`
`
`
`Jon G. Miller, Bar No. 150702
`jmiller@littler.com
`Ariën Koorn, Bar No. 276758
`akoorn@littler.com
`LITTLER MENDELSON, P.C.
`18565 Jamboree Road
`Suite 800
`Irvine, California 92612
`Telephone:
`949.705.3000
`Fax No.:
`949.724.1201
`Attorneys for Cross-Defendant
`APEX SYSTEMS, LLC
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`COUNTY OF LOS ANGELES
`
`Case No. 21STCV26571
`NOTICE OF LODGING OF CROSS-
`DEFENDANT APEX SYSTEMS, LLC
`OF CALIFORNIA JUDGES
`BENCHBOOK IN SUPPORT OF ITS
`OPPOSITION TO PLAINTIFF’S
`MOTION FOR RECONSIDERATION
`ASSIGNED FOR ALL PURPOSES TO
`JUDGE MALCOLM MACKEY, DEPT. 55
`Trial Date: Not Set
`Complaint Filed: July 20, 2021
`FAC Filed: August 23, 2021
`Cross-Complaint: January 23, 2023
`
`
`CALIFORNIA CIVIL RIGHTS
`DEPARTMENT, an agency of the State of
`California,
`
`Plaintiff,
`
`v.
`ACTIVISION BLIZZARD, INC.; BLIZZARD
`ENTERTAINMENT, INC.; and ACTIVISION
`PUBLISHING, INC., and DOES ONE through
`TEN, inclusive,
`
`Defendants.
`
`ACTIVISION BLIZZARD, INC., BLIZZARD
`ENTERTAINMENT, INC. and ACTIVISION
`PUBLISHING, INC.,
`Cross-Complainants,
`
`v.
`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,
`
`
`NOTICE OF LODGING OF CROSS-DEFENDANT APEX SYSTEMS, LLC OF CALIFORNIA JUDGES
`BENCHBOOK IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION
`
`
`
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`LITTLER MENDELSON,
`P.C.
`18565 Jamboree Road
`Suite 800
`Irvine, CA 92612
`949.705.3000
`
`

`

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`LITTLER MENDELSON,
`P.C.
`Attorneys at Law
`18565 Jamboree Road
`Suite 800
`Irvine, CA 92612
`949.705.3000
`
`INC., and CAREER GROUP, INC.,
`Cross-Defendants.
`
`TO PLAINTIFF AND CROSS-COMPLAINANTS AND THEIR COUNSEL OF
`RECORD:
`
`PLEASE TAKE NOTICE that, pursuant to the Local Rules for the Superior Court
`of the State of California, County of Los Angeles, Rule 3.4(e), Cross-Defendant APEX SYSTEMS,
`LLC (“Apex”) hereby lodges the following papers in support of their Opposition to Plaintiff’s
`Motion for Reconsideration of Order Granting Cross-Defendant APEX’s Motion for Peremptory
`Disqualification to the Honorable Timothy P. Dillon:
`
`ITEM
`California Judges Benchbook Civil Procedure Before Trial § 7.5.
`
`EXHIBIT
`A
`
`Dated: February 16, 2023
`
`JON G. MILLER
`ARIEN KOORN
`LITTLER MENDELSON
`A Professional Corporation
`Attorneys for Cross-Defendant
`APEX SYSTEMS, LLC
`
`2
`NOTICE OF LODGING OF CROSS-DEFENDANT APEX SYSTEMS, LLC OF CALIFORNIA JUDGES
`BENCHBOOK IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION
`
`

`

`EXHIBIT A
`EXHIBIT A
`
`
`
`
`

`

`1. [§ 7.5] General Rule: Any Time Before Trial or Hearing:, Cal. Judges Benchbook Civ....
`
`Cal. Judges Benchbook Civ. Proc. Before Trial § 7.5
`
`California Judges Benchbook: Civil Proceedings-Before Trial | March 2022 Update
`
`7. Disqualification of Judge
`
`II. Peremptory Challenge of Judge
`
`D. Time Limits for Making Challenge
`
`1. [§ 7.5] General Rule: Any Time Before Trial or
`Hearing:
`
`A CCP § 170.6 challenge is generally permitted at any time before the commencement of a trial or hearing. There are, however,
`three exceptions to this general rule:
`
`• The 10-day/5-day rule (see § 7.6);
`• The master calendar rule (see § 7.7); and
`• The all-purpose assignment rule (see § 7.8).
`
`
`
`
`
`A judge must determine whether any of the exceptions apply, or whether the general rule applies. Maas v Superior Court
`(2016) 1 C5th 962, 973, 209 CR3d 571; Bontilao v Superior Court (2019) 37 CA5th 980, 991, 250 CR3d 535 (all-purpose
`assignment rule applied).
`
`Prior determination of contested fact issues precludes challenge. The fact that the judge (or court commissioner or referee)
`presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion before trial, which did not
`involve a determination of contested fact issues relating to the merits, does not preclude a party from subsequently challenging
`the judge (or court commissioner or referee). CCP § 170.6(a)(2). Stated conversely, a party may not make a CCP § 170.6 motion
`after the judge has resolved a disputed issue of fact relating to the merits. National Fin. Lending, LLC v Superior Court (2013)
`222 CA4th 262, 270, 166 CR3d 88.
`
`Issuing a permanent injunction (see Astourian v Superior Court (1990) 226 CA3d 720, 726, 276 CR 657), or ruling on a pretrial
`motion to exclude evidence (see
`Briggs v Superior Court (2001) 87 CA4th 312, 317–318, 104 CR2d 445), constitutes a
`determination of a disputed issue of fact relating to the merits, which precludes a subsequent peremptory challenge under CCP
`§ 170.6.
`
`On the other hand, most pretrial motions are decided without a determination of contested facts related to the merits of the case
`and, thus, a ruling on these motions does not preclude a subsequent peremptory challenge. School Dist. of Okaloosa County
`v Superior Court (1997) 58 CA4th 1126, 1133, 68 CR2d 612. See Johnny W. v Superior Court (2017) 9 CA5th 559, 565, 215
`CR3d 372 (CCP § 170.6 challenge is not untimely merely because judge has previously determined some issue of fact: judge
`must have actually resolved or determined conflicting factual contentions relating to merits).
`
`For example, a peremptory challenge is not precluded by a judge's ruling on the following:
`
`• A summary adjudication motion. See
`
`Zilog, Inc. v Superior Court (2001) 86 CA4th 1309, 1322, 104 CR2d 173.
`
` © 2023 Thomson Reuters. No claim to original U.S. Government Works.
`
`
`
`1
`
`

`

`1. [§ 7.5] General Rule: Any Time Before Trial or Hearing:, Cal. Judges Benchbook Civ....
`
`
`• A summary judgment motion. See Bambula v Superior Court (1985) 174 CA3d 653, 657, 220 CR 223. See also § 13.88.
`• A motion to quash service of the summons on the ground of lack of personal jurisdiction. See School Dist. of Okaloosa
`
`County v Superior Court, supra, 58 CA4th at 1133–1134. A defendant makes a special rather than a general appearance
`by filing a declaration of prejudice under CCP § 170.6 to disqualify a judge from hearing a motion to quash. Loftin v
`Superior Court (1971) 19 CA3d 577, 579–580, 97 CR 215.
`
`
`Schraer v Berkeley Prop. Owners' Ass'n (1989) 207 CA3d 719, 728–
`• A motion for a temporary restraining order. See
`729, 255 CR 453; Landmark Holding Group, Inc. v Superior Court (1987) 193 CA3d 525, 529, 238 CR 274.
`
`• A motion to transfer and for a continuance. See
`(1977) 69 CA3d 407, 417, 138 CR 43.
`
`
`Los Angeles County Dep't of Pub. Social Servs. v Superior Court
`
`
`Fight for the Rams v Superior Court (1996) 41
`
`• A demurrer. See Maas v Superior Court, supra, 1 C5th at 978;
`CA4th 953, 957, 48 CR2d 851.
`• A motion for judgment on the pleadings. See Hospital Council of N. Cal. v Superior Court (1973) 30 CA3d 331, 337–
`
`338, 106 CR 247.
`• A discovery motion. See Swift v Superior Court (2009) 172 CA4th 878, 882–885, 91 CR3d 504; Guardado v Superior
`
`Court (2008) 163 CA4th 91, 95–99, 77 CR3d 149.
`• An ex parte application. Ex parte determinations are not “the result of a hearing upon a contested issue” within the meaning
`
`of CCP § 170.6(a)(2) such that a peremptory challenge would be barred. Los Angeles County Metro. Transp. Auth. v
`Superior Court (2021) 68 CA5th 920, 922–923, 283 CR3d 907 (application for search warrant is ex parte procedure and
`not hearing for purposes of CCP § 170.6(a)(2)).
`
`Second action as continuation of prior action. Case law has established a further limitation on the time for making a CCP §
`170.6 challenge. When a second action or special proceeding involves substantially the same issues and matters necessarily
`relevant and material to the issues in the prior action or proceeding, the second action or proceeding is considered to be a
`continuation of the earlier action or proceeding for purposes of CCP § 170.6. Maas v Superior Court, supra, 1 C5th at 979. If
`the second action or proceeding that is considered to be a continuation of the earlier action or proceeding is assigned to the same
`judge who presided over the earlier action, the parties are not permitted to exercise a peremptory challenge against that judge:
`such a challenge is untimely because it was not made before the commencement of the earlier trial.
`1 C5th at 979; Birts
`v Superior Court (2018) 22 CA5th 53, 58–60, 231 CR3d 187 (district attorney that dismissed criminal case and then refiled
`virtually identical case, which was assigned to same judge, could not challenge this judge in refiled case—challenge should
`have been denied as untimely; only reason for dismissal and refiling was to avoid impact of pretrial rulings made in first case).
`
`See Continuation of proceedings doctrine, discussed in § 7.11.
`
`Before hearing. A motion that is directed to a judge who is presiding at a hearing must be made no later than the commencement
`of the hearing. CCP § 170.6(a)(2).
`
`Before trial. In no event may a judge (or court commissioner or referee) entertain a challenge that is made after: (1) the name
`of the first juror is drawn; (2) after the plaintiff's attorney makes an opening statement in a nonjury trial; or (3) after the first
`witness is sworn, any evidence is given, or the trial has otherwise commenced, if the trial is a nonjury trial and the plaintiff's
`attorney does not make an opening statement. CCP § 170.6(a)(2).
`
`Challenge is not permitted absent pending trial or hearing. The general rule that a challenge may be made at any time before
`the commencement of a trial or hearing does not mean that a challenge can be made at any time during the litigation. The
`express language of CCP § 170.6(a)(1) limits a peremptory challenge to those times when either a trial or a hearing involving a
`contested issue of law or fact is pending on the court's calendar. Grant v Superior Court (2001) 90 CA4th 518, 525–527, 108
`CR2d 825 (only exception is all-purpose assignment rule, which permits challenge to all-purpose assignment judge expected to
`preside at trial although trial date has not been set). Accordingly, a peremptory challenge cannot be used to disqualify a judge
`
` © 2023 Thomson Reuters. No claim to original U.S. Government Works.
`
`2
`
`

`

`1. [§ 7.5] General Rule: Any Time Before Trial or Hearing:, Cal. Judges Benchbook Civ....
`
`90 CA4th at 526, 528. It also cannot be filed
`from presiding over a case management conference or a settlement conference.
`on the basis that a hearing on a contested matter may be held in the future course of litigation.
`90 CA4th at 528.
`
`Coordinated proceedings. Special time limits apply to challenges to a coordination motion judge or a coordination trial judge.
`See § 2.123.
`
`Challenge to arbitrator. The time limit on challenging an arbitrator in a judicial arbitration proceeding is discussed in § 4.29.
`
`Necessity of timely challenge. A party cannot fail to request a judge's disqualification and then argue on appeal for reversal of an
`unfavorable ruling. Los Alamitos Unified Sch. Dist. v Howard Contracting, Inc. (2014) 229 CA4th 1222, 1230, 178 CR3d 355.
`A judge has no authority to waive compliance with the statutory time limits. Nevertheless, a party that fails to make a timely
`peremptory challenge retains the right to potentially challenge the judge for cause, e.g., if the party has evidence of the judge's
`bias against the party. Bontilao v Superior Court, supra, 37 CA5th at 1001. See §§ 7.31- 7.34.
`
`Superior court policy or practice. A superior court policy or practice regarding the time for making a peremptory challenge is
`void if it conflicts with the statutory time limits specified in CCP § 170.6(a)(2). Motion Picture & Television Fund Hosp. v
`Superior Court (2001) 88 CA4th 488, 492, 105 CR2d 872. See §§ 1.3- 1.4.
`
`Westlaw. © 2022 by The Foundation for Judicial Education.
`
`End of Document
`
`© 2023 Thomson Reuters. No claim to original U.S. Government
`Works.
`
` © 2023 Thomson Reuters. No claim to original U.S. Government Works.
`
`3
`
`

`

`
`
`PROOF OF SERVICE
`I am a resident of the State of California, over the age of eighteen years, and not a
`party to the within action. My business address is 18565 Jamboree Road, Suite 800, Irvine,
`California 92612. On February 16, 2023, I served the within document(s):
`
`NOTICE OF LODGING OF CROSS-DEFENDANT APEX SYSTEMS, LLC OF
`CALIFORNIA JUDGES BENCHBOOK IN SUPPORT OF ITS OPPOSITION TO
`PLAINTIFF’S MOTION FOR RECONSIDERATION
`
`
`
`
`
`
`
`x
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`by facsimile transmission on that date. This document was transmitted by using a
`facsimile machine that complies with California Rules of Court Rule 2003(3),
`telephone number 949.724.1201. The transmission was reported as complete and
`without error. A copy of the transmission report, properly issued by the transmitting
`machine, is attached. The names and facsimile numbers of the person(s) served are
`as set forth below.
`
`by placing a true copy of the document(s) listed above for collection and mailing
`following the firm’s ordinary business practice in a sealed envelope with postage
`thereon fully prepaid for deposit in the United States mail at Irvine, California
`addressed as set forth below.
`
`by depositing a true copy of the same enclosed in a sealed envelope, with delivery
`fees provided for, in an overnight delivery service pick up box or office designated
`for overnight delivery, and addressed as set forth below.
`
`by personally delivering a copy of the document(s) listed above to the person(s) at
`the address(es) set forth below.
`
`by causing a copy of the document(s) listed above to the person(s) at the address(es)
`set forth below to be personally delivered by ___________________.
`
`courtesy copy by email. The electronic address of the person making the service is
`nmayala@littler.com.
`
`Based on a court order or an agreement of the parties to accept service by e-mail or
`electronic transmission, I caused the documents to be sent to the persons at the e-
`mail addresses on the attached service list on the dates and at the times stated thereon.
`I did not receive, within a reasonable time after the transmission, any electronic
`message or other indication that the transmission was unsuccessful. The electronic
`notification address of the person making the service is nmayala@littler.com.
`
`3
`NOTICE OF LODGING OF CROSS-DEFENDANT APEX SYSTEMS, LLC OF CALIFORNIA JUDGES
`BENCHBOOK IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION
`
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`LITTLER MENDELSON,
`P.C.
`Attorneys at Law
`18565 Jamboree Road
`Suite 800
`Irvine, CA 92612
`949.705.3000
`
`

`

`
`
`JAMIE CROOK
`Chief Counsel
`jamie.crook@dfeh.ca.gov
`ALEXIS MCKENNA
`Assistant Chief Counsel
`Alexis.McKenna@dfeh.ca.gov
`ANTONIO LAWSON
`Associate Chief Counsel
`tony.lawson@dfeh.ca.gov
`KENDRA L. TANACEA
`Associate Chief Counsel
`kendra.tanacea@dfeh.ca.gov
`LOGAN TALBOT
`Senior Staff Counsel
`logan.talbot@dfeh.ca.gov
`ELIANA MATA
`Staff Counsel
`eliana.mata@dfeh.ca.gov
`JUAN GAMBOA
`juan.gamboa@dfeh.ca.gov
`IVA TOWNSEL
`iva.townsel@dfeh.ca.gov
`Staff Counsel
`CALIFORNIA CIVIL RIGHTS DEPARTMENT
`2218 Kausen Drive, Suite 100
`Elk Grove, CA 95758
`Telephone: (916) 478-7251
`Facsimile: (888) 382-5293
`
`JAHAN C. SAGAFI
`ADAM L. KOSHKIN
`OUTTEN & GOLDEN LLP
`One California Street, 12th Floor
`San Francisco, CA 94111
`Telephone: (415) 638-8800
`Facsimile: (415) 638-8810
`Email: jsagafi@outtengolden.com
`
`akoshkin@outtengolden.com
`
`
`
`
`
`
`
`
`
`PAUL HASTINGS LLP
`ELENA R. BACA
`elenabaca@paulhastings.com
`FELICIA A. DAVIS
`feliciadavis@paulhastings.com
`515 South Flower Street, 25th Floor
`Los Angeles, California 90071-2228
`Telephone: 1(213) 683-6000
`Facsimile: 1(213) 627-0705
`
`PAUL HASTINGS LLP
`RYAN D. DERRY
`ryanderry@paulhastings.com
`101 California Street, 48th Floor
`San Francisco, California 94111
`Telephone: 1(415) 856-7000
`Facsimile: 1(415) 856-7100
`
`MUNGER, TOLLES & OLSON LLP
`BRAD D. BRIAN
`brad.brian@mto.com
`KATHERINE M. FORSTER
`katherine.forster@mto.com
`350 South Grand Avenue, 50th Floor
`Los Angeles, California 90071-3426
`Telephone: (213) 683-9100
`Facsimile: (213) 687-3702
`
`MUNGER, TOLLES & OLSON LLP
`DAVID H. FRY
`david.fry@mto.com
`RICHARD T. JOHNSON
`richard.johnson@mto.com
`560 Mission Street, 27th Floor
`San Francisco, California 94105
`Telephone: (415) 512-4000
`Facsimile: (415) 512-4077
`
`Attorneys For Defendants,
`ACTIVISION BLIZZARD, INC.,
`BLIZZARD ENTERTAINMENT,
`INC.,
`AND ACTIVISION PUBLISHING,
`INC.
`
`4
`NOTICE OF LODGING OF CROSS-DEFENDANT APEX SYSTEMS, LLC OF CALIFORNIA JUDGES
`BENCHBOOK IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION
`
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`LITTLER MENDELSON,
`P.C.
`Attorneys at Law
`18565 Jamboree Road
`Suite 800
`Irvine, CA 92612
`949.705.3000
`
`

`

`
`
`
`
`
`
`AMY L. MAURER*
`OUTTEN & GOLDEN LLP
`685 Third Avenue, 25th Floor
`New York, NY 10017
`Telephone: (212) 245-1000
`Facsimile: (646) 509-2005
`Email: amaurer@outtengolden.com
`*Admitted Pro Hac Vice
`
`Attorneys for Plaintiff,
`California Civil Rights Department
`I am readily familiar with the firm's practice of collection and processing
`correspondence for mailing and for shipping via overnight delivery service. Under that practice it
`would be deposited with the U.S. Postal Service or if an overnight delivery service shipment,
`deposited in an overnight delivery service pick-up box or office on the same day with postage or
`fees thereon fully prepaid in the ordinary course of business.
`I declare under penalty of perjury under the laws of the State of California that the
`above is true and correct. Executed on February 16, 2023, at Irvine, California.
`
`
`
`
`
` 4895-7433-1473.1 / 113587-1001
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Norma Ayala
`Norma Ayala
`
`5
`NOTICE OF LODGING OF CROSS-DEFENDANT APEX SYSTEMS, LLC OF CALIFORNIA JUDGES
`BENCHBOOK IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION
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`LITTLER MENDELSON,
`P.C.
`Attorneys at Law
`18565 Jamboree Road
`Suite 800
`Irvine, CA 92612
`949.705.3000
`
`