Judge: Nathan Vu, Case: 30-2021-01187258, Date: 2022-12-19 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Motion to Appoint Discovery Referee

Defendant Bodega Latina Corporation dba EL Super’s motion to appoint discovery referee is DENIED without prejudice.

Plaintiff Maria Gonzalez’s request for sanctions is DENIED.

Defendant Bodega Latina Corporation dba El Super moves for the appointment of a discovery referee to supervise a second session of Plaintiff Maria Gonzalez’s deposition.

Standard to Appoint Discovery Referee

The court has the power to appoint a referee, if necessary, to supervise depositions, to hear specified discovery motions and disputes, and to report findings and make recommendations. (See Code Civ. Proc. §§ 638, subd. (b), & 639, subd. (a); Jogani v. Jogani (2006) 141 Cal.App.4th 158, 176.)

Specifically, Civil Procedure Code section 639(a)(5) states: “When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee . . . . When the court in any pending action determines in its discretion 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.”

However, the caselaw is clear that:

Unless both parties have agreed to a reference, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These include: (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 . . . . 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 v. Superior Court (1998) 62 Cal.App.4th 94, 106-07.)

In this case, Defendant has not yet shown that a majority of the Taggares v. Superior Court factors are present or that there is otherwise a need for a discovery referee. Defendant did not show that there are multiple issues or multiple motions to be resolved or that the present motion is only one in a continuum of many. Defendant also has not shown that the number of documents to be reviewed would be inordinately time-consuming.

Further, the parties have apparently not stipulated to allowing Defendant to depose Plaintiff again. (See Zeesman Decl., ¶ 4.) Defendant may intend to file a motion to compel answers in deposition, but not such motion has been filed and said motion may be untimely. (See Code Civ. Proc. § 2025.480, subds. (a) & (b).) Plaintiff’s deposition took place on 03/31/2022 and no motion to compel has been filed as of this date. (Kushner Decl., ¶ 2.)

Plaintiff seeks sanctions under Civil Procedure Code section 1987.2(c), but that provision only relates to motions to quash brought under Section 1987.1, not a motion to appoint a discovery referee. Plaintiff also seeks sanctions under Civil Procedure Code section 2023.010(b), but that subsection relates to “[u]sing a discovery method in a manner that does not comply with its specified procedures.” Plaintiff has not shown how that subsection applies to this matter.

Further, the filing of this motion does not support an award of sanctions on the merits. The Civil Discovery Act was intended to provide the right to broad discovery and must be liberally construed in favor of allowing discovery. (See Sinaiko Healthcare Consulting, Inc. vs. Pacific Healthcare Consultations (2007) 148 Cal.App.4th 390, 402.)

That right is best vindicated when the court compels discovery and grants full sanctions where supported by the law. In some cases as explained above, the court may need to appoint a discovery referee to ensure compliance with the Civil Discovery Act. The parties and counsel are informed that if there continue to be significant discovery disputes, the court may compel discovery, issue full sanctions, and/or appoint a discovery referee.

Plaintiff shall give notice of this ruling.