see also id. at Ex. 2.)
The Court disagrees. The petition concerns Leighton and Dougal
only. Morris is not a party in either
case, and there is no evidence suggesting that she will be added to either
case. The possibility that she may file
her own action in the future is irrelevant and has no bearing on whether the
current petition should be granted.
D. Efficient Use of Judicial Resources and Manpower
This factor favors denial.
The analysis is the same as sections II.A. and II.B. Since key
differences exist and individual issues predominate, the threat of separate
courts duplicating case efforts on the same issues and claims is low.
E. Calendars of the Courts
This factor is neutral.
Petitioner’s brief does not address the specific, individual court calendars.
F. Duplicative and Inconsistent
Rulings
This factor favors denial.
The analysis is the same as sections II.A., II.B., and II.D. There are
key differences, and individual issues appear to predominate, so the likelihood
that the courts will make duplicative or inconsistent key rulings, orders, or
judgments if coordination is denied is reduced.
G. Likelihood of Settlement in the Absence of Coordination
This factor is neutral or favors
denial. Neither case has settled so far, but coordination may cause Leighton’s
January 2023 discovery conference and September 2023 trial to be moved, which
might negatively impact settlement there. Nothing in the record leads the
Court to conclude that coordination will increase the chance of settlement.
H. Summary
On balance, the coordination
factors support denial. The Court finds that the petition for
coordination should be denied.
III. Site for the Coordinated Proceedings
The factors considered in making
a recommendation for the site of the coordination proceedings include: “[t]he
number of included actions in particular locations;” “[w]hether the litigation is at an advanced
stage in a particular court;” “[t]he efficient use of court facilities and
judicial resources;” “[t]he locations of witnesses and evidence;” “[t]he
convenience of the parties and witnesses;” “[t]he parties' principal places of
business;” “[t]he office locations of counsel for the parties;” and “[t]he ease
of travel to and availability of accommodations in particular locations.”
(Cal. Rules of Court, rule 3.530(b).)
This issue is moot.
IV. Stay Request
Petitioner asks the Court to stay
the Included Actions pending coordination to “effectuate the purposes of
coordination and promote the efficient utilization of judicial facilities and
manpower.” (Petitioner’s Brief, p. 18.)
In light of the preceding analysis, the
request is denied.