Judge: Lon F. Hurwitz, Case: JCCP5140, Date: 2022-11-21 Tentative Ruling

Motion re March 02, 2022 R&R Re: 3 Motions To Compel

RULING:

Before the Court are objections to the Report and Recommendation from the discovery referee dated 03-02-22. (ROA 1362 Ex. 1.)

The R&R addresses three motions:

(1) Therrien Defendants' Motion to Compel Further Responses to Special Interrogatories, Set 1, to Plaintiff Faith Devine.

This set of discovery includes 56 SROGs to which Plaintiff initially served only objections based on the death of Ronald Therrien, contending that the Therrien entities had no standing as he controlled the entities that sought the discovery and no representative had been appointed. (R&R at 3.) The Referee found the death of Therrien did not impact the standing of the entities with which he was affiliated.

The recommendation was to overrule all initial objections and grant the motion and order re-service of the supplemental responses, the adequacy of which could be tested at a later date. (Id. at 4.)

(2) Plaintiff Devine’s Motion to Reopen Limited Discovery as to the Therrien Entities.

This concerns Special Interrogatories, Set One and Requests for Production of Documents, Set Two, directed to Defendant Ronald Therrien, deceased.

Devine’s motion sought to order responses from the Therrien Entities, or, alternatively, to re-open discovery to propound this discovery directly on the Therrien Entities. Based on the death or Therrien and the fact that no successor was appointed, the Referee recommended granting the motion.

(3) Plaintiffs' Motion To Compel Depositions and Motion For Relief From Stipulation To Conduct Depositions Beyond January 31, 2022.

For the same reasons articulated in (2) above, the Referee recommended granting this motion so that the deposition of any successor to Therrien could be taken.

The Court has considered the parties’ Objections (ROA 1362, 1364) and the Response (ROA 1394) and will ADOPT the discovery referee’s recommendations with the modifications specified below.

As to Recommendation No. 1, Therrien Defendants' Motion to Compel Further Responses to Special Interrogatories, Set 1, to Plaintiff Faith Devine: This Motion only involves monetary sanctions.

Monetary sanctions are not appropriate and this is implicit in the recommendation. For example, as made clear by the Referee, "considering requests for sanctions and transferring money back and forth between the parties is of no benefit except to the Referee who must consider and quantify the amount of such requests." (R&R 10-28-21 at 6.)

Sanctions are denied.

As to Recommendation No. 2, Plaintiff Devine’s Motion to Reopen Limited Discovery as to the Therrien Entities: the recommendation is based entirely on the extenuating circumstance of Ronald Therrien’s death and the failure to appoint a representative. However, based upon other briefing before the Court, the formal appointment of a representative has, or is soon, to occur. Accordingly, discovery is re-opened only to take the deposition of Therrien’s appointed representative, and does not apply to the Therrien Entities.

As to Recommendation No. 3, Plaintiffs' Motion To Compel Depositions and Motion For Relief From Stipulation To Conduct Depositions Beyond January 31, 2022: the parties have explained they sought clarification from the Referee as to the other at-issue deponents. Accordingly, this may be moot, but to the extent it is not, the Referee is ordered to provide clarification as to the depositions of Christian Driscoll, Michael Matkins, Mark Prottas, Andrew Jones, Robert Holman, Shawn Horn, William Drewes, Curci Investments, Randall Bone, Al Baldwin and OVSD.

Plaintiffs to give notice.

Motion Re: March 31, 2022 R&R

RULING:

Before the Court are objections to the Report and Recommendation from the discovery referee dated 03-31-22. (ROA 1412 Ex. 1.)

In the underlying motion to compel, the Baldwin/Bone Parties moved to compel HCR Moorpark Investors, LLC’s (“HCR”) to provide further responses to the Second Set of Requests for Admission (Nos. 27-44, 46, 47) and Form Interrogatory No. 17.1.

The Referee recommends (1) granting the motion as to the at-issue RFAs and FROG and (2) denying the request for monetary sanctions. (Report at 4-5.)

The Court has considered HCR Moorpark’s objections (ROA 1412) and the Baldwin/Bone Parties’ Response (ROA 1434) and ADOPTS the discovery referee’s recommendation. The objections were argued in the underlying motion and fully considered by the Referee.

First, the Court agrees the at-issue discovery seeks relevant evidence to support a defense asserted by the Baldwin/Bone parties, i.e., "the HCR Judgment is void and should be set aside because HCR did not legally exist when it obtained the judgment underlying this coordinated action.” (Resp. at 7.)

Second, any tax privilege is not implicated because the contents of tax returns are not sought.

Third, the parties do not dispute that meet and confers took place over this set of requests for admission and there is no evidence further meet and confer efforts would lead to agreement or compromise regarding RFA Nos. 46-47.

HCR Moorpark to give notice.

Motion for Bifurcation

RULING: The motion of Plaintiff HCR Moorpark Investors, LLC and Plaintiff Faith Devine in her capacity as Receiver for Forstar, LLC and JB Finco, LLC to bifurcate trial is DENIED.

Pursuant to CCP §1048(b), “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”

CCP § 598 states that “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case,. . . .” The court may also sua sponte order bifurcation or severance of an issue at any time, including after the trial has commenced. (See Buran Equip. Co. v. H & C Invest. Co. (1983) 142 Cal. App. 3d 338, 343.)

In determining whether bifurcation is appropriate, courts often look to other factors aside from whether the case presents separate issues. For example, courts will consider the complexity of the issues, the risk of jury confusion, judicial economy, and whether the claims present separate and independent issues. (Downey Sav. & Loan Ass’n v. Ohio Cas. Ins. Co. (1987) 189 Cal. App. 3d 1072, 1086.)

“Granting or denying of a motion for separate trials lies within the trial court's sound discretion, and is subject to reversal on appeal only for clear abuse.” (Weil & Brown, Civil Procedure Before Trial, Chapter 12(I)-E, Section 12:424, citing Grappo v. Coventry Financial Corp. (1991) 235 Cal. App. 3d 496, 504.)

Further, “[a]n action may be severed…in the discretion of the court, whenever it can be done without prejudice to a substantial right.” (Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867).

As a result of what appears to be the formal or impending formal appointment of deceased Defendant Ronald Therrien’s representative, Plaintiffs have substantially narrowed the scope of their requested relief. Specifically, Plaintiffs assert the Eleventh Cause of Action (enjoin further disposition of proceeds) and some portion of the Second (aiding and abetting breach of fiduciary duty) and Fourteenth Causes of Action (accounting) in the Devine Second Amended Complaint (ROA 58) should be tried separately. The Court disagrees. The Motion to Bifurcate is DENIED.

Plaintiffs have failed to show bifurcation will result in any benefit. For example, any efficiency seems, at best, speculative. Furthermore, there is no ascertainable prejudice to any party if the operative claims are tried in the same action. (CCP §§ 1048(b), 598 [purpose of bifurcation/severance is to avoid prejudice, to promote convenience, or to permit greater expedience and economy]; Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 323.)

Baldwin/Bone Parties to give notice.

Motion for Severance

RULING:

Cross-Defendants ORCI, INC. (“ORCI”) and ORC INVESTMENTS, LP (“ORC”) (collectively “Cross-Defendants”) seek an order severing and/or bifurcating Cross-Complainants’ RONALD THERRIEN (“Therrien”) Second Amended Cross-Complaint for trial. The cross-claims seek indemnity.

A motion to “sever” invokes the Court’s discretion to order separate trials of issues, causes of action, or parties joined in a single action. (CCP §§ 1048(b), 598, 597, 597.5, 379.5; see Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 323.) The purpose is to avoid prejudice, to promote convenience, or to permit greater expedience and economy. (CCP §§ 598, 1048(b).)

As an initial matter, the Court observes the motion was filed on 09-30-21. At that time, trial was set for 12-23-21. The trial date was ultimately continued to 06-06-22, but that date was vacated on 03-11-22. (ROA 1343.) Additionally, it appears Cross-Complainant Therrien is now deceased and it does not appear a substitution has taken place. Accordingly, no judgment for or against Therrien be rendered. (See, e.g., Sacks v. FSR Brokerage, Inc. (1992) 7 CA4th 950, 957 [Unless the decedent's personal representative is made a party, a judgment should not be rendered for or against a decedent, nor for or against the representative.].)

Accordingly, given the trial date has been vacated, much of the urgency of the motion has been abated. Additionally, given the lack of a responsive pleading on behalf of Therrien, the Court, in its discretion, DENIES the motion without prejudice to Cross-Defendants renewing the issue when the Therrien substitution issue is resolved.

ORCI Parties to give Notice.