Judge Michelle C. Kim, Case BC707602 2023-03-20 Tentative Ruling

Plaintiff Ron A. Rosen Janfaza (“Janfaza”) filed this action against Defendant, Omid Khorshidi (“Khorshidi”) for damages relating to an alleged physical altercation between Plaintiff and Defendant that occurred at the Santa Monica Courthouse on May 26, 2016. Khorshidi has filed a cross-complaint against Janfaza for damages arising out of the same incident.

On August 24, 2022, the Court issued an order granting Khorshid’s motion to appoint a discovery referee in this matter. The fees for the discovery referee were ordered to be split evenly between the parties. (Min. Order, Aug. 24, 2022.) Thereafter, the Hon. Robert W. Thomas was appointed as the discovery referee in this matter. (Min. Order, Sept. 6, 2022.)

At this time, Khorshidi moves for an order directing Janfaza to reimburse Khorshidi for fees in the amount of $4,400.00 paid to the discovery referee. Janfaza opposes the motion, and Khorshidi filed a reply.

Khorshidi provides that is making this motion pursuant to CCP § 1008(b) as a subsequent application to Khorshidi’s motion to appoint a discovery referee, wherein Khorshidi requested that Janfaza be ordered to pay 100% of the fees for the discovery referee. This request was denied, and as stated above, the parties were ordered to split the fees. Khorshidi asserts that this motion is made on the basis of new and different facts and circumstances that were not present at the time Khorshidi’s motion to appoint a discovery referee was heard. In particular, Khorshidi provides that the discovery referee confirmed extensive discovery misconduct and gamesmanship by Janfaza, recommended the exclusion of eight of nine of Janfaza’s expert witnesses, and denied Janfaza’s request for a second volume of Khorshidi’s deposition. Khorshidi asserts that the discovery referee made no adverse recommendations as to Khorshidi. Further, Khorshidi contends that he has obtained additional evidence regarding Janfaza’s ability to pay the full cost of the fees, and that Khorshidi should not have to pay when Janfaza alone engaged in the discovery misconduct.

In opposition, Janfaza asserts that the Court already ruled that Khorshidi was not completely innocent from the misconduct that warranted the appointment of a discovery referee. Janfaza argues that the discovery referee never stated that Janfaza was uncooperative or obstructive in any manner, and that the discovery referee did not recommend that any party pay more fees that already ordered by the Court. Janfaza states that he appeared and completed his second deposition session with the discovery referee presiding, and Janfaza contends that Khorshidi engaged in discovery misuse. Additionally, Janfaza provides that it would cause him financial hardship to pay the fees, and Janfaza requests attorney fees of $5,500 for opposing this motion.

In reply, Khorshidi argues that he is properly making this motion under CCP § 1008(b), and that Khorshidi has set forth numerous new facts and evidence not previously available. Further, Khorshidi asserts that Janfaza does not submit any evidence regarding his purported inability to pay, and Khorshidi argues that Janfaza is seeking to relitigate matters already decided against him by the discovery referee. Khorshidi argues that it was Janfaza that engaged in the discovery abuse, and Khorshidi contends there is no basis for sanctions against him.

A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

A renewed motion may be made even after the 10-day day limit applicable to a motion for reconsideration. (Graham v. Hansen (1982) 128 Cal.App.3d 965, 970.) The burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Sup.Ct. (2005) 135 Cal.App.4th 206, 212-213.) “Courts have construed section 1008 to require a party filing an application for reconsideration or a renewed application to show diligence with satisfactory explanation for not having presented the new or different information earlier. [Citations.]” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) Once the Court determines the existence of new or different facts, circumstances, of law, it can either modify or affirm its prior decision. (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)

As a preliminary matter, to the extent that Janfaza argues that this motion was filed after the discovery cutoff, Janfaza fails to cite any authority holding that a motion made pursuant to CCP § 1008(b) must be filed before the discovery cutoff date.

Regarding the renewed request for Janfaza to pay 100% of the discovery referee fees, Khorshidi submits a declaration providing that after the order was issued appointing the discovery and ordering the parties to split the fees evenly, the discovery referee issued his report and recommendation on October 28, 2022. There is a serious question as to whether Khorshidi acted diligently in making this motion after the discovery referee’s report was issued, as Khorshidi waited more than three months after the report was made. Nonetheless, even in considering the report as new or different facts and circumstances, it does not warrant modifying the Court’s August 24, 2022 order.

The discovery referee’s Report and Recommendation acknowledges the “animosity between Plaintiff Janfaza and Defendant Khorshidi.” (Mot. Exh. E at p 2:2.) The discovery referee also noted, “[b]oth Mr. Janfaza and Mr. Khorshidi say they have attorney representation, but for the most part represent themselves.” (Id. at p. 2:20-21.) The discovery referee’s report then lists the various discovery issues between the parties. Notably, the discovery referee stated that Khorshidi’s deposition was contentious, and that there were many instances when the parties talked over each other. (Id. at p. 8:16-19.) Although the discovery referee recommended excluding all but one of Janfaza’s expert witnesses and recommended denying the request for a second session of Khorshidi’s deposition, nowhere in the report does the discovery referee indicate that the misconduct or issues in this case were caused solely by Janfaza. Rather, the report makes it clear that both parties continued to make the litigation contentious.

Moreover, in ordering the discovery referee’s fees to be evenly split, the Court noted:

Admittedly, the transcript shows that Janfaza continuously interrupted Khorshidi and asked seemingly irrelevant questions to Khorshidi, despite this being Janfaza’s deposition. However, Khorshidi is not 100% innocent from the misconduct that occurred during the deposition. Khorshidi is purportedly represented in this matter, in part, by another attorney from his law firm, but Khorshidi chose to conduct Janfaza’s deposition himself. Again, the parties had a personal relationship in this matter prior to the alleged assault and battery incident, and thus, it is questionable as to why Khorshidi would choose to conduct the deposition himself. Janfaza argued that he felt as though Khorshidi was “poking” him at times during the deposition. Further, Khorshidi does not deny that he turned off his camera during the remote deposition and had other people in the room. During meet and confer efforts in this matter, Janfaza proposed that the cost of a discovery referee be split evenly, 50/50, between the parties. (Mot. Exh. Y.) The Court finds this to be reasonable in this matter.

(Min. Order, Aug. 24, 2022.) Nothing in the discovery referee’s report changes the above analysis or the questionable prior conduct by Khorshidi. The fees were to be evenly split because the litigation conduct by both parties was contentious and full of personal attacks, and the parties continuously frustrated each other’s attempts to obtain discovery. As noted in the August 24, 2022 order, Khorshidi was not 100% innocent from the discovery misconduct. The discovery referee’s findings do not change Khorshidi’s conduct prior to the referee being appointed, which in part necessitated a discovery referee being appointed in this action.

Khorshidi further submits emails from an expert that Janfaza has allegedly worked with on prior cases. (Mot. Exhs. A-B.) Khorshidi asserts that the emails prove that Janfaza can afford to reimburse Khorshidi for the referee fees. Although the Court noted that neither party established an inability to pay an even share of the referee’s fees, (Min. Order, Aug. 24, 2022), the Court did not order the parties to evenly split the fees because of either parties’ financial status. This evidence is therefore irrelevant to the Court’s determination. Additionally, Khorshidi seemingly submits a declaration from Janfaza purportedly filed in another case to similarly argue Janfaza can afford to pay the fees. (Mot. Exh. C.) This argument is rejected for the same reasons stated above. Furthermore, the declaration is dated April 16, 2021, which was more than four months before the motion to appoint discovery referee was heard, and Khorshidi fails to offer a satisfactory explanation for why this purported new information could not have been presented earlier.

Janfaza fails to cite any authority in support of his request for attorney fees for opposing the motion. Janfaza’s request for attorney fees is denied.

Hon. Michelle C. Kim

Judge of the Superior Court