Judge Thomas D. Long, Case Number: 22STCV35182, Date: 2023-06-22 Tentative Ruling

On July 20, 2022, Cynthia York Shadian filed Cynthia York Shadian v. Coldwell Banker Residential Brokerage Company et al. (Case No. 22CV02809) against Coldwell Banker Residential Brokerage Company aka Coldwell Banker Realty, Realogy Brokerage Group LLC, and Jamie Duran in Santa Barbara County Superior Court. The Complaint alleges age and gender discrimination, hostile work environment harassment, failure to prevent and/or correct discrimination, wrongful constructive termination in violation of public policy, and intentional infliction of emotional distress. Trial is set for January 10, 2024.

On November 7, 2022, Plaintiff Shyrl Lorino filed this action against Defendants Coldwell Banker Residential Brokerage Company and Realogy Brokerage Group LLC (collectively, “Defendants”). The Complaint alleges age and gender discrimination, hostile work environment, failure to prevent and/or correct discrimination, wrongful termination in violation of public policy, and intentional infliction of emotional distress.

On May 24, 2023, Plaintiff filed a motion to transfer, coordinate, and consolidate this action and Shadian within this Court. Plaintiff also filed a copy of the Notice of Motion in the Shadian action. (Ruggiero Decl. ¶ 14 & Ex. E.)

Plaintiff’s request for judicial notice of the Complaint in this action (Ex. 1) is denied as irrelevant because the Complaint is already part of the record.

Plaintiff’s request for judicial notice of the Complaint in Shadian (Ex. 2) is granted.

B. The Cases Are Not Yet Related, and This Court Is Not the Proper Court to Order Them Related.

Cases are related if they (1) involve the same parties and are based on the same or similar claims; (2) arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; (3) involve claims against, title to, possession of, or damages to the same property; or (4) are likely for other reasons to require substantial duplication of judicial resources if heard by different judges. (California Rules of Court, rule 3.300(a).)

If related cases are pending in different superior courts, “the judge to whom the earliest filed case is assigned may confer informally with the parties and with the judges to whom each related case is assigned, to determine the feasibility and desirability of joint discovery orders and other informal or formal means of coordinating proceedings in the cases.” (California Rules of Court, rule 3.300(h)(2)(A).)

Plaintiff filed a Notice of Related Case in this action on November 7, 2022. There has been no order relating this action and Shadian, the earlier-filed case. Plaintiff provides no information about any informal discussions with the judge assigned to Shadian regarding the feasibility and desirability of joint discovery orders and other informal or formal means of coordinating proceedings in the cases. The Shadian court—not this court—is the appropriate court to determine relation.

C. Even if the Cases Were Related, Transfer and Consolidation Are Not Appropriate.

“If it is determined that related cases pending in different superior courts should be formally coordinated, the procedures in Code of Civil Procedure section 403 and rule 3.500 must be followed for noncomplex cases.” (California Rules of Court, rule 3.300(h)(2)(B).) “The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action.” (Code Civ. Proc., § 403.)

In deciding whether to coordinate actions, the Court must take into account whether (1) the common question of fact or law is predominating and significant to the litigation; (2) the convenience of parties, witnesses, and counsel; (3) the relative development of the actions and the work product of counsel; (4) the efficient utilization of judicial facilities and manpower; (5) the calendar of the courts; (6) the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and (7) the likelihood of settlement of the actions without further litigation should coordination be denied. (Code Civ. Proc., § 404.1.)

Plaintiff’s counsel’s declaration does not state sufficient facts showing that the actions meet the standards specified in Section 404.1.

1. Common Questions Of Fact Or Law Are Not Predominating And Significant, There Is No Apparent Risk Of Duplicative And Inconsistent Rulings, And Coordination Will Not Promote Settlement.

Plaintiff argues that both actions involve wrongful termination based on age discrimination, and Defendants’ measurement of performance intended to discriminate against Branch Managers over the age of fifty. (Ruggiero Decl. ¶ 6.) Counsel’s conclusory declaration explains, “There is a substantial overlap of the facts, claims and theories of the two cases Plaintiff seeks to consolidate. The gravamen of the two complaints is that the Plaintiff in each action claims that Defendants discriminated against Plaintiff based on age and, secondarily, gender, terminating Plaintiff Lorino and constructively terminating Plaintiff Shadian, both in May 2021. At that time, Shadian was 58 and Lorino was 68. Both were replaced by younger individuals.” (Ruggiero Decl. ¶ 8.)

Cynthia York Shadian alleges that she worked in the Santa Barbara and Montecito branches and was constructively terminated on May 10, 2021. (RJN, Ex. 2, ¶ 15.) In May 2020, she received an Accountability Action Plan that was similar to those given to other older and highly paid branch managers. (Id. ¶ 27.) “Coldwell Banker took concerted action during the Covid years to set unreasonable and unattainable goals for most Branch Managers, thereby ‘supporting’ its ‘for cause’ terminations and, in Shadian’s case, constructive termination, of highly paid and senior branch managers (mainly women) over 50 (and older).” (Id. ¶ 28.) Previously, in 2019, Jamie Duran changed Shadian’s compensation plan. (Id. ¶¶ 33-34.) Additionally, in late 2019 and 2020, Duran targeted Shadian “for unfair and discriminatory reasons” and demonstrated a preference for younger, white men. (Id. ¶ 42.)

Plaintiff alleges that her employment as a branch manager in Los Angeles County offices was terminated on May 17, 2021, “purportedly for failing to perform and to meet certain requirements, particularly in terms of recruitment.” (Complaint ¶ 13; see id. ¶¶ 14, 23-24.) “Despite Plaintiff’s accomplishments and awards, on May 5, 2020, President Jamie Duran placed Plaintiff on a ‘Recruiting Accountability Plan’” that was “identical to what President Duran wrote in other senior/older Branch Managers’ Accountability Plans prior to their terminations.” (Id. ¶ 27.) In October 2020, Regional Vice President/Manager Robinson placed Plaintiff on an Accountability Action Plan for Performance. (Id. ¶ 28.) According to Plaintiff, “[t]he Recruiting Accountability Plan and the Accountability Action Plan were simply providing pretext to terminate Plaintiff ‘for cause’ by setting unattainable goals.” (Id. ¶ 32.)

Both actions allege that unattainable goals were pretext for firing, or constructively terminating, both plaintiffs. But the claims of discrimination, harassment, wrongful termination, and intentional infliction of emotional distress will turn on their own facts. The plaintiffs worked in different offices in different regions. Shadian alleges specific harassment and retaliation by Duran that led to her constructive termination, while Plaintiff alleges in this action that she was terminated for “lack of performance.” The only shared fact is the alleged pretext for termination.

Because of these factual differences, rulings in Shadian or this action will not be duplicative or inconsistent. For example, a finding that Jamie Duran did or did not harass Cynthia York Shadian has no impact on Plaintiff’s case here. Shadian may or may not be able to prove constructive termination based on her work conditions. Even if she does, one of the plaintiffs may be able to show pretext for her termination to defeat a motion for summary judgment, but the other may not be able to overcome a purported legitimate and nondiscriminatory reason for her termination. A finding of pretext in one case will not be binding in the other case.

Similarly, there are no indications that consolidation will encourage settlement. Plaintiff’s counsel does not address this factor in her declaration. The motion makes the conclusory points that the pleadings are not yet at issue, discovery still needs to be conducted, “the actions are not likely to settle without further litigation,” “Defendants intend to bring dispositive motions in both Actions,” and “[w]ithout transferring the Santa Barbara Action and consolidating it with the Los Angeles Action, the parties will continue to have to litigate these matters and incur the time and costs of litigating two separate actions in two different venues.” (Motion at p. 14.) No facts are given to show the likelihood that both plaintiffs and all defendants will be more willing to settle a consolidated action.

In sum, the differences—not similarities—between the cases predominate, and that weights against transfer and consolidation.

2. Transfer And Consolidation Will Not Materially Promote The Convenience Of Parties, Witnesses, Or Counsel.

Both Plaintiff and Cynthia York Shadian reside in Los Angeles County. (Ruggiero Decl. ¶ 13.) Transfer to this Court in Los Angeles County could therefore be convenient for Cynthia York Shadian.

According to Plaintiff, one of the “key witnesses,” Jamie Duran, resides in Orange County. (Ruggiero Decl. ¶ 13.) Whether Shadian remains in Santa Barbara County or is transferred to Los Angeles County, neither venue is Jamie Duran’s residence and could require some travel, although much litigation can be done remotely. Additionally, Jamie Duran’s contributions as a potential witness are not the same in the two actions, and her testimony and involvement in discovery would not equally benefit both actions. Jamie Duran is a defendant in Shadian, and that Complaint alleges that she placed Cynthia York Shadian on an Accountability Action Plan, identified areas of underperformance, and directly participated in hostile and harassing acts. (E.g., RJN, Ex. 2, ¶¶ 25, 27-28, 30, 32-34, 40, 42.) Jamie Duran is not a defendant in this action, which alleges only that she placed Plaintiff on a Recruiting Accountability Plan. (Complaint ¶ 27.)

Defendants also identify four witnesses that Shadian identified as treating physicians, who would not be relevant witnesses in this action. (Atherton Decl. ¶ 5 & Ex. C.)

Plaintiff contends that consolidation will also convenience counsel because their offices are located in Los Angeles County. (Motion at p. 13.) However, lead counsel for Plaintiff and Cynthia York Shadian declares that he resides in Contra Costa County, is based out of his firm’s Walnut Creek (Contra Costa County) offices, and travels as necessary for work. (Groode Decl. ¶ 2.)

On balance, transfer and consolidation will not materially promote the convenience of the parties, witnesses, and counsel. (See California Rules of Court, rule 3.500(d)(3).)

Shadian was filed in Santa Barabara County on July 20, 2022, and trial is set for January 10, 2024, after already being continued from its prior October 4, 2023 trial date. (Ruggiero Decl. ¶¶ 7, 9; Atherton Decl. ¶ 7.) Plaintiff anticipates that the case will not be ready for trial until mid or late 2024. (Ruggiero Decl. ¶ 9.) On the other hand, Defendants’ counsel declares that at the June 9, 2023 case management conference, the judge indicated that he does not intend to continue the trial date again. (Atheron Decl. ¶ 7.)

This action was filed on November 7, 2022. Trial has not been set, and the case management conference is scheduled for July 21, 2023.

Written discovery has commenced in both actions, and Shadian’s deposition is scheduled for July 19, 2023. (Ruggiero Decl. ¶ 7; Atherson Decl. ¶ 5.) The parties provide no other information about development of the actions and the work product of counsel. However, with a January 10, 2024 trial date in Shadian, it is expected that the parties will prepare their discovery and pre-trial motions based on that date.

As of the date of the hearing on this motion, this Court is currently setting trial dates in the second-quarter or third-quarter of 2024. The Court cannot guarantee what dates will remain available at the July 21, 2023 case management conference. Defendants believe that the January 10, 2024 Shadian trial date will not be continued again. (Atheron Decl. ¶ 7.) Therefore, transferring and coordinating that case in this Court will slow the litigation and force a much later date for the coordinated proceedings.

Accordingly, the Court finds that the relative development of the actions and the work product of counsel, the efficient utilization of judicial facilities and manpower, and the calendar of the courts do not weigh in favor of transfer and coordination.

The Motion to Transfer, Coordinate, and Consolidate This Action with Shadian v. Coldwell Banker, et al., Pending in the Santa Barbara County Superior Court is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court