Judge: Stephen P. Pfahler, Case: 20STCV05877, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCV05877    Hearing Date: September 29, 2022    Dept: F49

Dept. F-49

Date: 9-29-22 c/f 7-21-22 c/f 5-23-22

Case # 20STCV05877

Trial Date: 1-30-23 c/f 7-25-22

OSC RE: APPOINTMENT OF DISCOVERY REFEREE FOR DEPOSITION SUPERVISION

MOVING PARTY: Defendant/Cross-Complainant Gerald De La Cerda

RESPONDING PARTY: Irene De La Cerda

RELIEF REQUESTED

OSC re: Appointment of Referee for Supervision of Deposition of Irene De La Cerda

SUMMARY OF ACTION

Plaintiff Andrew La Cerda alleges that along with himself, defendants Sara De La Cerda, Gerald De La Cerda were beneficiaries of the Dolores De La Cerda Revocable Family Trust. Plaintiff is 62 years old, suffers from Parkinsons disease, and is considered a “Dependent Adult.” The trust owns/owned certain real property located at 1271 Hunnewell Ave., Sylmar. Plaintiff contends that the trust provided Plaintiff with a life estate to occupy the property, rather than placed in an off-site care facility. If Plaintiff was unable to pay expenses for the home, the beneficiaries would be responsible. Any beneficiary refusing to contribute will receive no residual distribution benefit.

Plaintiff alleges that defendants Sara and Gerald conspired to remove funds from the trust through forged documents representing Defendants as co-trustees. Plaintiff also specifically alleges that Sara took personal funds ($44,0000 + $6,000) from Plaintiff.

The complaint also alleges two incidents on February 16, 2018. The first is where both Sara and Gerald entered into the premises with the assistance of a locksmith. Gerald then grabbed Plaintiff from behind in a “tight bear hug” until Plaintiff “slid down to the floor in pain.”

Defendant James Morris, an attorney, drafted amendments to the trust regarding the life estate and residual distribution.

On February 14, 2020, Plaintiff filed a complaint for Dependent Adult Abuse (first and second causes of action), Battery, Trespass, and Conversion of Real Property. On October 6, 2020, Plaintiff filed a first amended complaint for Dependent Adult Abuse (first and second causes of action), Battery, Trespass, Conversion of Real Property, Negligence, and False Imprisonment.

On November 9, 2020, James Morris filed a general denial. On February 17, 2021, Defendant Gerald De La Cerda answered and filed a cross-complaint for indemnity, apportionment, and declaratory relief against Irene De La Cerda aka Irene Sullivan. On February 26, 2021, Defendant Sara De La Cerda answered and filed a cross-complaint for indemnity, apportionment of fault, and declaratory relief against Irene De La Cerda aka Irene Sullivan.

On June 22, 2021, the action was transferred from Department 32 to Department 49.

On March 8, 2022, the court granted the motion for summary judgment brought by Irene De La Cerda aka Irene Sullivan moves for summary judgment/summary adjudication on the cross-complaint of Defendant/Cross-Complainant, Sara De La Cerda. On April 25, 2022, the court granted the motion for judgment on the pleadings brought by Irene de La Cerda aka Irene Sullivan as to the cross-complaint of Gerald De La Cerda without prejudice.

On May 25, 2022, Gerald De La Cerda filed the first amended cross-complaint for Indemnification, Apportionment of Fault, and Declaratory Relief. On June 16, 2022, Plaintiff dismissed the false imprisonment cause of action from the complaint. On July 21, 2022, the court overruled the demurrer to the first amended complaint. Irene De La Cerda answered the cross-complaint on August 8, 2022.

RULING: Granted.

Request for Judicial Notice: Granted.

The court acknowledges any and all filed documents and propounded discovery, but refuses to take notice of any content for purposes of establishing the truth of any arguments.

On April 15, 2022, the court granted the motion to compel further deposition of Irene De La Cerda aka Irene Sullivan brought by Gerald De La Cerda for the limited purpose of testifying to the exhibits and addressing the privacy objections. The ordered the additional deposition session limited to no more than four (4) hours.

Due to the conduct of the parties and counsel at the deposition, the court set an OSC re: Appointment of a Referee for Deposition Supervision in order to efficiently resolve disputes occurring during the deposition, rather than potential new motions before the court. The court invited supplemental briefs from the parties. In the meantime, the court granted the motion for judgment on the pleadings without prejudice on the Gerald cross-complaint.

Irene opposed any further deposition based on the fact that no operative cross-complaint appearing on file. Irene therefore contended without an operative complaint, at a minimum, the court should defer any determination of parameters for a future deposition, as required in any referee referral order. Gerald in support of conducting further deposition implicitly agreed to the appointment of a referee, but represents that Irene refuses to stipulate. Gerald argued the state of the operative pleading in no way barred proceeding with the deposition, as the discovery and deposition proceeded before the motion for judgment on the pleadings. Gerald also claimed prejudice as a result of the inability to complete discovery.

The court agreed that the deposition properly proceeded while the operative cross-complaint was on file. Nevertheless, given the change of the status of the pleading and required findings required for the appointment of a referee order, the court deferred consideration of the referee appointment pending status of the amended complaint. The court found nothing in the brief from Gerald establishes the necessity of the deposition if Irene is no longer a party to the cross-complaint. The court also considered the possibility that if Gerald’s cross-complaint no longer proceeds, an order for a referee constituted a potentially unnecessary expense for all parties.

The court therefore continued the OSC re: Appointment of Referee for Supervision of Deposition of Irene De La Cerda aka Irene Sullivan to July 21, 2022. Once again, the court allowed for the filing of the supplemental briefs.

Gerald’s supplemental brief reiterated the necessity of the discovery based on prior questioning before the court regarding at least in part Irene’s conduct as co-trustee, as well as the agreement of counsel for the deposition appearance. Gerald represents that no meet and confer effort occurred regarding the selection of a potential referee. Irene submits extensive quotes from the Probate court regarding the restraining order granted against Sarah. Irene then discusses certain dynamics with counsel for Gerald.

Concurrent with the July 21, 2022, hearing, the court overruled the demurrer to the first amended complaint and denied the motion to strike. The court found that the previously adjudicated claims in the probate action continue to bar Gerald seeking any form of indemnity or damages against Irene for the conduct leading to the Judgment against Gerald (and Sarah) in the underlying complaint filed by Andrew. Nevertheless, the court also found any alleged claims regarding potential future damages incurred by Gerald as a result of the conduct of Irene remains properly pled for purposes of ruling on the demurrer and therefore overruled the demurrer. The court also denied the motion to strike on grounds that the first amended complaint was in no way improperly filed.

The court nevertheless allowed Irene to potentially raise challenge the operative pleading on grounds of potential subject matter jurisdiction before the Probate Court. The crux of the first amended cross-complaint unequivocally seeks to conduct discovery into said claims, which therefore once again begs the question of the propriety of the deposition. Under the current state of the action, nothing bars the deposition from proceeding. Still, given the relationship between the parties and counsel, the court still deferred ordering the continued deposition session pending consideration on the necessity of deposition supervision remains pertinent.

The court again allowed for supplemental briefs, with only Gerald De La Cerda submitting any new briefs. Gerald contends the operative first amended cross-complaint renders the discovery requests valid and relevant. Gerald additionally contends that counsel for Irene refuses to cooperate in the selection of a referee.

The court acknowledges the impending for motion for judgment on the pleadings to the first amended cross-complaint set for October 6, 2022, but finds the current operative first amended cross-complaint otherwise remains a viable pleading and declines to further defer any consideration in allowing for the deposition of Irene to occur pending yet another challenge to the operative pleading following the demurrer.

The subject hearing only considers the appointment of a discovery referee and otherwise declines to revisit the original order granting the additional deposition time. In the April 15, 2022, order granting the motion to compel the further deposition of Irene De La Cerda aka Irene Sullivan brought by Gerald De La Cerda, the court limited the deposition to of testifying to the exhibits and addressing the privacy objections. The ordered the additional deposition session limited to no more than four (4) hours. The court therefore considers the criteria for a referee appointment.

“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).) Appointment requires a court finding of “exceptional circumstances.” (Code Civ. Proc., § 639, subd. (d)(2).) Absent agreement of all parties, courts may not make blanket referrals, except “in the unusual case where a majority of factors” favor reference, including: “(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. (Taggares v. Superior Court (1998) 62 Cal. App. 4th 94, 105.) “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.” (Id. at 106.)

The court finds the volume of motions, relationship of the parties and counsel, and the previously addressed conduct of counsel during the last attempted deposition, meets the criteria for an inordinately time consuming burden on the court. (Taggares v. Superior Court, supra, 62 Cal.App.4th. at p. 106.) The court specifically finds it cannot insure the orderly conduct of the deposition within normal court operations, and therefore finds the appointment of a referee for the limited purpose of supervising, including ruling on objections at the time of the deposition, well supported.

The appointment of the referee requires the court consider the scope of authority. California Rules of Court, rule 3.922(e) states: “If the referee is appointed under section 639(a)(5) to hear and determine discovery motions and disputes relevant to discovery, the order must state that the referee is authorized to set the date, time, and place for all hearings determined by the referee to be necessary; direct the issuance of subpoenas; preside over hearings; take evidence; and rule on objections, motions, and other requests made during the course of the hearing.” As previously stated in the April 15, 2022, order, the court orders the parties complete the second deposition session within the four-hour window on the relevant subject matter. Any and all arguments over the scope of the questions on ANY AND ALL BASES will be addressed by the referee.

Because the referee is appointed pursuant to Code of Civil Procedure section 639, the court cites to Code of Civil Procedure section 651.1, subdivision (b): “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.” No party has established an economic inability to pay a pro rata share of the referee’s fee. Fees are to be split evenly between participating parties on a per motion basis (e.g. participating parties split the fees equally with no collective pooling of costs imposed on non-participating parties). (Taggares v. Superior Court, supra, 62 Cal.App.4th. at p. 106.)

The court also acknowledges the requirement for the order to specify the maximum hour rate and hours spent. (Cal. Rules Ct., rule 3.922(f)(1).) In addition to the four hours of actual deposition time, the court also allows for additional time for the referee to review the history of the action and become familiar with the issues. Assuming argument and objection further delaying the deposition, the court adds in additional time for completion of the deposition within a single session. The court therefore finds that a 10 hour maximum amount of hours for preparation and conduct of the deposition will provide sufficient time. The parties may also stipulate for an expansion of hours, if necessary. Any return to the court due to the inability to complete the deposition within the allocated time and refusal to stipulate will lead to an OSC re: Referee and Monetary Sanctions against the Obstreperous Party.

The parties are ordered to select a referee, and submit the identification of the referee to the court within 10 calendar days of this order. If the parties are unable to agree on a referee, the court will appoint a referee based on the submission of two names—one from each side. The parties will submit their preferred person within five court days of the lapse of the ten court day period provided by the court for the parties to voluntarily select a referee. Thus, the submission of names for the appointment of a referee will occur no later than 15 court days from the date of this order. The court will select one of the two names, if necessary. The parties may consider availability and costs, as factors for selection.

Upon the selection of a referee, Gerald is ordered to draft and submit an order both incorporating the referenced requirements, time limitations, as well as provision of the hourly rate for the appointed referee in compliance with California Rules of Court, rule 3.992(f)(1). “The fees of referees are such reasonable sum as the court may fix for the time spent in the business of the reference; but the parties may agree, in writing, upon any other rate of compensation, and thereupon such rates shall be allowed.” (Code Civ. Proc., § 1023.)

Three motions to compel further responses, reserved but not filed, set for October 17, 18, and 19, 2022. While it’s not clear as to the subject matter or whether the matters will proceed, the court may consider including the subject items as part of the referee referral given the state of the parties relationship and high level of disputed items regularly presented to the court within the subject action.

Gerald De La Cerda to give notice.