Judge: Cherol J. Nellon, Case: 22STCV11346, Date: 2023-04-04 Tentative Ruling

Case Number: 22STCV11346    Hearing Date: April 4, 2023    Dept: 28

Defendants Speedy Floors Removal & Dumpsters and Robert Jamal Lewis’s Motion for an Order for Appointment of a Discovery Referee

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On April 4, 2022, Plaintiff Sandra Luz Araujo (“Plaintiff”) filed this action against Defendant Speedy Floors Removal & Dumpsters (“SFRD”) for motor vehicle negligence and general negligence. Plaintiff later amended the complaint to include Defendants Robert Jamal Lewis (“Lewis”) and Michael Patrick O’Connell (“O’Connell”).

On September 26, 2022, SFRD and Lewis filed an answer.

On February 3, 2023, SRFD and Lewis (“Moving Defendants”) filed a Motion for an Order for Appointment of a Discovery Referee to be heard on April 4, 2023. On March 21, 2023, Plaintiff filed an opposition. On March 27, 2023, Moving Defendants filed a reply.

Trial is currently scheduled for October 2, 2023

PARTY’S REQUESTS

Moving Defendants request the Court appoint a discovery referee to supervise completion of Plaintiff’s deposition, and to supervise further depositions in this case.

Plaintiff agrees to discovery referee Hon. Mark Mooney, if Defendants cover the cost.

LEGAL STANDARD

CCP § 639 states “(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.” When a referee is appointed pursuant to 639(a)(5), “the exceptional circumstances requiring the reference, [must] be specific to the circumstances of the particular case.” (Id.)

DISCUSSION

Defendants request the Court appoint a discovery referee to preside over completion of Plaintiff’s deposition and all further depositions in this matter. Defendants argue that the appointment of a discovery referee is necessary to monitor deposition proceedings to prevent Plaintiff’s counsel from disruptive conduct and ensure testimony is properly obtain and recorded. 

Defendants motion is based upon Plaintiff counsel’s behavior at Plaintiff’s January 19, 2023, deposition. In reviewing the provided transcripts, the Court finds cause to appoint a referee. Defendants asked Plaintiff when she immigrated to the United States with the intent of determining where Plaintiff had resided, and for how long. Upon counsel’s objection, the question was rephrased to how long Plaintiff had lived in California. Plaintiff’s counsel routinely raised the question as evidence of misconduct, arguing that counsel was inquiring as to Plaintiff’s immigration status. Another example is when counsel tried to clarify what Plaintiff meant when she stated that she treated with “doctors that were assigned to [her].” Plaintiff’s counsel routinely objected that this question violated attorney client privilege. Counsel engaged in a long argument about the wording of this question, resulting in allegations of libel, lying and defamation. According to the transcript, this argument lasted approximately 10 minutes. Plaintiff’s counsel also wrongly asserted that the instruction to the translator to translate any comments made by Plaintiff, despite counsel’s objection, needed to be translated for the record was indicative of Defendants attempting to trick Plaintiff.

Plaintiff argues that “Defendant’s counsel fails to look beyond the animosity she has for Plaintiff’s counsel,” and that Defendant is “playing the blame game.” Plaintiff states that counsel only objected to six total questions, all which counsel felt were reasonable.  

Plaintiff is not opposed to the appointment of Hon. Mark Mooney as a discovery referee. However, Plaintiff argues that Plaintiff is unable to pay any portion of the referee fee and to do so would cause undue economic hardship. Plaintiff provided no proof of inability to pay, lacking even a declaration.

The Court notes there have been no other motions, in this matter, relating to compelling a deposition or answer of any witnesses, nor has there been a protective order. Jumping to the imposition of a discovery referee prior to filing a motion or attending an IDC is an expensive and likely unnecessary step for parties to take, at this point. The Court finds there are not currently exceptional circumstances mandating the appointment of a discovery referee. Thus, the Court denies the motion. Should parties independently decide to obtain a discovery referee, they are free to do so. However, the Court will not appoint a discovery referee at this time.

CONCLUSION

Defendants Speedy Floors Removal & Dumpsters and Robert Jamal Lewis’s Motion for an Order for Appointment of a Discovery Referee is DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.