Judge: Malcolm Mackey, Case: 20STCV15663, Date: 2022-09-16 Tentative Ruling

Case Number: 20STCV15663    Hearing Date: September 16, 2022    Dept: 55

FELD v. ERIKSON                                                  20STCV15663

Hearing Date:  9/16/22,  Dept. 55

#2:    MOTION FOR ORDER RE: APPORTIONMENT OF DISCOVERY REFEREE FEES.

Notice:  Okay

Opposition

MP:  Defendant DAVID ERIKSON.

RP:  Plaintiff.

Summary

On 4/23/20, Plaintiff ROLAN FELD filed a Complaint alleging that Defendant, as Plaintiff’s lawyer in an underlying arbitration about another attorney seeking attorney fees, negligently handled the matters, including by failing to question witnesses about exorbitant fees, and failing to raise defenses to show a void fee agreement.

The causes of action are:

1. PROFESSIONAL MALPRACTICE

2. BREACHES OF FIDUCIARY DUTIES.

Cross-Complaint filed 6/12/20, by Defendant against Plaintiff, alleging that Plaintiff failed to pay for all billed attorney services.

Cross-Complainant’s claims are:

1.      BREACH OF CONTRACT

2.      BREACH OF IMPLIED CONTRACT

3.      QUANTUM MERUIT

4.      OPEN BOOK ACCOUNT

5.      ACCOUNT STATED

6.      PROMISSORY FRAUD.

MP Positions

Moving party requests an order apportioning discovery referee fees in equal proportions, or allowing apportionment per referee recommendations as to each motion, on bases including the following:

·         Plaintiff Feld has failed to establish any financial hardship.

·         Some of Plaintiff’s money cannot be accounted for.  Feld has access to virtually unlimited funds right now, because (1) he is the sole beneficiary of an offshore trust holding more than $20 million (and which funds this lawsuit), and (2) has personal assets worth millions of dollars, outside the Trust.

·         The only fair and reasonable apportionment of fees is an equal one, or one based on the discovery referee’s recommendation with respect to a given discovery motion, as approved by the Court.

·         Discovery referee fees have been caused in this action due to Feld’s unreasonable discovery conduct.

·         The Referee recently invoiced the parties $18,700 to hear Erikson’s next four motions to compel.

RP Positions

Opposing party advocates denying, for reasons including the following:

·         The Court correctly established an 80%-20% apportionment, at the time it ordered a discovery referee.

·         Plaintiff currently is in poor financial condition.

·         Plaintiff is still alleged to owe $1,600,901.05 of the approximately $2.2 million judgment. (Martorell Decl., ¶ 3, Ex. A.) In further pursuit of satisfying the judgment, Helen Yu levied every bank account Plaintiff possessed. (Feld Decl., ¶ 2.)

·         Plaintiff’s prior, better financial position is irrelevant to this Court’s determination of Plaintiff’s inability to pay the discovery referee’s fees, presently.

·         Defendant has not prevailed on all discovery motions, and instead Plaintiff sometimes prevailed.

·         Plaintiff’s counsel has been working diligently to respond to Defendants’ discovery requests.

·         Defendants’ strategy has been to feign civility, and to drown Plaintiff’s counsel with unnecessary motion practice and filings. Defendants filed 13 motions to compel.

Tentative Ruling

The motion is denied.

The Court finds that Plaintiff’s opposing declaration sufficiently evidences an inability to afford any larger proportion of discovery referee fees.

“Under Code of Civil Procedure sections 639, subdivision (e), and section 645.1, a court has discretion to appoint a referee to hear and determine discovery motions and to apportion the   payment of the referee's fees among the parties in any manner determined by the court to be ‘fair and reasonable.’"   McDonald v. Sup. Ct. (1994) 22 Cal. App. 4th 364, 367. 

Parties can provide the detailed financial information via the official Judicial Council form to obtain forma pauperis status, in order to provide courts with a solid basis for deciding referee fee apportioning, but are not required to do so.  Alshafie v. Lallande (2009) 171 Cal.App. 4^th 421, 434 (citing, e.g., McDonald v. Sup. Ct. (1994) 22 Cal.App.4th 364, 370 (regarding discovery referee appointment, “declaration under penalty of perjury as to … financial condition and its impact on … ability to proceed with the litigation was competent evidence.”)).