Judge Kerry Bensinger, Case Number: 22STCV06565, Date: 2023-08-23 Tentative Ruling

On February 22, 2022, Plaintiffs, Garo Dawoodi (“Garo”), Natalie Dawoodi (“Natalie”), and Audrey Dawoodi (“Audrey”), initiated this action against Defendants, Ani Akopyan (“Akopyan”) and Ari Movsesian, for the wrongful death Adrineh Nazarian (“Nazarian”) arising from a motor vehicle accident. Garo is the wife of Nazarian. Natalie and Audrey are the children of Nazarian. Plaintiffs allege Akopyan was driving her vehicle when she struck Nazarian and resulting in Nazarian’s death. Nazarian was a pedestrian at the time of the incident.

On April 19, 2023, Plaintiffs took Akopyan’s deposition. The deposition was not completed because counsel for the parties broadly disagreed with the way the deposition was being conducted and defended.

Plaintiffs now seek an order authorizing the appointment of a discovery referee for the conclusion of the Defendant Akopyan’s deposition as well as for other depositions and for Defendants to bear the costs. Defendants have filed an opposition[1] and Plaintiffs have a filed a reply. The parties each request imposition of sanctions against the other and their attorneys of record.

Code of Civil Procedure section 639 and California Rules of Court rule 3.921 provide for the appointment of a referee on motion of a party or by the court. A referee can be appointed for discovery disputes. (Code Civ. Proc., § 639, subd. (a)(5) “[A referee may be appointed:] (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.”].)¿¿

Appointment requires a court finding of “exceptional circumstances.” (Id., § 639, subd. (d)(2).)¿

Absent agreement of all parties, courts may not make blanket referrals, except “in the unusual case where a majority of factors” favor reference, including: “(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.” (Taggeres v. Superior Court (1998) 62 Cal.App.4th 94, 105. “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.” (Id. at p. 106.)¿

The trial courts must consider that the statutory scheme is designed only to permit reference over the parties’ objections where that procedure is necessary, not merely convenient. (Id. at pp. 105-106.) “Implicit in the statutory requirement that the reference be ‘necessary’ is the Legislature’s acknowledgement of a litigant’s right of access to the courts without the payment of a user’s fee, and the concomitant notion that there ought to be a finding of something out of the ordinary before the services of a referee are forced upon a nonconsenting party.” (Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449.)¿¿

Defendants submit 5 objections to the Declaration of plaintiff’s counsel, Cameron Brock. The objections are overruled.

Plaintiffs seek an appointment of a discovery referee for the Deposition of Defendant Ani Akopyan, arguing defense counsel obstructed the completion of the deposition by asserting baseless objections, repeatedly instructing Akopyan not to answer, and generally coaching Akopyan. In support, Plaintiffs submit excerpts of the Akopyan Deposition.

Defendants argue the motion should be denied because defense counsel asserted proper objections and did not coach Akopyan. In support, Defendants provide context around nine questions asked by Plaintiffs’ counsel during the deposition and why defense counsel asserted objections. (See Opposition, pp. 8:1-14:19.)

The Court has reviewed the deposition excerpts and the nine questions identified by Defendants and finds appointment of a discovery referee to complete Akopyan’s deposition is necessary. Counsel for both parties did not conduct themselves with the civility or respect required by their profession and expected by this Court. Plaintiffs’ counsel was quick to threaten sanctions and at times, badgered the witness with same or similar questions. Defense counsel, in turn, asserted meritless objections. As the conduct concerns only the Akopyan Deposition, the Court grants the motion with respect to Akopyan’s Deposition only.[2] The discovery referee shall have the power to rule on any and all objections and requests made by the parties during Akopyan’s deposition.

As the Court has found both parties are responsible for the need of a discovery referee, the Court orders each party to bear half the cost of the discovery referee. Further, both parties are to bear half the cost of completing Akopyan’s deposition.

Plaintiffs submit three candidates for a discovery referee. (See Motion, p. 21:8-12.) The parties may choose from those three options. If the parties cannot agree on a referee, the parties are to submit a list of five additional persons to serve as a discovery referee. A reference will be made from the list of five.

Each party requests imposition of sanctions. Because the Court has found counsel for both parties are responsible for the suspension of Akopyan’s deposition, the Court declines to impose any sanctions.

The motion is granted in part. The parties are to meet and confer regarding the person to serve as the discovery referee for the follow up deposition of Defendant Ani Akopyan only. If the parties cannot agree on a referee, Plaintiffs are to submit a list prepared by both parties containing five individuals from which the Court will appoint a referee. The referee shall have the power to rule on any and all objections and requests made by the parties during Akopyan’s follow up deposition.

The parties are to share equally in the costs of the discovery referee and in completing the follow up deposition of Defendant Ani Akopyan.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Defendants argue Plaintiffs motion should be denied as untimely because it exceeds the page requirements as provided under California Rules of Court, rule 3.1113, subd. (d). Given Defendants have filed an opposition addressing the substance of the motion, the Court exercises its discretion to consider the merits of the motion.

[2] Additionally, as the motion is confined to completing Akopyan’s deposition, the Court need not make a finding of exceptional circumstances.