Judge Cherol J. Nellon, Case Number: 22STCV19629, Date: 2023-11-30 Tentative Ruling

Plaintiffs were dietitians at the UCLA Medical Center. They complain that they were driven into retirement by a new supervisor, who wanted to replace them with younger employees.

On August 17, 2022, Plaintiffs filed their First Amended Complaint (“FAC”) for (1) FEHA Discrimination, (2) FEHA Harassment, (3) FEHA Retaliation, (4) Failure to Prevent, (5) CFRA Violation, (6) Violation of Sick Leave and Kin Care Law, and (7) Violation of Labor Code § 1102.5[1] against Defendants The Regents of the University of California (“Regents”), Angel Maree Jones (“Jones”), and DOES 1-10. Only the second and seventh causes of action are asserted against Defendant Jones.

On November 9, 2022, this court sustained the demurrer of Defendant Jones to the Labor Code § 1102.5 claim, without leave to amend.

Plaintiffs move this court for an order referring all discovery in this matter to a discovery referee.

The motion is GRANTED, in part. The court will refer only issues involving the “official information privilege” contained in Evidence Code § 1040.

Counsel are to meet and confer and prepare a proposed order, using Form ADR-110, for this court’s signature. The proposed order should be submitted by noon on March 7, 2024.

“(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:

(1) When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein.

(2) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect.

(3) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action.

(4) When it is necessary for the information of the court in a special proceeding.

(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.

(c) When a referee is appointed pursuant to paragraph (5) of subdivision (a), the order shall indicate whether the referee is being appointed for all discovery purposes in the action.

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

(1) When the referee is appointed pursuant to paragraph (1), (2), (3), or (4) of subdivision (a), a statement of the reason the referee is being appointed.

(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.

(5) The maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. Upon the written application of any party or the referee, the court may, for good cause shown, modify the maximum number of hours subject to any findings as set forth in paragraph (6).

(6)(A) Either a finding that no party has established an economic inability to pay a pro rata share of the referee's fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee's fees and that another party has agreed voluntarily to pay that additional share of the referee's fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.

(B) In determining whether a party has established an inability to pay the referee's fees under subparagraph (A), the court shall consider only the ability of the party, not the party's counsel, to pay these fees. If a party is proceeding in forma pauperis, the party shall be deemed by the court to have an economic inability to pay the referee's fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider, among other things, the estimated cost of the referral and the impact of the proposed fees on the party's ability to proceed with the litigation.”

On October 13 and 26, 2023, this court held Informal Discovery Conferences in this case. One of the issues discussed was Defendant Regents’ refusal to turn over certain documents based on the “deliberative process privilege” and the “official information privilege.” The court explained to counsel that the “deliberative process privilege” only applies to requests under the Public Records Act. See Marylander v. Superior Court (2000) 81 Cal.App.4^th 1119, 1124-28. The “official information privilege” was the correct vehicle.

However, the court also explained to counsel that the “official information privilege,” as set forth in Evidence Code § 1040, is not an absolute bar to disclosure. It provides only a “qualified, limited” protection where disclosure of the material in question would discourage candid discussion within an agency and thereby undermine its performance. Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5^th 1011, 1040.

The proper way to resolve whether the privilege apples is to perform an in camera review of the documents at issue. Evidence Code § 915(b); see also Torres v. Superior Court (2000) 80 Cal.App.4^th 867, 873-875. That review should be conducted by an independent referee for two reasons: (1) it avoids giving secret knowledge to the officer who will ultimately preside at trial, and (2) it ensures that the parties will have the undivided attention of a capable officer for as long as they need it. The number of entries in an official information privilege log is frequently large, meaning that this court may not have the necessary time to parse through it. All parties may suffer a significant amount of delay waiting for the court to find that time, and the other pending cases may suffer similar prejudice as the court attempts to carve it out.

With all this in mind, the court instructed the parties to meet and confer and choose a referee if they could not resolve the privilege issue. Apparently counsel were unable to do so.

While this motion is, in that sense, a response to this court’s suggestion, it goes beyond what this court had in mind. This court did not intend to suggest a general reference of all discovery, and does not believe that the statutory predicates for such a reference currently exist in this case. See Code of Civil Procedure §§ (a)(5) & (d)(2). This case has only seen two discovery motions, and there are none presently on calendar. That is not sufficient to justify a general reference of all discovery.

However, for the reasons given at the IDC, and now recounted above, this court will make a specific reference pursuant to Code of Civil Procedure § 639(a)(3). The referee will address disputes relating to the application of the “official information privilege” (as contained in Evidence Code § 1040) to discovery in this case. That referee will conduct any necessary in camera review. To the extent counsel believes the privilege has been waived such that an in camera review is not necessary, they may raise that argument with the referee.

The court does wish counsel to have a referee of their choice, if possible. Counsel will need to meet and confer and select a referee within the next five days. Counsel should prepare a proposed order, using Form ADR-110, for this court’s signature. The proposed order should be submitted by noon on March 7, 2024.

An in camera review is the proper means of determining whether the “official information privilege” bars disclosure of documents in discovery. Because this court does not wish to have knowledge which is unavailable to counsel in this case, and because conducting the in camera process in this court would engender prejudicial delay in both this case and others, the court will refer the issue pursuant to Code of Civil Procedure § 639(a)(3).

Therefore, the motion is GRANTED, in part. The court will refer only issues involving the “official information privilege” contained in Evidence Code § 1040. Counsel are to meet and confer and prepare a proposed order, using Form ADR-110, for this court’s signature. The proposed order should be submitted by noon on March 7, 2024.

[1] Numbering reflects the caption of the complaint. In the body, the Labor Code § 1102.5 cause of action appears ahead of the Sick Leave and Kin Care cause of action.