Judge Michelle C. Kim, Case 21STCV39881 2023-04-06 Tentative Ruling

Plaintiff Christian Hernandez (“Plaintiff”) filed this action against Defendants Home Depot USA, Inc. and Cal Cartage Warehousing and Transloading, LLC (collectively, “Defendants”) for injuries Plaintiff sustained as a result of an alleged dangerous condition on Defendants’ premises. Plaintiff alleges that Defendants failed to employ a dock ramp in a loading dock area as to connect the back of a truck to the loading dock. Plaintiff alleges that as a result, Plaintiff’s leg went through the gap in between truck and loading dock.

At this time, Defendants move for a protective order precluding Plaintiff’s counsel, Mauro Fiore, Jr. (“Fiore”), from participating in or attending any future depositions in this action and imposing sanctions. Alternatively, Defendants move for an order appointing a discovery referee pursuant to CCP § 639 to monitor all depositions in this case. Plaintiff opposes the motion, and Defendants filed a reply.

CCP § 2025.420(a) states that “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

In this case, Defendants, through counsel, assert that they have made multiple good faith efforts to resolve this dispute. (Mot. Martinez Decl. ¶ 8.) The Court finds this is sufficient to satisfy CCP § 2025.420(a).

CCP § 2025.010 provides, “[a]ny party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action.” (Emphasis added.)

Pursuant to CCP § 2025.420(b), “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:”

(5) That the deposition be taken only on certain specified terms and conditions.

(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 pursuant to the provisions of subdivision (b) of Section 640:

(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.

(d) All appointments of referees pursuant to this section shall be by written order and shall include the following:

(2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.

Such an appointment is authorized only where necessary, and it is improper to issue a blanket order directing any and all discovery motions to a referee for routine matters. (See Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449 fn. 4.) An appointment is justified only where the majority of factors justifying reference, including that “(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.” (See Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 104-05; see also Cal. Rules Court, Rule 3.920(c) [“A discovery referee must not be appointed … unless the exceptional circumstances of the particular case require the appointment”].) “Where one or more of the above factors unduly impact the court’s time and/or limited resources, the court is clearly within its discretion to make an appropriate reference.” (Taggares, 62 Cal.App.4th at 106.) There is no “necessity” for appointment of discovery referees in routine, pro forma, uncomplicated matters. (Taggares, 62 Cal.App.4th at 104 [criticizing appointments “simply for expediency or a distaste for discovery resolution”]; Hood, 72 Cal.App.4th at 449.)

However, a discovery referee may be appointed to monitor depositions where antagonism between the parties and/or counsel might otherwise prolong the proceedings and frustrate discovery. (Cal. Practice Guide: Civ. Proc. Before Trial, ¶ 8:1804.5.) “Where either party anticipates that the other will try to frustrate legitimate discovery at a deposition, the referee's presence can curtail such conduct.” (Id. at ¶ 8:873.)

Here, Defendants provide that on January 25, 2023, Plaintiff’s counsel conducted the deposition of Cal Cartage general manager Luis Mejia (“Mejia”), where Fiore became aggressive, abusive and harassing toward Mejia. Defendants assert that Fiore repeatedly asked Mejia the same question despite objections, called Mejia a liar, and insulted defense counsel. Defendants argue that because Fiore cannot stop himself from being abusive and unprofessional, Fiore should be excluded from all further depositions in this matter. Defendants contend that alternatively a discovery referee should be appointed at Plaintiff’s sole expense because of Plaintiff’s counsel’s conduct.

In opposition, Plaintiff argues that good cause does not exist to grant a protective order prohibiting Plaintiff’s counsel from attending future depositions. Plaintiff asserts that while Fiore’s conduct was unprofessional, Fiore was not harassing Mejia. Rather, Plaintiff contends that Fiore was frustrated by defense counsel’s coaching of the witness and Mejia’s evasive answers. Plaintiff asserts that the parties have now appeared for Plaintiff’s deposition, which took place without incident, and that the parties are expected to continue to conduct discovery in a professional manner with further issues. Plaintiff’s counsel pledges to not act unprofessionally again in this action. Plaintiff also contends that if a discovery referee is appointed, the cost should be split between Plaintiff’s and Defendants’ counsel because the exchange at the deposition was triggered by defense counsel’s repeated coaching of Mejia.

In reply, Defendants assert that defense counsel did not coach Mejia and instead defense counsel appropriately objected to the form of Fiore’s questions. Defendants contend that Fiore inappropriately blames defense counsel for his behavior, and that discovery issues will continue to arise if a discovery referee is not appointed. Defendants argue that Fiore’s unprofessional behavior continued during a recent email exchange where Fiore again insulted defense counsel and threatened to continue communicating directly with a witness represented by defense counsel. Defendants provide that Plaintiff currently has three depositions for witnesses represented by defense counsel scheduled, so a discovery referee should be appointed.

As to the request for a protective order precluding Plaintiff’s counsel from attending any depositions in this matter, as Plaintiff contends, such an order would seemingly leave Plaintiff without counsel at depositions. Despite Fiore’s admittedly unprofessional behavior at Mejia’s deposition, this is a drastic remedy. There is not good cause for such an order at this time. The request for a protective order is denied.

As to the request to appoint a discovery referee, the deposition transcript shows the following exchange between Fiore, Mejia, and defense counsel:

Q Okay. So if a forklift can't fall in the gap, a person could fall in the gap, though?

MS. MARTINEZ [defense counsel]: Calls for speculation. Incomplete hypothetical. Calls for an expert opinion. You can answer.

Q So you, after 20 years of working at that facility, can't answer a question saying that a person could fall through the gap between a truck and the dock?

MS. MARTINEZ: Objection. Same objections. Argumentative. Asked and answered. You can answer one more time.

Q Yeah, so as a GM, you can't -- you don't have the qualifications to say whether or not if there's no dock plate to cover the gap between the back of a truck and the warehouse floor whether that could cause somebody to fall through that gap? You're not qualified to answer that question?

MS. MARTINEZ: Objection. It's argumentative. Lacks foundation. Incomplete hypothetical. Calls for speculation. Calls for an expert opinion. Asked and answered. You can answer one more time.

Q Is there a reason why, sir -- I mean, are you afraid to answer the question? I mean, are you trying to protect the company? Why are you bold-faced lying right now?

MS. MARTINEZ: Objection. Do not answer that question. It's harassing. Asked and answered. Counsel, that's completely inappropriate --

MR. FIORE: -- obviously you haven't practiced law that long because you are probably the stupidest lawyer I've dealt with --

MS. MARTINEZ: That's it. Counsel, I'm suspending this deposition. This is completely inappropriate --

MR. FIORE: What's inappropriate is you're coaching the witness to lie, that's what's inappropriate.

MS. MARTINEZ: That's absolutely not what's happening. He's told me -- he's answered your question multiple times. You've called me the stupidest attorney you've ever met. That's completely inappropriate. I'm suspending --

Unlike Plaintiff argues, the transcript does not show that defense counsel was inappropriately coaching Mejia on his responses. Rather, defense counsel was objecting to the form of Fiore’s questions and the repeated questioning. If Fiore believed Mejia’s responses were evasive and there was a legal basis to compel Mejia to answer any deposition questions, Fiore could have scheduled an Informal Discovery Conference and filed a motion to compel to address any disputes regarding such. It was inappropriate for Fiore to accuse Mejia of “bold-face lying,” refer to Mejia’s response as “the stupidest answer,” or state that defense counsel was “the stupidest lawyer” Fiore has dealt with. Such statements were clearly not intended to further or obtain any relevant discovery in this matter. Furthermore, the Court has reviewed the video of the deposition provided by Plaintiff, (Opp. Exh. B <https://www.dropbox.com/sh/s7hyq276d8eot70/AADJHpkMb9IFIqfo7Kld4tnea?dl=0&preview=B+-+Mejia_V1_1+of+1.mpg>, last checked March 13, 2023), and similarly finds that defense counsel did not coach the witness as to warrant Fiore’s line of questioning and statements.

The Court of Appeal in La Salle v. Vogel (2019) 36 Cal.App.5th 127, 133-134 dealt squarely with the problem of lack of civility in California courts and explored the reasons for a lack of civility. The opinion quoted Green v. GTE California (1994) 29 Cal.App.4th 407, 403, in which the Second District lambasted attorneys for “cluttering up the courts with what were essentially personal spats” and Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641, lamenting that the legal profession has already suffered a loss of stature and of public respect, and that “lawyers await the slightest provocation to turn upon each other.” The LaSalle Court also quoted from in re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537, which instructed that zealous advocacy does not equate to “attack dog” or “scorched earth” behavior, nor a lack of civility. Unfortunately, this is the situation here, as Fiore quickly resorted to personal attacks and insults against a witness, Mejia, and defense counsel. Such conduct does not equate to zealous advocacy and serves no purpose in, other than to frustrate, legal proceedings.

In addition, Defendants’ evidence shows the parties continue to have multiple conflicts regarding scheduling and completing multiple other depositions, including a dispute involving Plaintiff’s counsel threatening to directly contact a witness that Fiore has been informed is represented by defense counsel. The transcript of Mejia’s deposition shows that there is a lack of cooperation in completing discovery and brining this matter to trial. Moreover, in reply to Fiore’s “pledge to refrain from using any improper language …,” (Opp. Fiore Decl. ¶ 6), Defendants submit an email exchange between Fiore and defense counsel regarding the deposition of another witness wherein Fiore calls defense counsel “rude” and accuses defense counsel of “lying as usual”. (Reply Exh. 10.) Thus, Fiore’s conduct concerning depositions is ongoing. Without a discovery referee present at depositions, Fiore appears likely continue to make the litigation contentious and engage in personal attacks on defense counsel and/or witnesses. A discovery referee may be appointed to monitor depositions where antagonism between the parties and/or counsel might otherwise prolong the proceedings and frustrate discovery, as clearly occurred at Mejia’s deposition because of Fiore’s conduct, and is likely to continue without the appointment of a discovery referee. (Cal. Practice Guide: Civ. Proc. Before Trial, ¶ 8:1804.5.) Multiple issues have already been raised about additional witnesses’ depositions and the parties are not cooperating in resolving them without Court intervention. (See Taggares, 62 Cal.App.4th at 105-06.)

Based on the foregoing, Defendants’ motion to appoint a discovery referee for all future depositions in this action is granted. The discovery referee is to also hear and determine any and all discovery motions and disputes concerning such depositions as necessary.

As to the costs concerning the discovery referee, Plaintiff’s argument that Fiore’s conduct was triggered by defense counsel at the deposition is unavailing. At stated above, after reviewing the deposition transcript and video provided by Plaintiff, the Court is not convinced that defense counsel, or Mejia, did anything justifying Fiore’s conduct. Rather, it is Fiore’s conduct that is necessitating the appointment of the discovery referee. Furthermore, Plaintiff does establish that he has, nor argue that he has, an economic inability to pay the discovery referee’s fees. Plaintiff does not otherwise show that appointing a discovery referee will impact Plaintiff’s ability to proceed with the litigation. Therefore, Plaintiff is solely responsible for 100% of the discovery referee costs. (CCP § 645.1(b).)

Neither party nominates any specific referees to be considered in connection with this motion. (See CCP § 640; see also Cal. Rules of Court, Rule 3.921.) Accordingly, the parties are to meet and confer regarding the selection of a referee. If the parties cannot agree upon a referee, they are each to prepare a list of three nominees, from which the Court will appoint a referee pursuant to CCP § 640. A further hearing is set for April 14, 2023 at 10:00 a.m. in this Department regarding the selection of a discovery referee. The parties’ joint statement regarding the selection and/or nomination of a discovery referee is to be filed five (5) court days prior to the hearing.

Lastly, Defendants seek monetary sanctions under CCP § 2025.420(h), which pertains to protective orders. The request for a protective order is being denied, and Defendants do not otherwise provide authority showing that sanctions in connection with a motion to appoint a discovery referee are proper.

Hon. Michelle C. Kim

Judge of the Superior Court