Judge Audra Mori, Case BC707602 2022-08-23 Tentative Ruling

Plaintiff Ron A. Rosen Janfaza (“Janfaza”) filed this action against Defendant, Omid Khorshidi (“Khorshidi”) for damages relating to an alleged physical altercation between Plaintiff and Defendant that occurred at the Santa Monica Courthouse on May 26, 2016. Janfaza’s operative Second Amended Complaint (“SAC”) alleges claims against Khorshidi for assault and battery, intentional infliction of emotional distress, negligent hiring training, supervision, and retention of employee, negligence, false imprisonment and violation of the Bane Civil Rights Act.

Khorshidi has filed a cross-complaint against Janfaza for damages arising out of the same incident. Khorshidi’s operative Third Amended Cross-Complaint (“TACC”) alleges causes of action for assault, battery, and violation of the Bane Civil Rights Act (Civ. Code § 52.1) against Janfaza.

At this time, Khorshidi moves for an order (1) appointing a discovery referee, (2) that Janfaza be charged with 100% of the referee’s fees, (3) that Janfaza be ordered to appear for deposition, and (4) for an order governing the conduct of Janfaza and his counsel at deposition. Janfaza opposes the motion, and Khorshidi filed a reply.

Khorshidi asserts that Janfaza has engaged in ongoing and willful obstruction of the discovery process in this case. Khorshidi contends that Janfaza’s responses to written discovery have led to numerous motions and Informal Discovery Conferences, and that when Janfaza appeared for his deposition on May 11, 2022, he engaged in insults, threats, long-winded rants unrelated to the questions asked, and repeatedly asked Khorshidi questions, among other improper conduct. Khorshidi asserts that Janfaza’s conduct prevented his deposition from being completed. Khorshidi contends that as a result of Janfaza’s conduct, a discovery referee should be appointed to preside over the remainder of the discovery in this matter, with Janfaza to bear 100% of the costs. Further, Khorshidi contends Janfaza should be ordered to appear for his deposition within 30 days and requests an order governing the conduct of Janfaza and his counsel at all future depositions. Khorshidi requests sanctions against Janfaza of $3,660.00 against Janfaza and his counsel of record for this motion.

In opposition, Janfaza asserts that Khorshidi’s request for attorney fees is improper because he is representing himself in pro per. Janfaza contends the motion is meritless and that there is no good cause for appointing a discovery referee. Janfaza asserts that he is experiencing financial hardship and cannot pay for a discovery referee, that Khorshidi should pay 100% of the costs for a referee if he wants one, and that Janfaza cooperated and answered the questions asked of him. Janfaza contends that it was Khorshidi that harassed Janfaza from the beginning of the deposition and improperly turned his camera off multiples times during the remote deposition. Janfaza attests that Khorshidi refused to conclude the deposition on the same date, as Janfaza was not feeling well but wanted to continue. Janfaza provides that he wanted to pick a date for a second session of the deposition on the record, but Khorshidi refused. Janfaza states that he was already deposed and there was not good cause to end the deposition, so Janfaza contends he should not be ordered to appear for deposition again. If he is ordered to appear for deposition, Janfaza argues the deposition should be limited to two hours because he has already been deposed for five hours.

In reply, Khorshidi contends that Janfaza fails to address his misconduct as set forth in the motion, and that Janfaza’s deposition only proceeded for 3 hours and 29 minutes before it was concluded. Khorshidi asserts that Janfaza has acknowledged that his deposition was not completed and that a discovery referee is necessary to complete the deposition.

The transcript of Janfaza’s deposition shows that Janfaza and Khorshidi each appeared in propria persona. Khorshidi conducted the questioning, while Janfaza answered and objected on his behalf. As a result of Janfaza’s conduct at this deposition, Khorshidi now moves for an order appointing a discovery referee in this matter for all discovery remaining in this matter.

(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.)

Moreover, 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.)

Here, Janfaza’s conduct during the deposition was inappropriate and antagonistic in multiple respects, including by, and not limited to, responding to Khorshidi’s questions with his own questions and refusing to answer basic questions.[1] The Court finds it particularly disturbing that Janfaza in response to Khorshidi’s question regarding the testimony of a relative of Janfaza’s concerning the incident, Janfaza went on a rant and mentioned Khorshidi’s mother and Khorshidi’s home address. There are exceptional circumstances in this case that require the appointment of a discovery referee to decide all discovery motions and disputes in this action.

The litigation between the parties, who are attorneys and at times represent themselves in this matter, is contentious and has been full of personal attacks.[2] From the commencement of this action, the parties have wholly failed to cooperate in the discovery process or in bringing this matter to trial. The Court has heard multiple motions to compel further responses and Informal Discovery Conferences regarding discovery issues in this case. The parties have continued to argue over almost every aspect of this case and the relevancy of numerous discovery issues. The Court has implored the parties on multiple occasions to meet and confer and offered extensive and detailed guidance, but this has been all to no avail as the parties continue to argue over nearly all discovery in this case and themselves anticipate bringing further motions concerning additional discovery disputes.[3]

The issues in this case are compounded by the fact that Janfaza’s complaint and Khorshidi’s cross-complaint concern the same alleged assault and battery incident in which Janfaza and Khorshidi are choosing to litigate, in large part, representing themselves and against each other. 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, as clearly occurred at Janfaza’s deposition. (Cal. Practice Guide: Civ. Proc. Before Trial, ¶ 8:1804.5.) Furthermore, the evidence shows there are multiple discovery issues to be resolved, there will be multiple discovery motions heard, and that these factors and the parties’ conduct has unduly impacted the Court’s time and limited resources. (Taggares, 62 Cal.App.4th at 105-06.) It is clear that the parties will continue to frustrate each other’s attempts to obtain discovery. This case was filed on May 25, 2018, is now more than four years old, and based on the history of the case, the matter will not be ready for trial on the current trial date of November 16, 2022, or within the statutorily required time, without the appointment of a discovery referee to hear and determine any and all discovery motions and disputes in this action as necessary.

Khorshidi contends that Janfaza should be ordered to pay 100% of the costs. Admittedly, the transcript shows that Janfaza continuously interrupted Khorshidi and asked seemingly irrelevant questions to Khorshidi, despite this being Janfaza’s deposition. Nonetheless, Khorshidi is purportedly represented in this matter, in part, by another attorney from his law firm, but Khorshidi chose to conduct Janfaza’s deposition himself. Again, the parties had a personal relationship in this matter prior to the alleged assault and battery incident, and thus, it is questionable as to why Khorshidi would choose to conduct the deposition himself. Further, Khorshidi is not 100% innocent from the misconduct that occurred during the deposition. For example, Khorshidi does not deny that he turned off his camera multiple times during the remote deposition and had other people in the room. During meet and confer efforts in this matter, Janfaza proposed that the cost of a discovery referee be split evenly, 50/50, between the parties. (Mot. Exh. Y.) The Court finds this to be reasonable in this matter.

No party has established an economic inability to pay an even share of the referee’s fees. While Janfaza states in his opposition that he has financial hardship, Janfaza submits no evidence to support this contention, and as stated above, Janfaza already offered to pay half of the fees. Fees are, therefore, to be split evenly. The parties may, however, consider cost in selecting a referee.

Janfaza names multiple potential referees based on their costs in his opposition, but neither party nominates any specific referees to be considered in connection with this motion. (See CCP § 640; see also Cal. Rules of Court, Rule 3.921.) Therefore, the parties are to meet and confer regarding the selection of a referee. If the parties cannot agree upon a referee, they are each to prepare a list of three nominees, from which the Court will appoint a referee pursuant to CCP § 640. A further hearing is set for approximately 10 days from today for September _____________, 2022 regarding the selection of a discovery referee. The parties’ joint statement regarding the selection and/or nomination of a discovery referee is to be filed five (5) court days prior to the hearing.

3. Request for Order than Janfaza Appear for and Complete his Deposition within 30 days and Request for Protective Order

Given the above ruling granting the motion to appoint a discovery referee to determine all discovery motions and disputes, the parties are directed to raise this issue and all related issues with the referee for determination by the referee.

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (CCP § 2023.030(a).) In this case, given that Janfaza’s conduct at this deposition largely caused the filing of this motion, some amount of sanctions is warranted. Further, Khorshidi submits a declaration attesting that he has paid attorney fees out of pocket to his law firm for the preparation of this motion. Attorney Jamil Kassimali submits a declaration asserting that he performed all the work in connection with this motion. (Soni v Wellmike Enter. Co. Ltd. (2014) 224 Cal.App.4th 1477, 1484-85 [attorney who is represented by other members of the attorney's law firm is entitled to recover reasonable attorney's fees, when the representation involved the attorney's personal interests and not those of the firm].) Khorshidi, thus, may recover attorney’s fees for Kassimali’s work in connection with this motion.

While Khorshidi is not awarded the total amount requested, Khorshidi is awarded three hours for preparing the motion, one hour for the reply, and one hour for appearing at the hearing all at the reasonable rate of $200 per hour, for a total attorney fees award of $1,000.00. Further, Khorshidi is awarded $60 for the motion filing fee as costs.

Khorshidi seeks sanctions against Janfaza and Janfaza’s attorney of record. Khorshidi does not describe any conduct warranting sanctions against Janfaza’s attorney of record. Sanctions are imposed against Janfaza only. Janfaza is ordered to pay sanctions to Khorshidi, by and through counsel of record, in the total amount of $1,060.00, within twenty days.

[1] As only one of numerous potential examples, after Khorshidi told Janfaza to let him know when he was ready for another question, Janfaza asked Khorshidi, “How is the convertible?” that Khorshidi got “with fraud.” (Mot. Exh. A at p. 140:5-14.) Soon after Khorshidi responded he was going to end the deposition for the Court to determine whether a discovery referee was appropriate. (Id. at p. 141:15-23.)

[2] The Court of Appeal in La Salle v. Vogel (2019) 36 Cal.App.5th 127, 133-134 dealt squarely with the problem of lack of civility in California courts and explored the reasons for a lack of civility. The opinion quoted Green v. GTE California (1994) 29 Cal.App.4th 407, 403, in which the Second District lambasted attorneys for “cluttering up the courts with what were essentially personal spats” and Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641, lamenting that the legal profession has already suffered a loss of stature and of public respect, and that “lawyers await the slightest provocation to turn upon each other.” The LaSalle Court also quoted from in re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537, which instructed that zealous advocacy does not equate to “attack dog” or “scorched earth” behavior, nor a lack of civility. Unfortunately, this is the situation here, as Janfaza and Khorshidi continue to make personal attacks against each other in the more than 14 motions that have been filed in this action.

[3] For example, in his opposition, Janfaza asserts that Khorshidi has failed to appear for his deposition on four occasions and intends to file a motion to compel Khorshidi’s deposition.