Judge Mark E. Windham, Case 18STLC12069 2022-12-21 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

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Bander v. Bills, et al.

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS; COMPLIANCE WITH AGREEMENT TO PRODUCE DOCUMENTS; REQUEST FOR SANCTIONS

The Court hereby refers the discovery disputes in this action to a discovery referee, as stated herein. By January 3, 2022, the parties are to file and serve a statement regarding their choice of referee, if they so agree, or provide a list of three referees from which the Court will select the referee. Hearing on Appointment of Discovery Referee is CONTINUED TO JANUARY 17, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Plaintiffs Joel Bander and Felicia Bander (“Plaintiffs”) filed the instant action for failure to return their security deposit and related claims against Defendants Ronald Bills (“Defendant Bills”), Howard Management Group (“Defendant HMG”), Daniel Sloan (“Defendant Sloan”), Gonzalo Olmedo dba Olmedo’s Construction (“Defendant Olmedo”) and Business Alliance Insurance Company (“Defendant BAIC”) on September 24, 2018. The case was initially assigned to the Limited Jurisdiction Court. The First Amended Complaint was filed on October 22, 2019.

Defendant WIR Holdings, LLC (“Defendant WIR”), added as a doe defendant, filed a Cross-Complaint against Plaintiffs on October 14, 2020. The Cross-Complaint alleges that Plaintiffs breached their lease agreement by damaging the concrete driveway of the premises (“the Premises”) in an amount greater than covered by their security deposit. Plaintiffs filed ten discovery motions to compel non-initial responses from March to May 2019. Defendants filed a Motion for Protective Order on May 24, 2019. The ten discovery motions were fully briefed by the parties and included evidentiary objections. The Court issued a tentative ruling on the motions, which came for hearing on June 20, 2019.

On August 22, 2019, the case was transferred to an Independent Calendar Court. The Independent Calendar Court held an Informal Discovery Conference on August 26, 2020. In October 2020, Plaintiffs resumed filing discovery motions, including two motions to compel further responses and a sanctions motion in November 2020. Plaintiffs filed two motions to compel initial responses in January 2021. In May 2021, Plaintiffs filed two motions to compel further responses and Defendants filed another motion for protective order. The Independent Calendar Court issued a ruling on October 29, 2021.

In February and March 2022, Plaintiffs filed the four discovery motions that are currently set for hearing. The Independent Calendar Court transferred the case back the Limited Jurisdiction Court on July 19, 2022. In August 2022, Plaintiffs filed three additional discovery motions to compel production of documents in connection with deposition, for which this Court issued a ruling on October 27, 2022.

The Court finds that disputes exist between the parties as to discovery matters in this case, creating exceptional circumstances specific to the circumstances of this case that warrant the appointment of a discovery referee pursuant to Code of Civil Procedure section 639, subdivision (a)(5). As noted in the recitation of the procedural history above, these exceptional circumstances include multiple issues to be resolved, multiple motions to be heard simultaneously, present motion is only one in a “continuum” of many; and number of documents to be reviewed make the inquiry “inordinately time consuming.” (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105.)

Specifically, the issues that remain to be resolved include Defendants’ production of Electronically Stored Information (“ESI”) for documents relating to repairs at the property that is the subject of this action and Defendants’ communications related to construction at the property. The propriety of such production turns on the merit of Defendants objections that this production (1) is burdensome and oppressive insofar as requests for the same information have been previously propounded and all available documents have been produced; (2) involves intrusion and disruption of Defendants’ computer systems; and (3) requires examination by a qualified ESI firm at significant expense. Related to the first issue is whether the same documents were already sought in connection with the earlier discovery sets propounded on Defendants over the course of this action, and which were the subject of earlier discovery motions.

The second factor involves the multiplicity of discovery motions to be heard simultaneously. There are currently seven discovery motions scheduled for the upcoming hearing, four of which are motions to compel further responses originally filed in February and March 2022. Three motions to compel production of documents in connection with Defendants’ depositions were heard together on October 27, 2022, then continued for consideration of the sanctions issue. The parties’ history of filing multiple discovery motions to be heard at the same time can be seen from the procedural history discussed above. This likewise supports the third factor: these current discovery motions are only a few of the continuum of discovery motions filed over the four-plus year duration of this litigation.

Regarding the fourth factor, the number of documents to be reviewed in connection with these documents makes the inquiry inordinately time-consuming. The moving exhibit lists alone for these latest four discovery motions number more than 300 pages, without even considering the separate statements, opposition and reply papers. (Exhibit Lists, filed 02/16/22 and 03/08/22.) The number of documents to consider is further exacerbated by the parties arguments over whether the documents sought in these motion were previously sought and/or served in connection with earlier discovery, of which there are approximately 70 sets. (See Decl. Re Discovery, filed 12/09/22, pp. 2-5.)

Finally, the Court notes a factor that is unique to the Limited Jurisdiction Court, which is the legislature’s express desire to restrict the number of discovery requests propounded in these types of cases unless allowed by the court upon noticed motion or stipulated to by the parties. (See Code Civ. Proc., §§ 94 and 95.) This case has toggled back and forth between the Limited and Unlimited Jurisdiction Courts, allowing the parties to propound more than 35 interrogatories, demands to produce, and requests for admission upon each other, despite the case now being assigned to the Limited Jurisdiction Court and thereby subjecting this Court to the multitude of discovery motions as detailed above.

Therefore, the interests of justice and efficiency will best be served by appointment of a referee for the purpose of hearing and determining these discovery matters and to report and make recommendations to the Court thereon. The Court finds that no party has established an economic inability to pay a pro rate share of the referee’s fee. Plaintiff Joel Bander contends that a sworn declaration will be filed under seal to demonstrate financial hardship, but no such declaration has been filed to date. (Decl. Re Discovery and Discovery Referee, filed 12/09/22, p. 8:8-10.) Not only would such a declaration now be untimely pursuant to the Court’s order to file it by December 9, 2022, the declaration cannot be filed under seal without a court order. (See Cal. Rules of Court Rule 2.550(c).) No request to file a declaration under seal has been made to the Court. The referee may not charge more than $650.00 per hour.

Matters submitted to the referee are as follows: any and all discovery motions, or all disputes relevant to discovery, now pending in this case, and any other discovery matters the Court may later refer to the referee.

4) To order the production of all pertinent writings, records, and documents in possession of any of the parties. The referee, in this regard, is to recommend to the Court the imposition of any sanctions for the failure of any party or attorney to comply with such an order to produce or to cooperate with the referee.

5) To employ, as reasonably necessary, qualified experts, and to recommend to the Court appropriate fees for such services.

6) To order, supervise, preside over, conduct hearings, rule on objections and recommend sanctions for any appropriate discovery to accomplish this reference.

7) To petition the Court for any further, additional, and different powers pertinent to this reference.

The Court will select the referee pursuant to the procedures set forth in Code of Civil Procedure section 640. Specifically, if the parties agree on a referee, the Court will select that referee. (Code Civ. Proc., § 640, subd. (a).) Alternatively, the parties may each submit a list of three nominees to the Court, and the Court will appoint a referee from among the nominees provided there is no legal objection to the nominee. (Code Civ. Proc., § 640, subd. (b).)

The referee shall submit a written report to this Court within 20 days after the hearing, if any, has been concluded and the matter has been submitted, and shall serve report on all parties. (Code Civ. Proc., § 643.) The report shall contain the following:

1) Findings as to discovery motions and disputes relevant to discovery in the action and as to the factual question[s] submitted.

2) A statement of the total hours spent and the total fees charged by the referee; and

a) The merits on the findings regarding any disputed issue referred to the referee; and

b) Amount of referee's fees and costs of the referee, and fees of any experts employed to assist the referee that the Court should allow; and

d) The imposition of any sanctions against any of the parties and/or attorneys for failure to produce discovery items or to cooperate with the referee in this reference.

(Code Civ. Proc., §643, subd. (c).) The parties may file and served objections to the referee's report or recommendation no later than 10 days after the referee serves the report or all objections thereto will be deemed waived. (Code Civ. Proc., §643, subd. (c).) Within 10 days of service of objections, parties may file and served responses. (Code Civ. Proc., §643, subd. (c).) Upon review of the objections and responses, the Court will enter appropriate orders. (Code Civ. Proc., §643, subd. (c).)

The Court hereby refers the discovery disputes in this action to a discovery referee, as stated above. By January 3, 2022, the parties are to file and serve a statement regarding their choice of referee, if they so agree, or provide a list of three referees from which the Court will select the referee. Hearing on Appointment of Discovery Referee is CONTINUED TO JANUARY 17, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.