Judge: Theresa M. Traber, Case: 22STCV15210, Date: 2023-10-13 Tentative Ruling

Case Number: 22STCV15210    Hearing Date: December 12, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 12, 2023                TRIAL DATE: February 13, 2024

CASE:                         Molly Steele v. Burlington Medical, LLC, et al.

CASE NO.:                 22STCV15210           

MOTION FOR REFERENCE OF DISCOVERY

MOVING PARTY:               Plaintiff Molly Steele

RESPONDING PARTY(S): Defendants Burlington Medical, LLC, Bar-Ray Products, Inc., and Fox Three Partners, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for employment discrimination that was filed on May 6, 2022. Plaintiff alleges that she was wrongfully terminated based on her age and gender.

Plaintiff moves for reference of all discovery in this matter.

TENTATIVE RULING:

Plaintiff’s Motion for Reference for Discovery is GRANTED.

Appointment of a discovery referee is necessary to mitigate the undue burden on the Court’s time and resources from the numerous discovery motions at issue in this case and the voluminous records which those motions entail.

The Court appoints the Hon. Cecily Bond (Ret.), business address 555 West 5th St., 32nd Floor, Los Angeles, CA 90013, phone number 213-620-1133; as referee in this action for all discovery purposes pursuant to Code of Civil Procedure § 639(a)(5). The referee’s maximum hourly rate shall be fixed at $1,250 per hour for a maximum of $10,000 per day pursuant to the JAMS fee schedule for the referee. Each party shall bear a pro rata share of the referee’s fees.

All discovery motions on calendar for December 12, 2023 are CONTINUED to January 26, 2024 at 1:30 PM for rescheduling purposes only.

The Informal Discovery Conference scheduled for January 26, 2024 at 1:30 PM is converted into a Status Conference Re: Discovery Reference

DISCUSSION:

Plaintiff moves for reference of all discovery in this matter.

            The Court is authorized to appoint a referee pursuant to Code of Civil Procedure section 639 over the objections of any of the parties in specified circumstances, including, as relevant to this motion, “[w]hen 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(a)(5).) If a referee is appointed pursuant to subdivision (a)(5), the order “shall indicate whether the referee is being appointed for all discovery purposes in the action.” (Code Civ. Proc. § 639(c).) Any appointment of a referee under this section must be by written order and must state, as relevant here:

(2) [. . .] the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.

(3) The subject matter or matters included in the reference.

(4) The name, business address, and telephone number of the referee.

(5) The maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. Upon the written application of any party or the referee, the court may, for good cause shown, modify the maximum number of hours subject to any findings as set forth in paragraph (6).

(6) (A) Either a finding that no party has established an economic inability to pay a pro rata share of the referee’s fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee’s fees and that another party has agreed voluntarily to pay that additional share of the referee’s fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.

(Code Civ. Proc. § 639(d) (2)-(6).) “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.” (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105.) These factors 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.” (Id.) In reaching its decision, the Court must consider that “the statutory scheme is designed only to permit reference over the parties’ objections where that procedure is necessary, not merely convenient.” (Id. at 135-36.) However, “[w]here 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 136.)

            Plaintiff contends that all four factors are present and are likely to unduly impact the Court’s resources. As Plaintiff correctly observes, there are currently 13 separate discovery motions, all from Plaintiff, which are currently pending. Although several of those motions were addressed at the Informal Discovery Conference held on November 28, 2023, none of those motions have been fully resolved, and the discovery sought remains outstanding. (See November 28, 2023 IDC Minute Order.) Further, several of Plaintiff’s motions concern the adequacy of Defendants’ document production, which in turn potentially requires review of extensive documentation, while others concern totally separate issues such as depositions and interrogatories.

            Defendants argue in opposition that reference is not warranted because the circumstances are not exceptional, and Plaintiff’s arguments are mere speculation. According to Defendants, Informal Discovery Conferences are more than adequate to resolve any remaining discovery disputes between the parties. The Court is not so convinced. Discovery in this action has proven extremely contentious, involving numerous motions and voluminous records. Even Informal Discovery Conferences in this matter—which themselves require review of the record as well as further filings from the parties before the hearing—are quite burdensome on the Court’s time. The Court concurs with Plaintiff that the bulk of discovery motions and issues in this case has become unduly burdensome on the Court’s time.

            Plaintiff proposes Hon. Cecily Bond (Ret.) as the referee. Plaintiff has provided Judge Bond’s CV and fee schedule, which shows a daily rate of $10,000, or $1,250 per hour for an 8-hour day. (See Declaration of Robert King ISO Mot. Exh. A.)

            Although Defendants assert that appointment of a discovery referee will increase the costs of litigation for them, neither party claims an inability to pay a pro rata share of a discovery referee’s rates. The Court therefore finds that no party has established any such inability to pay their pro rata share of a discovery referee’s rates.

            As Defendants offer no objection to the appointment of Judge Bond as the referee, the Court accepts Plaintiff’s proposal.

            For the foregoing reasons, the Court finds that, because of the numerous discovery motions already at issue in this case and the voluminous records which those motions entail, the Court’s limited time and resources have become unduly impacted such that it is necessary to appoint a discovery 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.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Reference for Discovery is GRANTED.

Appointment of a discovery referee is necessary to mitigate the undue burden on the Court’s time and resources from the numerous discovery motions at issue in this case and the voluminous records which those motions entail.

The Court appoints the Hon. Cecily Bond (Ret.), business address 555 West 5th St., 32nd Floor, Los Angeles, CA 90013, phone number 213-620-1133; as referee in this action for all discovery purposes pursuant to Code of Civil Procedure § 639(a)(5). The referee’s maximum hourly rate shall be fixed at $1,250.00 per hour for a maximum of $10,000 per day pursuant to the JAMS fee schedule for the referee. Each party shall bear a pro rata share of the referee’s fees.

All discovery motions on calendar for December 12, 2023 are CONTINUED to January 26, 2024 at 1:30 PM for rescheduling purposes only.

The Informal Discovery Conference scheduled for January 26, 2024 at 1:30 PM is converted into a Status Conference Re: Discovery Reference

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: December 12, 2023                             ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.