Judge Timothy B. Taylor, Case 37-2021-00000872-CU-NP-CTL 2023-10-06 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2021-00000872-CU-NP-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 02, 2023

10/06/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Non-PI/PD/WD tort - Other Discovery Hearing 37-2021-00000872-CU-NP-CTL STEMEXPRESS LLC VS KENT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 09/13/2023

Tentative Ruling on Motion to Compel Discovery StemExpress LLC v. Kent, Case No. 2021-00872 Oct. 6, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a trade secrets case. Plaintiff is a life sciences company and leading biospecimen provider of 'human blood-and bone marrow-derived cell products, primary cell isolation, and other laboratory services.' Defendant Molly Kent was employed for plaintiff as a regional sales representative for less than a year before she left to work for plaintiff's competitor, AllCells. After Kent's departure in December 2020, plaintiff conducted a forensic examination of Kent's computer, which revealed that Kent copied confidential information – including spreadsheets containing monthly invoices by products, purchase orders, client order information, and backup files – onto two USB devices in November 2020. Plaintiff alleges that Kent misappropriated its trade secrets and ignored requests to return the USB devices and their data.

The complaint was filed on January 8, 2021. On January 21, 2021, plaintiff appeared ex parte seeking a TRO and OSC re preliminary injunction. ROA 14-20. Kent filed opposition. ROA 21-23. The court reviewed the papers, heard oral argument, granted the TRO, and set a hearing on the preliminary injunction. ROA 26-28.

On January 27, 2021, Kent appeared ex parte seeking a continuance of the OSC hearing date. ROA 30-32. Plaintiff opposed the request. ROA 33-36. The court denied the application because the parties had not waived the so-called '21-day rule.' ROA 37.

Kent filed her opposition papers the next day. ROA 39-43. Plaintiff filed reply. ROA 44-48. The court reviewed the papers, and published a detailed tentative ruling specifically providing that no further submissions were permitted in connection with the motion. ROA 51. Defendant ignored this order.

ROA 52-54. The court heard argument on February 11, 2021, and later granted a preliminary injunction.

ROA 55, 59. The preliminary injunction bond was posted. ROA 60-61. Kent answered. ROA 63. She later changed counsel. ROA 70.

Calendar No.: Event ID: TENTATIVE RULINGS

3000539 CASE NUMBER: CASE TITLE: STEMEXPRESS LLC VS KENT [IMAGED] 37-2021-00000872-CU-NP-CTL The court held a CMC, and after hearing from the parties set the case for trial in May of 2022. ROA 73-78. Discovery began in earnest. ROA 79-84. Kent substituted her attorneys out, then back in again.

ROA 85, 128.

Dissatisfied with Kent's responses to discovery, plaintiff filed a series of motions to compel discovery.

ROA 89-109. The first of those -- to compel further responses to RFAs -- was to have been before the court on May 27, 2022; others were set for July 1.

Kent's on again/off again relationship with her counsel, plus the outstanding discovery disputes, were used to justify the parties' request to vacate the trial date. ROA 114, 126. Another changed circumstance was plaintiff's decision to amend the complaint to add AllCells as a defendant. ROA 110-111. The court vacated the trial date, and was forced to conclude that the pending AllCells special motion to strike stayed all discovery. ROA 124, 160-165. A subsequent request for relief from the discovery stay imposed by the SLAPP statute was denied. ROA 178.

The special motion to strike came before the court on August 19, 2022, after extensive briefing.

Following argument, the court denied the motion in a detailed ruling. ROA 202. The court also re-set the trial for August of 2023. ROA 200, 203.

Plaintiff then re-scheduled the long-delayed motions to compel. ROA 207-209. But those hearings were later vacated. ROA 219, 221-223. The discovery had to go off calendar because AllCells filed a notice of appeal as to the court's ruling on the special motion to strike. ROA 212. The appeal was voluntarily dismissed in late January of 2023, and jurisdiction was returned to this court. ROA 231. AllCells answered. ROA 233.

One of the discovery motions has now been re-filed. ROA 277, 287-295. It involves two document demands and some 108 categories of documents. AllCells filed opposition. ROA 296-299. Plaintiff filed reply. ROA 302-303. The court has reviewed the papers.

Another discovery motion is scheduled to be heard later this month. ROA 270.

2. Applicable Standards.

A. The court incorporates part 2A of the minutes from May 27, 2022 (ROA 165).

B. A civil litigant's right to discovery is broad. Williams v. Superior Court (2017) 3 Cal.5th 531, 541. Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action 'if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' Code Civ. Proc. § 2017.010. 'Among the myriad purposes of the civil discovery statutes is to safeguard against surprise and gamesmanship, and to prevent delay.' Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306.

C. 'A central purpose of the Discovery Act was to keep the trial courts out of the business of refereeing day-to-day discovery by requiring parties to conduct discovery and resolve disputes with minimal judicial involvement.' Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 253-54. The court's determination of whether an attempt at informal resolution is adequate involves the exercise of discretion. Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431. Among the factors the court should consider are the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, and the prospects for success. Id. A trial judge's perceptions on such matters, inherently factual in nature at least in part, must not be lightly disturbed. Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.

D. There are two statutes that concern themselves with motions to compel in the context of document requests. Code of Civil Procedure section 2031.310 permits a party to move to compel a further response to an inspection demand when: (1) the responding party's response is incomplete, (2) a claim Calendar No.: Event ID: TENTATIVE RULINGS

3000539 CASE NUMBER: CASE TITLE: STEMEXPRESS LLC VS KENT [IMAGED] 37-2021-00000872-CU-NP-CTL that the responding party cannot comply is defective, or (3) an objection is defective. Conversely, Code of Civil Procedure section 2031.320 deals with situations where the responding party files a response to an inspection demand and then fails to permit the inspection.

E. 'Ordinarily, discovery disputes are resolved by the trial court[.]' Jameson v. Desta (2018) 5 Cal.5th 594, 620. However, under Code of Civil Procedure section 639(a)(5), a trial court is permitted to appoint a referee to 'hear and determine any and all discovery motions and disputes...and to report findings and make a recommendation thereon.' In considering the appointment of a discovery referee, the court must consider section 639(a)(5) as well as CRC 3.922. Such appointments may not be made routinely.

See Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1532.

3. Discussion and Rulings.

The parties are ordered to show cause, if any there be, why discovery disputes in this case (including the motion calendared for today) should not be referred to a discovery referee. This OSC will be heard October 6, 2023 at 1:30 p.m., which is why this tentative ruling is being published early. In ordering the parties to show cause why a discovery referee should not be appointed under CCP section 639(a)(5), the court provisionally makes the following observations and findings pursuant to CRC 3.922 and provisionally orders as follows: A. It is clear to the court from the number and content of the motions already decided and brought and likely to be brought that little progress can be made in this case without continuous oversight. Further, it seems clear to the court that the pending and contemplated motions are only the most recent salvo in a fusillade of discovery disputes.

B. The superior courts of California have in recent years faced unprecedented budget pressures which have already forced curtailments in hiring and business office hours, furloughs, as well as courtroom closures. Judicial caseloads increased, since the undersigned was assigned to Dept. 72, from just over 600 to well over 1100. Meanwhile, clerical support has diminished substantially. This translates into a situation in which the court is not in a position to provide the kind of intensive oversight and particularized review necessary in this case and still pay appropriate attention to the other cases assigned to Dept. 72. Further, Dept. 72 will be taken over by a new judge later this month, and it is unlikely this new judge will have the time to supervise discovery in this case while also getting up to speed on the 1100 other cases assigned to Dept. 72.

C. Since taking over Dept. 72 in October of 2008, this is one of a handful of cases (one or two per year on average; five or six so far this year) in which the court has appointed a discovery referee on its own motion. This case is therefore not similar to the situation described in Jovine, supra.

D. Under the circumstances, it is appropriate to order that the parties equally bear the cost of the discovery referee. This order will apply unless and until the referee recommends, and the court orders, a different allocation. Based on its review of the papers, the court finds that the parties have the ability to pay.

E. The court finds the circumstances exceptional and orders that all current and future discovery disputes shall be determined by the discovery referee in the first instance.

F. Defense counsel must submit Judicial Council form ADR-110, completed as set forth above and including either the name of the Referee agreed upon by the parties or with the name left blank. If the latter, the form shall be submitted at the same time as the six names of proposed discovery referees proposed by the parties.

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