Judge: Stephen P. Pfahler, Case: 21STCV20196, Date: 2022-10-20 Tentative Ruling

Case Number: 21STCV20196    Hearing Date: October 20, 2022    Dept: F49

Dept. F-49

Date: 10-20-22 (specially set via ex parte)

Case #21STCV20196 c/w 21STCV22844

TRIAL DATE: 4-3-23

APPOINT NEW DISCOVERY REFEREE

MOVING PARTY: Plaintiffs, Chad Perrigo, et al.

RESPONDING PARTY: Defendant, Montecristo Trucking, et al.

RELIEF REQUESTED

Motion to Appoint New Discovery Referee

SUMMARY OF ACTION

On April 28, 2021, plaintiff Chad Perrigo was involved in a car accident with defendant Jorge Edmondo Castaneda Rodriguez. Plaintiff alleges Rodriguez was operating his vehicle on behalf of defendants MonteCristo Trucking, LLC, Fernando Escolero, and Fames Transport, Inc.

On May 28, 2021, the Perrigos filed their complaint for motor vehicle, general negligence, and loss of consortium. On June 21, 2021, the Perrigos filed a first amended complaint (21STCV20196).

On June 18, 2021, County of Los Angeles filed a complaint against Jorge Edmondo Castaneda Rodriguez, MonteCristo Trucking, LLC, Fernando Escolero, and Fames Transport, Inc. dba Nevada Fames Transport, Inc. for motor vehicle (21STCV22844).

On September 8, 2021, the court deemed Perrigo, et al. v. Rodriguez, et al., 21STCV20196 related to 21STCV22844.

On January 20, 2022, the court granted the Perrigos’ motion for leave to file a second amended complaint.[1] On February 7, 2022, the Perrigos filed their second amended complaint for negligence, negligent entrustment, negligent hiring, supervision and retention, dangerous condition of public property, and loss of consortium. Plaintiffs also added the State of California and City of Santa Clarita as defendants.

On March 1, 2022, the court consolidated the actions. On March 10, 2022, the court granted the motion to transfer the consolidated actions. On March 11, 2022, the court transferred the action from Department 32 to Department 47. On March 29, 2022, Plaintiff County of Los Angeles filed peremptory challenge to Department 47. The action was assigned to Department 49 on March 30, 2022.

On April 8, 2022, the City of Santa Clarita filed a cross-complaint against Jorge Edmondo Castaneda Rodriguez, MonteCristo Trucking, LLC, Fernando Escolero, and Fames Transport, Inc. for implied equitable indemnity, contribution/apportionment, and declaratory relief. On May 4, 2022, Plaintiff dismissed the State of California.

RULING: Granted

On July 12, 2022, the court set an OSC re: Appointment of a Discovery Referee following a finding of a series of 19 motions to compel further responses, plus two additional discovery motions for a total of 21 discovery motions alone on calendar at that time. The parties agreed to the appointment of Judge Patricia Schnegg (Ret.). At the time of the hearing, Plaintiffs represented Judge Schnegg’s availability. The court addressed the numerous criteria for participation among the parties, maximum hours spent, and an hourly rate to be presented to the court in the submitted order.

Following execution of the order, Judge Schnegg (Ret.) became unavailable, thereby prompting Plaintiff to seek the appointment of Stuart Waldrip (Ret.). All parties, except Montecristo Trucking and Jorge Castaneda agree to the substitution.

Plaintiff contends the referee remains necessary, due to the alleged refusal of Castaneda to produce documents. Montecristo Trucking and Jorge Castaneda in opposition challenge the appointment of Judge Waldrip. Responding defendants are the only parties participating in discovery before a referee and therefore contend their objections carry more weight. Defendants proposed alternative referees, including most recently, Judge Gerald Rosenberg, but Plaintiffs provided no response. Defendants therefore nominate Judge Rosenberg.

According to responding defendants, defendant Fames Transport, Inc. agrees to Judge Rosenberg. The office of Judge Rosenberg both represents availability for the required time frame and an hourly rate of $950. Defendants also provide additional argument on the state of certain discovery disputes between the parties. Finally, defendants request any appointment remain “advisory” only.

Plaintiff in reply discusses the efforts made to secure a new referee and the non-opposition to Judge Waldrip by all of the other defendants. Plaintiff reiterates the necessity of the referee.

The court declines to consider any and all disputes involving the underlying discovery disputes. The purpose of the conducting the OSC re: Appointment of the Referee was to determine the necessity of a referee. The court found the referee appointment justified and referred all discovery disputes to the referee. The referee will continue to address any and all matters not resolved by mutual resolution between the parties. Nothing in this motion in any way revokes the prior order referring the remaining disputes to a discovery referee.

In considering the instant motion, the court found no specific authority for a substitution of referee, due to unavailability of the previously designated person. The referee was appointed under Code of Civil Procedure section 639, subdivision (a)(5).

Given the prior order for referral, and necessity for specific designation, the court finds the language of the code section requires the appointment of a new referee by either stipulation or selection criteria of Code of Civil Procedure section 640, subdivision (b). “If the parties do not agree on the selection of the referee or referees, each party shall submit to the court up to three nominees for appointment as referee and the court shall appoint one or more referees, not exceeding three, from among the nominees against whom there is no legal objection. If no nominations are received from any of the parties, the court shall appoint one or more referees, not exceeding three, against whom there is no legal objection, or the court may appoint a court commissioner of the county where the cause is pending as a referee.”

Plaintiffs seek to nominate Judge Waldrip, while Montecristo Trucking and Jorge Castaneda nominate Judge Rosenberg. It’s not clear why Plaintiffs object to Judge Rosenberg, but given the discovery disputes involve Plaintiffs, Montecristo Trucking and Jorge Castaneda, the court accords equal weight to the objections, while also acknowledging any consensus among the other defendants should one foresee participation in a discovery matter before the referee.

Because only Plaintiffs, Montecristo Trucking and Jorge Castaneda appear to be participating in discovery before any referee, and the parties cannot stipulate to a new referee, the court orders the submission of three names each from Plaintiffs and Plaintiffs, Montecristo Trucking and Jorge Castaneda collectively in compliance with Code of Civil Procedure section 640, subdivision (b). In other words, three nominees from Plaintiffs and three nominees from Montecristo Trucking and Jorge Castaneda combined for a total of six nominees. All parties may submit objections to any referee. No objections will constitute acceptance with any and all provided.

The lists are to be submitted within 10 days of this order, with objections submitted within the following 10 days of the presented list(s). If all six referees receive objections, the court will ask for a new list of six, and continue this process until a referee becomes selected. The court encourages meaningful participation and consideration over intentionally obstreperous conduct.

Because the court remains unclear whether any proceedings occurred before Judge Schnegg, the court will also request Plaintiffs submit an updated order for appointment upon selection of the new referee. The order shall address any hours already spent or remaining from the original 20 hour cap, the hourly rate, and other provisions regarding sanctions, requirement of disputing parties only, etc. Plaintiff will submit the new order within 10 days of this designation of the new referee. Following the entry of the order, the parties may coordinate with the newly appointed referee.

The court also acknowledges that any report and recommendation from the referee remains subject to approval by the court pursuant to Code of Civil Procedure section 644, subdivision (b).

The February 28, 2023 OSC re: Long Cause Trial Court, and April 3, 2023 trial date remain set.

Plaintiff to give notice to all parties.