Judge: Michael Shultz, Case: 23STCV24476, Date: 2025-04-08 Tentative Ruling

Case Number: 23STCV24476    Hearing Date: April 8, 2025    Dept: 40

23STCV24476 Jose Hernandez v. Koos Manufacturing, Inc.

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR ORDER APPOINTING A DISCOVERY REFEREE

                                                                                         I.         BACKGROUND

      The complaint alleges that Plaintiff was subjected to discrimination based on his disabilities during his employment with Defendant. Plaintiff alleges seven causes of action for violations of the Fair Employment and Housing Act and for unfair business practices.

                                                                                          II.        ARGUMENTS

      Defendant requests an order appointing a referee to preside over Plaintiff’s deposition in order to rule on the propriety of objections. During the February 6, 2025, deposition, Plaintiff’s counsel interfered with the examination, lodged improper objections, and coached the witness. Plaintiff’s counsel agreed to a discovery referee but has not agreed to any of the neutrals proposed by Defendant and is purposefully delaying the process.

      In opposition, Plaintiff argues that counsel objected to defense counsel’s repetitive questions, with the understanding the court would rule on any objections at trial. Defense counsel did not want to accept Plaintiff’s answers through an interpreter, and instead, asked bad questions. Objections were necessary to preserve them for trial. There are no exceptional circumstances to warrant appointment of a referee.

      In reply, Defendant argues that the opposition confirms that Plaintiff lodged frivolous, improper, and lengthy objections. Defendant was entitled to ask questions about the essential functions of Plaintiff’s job with work restrictions. Plaintiff did not answer the questions. Defendant requests appointment of a referee for the limited purpose of presiding over Plaintiff’s deposition with costs to be paid by Defendant. The cases on which Plaintiff relies are distinguishable.

                                                                                  III.       LEGAL STANDARDS

      The court has discretion to appoint a referee when the parties do not consent if “necessary” 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).) However, the court may not appoint a referee under the foregoing subpart unless “exceptional circumstances” of the particular case require it. (CA Rules of Court, Rule 3.920 sub. (c).  A court may order appointment of a referee only for the purposes specified in section 639. (CA Rules of Court, Rule 3.920 subd. (a).)

                                                                                                IV.       DISCUSSION

      Section 639 does not expressly permit appointment of a referee for the limited purpose of presiding over one deposition. While a leading treatise opines that "[a] discovery referee may be appointed to monitor depositions where antagonism between the parties might otherwise prolong the proceedings and frustrate discovery” the appointment must be “necessary.” (5. [8:1803] Appointment of Referee in Aid of Discovery: Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8K-5.)

      The Discovery Act provides remedies to control conduct at the deposition or to control questioning, by enabling the parties to suspend the deposition in order to move for a protective order "on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party.” (Code Civ. Proc., § 2025.470.) The court may make any order that justice requires upon a showing of good cause including imposition of sanctions. (Code Civ. Proc., § 2025.420 subd. (b), (i).)

      The conduct of Plaintiff’s counsel goes beyond permissible objections. Berating or belittling defense counsel or making ad hominem attacks is sanctionable conduct if the court finds there is an “underlying purpose to harass [or] annoy.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.) (See Defendant’s Ex. 1, 165:24-166:1 [“I don’t think you’ve ever tried a case in your life, so I don’t think you know anything about what you’re talking about.”]; 166:15-19 [“I’ll guarantee you this case will go to trial … [a]nd you’re gonna be in for a real treat.”].)

      Both counsel are admonished to limit their comments to proper objections; lecturing opposing counsel is obstreperous and harassing. (Ex. 1, 43:14-21.) Plaintiff’s counsel cannot prevent opposing counsel from asking the witness to clarify if the response is unclear. Mr. Bakhtiar’s interruptions were obtrusive. The deposition deteriorated into seven minutes of inappropriate and unprofessional arguing from both sides. (Ex. 1, 41:9-48.)

      Both parties are admonished to uphold their obligations under the Discovery Act to engage in a “meaningful, reasonable, sincere, and good faith attempt to meet and confer … [and] present their respective positions with ‘candor, specificity, and support’ during informal negotiations.”  (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.) The Discovery Act is meant to be “self-executing.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.)

                                                                                               V.        CONCLUSION

      Based on the foregoing, Defendant’s motion is DENIED.