Judge: Carolyn M. Caietti, Case: 37-2022-00052525-CU-FR-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  01:30:00 PM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Fraud Motion to Quash (Civil) 37-2022-00052525-CU-FR-CTL TIRGARI VS KAZEMIPOUR [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The Court will hear the Order to Show Cause Why a Discovery Referee Should Not Be Appointed and the Motion to Quash on September 15, 2023, at 1:30 p.m. in Department 70.

On calendar is an Order to Show Cause Why a Discovery Referee Should Not Be Appointed. The Court orders the parties to resolve their discovery disputes before a discovery referee.

Defendant Reza Kazemipour's Motion to Quash 'the Nine Subpoenas for Production of Defendant's Private Financial Information' is OFF CALENDAR in light of the Court's order appointing a discovery referee without prejudice to Defendant raising the issues addressed in the motion before the discovery referee.

Discussion Courts may appoint a referee on the court's own motion when it determines it is necessary 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 on those findings. (C.C.P., § 639(a)(5); Lopez v. Watchtower Bible & Tract Soc'y of New York, Inc. (2016) 346 Cal.App.4th 566, 588.) Courts have broad discretion to employ private referees without the parties' consent to assist in resolving discovery disputes. (Taggares v. Sup. Ct. (1998) 62 Cal.App.4th 94, 104.) Courts should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These include: (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. (Id., at p. 105-06.) In making its decision, the trial courts need consider the statutory scheme is designed only to permit reference over the parties' objections where that procedure is necessary, not merely convenient.

(Ibid., citing C.C.P., § 639(e).) 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. (Ibid.) Here, exceptional circumstances of this case require a reference under C.C.P. section 639(a)(5). (See also, Cal. Rules of Ct., rule 3.922(c).) Plaintiff's Complaint alleges that between 2019-2021, Plaintiff invested over $750,000 with Defendant and 1792 Partners, Inc., a suspended corporation. Instead of using the funds for legitimate investment purposes, Defendant used the funds for lavish personal expenses. Throughout 2020 and 2021, Defendant used his access to a Joint Investment Account and Calendar No.: Event ID:  TENTATIVE RULINGS

3020692  54 CASE NUMBER: CASE TITLE:  TIRGARI VS KAZEMIPOUR [IMAGED]  37-2022-00052525-CU-FR-CTL Joint Amex Account to pay for trips to Dubai, the United Arab Emirates, the Maldives and Mexico; luxury hotels and cars; personal expenses at Louis Vuitton, Yves Saint Laurent, Neiman Marcus, Lululemon and Soul Cycle; and expenses for the benefit of his family, including his daughters' college tuition. The Complaint asserts 16 causes of action including fraud, conversion and civil theft.

On August 4, 2023, the Court granted Defendant's unopposed motion to consolidate this case with American Express National Bank v. Tirgari (Case No. 2022-50768).

As indicated by Defendant, Plaintiff has sought the appointment of a discovery referee since the beginning of this case. On April 27, 2023, the Court denied Plaintiff's ex parte application for such an appointment, finding it premature. (ROA 44.) After at least one Informal Discovery Conference, the Court set the present Order to Show Cause, allowing the parties to submit briefing. (ROA 134.) It was ultimately continued to this date. (ROA 165.) The parties included discussion of an appointment in their briefing on the motion to quash nine deposition subpoenas.

From April to May 2023, Plaintiff issued nine subpoenas to: Early Warning Services, LLC, Griffiss Investment Company, Inc., K1 Platinum Enterprises, Inc., Safeco Insurance Company of America, University of Colorado Boulder, Allstate Insurance Company, PayPal, Inc., PayPal, Inc. as owner of Venmo, LLC and American Express Company. Generally, Plaintiff seeks to trace the funds he invested into the parties' Joint Investment Account, identify how and where the investment funds were spent or deposited and whether the funds were used for a proper business purpose. Based on the briefings, the parties hotly dispute whether or not Defendant was permitted to make personal expenditures with the joint investment funds. These are the subpoenas at issue in the instant motion to quash. As a preliminary matter, Defendant filed at least four motions to quash regarding the same nine depositions (ROA 49, 54, 64, 71) and an amended notice. (ROA 62.) It is not clear which motion the Court should rely on as the moving papers. The Court relied on the latest-filed motion (ROA 71-74) and the three declarations of Taylor Marks (ROA 59-61.) At previous Informal Discovery Conferences (ROA 134, 140, 165) and ex parte hearings (ROA 99), the Court entertained reviewing all nine motions to quash in one single motion on the parties' representations the issues involved in the motions were the same. While there is overlap given the financial nature of the subpoenas, they are also starkly different and the breadth of the discovery is wide.

Through this discovery, Plaintiff wants not only to trace nearly $1 million of joint investment funds, but also, other fraud allegedly perpetrated by Defendant to show 'a pattern of utilizing multiple bank accounts and credit cards, and creating illegitimate or defunct business entities, which he uses to move and take control of funds without detection.' (ROA 178 - Summary of Plaintiff's Separate Statement, at p. 4:3-5.) To do this, Plaintiff essentially seeks to review every financial transaction made by Defendant since 2015. Significant financial and third-party privacy issues are raised in these subpoenas. While eight of the subpoenas seek records dating back to 2018, at least one to American Express Company, seek records spanning eight years ago to 2015. In particular, Plaintiff seeks every document regarding all credit card accounts Defendant maintained with American Express since 2015.

Each subpoena asks for different and particularized categories of documents as well and Plaintiff's opposition separate statements alone are over 1,550 pages: Early Warning Services, LLC (19 requests/142 pgs. opp. sep. statement), Griffiss Investment Company, Inc. (17 requests/148 pgs.), K1 Platinum Enterprises, Inc. (11 requests/94 pgs.), Safeco Insurance Company of America (17 requests/141 pgs.), University of Colorado Boulder (8 requests/65 pgs.), Allstate Insurance Company (41 requests/ 336 pgs.), PayPal, Inc. (19 requests/143 pgs.), PayPal, Inc. as owner of Venmo, LLC (19 requests/142 pgs.), American Express Company (63 requests/339 pgs).

The parties already disputed, but eventually stipulated to a protective order. (ROA 146.) Notwithstanding the parties' protective order and a first look process, there are now disputes over certain redactions Defendant made to produced documents. (See, ROA 177 – Declaration of Charles Whitman, at Ex. 2 [redactions of 66 of 87 pages of the Griffiss Investment Company production]; Ex. 6 [redactions of 1,242 Calendar No.: Event ID:  TENTATIVE RULINGS

3020692  54 CASE NUMBER: CASE TITLE:  TIRGARI VS KAZEMIPOUR [IMAGED]  37-2022-00052525-CU-FR-CTL of 1,567 pages of the Allstate production]; Ex. 9 [redactions of 473 of 1,591 pages of the American Express production].) There are more discovery disputes on the horizon. On calendar is Defendant's motion to quash on December 8, 2023, and there are two motions to compel interrogatories and document responses reserved by Plaintiff on March 29, 2024. The Trial Readiness Conference is on July 12, 2024 and Trial Call is on July 26, 2024.

Taken as a whole, the Taggares factors are present and would significantly and unduly impact the Court's time and limited resources, making the appointment of a reference appropriate. It is clear to the Court from the number and nature of this motion and the parties' ongoing discovery disputes as a whole that little progress can be made without continuous oversight. The number of documents to review will make the inquiry inordinately time-consuming. The Superior Courts have experienced unprecedented budget pressures in recent years, which were compounded by the pandemic and court closures. This Department in particular has one of the highest case loads in the Hall of Justice – over 1400 - and it is well over the number of case loads the Independent Calendar system originally anticipated. In the nearly three years in this department, only two other ordered discovery reference comes to mind. This Court is not in a position to provide the kind of intensive oversight and particularized review and financial auditing necessary in this case.

Based on the briefs and declarations provided, the parties do not contend they are unable to pay a pro rata share of the referee's fees. Under these circumstances, it is appropriate to order the parties proportionately bear the cost of the discovery referee initially subject to review by this Court to modify the division of referee fees in a manner that is fair and reasonable.

Concluding Orders For these reasons, the Court appoints a discovery referee/reference for all discovery purposes. (CRC 3.922(d)(2).) All discovery motions, including the instant motion to quash nine deposition subpoenas, are referred to the discovery referee for recommendation. The referee shall also provide a recommendation on a motion by motion basis for the apportionment of referee fees.

The referee is authorized to set the date, time and place of all hearings determined by the referee to be necessary; direct the issuance of subpoenas; preside over hearings; take evidence; and rule on objections, motions and other requests made during the course of the hearing. (CRC 3.922(e).) Within five days of this ruling, Plaintiff is ordered to prepare and submit a completed Judicial Council form ADR-100, including the name of the referee agreed upon by the parties. If the parties cannot agree on a referee, the parties are ordered to calendar an ex parte hearing with the Court and to propose three referees in advance of the hearing. The Court will then decide on who to appoint.

The motion to quash the nine deposition subpoenas is OFF CALENDAR in light of this ruling but without prejudice to Defendant raising the issues addressed in the motion before the discovery referee.

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