CALIFORNIA CIVIL RIGHTS DEPARTMENT VS ACTIVISION BLIZZARD, INC., ET AL.

Tentative Rulings

Case Number: *******6571 Hearing Date: March 2, 2023 Dept: 1

*******6571 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

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.” Apex was added to the action as a cross-defendant on January 23, 2023 and filed the Section 170.6 challenge on January 24, 2023. Absent an applicable exception, Apex’s challenge was timely filed within 15 days of its first appearance.

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.

Case Number: *******6571 Hearing Date: July 27, 2022 Dept: 73

Department of Fair Employment and Housing v. Activision Blizzard, Inc.

The court issues its rulings regarding Defendants’ motion to compel further discovery responses from Plaintiff and production of a privilege log (4072).

I. Special Interrogatories

Interrogatory Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 23: Plaintiff’s responses to these interrogatories are premature at this point. Plaintiff has not had the benefit of analyzing the information received from Defendants in discovery. After Defendants have produced their responsive documents and Plaintiff has sufficient opportunity to review and analyze them, Plaintiff will respond to the interrogatories. The parties are ordered to meet and confer as to a reasonable and appropriate schedule for responses to these interrogatories. As part of managing discovery, the court finds that it is more efficient for Plaintiff to respond to these interrogatories once on a comprehensive basis rather than piecemeal. (See U.S. Equal Employment Opportunity Commission v. Source One Staffing, Inc. (N.D. Ill. 2013) 2013 WL 25033, *1 [“This Court already has ruled that the EEOC is not required to identify by name each member of the so-called class of aggrieved individuals who allegedly were denied job assignments because of their sex, or estimate the damages resulting from this alleged pattern or practice of gender discrimination, before it completes its analysis of Source One’s job assignment and payroll data. On October 18, 2012 [Dkt. # 57], the Court compelled the production of Source One’s payroll data, and the EEOC’s expert now is reviewing that data.”].)

Interrogatory Nos. 13, 14: Plaintiff shall provide a code-compliant responses to these interrogatories.

Interrogatory No. 16: The court sustains Plaintiff’s relevancy objections to this interrogatory. No response is necessary.

Interrogatory Nos. 19, 20, 21: The court sustains Plaintiff’s relevancy and vague and ambiguous objections to these interrogatories. No response is necessary.

Interrogatory No. 29: Plaintiff shall provide a code-compliant response to this interrogatory. Plaintiff objections are overruled.

II. Document Requests, Set One

Document Request No. 1: Subject to privilege, Plaintiff shall provide code-compliant responses to these requests and produce the responsive document.

Document Request Nos. 3, 6: Subject to privilege, Plaintiff shall provide code-compliant responses to these requests and produce the responsive document.

Document Request Nos. 7, 8: Subject to privilege, Plaintiff shall provide code-compliant responses to these requests and produce the responsive document.

Document Request Nos. 16, 19: Subject to privilege, Plaintiff shall provide code-compliant responses to these requests and produce the responsive documents. Request No. 19 is limited to communications with the EEOC.

Document Request No. 20: The court sustains Plaintiff’s relevancy objection. No further response is necessary.

Document Request Nos. 21, 22: Plaintiff shall provide a code-compliant response to these requests and produce the responsive documents. All objections are overruled.

Document Request No. 24: The court sustains Plaintiff’s relevance objections. No response is required.

Document Request Nos. 25, 26, 27, 28: Subject to privilege, Plaintiff shall produce the documents and code-compliant responses.

Document Request No. 29: A response to this request is premature at this point. The parties are ordered to meet and confer regarding the schedule for a response after Plaintiff has obtained sufficient discovery from Defendants.

Document Request No. 30: Subject to privilege, Plaintiff shall provide a code-compliant response and produce all responsive documents.

Document Request No. 38: The court sustains Plaintiff’s objections based on the attorney-client privilege, work-product protection, Evidence Code section 1040, and the deliberative privilege. Plaintiff need not respond to this request.

Document Request Nos. 40, 41: Plaintiff shall provide code-compliant responses to these requests and produce all responsive documents.

Document Request No. 52: Subject to privilege, Plaintiff shall provide a code-compliant response and produce all responsive documents.

Document Request No. 53: The request is limited to communications with Defendants or their representatives. Plaintiff shall provide a code-compliant response and produce all responsive documents.

Document Request Nos. 54-58: Subject to privilege, Plaintiff shall produce code-compliant responses to these requests and produce the responsive documents.

Document Request Nos. 59-93: Subject to privilege, Plaintiff shall produce code-compliant responses to these requests and produce the responsive documents.

III. Document Requests, Set Two

Document Request Nos. 96, 97, 100, 101, 102, 103, 104, 105, 106, 107, 108, 115, 116, 119, 120, 121: The court sustains Plaintiff’s relevancy objection to these requests. Defendants do not establish good cause for this discovery. Defendants seek the discovery in connection with a potential motion to disqualify Plaintiff pursuant to Rule 1.11 of the Rules of Professional Conduct. Two government lawyers, who worked at the EEOC, went to work for Plaintiff. At the time the two lawyers worked at the EEOC and also for Plaintiff, Plaintiff and EEOC concurrently investigated Defendants’ alleged unlawful employment practices. During these investigations, in responses to information requests, Defendants produced documents and gave testimony about their alleged unlawful practices. Plaintiff and the EEOC coordinated their investigations and shared information.

To support a disqualification motion, Defendants seek to discover the work these lawyers performed while at the EEOC and in Plaintiff’s employ. Under Rule 1.11, Defendants maintain that they have standing to disqualify Plaintiff because “a lawyer who formerly served as an employee of the government ‘shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public official or employee.’ ” However, the lawyers never performed legal services for Defendants; at all times, Plaintiff and the EEOC were adverse to Defendants. Plaintiff therefore asserts that the discovery is pointless because Defendants lack standing to seek disqualification.

The law is solidly against Defendants’ effort. Defendants have not stated what purpose would be served by disqualifying Plaintiff or identified their “legally cognizable interest that would be harmed.” There is no basis for the intrusive discovery sought by Defendants. It is well-established: “Simply stated, “‘the purpose of a disqualification must be prophylactic, not punitive.’”” (In re Marriage of Murchison (2016) 245 Cal.App. 847, 853 (Murchison). In Murchison, the court held: “In fact, we found no case which permits a court to disqualify a lawyer for ethical violations when the nonmoving party wishes to continue the representation and the representation does not harm the opposing party’s interest.” (Id. at p. 853; see Moreci v. Scaffold Solutions, Inc. (2021) 70 Cal.App.5th 425, 432 [“A party moving to disqualify counsel must have a legally cognizable interest that would be harmed by the attorney’s conflict of interest.”].)

Defendants’ four citations are inapposite. Under various versions of Rule 1.11, the decisions recognize that it might be a bad appearance for a prosecuting government lawyer to acquire confidential information about a target defendant, join a private law firm, and pursue a lawsuit against the target regarding the same matter using that confidential information. That was the situation in Defendants’ lone California citation; Securities Investor Protection Corp. v. Vigman (C.D. Cal. 1984) 587 F.Supp. 1348, 1367-1368 [“Because I find that Boltz and Hartman are representing a private client in connection with a matter in which both of them participated personally and substantially while employed by the SEC, and because the Commission has declined to consent to such representation, these attorneys and Rogers & Wells must be disqualified from further representation of SIPC in this action.”]; and City of Chicago v. Purdue Pharma L.P. (N.D. Ill. 2014) 2014 WL 7146362, *6 [“Courts and the bar have called it fundamentally unfair for a former government attorney, newly in private practice, to use specific information obtained by the exercise of government power information that otherwise would not be available to his or her client to the prejudice of opposing private party litigants. This unfairness exists even if the former client, the government, is not prejudiced by the lawyer’s subsequent use of the information”].

In Defendants’ remaining two citations from Iowa and Kentucky, the court disqualified the former government lawyers because they had switched sides on a matter after they entered private practice; i.e., started representing the target of the government’s efforts. (See Sorci v. Iowa District Court for Polk County (2003) 67 N.W.2d 482, 494 [“Although one may kindly characterize this situation as an ‘appearance of impropriety,’ in reality these cases are paradigmatic examples of conflicts of interest, plain and simple. Whether Johnson and the YLC can be disqualified solely on account of a strong appearance of impropriety is an issue we need not decide, however. As we have discussed, Johnson is disqualified in any case in which she had ‘substantial responsibility.’ ”]; United States v. Villaspring Health Care Center, Inc. (E.D. Kent. 2011) 2011 WL 5330790, *3 [“Rule 1.11 dictates that Melton must be disqualified from further representation in this case. He represents a client in connection with the same matter in which he participated ‘personally and substantially’ as an Assistant Attorney General, and the government agency has not given its informed consent to the representation.’ ”].) Here, no one moved from the government to private practice and began using the government’s confidential information to make a profit by suing the same target or switched sides using the government’s confidential information to represent the target in private practice on the same matter, also to make a profit.

Consistent with preventing a government lawyer profiting in the private sector using confidential information gained from his or her position as a government lawyer, Rule 1.11 (b)(1), when discussing an ethical screen, states that the former government lawyer “is apportioned no part of the fee” and that written notice is given to the government agency. Contrary to Defendants’ argument, Comment 3 to Rule 1.11 does not help Defendants. Comment 3 (“Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client”) is consistent with the holdings in Securities Investor Protection Corp. v. Vigman, supra, 587 F.Supp. 1358 and City of Chicago v. Purdue Pharma L.P., supra, 2014 WL 7146362. There is nothing in Rule 1.11 that gives Defendants standing. Thus, Defendants have not cited any authority to overcome the well-established standing rules for disqualification motions. Moreover, Plaintiff’s disqualification would not make any sense because Plaintiff and the EEOC were simultaneously investigating Defendants’ alleged unlawful employment practices. Information can be freely shared between the federal and state agencies. (See 42 U.S.C. 2000e-8(d).)

Far from promoting the public interest, any attempt to disqualify Plaintiff strongly conflicts with public policy. For example, in Department of Fair Employment and Housing v. Law School Admission Council, Inc. (N.D. Cal. 2013) 941 F.Supp.2d 1159, the court held: “The legislature of the State of California has vested DFEH with the authority to enforce the civil rights of California citizens as ‘an exercise of the police power of the state for the protection of the welfare, health, and peace of the people of this state.’ Cal. Gov’t. Code 12920. ‘[S]ince 1959 the DFEH has been actively investigating, prosecuting and conciliating’ complaints of discrimination falling within those areas under its jurisdiction. State Pers. Bd. v. Fair Employment & Hous. Com., 39 Cal.3d 422, 431, 217 Cal.Rptr. 16, 703 P.2d 354 (1985). FEHA, the California statute that created DFEH, ‘was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give [Californians] the maximum opportunity to vindicate their civil rights against discrimination.’ Id. at 431, 217 Cal.Rptr. 16, 703 P.2d 354. See Cal. Gov’t. Code 12993(a) (‘Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, or sexual orientation, unless those provisions provide less protection to the enumerated classes of persons covered under this part”); Id. (‘The provisions of this part shall be construed liberally for the accomplishment of the purposes of this part.’). FEHA’s declared purpose is ‘to provide effective remedies that will eliminate these discriminatory practices.’ Cal. Gov’t. Code 12920. See Munson v. Del Taco, Inc., 46 Cal.4th 661, 666, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009) (‘[t]he Unruh Civil Rights Act,’ incorporated into FEHA via Cal. Gov’t. Code 12948, ‘must be construed liberally in order to carry out its purpose to create and preserve a nondiscriminatory environment in California business establishments by banishing or eradicating arbitrary, invidious discrimination by such establishments.’) (internal citations and quotation marks omitted).” (941 F.Supp.2d at p. 1167.)

In Department of Fair Employment and Housing v. Law School Admission Council, Inc., supra, 941 F.Supp.2d 1159, the court further held: “The California Supreme Court has recognized that ‘DFEH is a public prosecutor testing a public right,’ when it pursues civil litigation to enforce statutes within its jurisdiction.” (Id. at pp. 1167-1168.) The court continued: “Like Title VII, FEHA empowers DFEH to ‘prevent any person from engaging in any unlawful practice as set forth in the [statute],’ id. at 323, 100 S.Ct. 1698, and ‘specifically authorizes [DFEH] to bring a civil action,’ id. at 324, 100 S.Ct. 1698, in the role of a ‘public prosecutor testing a public right,’ State Pers. Bd. v. Fair Employment & Hous. Com., 39 Cal.3d at 444, 217 Cal.Rptr. 16, 703 P.2d 354. In bringing enforcement actions, DFEH acts ‘not merely [as] a proxy for the victims of discrimination,’ but also ‘to vindicate the public interest in preventing [certain forms of] discrimination.’ ” (941 F.Supp.2d at p. 1169.)

IV. Disposition

Plaintiff shall provide a descriptive log regarding any documents withheld on grounds of privilege. Compliance within 30 days.

Case Number: *******6571 Hearing Date: June 6, 2022 Dept: 73

Department of Fair Employment and Housing v. Activision Blizzard, Inc.

*******6571

The court issues its rulings regarding Plaintiff’s motion to compel further responses to request for admission, set one (6840).

Request nos. 1, 2, 3, 4, 23. Defendant shall respond to the requests for admission. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. All objections are overruled other than attorney-client privilege and work-product protection.

Request nos. 5, 6. The court sustains Defendant’s objection on vague and ambiguous grounds. No response is necessary.

Request no. 7. All objections other than attorney-client privilege and work product are overruled. Defendant shall respond to the request for admission.

Request no. 9. Defendant shall respond to the request for admission. All objections are overruled. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery.

Request no. 11. Defendant shall respond to the request for admission. All objections are overruled. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery.

Request nos. 12, 13, 14, 15. The court sustains Defendants’ objection on grounds of vague and ambiguous and overbreadth. No response is required.

The court issues its rulings regarding Plaintiff’s motion to compel further responses to special interrogatories, set one (9646).

Unless otherwise indicated, the relevant time frame is January 1, 2013 through the present. Plaintiff alleges continuing violations and is permitted to seek information that may lead to the discovery of admissible evidence.

Interrogatory no. 1. Defendant shall provide a complete code-compliant response.

Interrogatory nos. 3, 4, 5. Defendant shall provide a complete code-compliant response. The interrogatories seek relevant discoverable information. Any privacy concern is outweighed by the need for the information. All objections other than attorney-client privilege and work-product protection are overruled. A protective order is in place.

Interrogatory nos. 6, 7, 8. The court sustains Defendant’s objections on vague and ambiguous and overbreadth grounds. No response as required.

Interrogatory no. 9. Defendant shall provide a code-complaint response. All objections other attorney-client privilege and work-product protection are overruled.

Interrogatory nos. 10, 11. Defendant shall provide a code-complaint response. All objections other attorney-client privilege and work-product protection are overruled. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The responses shall be produced under the protective order.

Interrogatory no. 12. Defendant shall provide a code-complaint response. The interrogatory is limited to employees who entered into severance or settlement agreements. All objections other attorney-client privilege and work-product protection are overruled. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The response shall be produced under the protective order.

Interrogatory nos. 13, 14, 15, 16, 17. Defendant shall provide code-complaint responses. All objections other attorney-client privilege and work-product protection are overruled.

Interrogatory no. 19. The court sustains Defendant’s objection on relevance grounds. No response is required.

Interrogatory nos. 22, 23. Defendant shall provide a code-complaint response. All objections other attorney-client privilege and work-product protection are overruled.

Interrogatory nos. 26, 27, 28. Defendant shall provide code-complaint responses. All objections other attorney-client privilege and work-product protection are overruled. Information as to how Defendant responded to the alleged incident may lead to the discovery of admissible evidence. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The responses shall be produced under the protective order.

Interrogatory nos. 29, 30, 31, 32. Defendant shall provide a code-complaint response. All objections other attorney-client privilege and work-product protection are overruled. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order.

Interrogatory no. 36. Defendant shall provide a code-complaint response. All objections other attorney-client privilege and work-product protection are overruled.

Interrogatory no. 37. The court sustains Defendant’s objections on overbreadth and vague and ambiguous grounds. No response is required.

Interrogatory no. 39. Defendant shall provide a code-complaint response. All objections other attorney-client privilege and work-product protection are overruled.

The court issues its rulings regarding Plaintiff’s motion to compel further responses to requests for production, set one (3802).

Request nos. 1, 2, 3, 4, 5, 6. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. The requests are limited to the documents comprising the equity pay audit, survey, study, or analysis, as well as any documents generated by Mercer.

Request no. 7. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response.

Request nos. 8, 9, 10, 11. The court sustains Defendants’ objections on overbreadth and vague and ambiguous. No response is required.

Request no. 12. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. Production is limited to agreements with staffing agencies.

Request no. 13. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response.

Request no. 14. All objections are overruled. Defendants shall provide a code-compliant response. Production is limited to the organizational charts.

Request nos. 15, 16, 17, 18, 19, 20. The requests are overbroad. Defendants shall produce documents sufficient to show when work place reductions occurred, any related notifications to employees, the identity of impacted employees, and any factors or criteria for selection of employees.

Request nos. 21, 22. The court sustains Defendants’ objections on grounds of overbreadth and vague and ambiguous. No response is required.

Request nos. 23, 24. The court sustains overbreadth and vague and ambiguous objections. No response is required.

Request no. 25. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response.

Request no. 26. Defendants shall produce the information and provide a code-compliant response. All objections are overruled. The request is limited to decision-makers.

Request nos. 27, 28, 29. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. Request no. 27 is limited to production of any policy.

Request no. 30. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. The request is limited to the complaints and any response.

Request no. 31. The court sustains Defendants’ objections on grounds of overbreadth and vague and ambiguous. No response is required.

Request nos. 32, 33. The court sustains Defendants’ objections on grounds of overbreadth and vague and ambiguous. No response is required.

Request nos. 34, 35, 36, 37. The court sustains the overbreadth objection. No response is required.

Request no. 38. Defendants shall produce their policies regarding the referenced items and an appropriate code-complaint response.

Request no. 39. Defendants shall produce their training materials regarding the referenced items and an appropriate code-compliant response. All objections are overruled.

Request no. 40. Defendants shall produce their communications with the EEOC or other government agency regarding the referenced items (“sex and/or gender discrimination, sexual harassment, pay equity, retaliation, and/or whistleblower claims”).

Request nos. 41, 42, 43, 44, 45, 46. The court sustains the overbreadth and vague and ambiguous objections. No response is required.

Request nos. 47, 48. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses.

Request nos. 49, 50, 51. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents may be produced under the protective order. The requests are limited to communications containing the reasons for the separation, any investigation, or any severance agreement, as well as the severance agreement.

Request no. 52. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request no. 53. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to documents containing the reasons for the termination.

Request no. 54. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. The court orders the production of documents generated as a result of any investigation. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order.

Request nos. 55, 56. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents may be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request nos. 57, 58. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. The court orders the production of documents generated as a result of any investigation. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order.

Request nos. 59, 60. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request no. 61. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to documents containing the reasons for the separation.

Request nos. 62, 63. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The requests are limited to communications relating to the investigation and any severance agreement.

Request no. 64. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request no. 65. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to communications containing the reasons for separation.

Request no. 66. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to communications regarding the investigation.

Request no. 67. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to communications regarding any severance agreement and the severance agreement.

Request no. 68. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request nos. 69, 70, 71. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order.

Request nos. 72, 73. The court sustains Defendants’ overbreadth and vague and ambiguous objections. No response is required.

Request nos. 74, 75. Defendants shall provide code-compliant responses. All objections are overruled.

Request no. 76. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response.

Request no. 77. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to communications regarding any investigation.

Request nos. 78, 79. The court sustains Defendants’ objections on relevance, vague and ambiguous, and overbreadth grounds. No response is required.

Request no. 80. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response.

Request nos. 81, 82, 83, 84, 85, 86. The court sustains Defendants’ relevance and overbreadth objections. No response is required.

Request no. 87. The court sustains Defendants’ over breadth and vague and ambiguous objections. Defendants do not need to respond.

Request no. 88. Defendants shall provide the requested data and a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. All objections are overruled.

Request nos. 89, 90, 91, 92. The court sustains Defendants’ vague and ambiguous and overbreadth objections. No response is required.

Request nos. 93, 94, 95. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. The request is limited the criteria, if any, for assigning job codes, positions, and salary grades.

Request nos. 96, 97, 98, 99. The court sustains Defendants’ vague and ambiguous and overbreadth objections. No response to these requests is required.

Request nos. 100, 101, 102, 103, 104. The court sustains Defendants’ relevance, vague and ambiguous objections. No response is required.

Request no. 105. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. The request is limited to the policy or policies regarding alcohol consumption.

Request no. 106. All objections are overruled. Defendants shall provide a code-compliant response. The request is limited to the expense reports.

Request no. 107. The court sustains Defendants’ objections on relevance, and overbreadth grounds. No response is required.

The court issues its rulings regarding Plaintiff’s motion to compel further responses to requests for production, set two (4488).

Request nos. 108, 109, 110 111, 112, 113, 114, 115, 116, 119, 120, 121, 122. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The requests are limited to communications to or from Robert Kotick (or anyone acting on his behalf) involving the mentioned subjects in these requests.

Request nos. 117, 118. The court sustains Defendants’ relevancy objection. No response is required.

Request nos. 123, 124, 125, 126, 127. The court sustains Defendants’ objections on relevance, vague and ambiguous, and overbreadth grounds. No response is required.

Request no. 128. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to the complaints, if any, and any response.

Request no. 129. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. The request is limited production of any policy and communications relating to its implementation.

Request no. 130. The court sustains Defendants’ relevance objection. No response is required.

Request nos. 131, 132, 133, 134. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The requests are limited to communications involving Jennifer Oneal’s allegations of sexual misconduct, discrimination, or retaliation, any investigation, or response to any complaints.

Request nos. 135, 136. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request no. 137. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to any comparison and related communications.

Request no. 138. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response.

Request nos. 139, 140, 141, 142. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order.

Request nos. 143, 144, 145. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited to communications regarding the alleged incident or any investigation of the alleged incident.

Request nos. 146, 147. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited to communications regarding any investigation and any severance agreement, as well as any severance agreement.

Request no. 148. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request no. 149. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited to communications sent to or from Robert Kotick regarding Javier Panameno.

Request nos. 150, 151, 152, 153, 155, 156. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited to communications regarding Dan Bunting’s termination, any misconduct, any related investigation, or severance agreement, including communications to or from Robert Kotick.

Request no. 154. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request nos. 157, 158, 159, 161, 162. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited communications, including any communication to or from Robert Kotick, regarding the termination, related investigation, and any severance agreement, as well as the severance agreement.

Request no. 160. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request nos. 163, 164, 165, 166, 167. The court sustains Defendants’ objections on grounds of relevance, overbreadth, and vague and ambiguous. No response is required.

Request nos. 168, 169. The court sustains Defendants’ objections on grounds of overbreadth and vague and ambiguous. No response is required.

Request nos. 170, 171. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited to communications regarding any investigation about alleged sexual misconduct, discrimination, or retaliation involving female employees at Defendants’ esports division.

Request nos. 172, 173, 174, 176, 177. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited to communications, including any communications to or from Robert Kotick, regarding the employee’s termination, any related investigation, alleged misconduct, or any severance agreement, as well as the severance agreement.

Request no. 175. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order as well as any severance agreement. Personal identifying information and personal financial information shall be redacted.

Request nos. 178, 179. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited to communications regarding Robert Kotick’s potential termination or resignation, including any sent from or received by Defendants’ board of directors.

Request no. 180. The court sustains Defendants’ overbreadth and vague and ambiguous objections. No response is required.

Request no. 181. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited to communications to or from Defendants’ board of directors regarding Robert Kotick’s alleged knowledge of sexual misconduct or discrimination, or retaliation.

Request no. 182. All objections are overruled. Defendants shall provide a code-compliant response as limited. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Defendants shall provide documents sufficient to identify the employee.

Request nos. 183, 184. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide code-compliant responses. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. This request is limited communications regarding any investigation of the employee, any investigation results, and any severance agreement with the employee, as well as the severance agreement.

Request no. 185. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Personal identifying information and personal financial information shall be redacted.

Request nos. 186, 187, 188, 189. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. Defendants shall produce the communications and provide code-compliant responses. All objections are overruled. Defendants have not supported their privilege assertions.

Request no. 190, 196, 197. The court sustains Defendants’ overbreadth and vague and ambiguous objections. No response is required.

Request no. 191. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. In making this order, the court has balanced the impacted privacy interests against Plaintiff’s need for discovery. The documents shall be produced under the protective order. The request is limited to any communications sent by or received by Robert Kotick regarding alleged sexual misconduct, discrimination, or retaliation.

Request no. 192. The court sustains Defendants’ objections or grounds of overbreadth and vague and ambiguous. No response is required.

Request nos. 193, 194. The court sustains Defendants’ objections or grounds of overbreadth and vague and ambiguous. No response is required.

Request no. 195. All objections other than attorney-client privilege and work-product protection are overruled. Defendants shall provide a code-compliant response. This request is limited documents embodying any policy or mission of the committee.

Request no. 198. Defendants’ shall produce any such recorded statement and provide a code-compliant response.

Request no. 199. This request is limited to any documents memorizing or containing the statement (“I’m going to destroy you.”) attributed to Robert Kotick.

Request no. 200. The court sustains Defendants’ relevance objection. No response is required.

Request no. 201. Defendants shall produce the documents. All objections are overruled. Defendants shall provide a code-compliant response.

Request nos. 207, 208, 209, 210, 211. The court sustains Defendants’ overbreadth and vague and ambiguous objections. No response is required to these requests.

Case Number: *******6571 Hearing Date: February 15, 2022 Dept: 73

Department of Fair Employment and Housing v. Activision Blizzard, Inc., et al.

Demurrer or, in the alternative, motion to strike THE fIRST AMENDED COMPLAINT (filed 11/08/2021)

TENTATIVE RULING

The Court OVERRULES Defendants’ demurrer to all causes of action in the First Amended Complaint, to the extent that they are brought on behalf of its contingent and temporary workers.

The Court OVERRULES Defendants’ demurrer to the FAC on the ground of uncertainty.

The Court SUSTAINS Defendants’ demurrer to the third cause of action employment discrimination because of sex – termination, with leave to amend.

The Court OVERRULES Defendants’ demurrer to the fourth cause of action for employment discrimination because of sex – constructive discharge.

The Court OVERRULES Defendants’ demurrer to the tenth cause of action for waiver of rights, forums, or procedures and release of claims.

The Court DENIES Defendants’ motion to strike the First Amended Complaint.

Background

On August 23, 2021, plaintiff California’s Department of Fair Employment and Housing (“DFEH”) filed the operative First Amended Complaint (“FAC”) against defendants Activision Blizzard (“Activision Blizzard”), Blizzard Entertainment, Inc. (“Blizzard”), and Activision Publishing, Inc. (“Activision Publishing”) (collectively, “Defendants”), alleging the following eleven causes of action:

(1) Employment discrimination because of sex – compensation;

(2) Employment discrimination because of sex – promotion;

(3) Employment discrimination because of sex – termination;

(4) Employment discrimination because of sex – constructive discharge;

(5) Employment discrimination because of sex – harassment;

(6) Retaliation;

(7) Failure to prevent discrimination and harassment (on behalf of Group);

(8) Failure to prevent discrimination and harassment (on behalf of DFEH);

(9) Unequal pay;

(10) Waiver of rights, forums, or procedures and release of claims; and

(11) Failure to maintain and produce records (on behalf of DFEH only).

The FAC alleges the following. DFEH is a state agency tasked with investigating and prosecuting civil rights actions. (FAC, 9.) Defendant Activision Blizzard is one of the largest American video game developers and distributors with approximately 9,500 employees and over 100 million players worldwide. (FAC, 2.) Activision Blizzard conducts business through its subsidiaries, including defendants Blizzard and Activision Publishing. (FAC, 2.)

Unlike its customer-base of increasingly diverse players, Defendants’ workforce is only about 20 percent women. (FAC, 9.) Very few women ever reach top roles at the company and those reach higher roles, earn less salary, incentive pay, and total compensation than their male peers. (FAC, 3.) Defendants promote women more slowly and terminate them more quickly than their male counterparts. (FAC, 4.) Faced with such adverse terms and conditions of employment, many women have been forced to leave the company. (FAC, 4.) Female employees and contingent or temporary workers were also subjected to constant sexual harassment, including having to continually fend off unwanted sexual comments and advances by their male co-workers and superiors. (FAC, 6.) Employees were further discouraged from complaining as human resource personnel were known to be close to alleged harassers and the complaints were treated in a dismissive manner. (FAC, 7.) As a result of these complaints, female employees and contingent or temporary workers were subjected to retaliation, including but not limited to being deprived of work on projects, unwillingly being transferred to different units, and selected for layoffs. (FAC, 7.)

This enforcement action seeks to remedy, prevent, and deter the pattern or practice of unlawful discrimination and other violations, disparate impact of discrimination, and continuing violations that Defendants engaged in against aggrieved female employees and contingent or temporary workers. (FAC, 28.)

Discussion

On November 8, 2021, Defendants filed a Demurrer or, in the alternative, a Motion to Strike DFEH’s First Amended Complaint, arguing:

Demurrer

o DFEH failed to meet statutory pre-filing requirements with respect to contingent and temporary workers. Therefore, all eleven causes of action brought on behalf of those workers fail.

o DFEH failed to join temporary services providers (that employed the contingent and temporary workers) as necessary parties and are now time-barred from doing so.

o The FAC is vague and fails to state a cause of action because it does not identify any relevant time period for its claims.

o The third cause of action for employment discrimination because of sex – termination fails because DFEH does not allege facts sufficient to support its discrimination theories.

o The fourth cause of action for employment discrimination because of sex – constructive discharge fails because there are no facts establishing causation between any intolerable working conditions and the alleged forced resignation of female employees.

o Tenth cause of action for waiver of rights, forums, or procedures and release of claims fails because DFEH does not allege what agreements were purportedly unlawful, the individuals who were required to agree to them, or the circumstances under which they entered into the agreements.

Motion to Strike

o The Court should strike any mention of “contingent or temporary workers” in the FAC because (1) DFEH failed to exhaust claims brought on behalf of those workers, (2) DFEH failed to add them as necessary parties in this lawsuit, and (3) DFEH is now time-barred from correcting those two failures.

o Defendants also move for an order striking the third, fourth, and tenth causes of action in the FAC, for failure to state a claim.

In opposition, DFEH contends,

Defendants’ arguments regarding contingent and temporary workers fail because the definition of an employee under the Fair Employment and Housing Act (“FEHA”) regulations includes those workers.

Temporary staffing agencies (“TSA,” plural “TSAs”), which Defendants refer to as temporary service providers, are not necessary parties just because they are joint employers of Defendants’ contingent and temporary workers.

The FAC’s allegations are adequately pled with respect to time because DFEH is bringing this action on behalf of a specific and ascertainable group of individuals, which is “in the public interest for the state and for Defendants’ female employees and contingent or temporary workers.”

The third cause of action for discriminatory termination is sufficiently pled because the FAC alleged facts to support various theories of liability, including disparate impact and/or disparate treatment.

The fourth cause of action for constructive discharge is sufficiently pled as to causation because the FAC alleges, among other things, that Defendants subjected women to sexual harassment and a hostile work environment, constructively forcing them to leave their employment as a result.

The tenth cause of action for waiver of rights, forums, or procedures and release of claims is sufficiently pled because the FAC alleges that Defendants required female workers to waive rights, forums, and/or procedures as a condition of their employment, continued employment, or receipt of any employment-related benefit.

To the extent the Court agrees the allegations for the third, fourth, and tenth causes of action should be elaborated further, DFEH requests leave to amend.

In reply, Defendants argues,

If it was self-evident that the definition of employee includes “female contingent or temporary workers,” then there would be no need for DFEH to amend the FAC to add the latter.

DFEH’s claims as to the contingent or temporary workers are time-barred and DFEH failed to address that argument in its opposition other than to reiterate that its notices encompassed contingent or temporary workers.

DFEH failed to join the temporary service providers as parties and DFEH’s claim that it can sue Defendants as a “joint employer” does not rectify the issue.

DFEH has still not pled facts sufficient to support its third, fourth, and tenth causes of actions.

DFEH only repeats its harassment allegations that pertain to other counts while ignoring the lack of factual underpinnings for its fourth cause of action for termination and tenth cause of action for waiver.

REQUEST FOR JUDICIAL NOTICE

The Court grants Defendants’ request for judicial notice, filed November 8, 2021, as to all requests (Baca Decl., Exs. A-D). (Evid. Code, 452, subd. (h) [providing that judicial notice may be taken of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”].)

ANALYSIS

A. Demurrer

1. Legal Standard for Demurrer

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., 430.30, et seq.) In particular, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See Id. 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

2. Contingent and Temporary Workers

Defendants contend that all of Plaintiff’s eleven causes of action, to the extent that they are brought on behalf of contingent and temporary workers, fail as a matter of law for the following reasons.

First, DFEH impermissibly amended the FAC to include contingent and temporary workers without giving Defendants notice that it intended to seek relief for those group of workers. Before filing this action, DFEH served a notice of complaint and its intent to investigate (“Investigation Notice”) on defendant Blizzard, alleging that Blizzard “may have engaged … in discriminatory practices against female employees and job applicants on the basis of sex,” and that DFEH intended to pursue its investigation on behalf of “all female employees and applicants for employment ….’ [Citations.]” (Demurrer, p. 8:4-9 [emphasis in original]; See Baca Decl., Ex. A.) However, even after twice amending its Investigation Notice to add the other two defendants, DFEH never stated that its investigation extended to contingent or temporary workers. (Demurrer, p. 8:14-20; Baca Decl., Ex. B-C.) DFEH is now barred from bringing this action on behalf of those workers because the statute of limitations has passed. (Demurrer, p. 13:5-12.)

Second, the FAC has a defect of misjoinder because the TSAs are necessary parties but the DFEH did not add them as defendants in this lawsuit. (Demurrer, pp. 13:5-16:7.)

In opposition, DFEH argues that it brought this action under FEHA, and contingent and temporary workers are included in FEHA’s definition of an employee. (Opposition, pp. 6:2-5; 9:5-6.) Therefore, when DFEH gave Defendants notice that it was investigating allegations of unlawful practices against “female employees and applicants” across the company, Defendants were on notice that contingent or temporary workers were included in that group. (Opposition, p. 10:10-13.) Even assuming arguendo that temporary and contingent employees expanded the scope of the lawsuit, DFEH further argues, such expansion can be said to reasonably arise from its investigation of wrongdoing against the female job applicants and employees. (Opposition, pp. 11:1-12:20.) As to Defendants’ argument regarding misjoinder, DFEH did not need to add the TSAs to this lawsuit because (1) Defendants and the TSAs are joint employers of the contingent or temporary workers and (2) the allegations in the FAC concern what occurred at Defendants’ (not the TSAs’) offices and events. (Opposition, p. 13:10-14:13.)

In reply, insist that DFEH was required to specifically state “contingent and temporary workers” in its administrative complaint in order to satisfy its pre-suit notice requirements, a “reasonably related” exception to the notice requirements does not exist, DFEH failed to add the TSAs as necessary parties, and DFEH cannot rectify the misjoinder issue by arguing that it is suing Defendants as joint employers of the contingent and temporary workers.

a. Definition of an Employee

According to FEHA regulations, as DFEH points out and Defendants concede (Reply, pp. 9:21-10:2), “[a]n individual compensated by a temporary service agency for work to be performed for an employer contracting with the temporary service agency is an employee of that employer for such terms, conditions and privileges of employment under the control of that employer.” (Cal. Code Regs., tit. 2, 11008, subd. (c)(5).) Therefore, by specifying in its notice that its investigation was on behalf of “all female employees,” DFEH gave Defendants constructive notice that its investigation included female contingent and temporary workers of whose terms, conditions, and privileges Defendants controlled. (Baca Decl., Exs. A-C, 6.)

Granted, “[f]ollowing an order sustaining a demurrer … with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Here, the court did not authorize DFEH to amend its Complaint to add the phrase “contingent or temporary workers.” However, even if the Court were to strike the phrase “contingent or temporary workers” from the FAC, that will not change the fact that FEHA regulations, which govern the allegations in this lawsuit, include contingent and temporary workers (whose terms, conditions, and privileges of their employment that Defendants controlled) in their definition of an “employee.” (Cal. Code Regs., tit. 2, 11008, subd. (c)(5).)

Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174 (“Mathieu”) is instructive. Just like in this case, Mathieu involved a lawsuit brought under the FEHA. The plaintiff (Laura Mathieu) was hired by a temporary employment agency, Norrell Corporation (“Norrell”), which placed her as a worker with its client Gulfstream Aerospace Corporation (“Gulfstream”). (Id. at p. 1179.) Mathieu’s ex-boyfriend Richard Fluck was also employed by Gulfstream. (Ibid.) Fluck harassed Mathieu once she started working at Gulfstream. (Ibid.) The California Court of Appeal held that both Norrell and Gulfstream can be considered Mathieu’s employer for purposes of potential liability for sexual harassment and retaliation under FEHA. (Id. at p. 1182.) In so holding, the Court stated:

In the content of an individual who is employed by a temporary agency and assigned to work on the premises of the agency’s client, we believe the purpose of FEHA to safeguard an employee’s right to hold employment without experiencing discrimination is best served by applying the traditional labor law doctrine of ‘dual employers,’ holding both the agency and the client are employers and considering harassment by an employee of the client coworker harassment rather than harassment by a third party.

(Id. at p. 1183.) Indeed, “[a]s with all other aspects of the Fair Employment and Housing Act, the investigatory and adjudicatory procedure is to be ‘construed liberally for the accomplishment of the purposes of [the Act].’ Cal. Gov't Code 12993(a).” (Department of Fair Employment and Housing v. Law School Admission Council Inc. (N.D. Cal. 2012) 896 F.Supp.2d 849, 862.)

Accordingly, given the definition of an “employee” under FEHA regulations and the Court of Appeal’s holding in Mathieu, the Court finds that DFEH did not expand the scope of this lawsuit by amending the Complaint to add the phrase “contingent and temporary workers.” The Court also finds that the FAC has pled facts sufficient to show that the group of female contingent and temporary workers were Defendants “employees,” by alleging that “Defendants jointly supervised and controlled employee’s conditions of employment, determined rate of pay or method of payment, had authority to hire or fire employees, and maintained employment records.” (FAC, 14.)

b. Necessary Parties

“Code of Civil Procedure section 389 (section 389) governs joinder of parties.” (Van Zant v. Apple Inc. (2014) 229 Cal.App.4th 965, 973 (“Van Zant”).) “Subdivision (a),” of section 389, “defines persons who should be joined in a lawsuit if possible and are thus deemed necessary to the action.” (Pinto Lake MHP LLC v. County of Santa Cruz (2020) 56 Cal.App.5th 1006.)

Here, the Court does not find that the TSAs are necessary parties, as explained below.

Under section 389, subdivision (a)(1), parties “should be joined as defendants if, in their absence, ‘complete relief cannot be accorded among those already parties.’ [Citation.]” (Countrywide Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 793 (“Countrywide”).) For example, in Countrywide, the Court of Appeal found that borrowers were not necessary parties because plaintiff was seeking to recover general and exemplary damages. (Ibid.) Therefore, assuming that the plaintiff prevailed in that action, its damages could be ascertained, and judgment entered, even if the borrowers were not joined as parties. (Id. at 794.) Here, Defendants have not shown why relief cannot be accorded among the current parties in the absence of the TSAs. Therefore, the Court finds that the TSAs are not necessary parties under section 389, subdivision (a)(1).

Section 389, subdivision (a)(2), “sets forth two prongs under which a party may be deemed necessary—(a)(2)(i) and (ii).” (Van Zant, supra, 229 Cal.App.4th at p. 974–975.) However, “both prongs are subject to the same predicate condition: that the absent party ‘claims an interest relating to the subject of the action ....’ [Citation.]” (Ibid.) For example, in Van Zant, a class action lawsuit brought against defendant Apple Inc. relating to the company’s marketing and sales of an iPhone, the Court of Appeal held that a network carrier (AT&T Mobility LLC) had implicitly claimed an interest in subject matter of that class action lawsuit because it litigated that subject matter in multidistrict litigation proceedings. Here, Defendants have not shown that the TSPs claimed an interest in the subject matter of the lawsuit. Therefore, the Court finds that the TSAs are not necessary parties under section 389, subdivision (a)(2).

Defendants argue that the TSAs are necessary parties under section 389, subdivision (a), because they are active participants in the allegations made in the FAC. However, Defendants do not point to any allegation in the FAC that mention the TSAs. In addition, as DFEH points out, the allegations in the FAC concern only what occurred at Defendants’ offices and events.

Accordingly, the Court does not find that the TSAs are necessary parties.

c. Conclusion

For the reasons set forth above, the Court overrules Defendants’ demurrer to all causes of action, to the extent that they are brought on behalf of its contingent and temporary workers, on the grounds of misjoinder (Code Civ. Proc., 430.10, subd. (d)) and failure to state facts sufficient to constitute a cause of action (Code Civ. Proc., 430.10, subd. (e)).

3. Uncertainty

Defendants demurer to the entire FAC on the ground that it is vague because it fails to identify any relevant time period for its claims. (Demurrer, p. 18:2-3.) Citing an unreported federal class action case, Defendants argue that the putative Group is “not sufficiently ‘precise, objective and presently ascertainable.’” (Demurrer, p. 18:10-14, citing Kevari v. Scottrade, Inc. (C.D. Cal., Aug. 31, 2018, No. CV 18-819-JFW(GJSX)) 2018 WL 6136822, at *10.) Without knowing the time frame that covers the purported group of employees, Defendants argue, the parties will be unable to meaningfully determine appropriate discovery limits, the scope of admissible (or inadmissible) evidence, and the period for which DFEH is seeking recovery. (Demurrer, p. 18:16-20.)

In opposition, DFEH contends that it is not subject to class certification requirements. (Opposition, 14:18-19.) Nevertheless, the FAC’s allegations are adequately pled with respect to time because Plaintiff brought this action “seeking relief in the public interest for the state Defendants’ female employees and contingent or temporary workers.” (Opposition, p. 15:1-4.) In addition, the FAC alleges continuing allegations. (Opposition, p. 15:7-8.) Therefore, it is premature for Plaintiff to attempt to define a specific time period, which relates to damages and other relief. (Opposition, p. 15:8-10.)

In reply, Defendants contend that DFEH’s assertion, that it is not required to allege a timeframe because it is not subject to class certification requirements, is irrelevant. (Reply, p. 14:7-8.) In addition, DFEH’s enforcement action cannot be limitless in terms of time. (Reply, p. 14:8-9.) The class action case that DFEH relies on is distinguishable from this case because in that case, Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, the plaintiff specified the covered timeframe by defining the class as, “‘[a]ll persons who purchased the Ready Set Pool at a Rite Aid store located in California within the four years preceding the date of the filing of this action.’ [Citation.]” (Reply, p. 14:13-16.)

A party may demurrer on the ground that a pleading is uncertain. (Code Civ. Proc., 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

Here, although the FAC fails to allege a precise time period of the wrongdoing it alleges occurred, any such arguable ambiguity can be clarified through discovery, for example, through interrogatories or other discovery. Indeed, “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–146.)

Accordingly, the Court overrules Defendants’ demurrer to the FAC on the ground of uncertainty.

4. Third Cause of Action – Termination

Defendants demurer to DFEH’s third cause of action for employment discrimination because of sex – termination, contending the following. Defendants argue that DFEH does not adequately allege facts sufficient to support the two different discrimination theories (disparate treatment and disparate impact termination) it advances for its third cause of action. To survive a demurrer for the disparate treatment theory, Plaintiff must allege (1) that members of a protected group were treated differently than similarly situated individuals and (2) evidence of discriminatory motive. In addition, to survive a demurrer based on a disparate impact theory, Plaintiff must allege facts or statistical evidence demonstrating a causal connection between the challenged policy and significant disparate impact on the allegedly protected group. However, here, Plaintiff has not adequately identified neutral policies or practices that it contends adversely impact women in regard to termination.

In opposition, DFEH contends that the FAC is sufficiently pled to support Plaintiff’s third cause of action because it alleged specific facts to support various theories of liability, including disparate impact and/or disparate treatment. However, to the extent the Court believes the allegations should be clarified, Plaintiff requests leave to amend.

“In general, there are two types of illegal employment discrimination under FEHA: disparate treatment and disparate impact.” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) “Disparate treatment and disparate impact are different theories of discrimination, requiring different proof.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 61.) “‘Disparate treatment’ is intentional discrimination against one or more persons on prohibited grounds. [Citations.] Prohibited discrimination may also be found on a theory of ‘disparate impact,’ i.e., that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.’” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354, fn. 20.)

“To prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.” (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317.) However, “[i]n most cases, the complainant will be unable to produce direct evidence of the employer's intent.” (Ibid.) Therefore, “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, … based on a theory of disparate treatment.” (Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at p. 354.) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Ibid.)

The following are the three steps of the McDonnell Douglas test: “1) The complainant must establish a prima facie case of discrimination; 2) The employer must offer a legitimate reason for his actions; [and] 3) The complainant must prove that this reason was a pretext to mask an illegal motive.” (Mixon v. Fair Employment & Housing Com., supra, 192 Cal.App.3d at p. 1317.) “The plaintiff, of course, must plead a prima facie case,” the first step under the McDonnell Douglas test, “in order to survive demurrer.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203, fn. 7.) “Accordingly, the complaint must include the prima facie elements of employment discrimination specified in McDonnell Douglas.” (Ibid.) “The prima facie case for discriminatory discharge can therefore be stated thusly: (1) complainant belongs to a protected class; (2) his job performance was satisfactory; (3) he was discharged; and (4) others not in the protected class were retained in similar jobs, and/or his job was filled by an individual of comparable qualifications not in the protected class.” (Mixon v. Fair Employment & Housing Com., supra, 192 Cal.App.3d at p. 1318.)

The FAC satisfies the first prong by alleging that DFEH is bringing this action to vindicate the rights of female employees, a protected class (sex or gender) under FEHA. (FAC, 1; Gov. Code, 12940, subd. (a).) The FAC also satisfies the third prong, that the female employees were discharged, by alleging that the Defendants terminated female employees. (FAC, 4, 44, 81.) However, the FAC does not adequately facts supporting the second prong (job performance was satisfactory) and fourth prong (that after termination, others not in the protected class were retained in similar jobs, and/or his job was filled by an individual of comparable qualifications not in the protected class).

For the reasons set forth above, at this point, the FAC has not adequately alleged facts sufficient to support its third cause of action for employment discrimination because of sex – termination based on a disparate treatment theory. The Court also finds that the FAC does not adequately support a disparate impact theory because there are not sufficient facts alleging that a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, had a disproportionate adverse effect on the female employees. DFEH should clarify.

Accordingly, at this point, the Court sustains Defendants’ demurrer to the third cause of action employment discrimination because of sex – termination, for failure to state facts sufficient to constitute a cause of action, with leave to amend. (Code Civ. Proc., 430.10, subd. (3).) DFEH has 20 days to file an amended complaint.

5. Fourth Cause of Action – Constructive Discharge

Defendants demurer to DFEH’s fourth cause of action for employment discrimination because of sex – constructive discharge arguing that it fails to state a cause of action. They argue that the FAC does not allege facts establishing causation between any purported “aggravated” and “intolerable” working conditions on one hand, and Defendants’ forced resignation of any woman, much less a group of female employees. (Demurrer, p. 20:7-9.)

The Court disagrees. “In order to establish a constructive discharge, an employee must plead and prove, … that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.)

Here, the FAC alleges working conditions that were so intolerable or aggravated at the time of the relevant employees’ resignations that a reasonable employer would realize that a reasonable person in the employees’ positions would be compelled to resign. The FAC alleges that Defendants fostered a pervasive “frat boy” workplace culture that continues to thrive. (FAC, 5.) For example, women are subjected to “cube crawls” in which male employees drink copious amounts of alcohol as they “crawl” their way through various cubicles in the office and engage in inappropriate behavior towards female employees. (FAC, 5.) Male employees come into work hungover and play video games for long periods of time during work, while delegating their responsibilities to female employees, engage in banter about their sexual encounters, talk openly about female bodies, and joke about rape. (FAC, 5.) Defendants’ “frat boy” culture is a breeding ground for harassment and discrimination against women. (FAC, 6.) Further, as a result of Defendants “denying women promotions, assignments and compensation in comparison to their male counterparts and subjecting them to sexual harassment and a hostile work environment, Defendants effectively forced female workers to leave their employment with Defendants.” (FAC, 91.)

The FAC also alleges that the employer knowingly permitted such working conditions. The FAC alleges that “[n]umerous complaints about unlawful harassment, discrimination, and retaliation were made to Defendants’ human resources personnel and executives, including to Blizzard Entertainment’s President J. Allen Brack.” (FAC, 7.) However, “employee’s complaints were treated in a perfunctory and dismissive manner …” and “subjected to retaliation, including but not limited to being deprived of work on projects, unwillingly transferred to different units, and selected for layoffs.” (FAC, 7.)

Accordingly, the Court overrules Defendants’ demurrer to DFEH’s fourth cause of action for employment discrimination because of sex – constructive discharge.

6. Tenth Cause of Action – Waiver

Defendants demurer to DFEH’s fourth cause of action for waiver of rights, forums, or procedures and release of claims arguing that it fails to state a cause of action.

“Effective January 1, 2020, [Labor Code] section 432.6 prohibits California employers from requiring prospective and current employees to ‘waive any right, forum, or procedure’ for a violation of the [FEHA] or the Labor Code. ( 432.6, subd. (a).)” (Midwest Motor Supply Co. v. Superior Court of Contra Costa County (2020) 56 Cal.App.5th 702, 714–715.) “Ordinarily, a pleading ‘is sufficient if it alleges ultimate rather than evidentiary facts.’ [Citation.]” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1027.) “Generally, court and litigants are guided in making these distinctions by the principle that a plaintiff is required only to set forth the essential facts with ‘“‘“particularity sufficient to acquaint a defendant with the nature, source and extent of [the plaintiff's] cause of action.”’”’ [Citations.]” (Ibid.)

Here, the Court finds that DFEH has pleaded the ultimate facts sufficient to support its fourth cause of action. The FAC alleges that Defendants required female workers to waive rights, forums, and/or procedures as a condition of their employment, continued employment, or receipt of any employment-related benefit. (FAC, 150.) In addition, “female workers were required to sign a release of claims and/or rights in exchange for underpayment of compensation, or an adjustment, bonus, raise or payment, and/or for employment-related benefit,” in violation of FEHA, Government Code section 12964.5. (FAC, 152.) To the extent that Defendants are arguing that tenth cause of action is uncertain because the FAC fails to allege specific facts about the agreements that were purportedly unlawful, the individuals who were required to agree to them, or the circumstances under which they entered into the agreements (Demurrer, p. 20:12-14), such ambiguities can be clarified through discovery.

Accordingly, the Court overrules Defendants’ demurrer to DFEH’s tenth cause of action for waiver of rights, forums, or procedures and release of claims.

B. Motion to Strike

Considering the Court’s ruling on Defendants’ demurrer above, the Court denies in full Defendants’ motion to strike.

ORDER

The Court OVERRULES Defendants’ demurrer to all causes of action in the First Amended Complaint, to the extent that they are brought on behalf of its contingent and temporary workers.

The Court OVERRULES Defendants’ demurrer to the FAC on the ground of uncertainty.

The Court SUSTAINS Defendants’ demurrer to the third cause of action employment discrimination because of sex – termination, with leave to amend within 20 days.

The Court OVERRULES Defendants’ demurrer to the fourth cause of action for employment discrimination because of sex – constructive discharge.

The Court OVERRULES Defendants’ demurrer to the tenth cause of action for waiver of rights, forums, or procedures and release of claims.

The Court DENIES Defendants’ motion to strike the First Amended Complaint.