Judge Audra Mori, Case 18STCV07245 2022-10-19 Tentative Ruling

Plaintiff Maria Del Carmen Baklayan (“Plaintiff”) filed this action against defendants Uber Technologies, Inc., Raiser-CA, Andrew Hu, Evan Omar Nunez, and Jose Nunez for damages arising out of a motor vehicle accident. Trial is currently set for January 20, 2023.

At this time, Defendant Andrew Hu’s (“Hu” or “Defendant”) moves for an order appointing a discovery referee pursuant to CCP § 639. Defendant contends a referee is required due to Plaintiff’s counsel’s obstructive conduct. Plaintiff opposes the motion, and Defendant filed a reply.

(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640:

(5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.

(d) All appointments of referees pursuant to this section shall be by written order and shall include the following:

(2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.

Such an appointment is authorized only where necessary, and it is improper to issue a blanket order directing any and all discovery motions to a referee for routine matters. (See Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449 fn. 4.) An appointment is justified only where the majority of factors justifying reference, including that “(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.” (See Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 104-05; see also Cal. Rules Court, Rule 3.920(c) [“A discovery referee must not be appointed … unless the exceptional circumstances of the particular case require the appointment”].) “Where one or more of the above factors unduly impact the court’s time and/or limited resources, the court is clearly within its discretion to make an appropriate reference.” (Taggares, 62 Cal.App.4th at 106.) There is no “necessity” for appointment of discovery referees in routine, pro forma, uncomplicated matters. (Taggares, 62 Cal.App.4th at 104 [criticizing appointments “simply for expediency or a distaste for discovery resolution”]; Hood, 72 Cal.App.4th at 449.)

However, a discovery referee may be appointed to monitor depositions where antagonism between the parties and/or counsel might otherwise prolong the proceedings and frustrate discovery. (Cal. Practice Guide: Civ. Proc. Before Trial, ¶ 8:1804.5.) “Where either party anticipates that the other will try to frustrate legitimate discovery at a deposition, the referee's presence can curtail such conduct.” (Id. at ¶ 8:873.)

In this case, Hu contends that the appointment of a discovery referee is necessary because of Plaintiff’s counsel’s obstructive conduct. Defendant asserts that the depositions of at least seven of Plaintiff’s treating physicians were scheduled to be completed by the end of October, but because of a meritless motion to quash by Plaintiff and unexplained cancelations of confirmed depositions, Defendant has only been able to depose a single treating physician. Defendant asserts that in order to prepare for trial, Defendant must take approximately 30 more depositions, so a discovery referee is critical to preside over the depositions to prevent any further disruptive conduct and to ensure that testimony is properly obtained. In particular, Defendant asserts there were difficulties in obtaining Plaintiff’s deposition and medical examination, that Plaintiff filed a motion to quash Defendant’s deposition subpoena to delay Defendant from scheduling Plaintiff’s physicians depositions, that Plaintiff’s counsel obstructed the deposition of Plaintiff’s physician, Jacob Tauber (“Tauber”), and that Plaintiff’s counsel objected to the deposition of Plaintiff’s surgeon on the grounds that Plaintiff’s counsel was not available, which is a recurring issue.

In opposition, Plaintiff contends that a discovery referee is not necessary because there is no pending dispute and there are no pending discovery motions between the parties. Regarding Tauber’s deposition, Plaintiff asserts Plaintiff’s counsel objected because Defendant improperly asked questions calling for expert opinion, but Plaintiff states he has no intention to objecting to Defendant’s right to conduct expert discovery once expert information is exchanged. Plaintiff contends that Defendant misrepresents the true facts concerning their discovery disputes, and that there is no dispute as to the scheduling of depositions. Plaintiff contends that Defendant and his counsel should be sanctioned for filing this motion.

Defendant, in reply, contends that there are several discovery disputes at issue and multiple motions to be heard. Defendant contends that the parties’ dispute regarding the Court’s prior order denying Plaintiff’s motion to quash evidences the parties’ disputes and the need for a discovery referee. Defendant contends the circumstances concerning appointing a discovery referee are all present here.

While Defendant contends that the Court has been inundated with discovery motions, the Court’s records show that over the four years that this action has been pending, there have been four discovery motions: (1) a motion to compel Plaintiff’s deposition by Defendant, (2) a motion to compel Plaintiff’s physical examination by Defendant, (3) a motion for additional time to conduct Plaintiff’s deposition by Defendant, and (4) a motion to quash Defendant’s deposition subpoenas served on Plaintiff’s treating physicians filed by Plaintiff.[1]

Regarding Plaintiff’s deposition, Defendant asserts that it took multiple attempts to notice the deposition and that the deposition was not completed until September 21, 2021. However, as Defendant acknowledges, the Court addressed the issues with Plaintiff’s deposition when the order granting Defendant additional time to complete the deposition was granted. Defendant does not now identify any issues or disputes remaining that relate to Plaintiff’s deposition. Similarly, although Defendant argues that Plaintiff’s counsel refused to produce Plaintiff for a medical examination in June 2020, the parties admit that Plaintiff’s medical exam went forward on November 9, 2021. Further, Plaintiff provides that Defendant was unreasonably demanding an in-person medical exam when Covid-19 was still raging, and Plaintiff had medical conditions that put her at serious risk from an infection. Plaintiff states that once the pandemic abated, she submitted to the medical exam. Defendant does not identify any further disputes concerning the medical examination.

As to Defendant’s contentions regarding Plaintiff’s motion to quash Defendant’s deposition subpoenas served on Plaintiff’s physicians, the Court addressed the motion on July 15, 2022. The Court denied the motion but ordered that Defendant was to refrain from asking any questions eliciting expert opinions as defined by Evidence Code § 801. (Min. Order, July 11, 2022.) Thereafter, during the deposition of Plaintiff’s physician, Tauber, the parties disagreed about the proper scope of permissible questioning. Plaintiff objected multiple times asserting that Defendant was asking improper expert opinion questions. Defendant further asserts that two days prior to the deposition of Plaintiff’s treating surgeon, Plaintiff objected that Plaintiff’s counsel was not available. Thus, the primary discovery disputes between Plaintiff and Defendant concern the scope of questioning during Tauber’s deposition and the scheduling of depositions.

Defendant does not establish that exceptional circumstances exist warranting the appointment of a discovery referee for all discovery matters in this action. The only discovery disputes identified at this time relate to Tauber’s deposition and purported scheduling issues. No other specific discovery disputes warranting a discovery referee are identified. It is thus improper for the Court to issue a blanket order directing all discovery motions to a discovery referee. Furthermore, the other motions pending between the parties are a motion to continue trial and a motion for sanctions; neither of which require the appointment of a discovery referee. Defendant does not demonstrate there are multiple or complex issues, numerous motions, or numerous and voluminous documents that need to be reviewed in this matter that would justify the appointment of a discovery referee for all discovery. While a number of issues appear to relate to Plaintiff’s and Defendant’s counsels’ lack of cooperation in bringing this matter to trial, this alone does not warrant appointing a discovery referee for all disputes.

Moreover, no explanation or reason is provided as to why a discovery referee is the only means to resolve the parties’ disputes concerning Tauber’s deposition or other depositions. If Defendant properly serves a deposition subpoena, for example, and Plaintiff’s counsel serves an invalid objection precluding the deposition from going forward, Defendant may move to compel compliance with the subpoena. In such a case, sanctions would be available to address the invalid objections by Plaintiff’s counsel. Based on the evidence presented, a discovery referee is unnecessary at this juncture.

Defendant’s motion for an order appointing a discovery referee is denied. The parties are asked to meet and confer via video conference or in person to discuss the scheduling of depositions and discovery issues prior to seeking any relief from the Court. Professional courtesy and cooperation are expected at all times.

Hon. Audra Mori

Judge of the Superior Court

[1] The motion to compel Plaintiff’s deposition and medical examination were denied without prejudice on July 15, 2020; the motion for additional time to conduct Plaintiff’s deposition was granted on May 21, 2021; and Plaintiff’s motion to quash subpoenas was denied on July 11, 2022.