Judge: Michael P. Linfield, Case: 21STCV10856, Date: 2023-03-10 Tentative Ruling

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Case Number: 21STCV10856    Hearing Date: March 10, 2023    Dept: 34

SUBJECT:         Motion to Appoint a Discovery Referee and for Monetary Sanctions

Moving Party:  Plaintiff Linkun Investment, Inc.

Resp. Party:    Defendant Salvatore Anthony DiMaria

Plaintiff’s Motion is GRANTED. A discovery referee is appointed for the limited purpose of ruling on any objections that might arise at Defendant DiMaria’s deposition that will be held in the Court’s jury room. The Parties are ordered to split the costs of the discovery referee.  If the Court finds that one party’s actions have impeded the upcoming deposition or that a parties’ objections at this deposition are frivolous, the Court may reconsider how the discovery referee’s fees will be split between the parties.

The Court DENIES Plaintiff’s Request for Monetary Sanctions.

BACKGROUND:

On March 19, 2021, Plaintiff Linkun Investment, Inc. filed its Complaint against Defendants Salvatore Anthony DiMaria, Shing “Jacky” Lo, ADD Enterprises, Inc., Manning’s Beef LLC, Charles DiMaria & Son Inc., and Manning Land Company, LLC on various causes of action.

On August 6, 2021, all Defendants (except Shing Lo) filed their Answer.

On February 15, 2023, Plaintiff filed its Motion to Appoint a Discovery Referee and for Monetary Sanctions. Plaintiff concurrently filed: (1) Memorandum of Points and Authorities; (2) Declaration of Gary K. Brucker, Jr.; (3) Proposed Order; and (4) Proof of Service.

On February 27, 2023, Defendants Salvatore Anthony DiMaria, ADD Enterprises, Inc., Manning’s Beef LLC, Charles DiMaria & Son Inc., and Manning Land Company, LLC (“Defendants”) filed their Opposition. Defendants concurrently filed Declaration of Samuel C. Jeon.

On March 3, 2023, Plaintiff filed its Reply. 

ANALYSIS:

I.           Legal Standard

“A referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties . . . .” (Code Civ. Proc., § 638.)

“The court shall appoint as referee or referees the person or persons, not exceeding three, agreed upon by the parties.” (Code Civ. Proc., § 640, subd. (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 . . . (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.” (Code Civ. Proc., § 639, subd. (a)(5).)

“When a referee is appointed pursuant to Section 638, the referee’s fees shall be paid as agreed by the parties. If the parties do not agree on the payment of fees and request the matter to be resolved by the court, the court may order the parties to pay the referee’s fees as set forth in subdivision (b).” (Code Civ. Proc., § 645.1, subd. (a).)

“When a referee is appointed pursuant to Section 639, at any time after a determination of ability to pay is made as specified in paragraph (6) of subdivision (d) of Section 639, the court may order the parties to pay the fees of referees who are not employees or officers of the court at the time of appointment, as fixed pursuant to Section 1023, in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties. For purposes of this section, the term ‘parties’ does not include parties’ counsel.”

II.        Discussion

a.          Appointment of Referee

Plaintiff moves for the Court to order: (1) the appointment of a limited purpose discovery referee to supervise the continued deposition of Defendant DiMaria in the Court’s jury room; (2) a shift of the cost of the limited purpose discovery referee to Defendant DiMaria; and (3) monetary sanctions against Defendant DiMaria. (Memorandum of Points and Authorities, p. 17:18–22.)

Defendant does not oppose the appointment of a limited purpose discovery referee in the Court’s jury room, nor does Defendant oppose the specific referee Plaintiff proposed. (Opposition, p. 8:5–8.) However, Defendant requests that the cost of the discovery referee be split between the Parties and that the request for monetary sanctions be denied. (Id.)

Plaintiff argues in its Reply that Defendant DiMaria should be required to pay the entire cost of the discovery referee and for monetary sanctions because, without substantial justification, Defendant DiMaria disrupted the prior deposition, incurring a significant waste of time and costs. (Reply, pp. 2:16–27, 4:21, 5:14.)

Pursuant to Code of Civil Procedure section 638, the Court GRANTS the appointment of the discovery referee for the limited purpose of conducting Defendant DiMaria’s deposition in the Court’s jury room.

Pursuant to Code of Civil Procedure section 645.1, as the Parties do not agree on the cost of the discovery referee, and as there is no evidence before the Court that either of the Parties have a financial inability to pay the costs of the discovery referee, the Court ORDERS the Parties to split the costs of the discovery referee equally. If the Court finds that one party’s actions have impeded the deposition, the Court may reconsider how the discovery referee’s fees will be split between the parties.

b.          Imposition of Sanctions

The Court is concerned about Defendant DiMaria’s apparent lack of cooperation in discovery.  The Court believes that Plaintiff has a strong argument for the imposition of sanctions.

However, Plaintiff has requested the imposition of $74,674.02 in sanctions.  Its request for sanctions is unreasonably high.

“If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [cleaned up].)   “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

The Court declines to issue monetary sanctions against Defendant DiMaria.

III.     Conclusion

Plaintiff’s Motion is GRANTED. A discovery referee is appointed for the limited purpose of ruling on any objections that might arise at Defendant DiMaria’s deposition that will be held in the Court’s jury room. The Parties are ordered to split the costs of the discovery referee.  If the Court finds that one party’s actions have impeded the deposition or that a parties’ objections at this deposition are frivolous, the Court may reconsider how the discovery referee’s fees will be split between the parties.

The Court DENIES Plaintiff’s Request for Monetary Sanctions.