Judge Michelle Williams Court, Case 21STCV26571 2023-03-02 Tentative Ruling

Judge: Michelle Williams Court, Case: 21STCV26571, Date: 2023-03-02 Tentative Ruling

Please notify Dept. 1’s courtroom staff by email (SMCDept1@lacourt.org) or by telephone (213-633-0601) no later than 8:30 a.m. the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. If you submit on the tentative, you must immediately notify the other side that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motion. Please keep in mind that appearing at the hearing and simply repeating the arguments set forth in the papers is not a good use of the court’s time or the parties’ time.

Case Number: 21STCV26571 Hearing Date: March 2, 2023 Dept: 1

21STCV26571 CALIFORNIA CIVIL RIGHTS DEPARTMENT vs ACTIVISION BLIZZARD, INC

Plaintiff CRD’s Motion for Reconsideration of Order Granting Cross-Defendant Apex Systems LLC’s Motion for Peremptory Disqualification to the Honorable Timothy P. Dillon

TENTATIVE RULING: Plaintiff CRD’s Motion for Reconsideration of Order Granting Cross-Defendant Apex Systems LLC’s Motion for Peremptory Disqualification to the Honorable Timothy P. Dillon is DENIED.

Background

On July 20, 2021, the Department of Fair Employment and Housing filed a complaint under the Civil Rights and Equal Pay Act against Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. The First Amended Complaint, filed on August 23, 2021, alleges Defendants subjected their female employees to unequal pay, sex discrimination, sexual harassment, and retaliation.

On August 10, 2022, Judge Timothy Patrick Dillon issued a ruling on Defendants’ motion for summary adjudication. As stated in the court’s ruling, “Defendants ask[ed] this court to dismiss with prejudice the bulk of the Department of Fair Employment and Housing’s (DFEH) case (first through eighth causes of action) . . . argu[ing] that this court lacks jurisdiction to adjudicate these causes of action because the DFEH’s over two-year investigation ‘stopped short’ of a full investigation and the DFEH did not expend enough efforts at conciliation and mediation.” The court found Defendants had not carried their initial burden on summary adjudication.

On January 23, 2023, Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. filed a cross-complaint against Volt Management Corporation, Teksystems, Inc., Creative Circle, LLC, 120VC, Gary D. Nelson Associates Inc., Insight Global LLC, Williams Lea Inc., Apex Systems, LLC, Manpowergroup Global Inc., Hays U.S. Corporation, Experis US, Inc., and Career Group, Inc. asserting causes of action for equitable indemnity, express indemnity, implied indemnity, unjust enrichment, and declaratory relief.

Motion

On January 27, 2023, Plaintiff filed a motion for reconsideration of Judge Dillon’s acceptance of Cross-Defendant Apex Systems’ 170.6 challenge. Plaintiff argues the challenge was untimely because Judge Dillon presided over contested fact issues regarding the merits of the case and Apex shares an identity of interest with the Defendants.

Opposition

In their oppositions, Defendants/Cross-Complainants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. and Cross-Defendant Apex, Systems, LLC argue the motion should be heard in Department 30, the motion does not identify a new or different facts, circumstances, or law for reconsideration, Judge Dillon did not resolve any contested questions of fact, and the parties do not share an identity of interest that precludes Apex’s 170.6 challenge.

Reply

In reply, Plaintiff contends the motion raises new circumstances supporting reconsideration because its opposition to the Section 170.6 challenge was not considered, Judge Dillon presided over fact issues relating to the merits, Apex and the Activision Defendants have aligned interests, and Department 1 is the proper department to hear the motion.

Judicial Notice

In opposition, Defendants request the Court take judicial notice of a trial court order from the Los Angeles Superior Court in another case.

The request is DENIED. (See City of Bakersfield v. West Park Home Owners Assn. & Friends (2016) 4 Cal.App.5th 1199, 1210 (“the City relies on similar financing plans having been validated by at least eight California trial courts. The City requests this court to take judicial notice of these trial court orders. However, trial court orders hold no precedential value. Accordingly, we will neither rely upon, nor take judicial notice of, these orders.”) (internal citation omitted); Aguirre v. Amscan Holdings, Inc. (2015) 234 Cal.App.4th 1290, 1299 n.5 (“Rule 8.1115 of the California Rules of Court prohibits the citation of unpublished opinions of California state courts, with certain limited exceptions. (Cal. Rules of Court, rule 8.1115(a).) We shall disregard the unpublished superior court opinions cited and relied upon by plaintiff.”).)

Motion to Reconsider Acceptance of 170.6 Challenge

Peremptory Challenges

“Section 170.6 permits a party to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body. [Citation.] Where a disqualification motion is timely filed and in proper form, the trial court is bound to accept it without further inquiry.” (Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 4.)

Pursuant to Code of Civil Procedure section 170.6(a)(2), a party may file a peremptory challenge “directed to the trial of a civil cause that has been assigned to a judge for all purposes . . . within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance.” “As a general rule, a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing . . . [S]ection 170.6[(a)], subdivision (2), includes three express exceptions to the general rule: (1) the master calendar rule; (2) the all purpose assignment rule; and (3) the 10 day/5 day rule. To determine whether a peremptory challenge has been timely filed, the trial court must decide whether the general rule or any of the three exceptions apply.” (Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1316 citing People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171-1173.)

History of Case Assignment and Peremptory Challenges

On July 30, 2021, Judge David S. Cunningham issued an order deeming the instant matter non-complex and reassigning the case to Judge David J. Cowan, then sitting in Department 1, for reassignment.

On August 6, 2021, Judge Cowan reassigned the case to Judge Timothy Patrick Dillon in Department 73 of the Stanley Mosk Courthouse.

On January 24, 2023, Cross-Defendant Apex Systems, Inc. filed a motion for peremptory disqualification pursuant to Code of Civil Procedure section 170.6. On January 24, 2023, Judge Dillon issued an order accepting the challenge as timely filed in the proper format and reassigning the case, at the direction of the Supervising Judge, to Judge Malcolm Mackey in Department 55 of the Stanley Mosk Courthouse. Plaintiff filed an opposition to the peremptory challenge on January 25, 2023, which was not considered by Judge Dillon.

On February 7, 2023, Plaintiff filed a motion for peremptory disqualification pursuant to Code of Civil Procedure section 170.6. That same date, Judge Mackey issued an order accepting the challenge as timely filed and in the proper format and reassigning the case, at the direction of the Supervising Judge, to Judge Barbara M. Scheper in Department 30 at the Stanley Mosk Courthouse.

The case remains assigned to Judge Scheper in Department 30.

Department 1 Properly Considers the Motion

When a judicial officer accepts a challenge pursuant to Code of Civil Procedure section 170.6, another judicial officer may hear a motion for reconsideration of that order. (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 426; Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 64–65; In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248.)

In their oppositions, Defendants and Apex argue that Judge Scheper in Department 30 should hear Plaintiff’s motion. (Def. Opp. at 3:10-26; Apex Opp. at 2:21-3:11.) However, Department 1 is the appropriate department to hear Movant’s motions pursuant to LASC Local Rule 2.23(1): “[i]f a judge who made an order or judgment is unavailable to reconsider, vacate, or modify the order or judgment, then a party must apply to the following to reconsider, vacate, or modify the order or judgment: 1) if the case is filed in the Central District, the Supervising Judge of the appropriate principal division of the court.” The Supervising Judge of the civil division sits in Department 1 and Judge Dillon, having been disqualified pursuant to Section 170.6, is unavailable to reconsider his order accepting the challenge.

Additionally, Defendants and Apex contend there are no new or different facts or law supporting reconsideration under Code of Civil Procedure section 1008. (Def. Opp. at 4:3-11; Apex Opp. at 3:12-23.) However, Plaintiff’s January 25, 2023 opposition to the Section 170.6 challenge was filed after Judge Dillon accepted the challenge and Plaintiff had no opportunity to make any argument prior to the acceptance. Therefore, there are new or different facts and circumstances sufficient to satisfy the statute. (See generally Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 772 (holding order made without notice or hearing is a new circumstance under Section 1008).)

Separately, as noted above, the Court has inherent authority to reconsider an order accepting a Section 170.6 challenge. (Geddes, supra, 126 Cal.App.4th at 426 (“The inherent authority vested in the trial court to reconsider its own rulings allows the court, in these circumstances, to correct the error even where, as here, the original judge had no authority to vacate the erroneously granted order.”) (citations omitted); Stephens, supra, 96 Cal.App.4th at 64–65 (“We see no reason the court's inherent power to reconsider and correct erroneous rulings should not extend to orders on peremptory challenge motions under Code of Civil Procedure section 170.6.”).)

Apex’s Section 170.6 Challenge Was Filed Within 15 Days

Judge Dillon Did Not Resolve Contested Factual Issues Relating to the Merits

Plaintiff first argues Apex’s challenge was untimely because Judge Dillon presided over a contested issue of fact relating to the merits. (Mot. at 5:1-6:18; Reply at 2:17-4:7.) “[A]n otherwise timely peremptory challenge must be denied if the judge has presided at an earlier hearing which involved a determination of contested factual issues relating to the merits.” (Grant v. Superior Court (2001) 90 Cal.App.4th 518, 525.)

However, “[a] section 170.6 challenge will not be untimely merely because the judge has previously determined some issue of fact. It is not enough that a judge make a determination which relates to contested fact issues. The judge must have actually resolved or determined conflicting factual contentions relating to the merits prior to trial before the right to disqualify is lost.” (Johnny W. v. Superior Court (2017) 9 Cal.App.5th 559, 565 (citations and quotations omitted).)

Plaintiff notes Judge Dillon issued rulings on a motion for summary adjudication and a demurrer, among other pretrial motions and applications that did not involve the meris of the action. (Mot. at 5:6-6:4.) A motion for summary adjudication generally does not resolve a factual dispute within the meaning of Section 170.6. (See Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 657 (“In ruling on a summary judgment motion, the judge does not pass upon or determine issues of fact but rather decides whether a triable issue of fact exists. Therefore, the resolution of a summary judgment motion does not involve the determination of contested fact issues.”) (citation omitted).)

Similarly, a court ruling on a demurrer merely accepts the factually allegations as true. (Fight for the Rams v. Superior Court (1996) 41 Cal.App.4th 953, 958 (“Despite the trial judge's probably accurate observation that this lawsuit has little prospect of success, he was not called upon to, nor did he, make a determination of contested fact issues relating to the merits. For the purposes of the demurrer, he simply accepted plaintiff’s factual allegations as true.”) (citations omitted).) Generally, such motions do not involve sufficient findings to render a peremptory challenge untimely. (See e.g. Maas v. Superior Court (2016) 1 Cal.5th 962, 978 (“As a general rule, a motion for disqualification under section 170.6 is allowed any time before the commencement of the trial or hearing. And, as the Attorney General points out, courts interpreting this provision have concluded that initial rulings by a judge on a variety of pretrial matters “not involving a determination of contested fact issues relating to the merits” (§ 170.6, subd. (a)(2)), such as demurrers, motions for summary judgment . . . do not foreclose a party from bringing a subsequent motion to disqualify the judge for prejudice.”).)

Plaintiff relies upon California Fed. Sav & Loan Assn. v. Superior Court (1987) 189 Cal.App.3d 267 in which the court found a motion for summary adjudication order “involving complex questions of law,” including a “make or break” issue of contractual interpretation, was sufficient to render a subsequent Section 170.6 challenge untimely.

As argued in opposition, California Fed. has been persuasively criticized by subsequent cases as being contrary to the express terms of Section 170.6. In Fight for the Rams v. Superior Court (1996) 41 Cal.App.4th 953, the court specifically addressed the stated basis for the California Fed. ruling:

But the Court of Appeal [in California Federal] ignored that aspect of the case, took Bambula head on, and denied the petition based solely on the summary adjudication issue. In so doing, the panel purported to rewrite a portion of section 170.6. The statutory criterion is whether the judge has been involved in ‘a determination of contested fact issues relating to the merits.’ The California Federal court, however, diluted that standard to one in which ‘the challenged judge has made a determination which bears on the merits of the case.’ (California Fed. Sav. & Loan Assn. v. Superior Court, supra, 189 Cal.App.3d at p. 271, 234 Cal.Rptr. 413.) We disagree and adhere to the plain language of Code of Civil Procedure section 170.6, subdivision (2).

(Fight for the Rams, supra, 41 Cal.App.4th at 960.) The court in Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309 reached the same conclusion:

[W]e consider Pacific’s alternative argument that Zilog’s peremptory challenge was precluded because Judge Elfving had previously ruled on Zilog’s summary adjudication motion in April 1999. In making this argument, Pacific's reliance on the decision in California Fed. [supra] (hereafter California Savings & Loan), is misplaced. In California Savings & Loan, the appellate court held that a section 170.6 peremptory challenge was untimely filed after the judge had made a ruling on “make or break” issues in a motion for summary adjudication. [Citation.] However, this decision has been criticized as contrary to the express language of section 170.6, subdivision (2), which provides that only a prior ruling involving a determination of “contested fact issues relating to the merits” will preclude a later peremptory challenge. [Citations.] We agree with these decisions and decline to follow California Savings & Loan. Where, as here, a judge has previously ruled on a motion for summary adjudication, that judge has determined only legal issues and remains subject to a later peremptory challenge under the plain language of section 170.6. [Citation]. Our conclusion that Zilog’s section 170.6 peremptory challenge was timely filed under section 170.6 must stand.

(Zilog, supra, 86 Cal.App.4th at 1322–1323.) In School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, the court declined to follow California Federal in relation to a motion to quash holding “[h]owever important an issue may be to the outcome of a case, it is not a bar to a disqualification motion unless it requires resolution of ‘contested fact issues relating to the merits’ of the case.” (School Dist. of Okaloosa County, supra, 58 Cal.App.4th at 1133.)

In reply, Plaintiff contends the court in Swift v. Superior Court (2009) 172 Cal.App.4th 878, “cited California Savings favorably to distinguish orders properly ‘found to involve the merits of the case’ such as ‘a motion for summary adjudication’ from routine discovery issues that would not preclude a section 170.6 motion.” (Reply at 2:27-3:4.) However, this Court does not read Swift as citing California Savings “favorably.” Rather, the court found it “clearly distinguishable” from the protective order rulings in the case before it and did not analyze or cite California Savings further. Plaintiff also contends Judge Dillon’s summary adjudication order “addressed many contested fact issues,” (Reply at 3:17), which is not the correct standard. A judicial officer must “have actually resolved or determined conflicting factual contentions relating to the merits prior to trial before the right to disqualify is lost.” (Johnny W., supra, 9 Cal.App.5th at 565.) The summary adjudication order, finding Defendants failed to meet their initial burden, did not resolve any conflicting facts.

Finally, Plaintiff contends the court’s summary adjudication order “either limited the scope or fully disposed of several of Activision’s Affirmative Defenses.” (Reply at 4:3-7 citing Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 5-7) However, the court in Barrett addressed a Section 170.6 challenge after a preliminary hearing in a criminal matter and noted:

At a typical preliminary hearing, there rarely are conflicts in the evidence to resolve. Generally, defense witnesses are not called, affirmative defenses are not actually litigated, and the evidentiary showing by the People usually is limited to presenting only sufficient evidence of the elements of the charged offense to hold the accused to answer. If the magistrate binds the accused over for trial, this does not mean there has been a final determination that the prosecution witnesses are telling the truth or that the defense witnesses are not; rather, the ultimate determination of the credibility of the witnesses will lie with the jury. Thus, in most instances, a preliminary hearing does not involve the resolution of contested fact issues.

(Barrett, supra, 77 Cal.App.4th at 7.) The summary adjudication order similarly did not resolve any contested factual issues related to Defendants’ affirmative defenses.

This Court finds the analysis of Fight for the Rams, Zilog, and School Dist. of Okaloosa County persuasive. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456 (“where there is more than one appellate court decision, and such appellate decisions are in conflict . . . the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.”).) Accordingly, Judge Dillon’s prior rulings did not involve contested fact issues relating to the merits of the case and therefore do not render Apex’s Section 170.6 challenge untimely.

Plaintiff Has Not Demonstrated Apex is Bound by the Activision Defendants’ Deadline

Pursuant to Code of Civil Procedure section 170.6(a)(4), “[i]n actions or special proceedings where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one action or special proceeding.”

Alternatively, Plaintiff contends “Apex and Activision share an identity of interest, which makes Apex bound by Activision’s deadline for filing a peremptory challenge.” (Mot. at 6:21-23.) Plaintiff cites general authority regarding the application of Section 170.6, the enforcement of its requirements, and its policy goals. (Ibid.) Plaintiff also cites Guardado v. Superior Court (2009) 163 Cal. App. 4th 91, 95 in support of its contention that “[a] late-appearing party that has an “identity of interest” with a party who appeared earlier in the action is held to the peremptory challenge deadline applicable to the earlier-appearing party.” (Mot. at 7:9-13.) Plaintiff argues, without citation to authority, that the parties share an identity of interest because “[a]ny liability that Apex could eventually face is entirely derivative of Activision’s liability.” (Mot. at 7:13-14.)

In Guardado, “Petitioner contend[ed] that because Webb was a partner in a partnership that was a partner in Mariposa, he is not a separate entity from Mariposa. It follows from this, according to petitioner, that since Mariposa did not assert a challenge under section 170.6, Webb is precluded from making a section 170.6 challenge.” (Guardado, supra, 163 Cal.App.4th at 99.) The court rejected this argument finding “it is axiomatic that an individual is a different entity from a partnership in which he is not a partner.” (Ibid.) Here, there is no evidence that Defendants and Apex are the same entity and Guardado does not aid Plaintiff.

Apex is not named as a defendant in Plaintiff’s complaint and therefore they are not on the same side as the Activision Defendants. Moreover, even if Plaintiff had named Apex as a newly added Defendant, rather than Apex being added via the cross-complaint, the Activision Defendants’ failure to exercise their right to file a Section 170.6 challenge would not affect Apex’s ability to do so. (The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1033 (“when parties on the same side have waived or have not exercised their right to a peremptory challenge of the judge, a late-appearing party on that side may exercise such a challenge.”).) Plaintiff failed to provide a legal or factual basis to demonstrate Apex’s Section 170.6 challenge was untimely.

In a footnote, Plaintiff appears to suggest the Court could sever the cross-complaint and retain the complaint with Judge Dillon. (Mot. at 8 n.1 (“the Court alternatively had, and continues to have, broad discretion to sever the cross-complaint against Apex pursuant to Code of Civil Procedure sections 379.5 and 1048, in the interest of cost and judicial efficiency.” Any such suggestion is contrary to California law. (Sunkyong Trading (H.K.) Ltd. v. Superior Court (1992) 9 Cal.App.4th 282, 290 (“we conclude that when a motion for peremptory challenge pursuant to 170.6 is made by a party, including a cross-defendant, section 170.6 and Code of Civil Procedure section 170.4 do not permit the judge granting such challenge to sever the pleadings of that party for reassignment and to retain the remainder of the action.”).)

Finally, Plaintiff argues the parties are judge-shopping, (Mot. at 8:3-17), which is immaterial and does not require the reconsideration of Judge Dillon’s order. (See generally NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243, 260 (“Under the current state of the law, if a motion complies with the statutory conditions, a court should grant a disqualification motion—even if the court suspects that the party has abused its right to utilize section 170.6. It is up to the Legislature to address any concerns that the legal community has in this regard.”) (internal quotation omitted).) Plaintiff contends that “Apex’s judge-shopping attempt, if allowed, would open the door for all 12 cross-defendants (and any future added parties) to file identical motions.” However, unlike the Activision Defendants and Apex, the other cross-defendants and Apex are on the same side for purposes of 170.6 and would bear the burden to establish an adverse interest. (See The Home Ins. Co., supra, 34 Cal.4th at 1033, 1037 (“when a party on the same side has exercised its right to disqualify a judge, a late-appearing party has no right to challenge the then-current judge, because that side has used its one challenge. . . . a party that seeks to exercise a subsequent peremptory challenge on the ground that, in effect, it is on a different side from another party despite appearances to the contrary, is required to provide evidence of a conflict to enable the trial court to decide whether the interests of the joined parties are actually substantially adverse.”).)

The Court finds no basis to reconsider Judge Dillon’s acceptance of Apex’s Section 170.6 challenge and the motion is DENIED.