Judge Yolanda Orozco, Case 19STCV12018 2022-09-09 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV12018, Date: 2022-09-09 Tentative Ruling

Case Number: 19STCV12018 Hearing Date: September 9, 2022 Dept: 31

MOTION FOR ORDER APPOINTING REFEREE IS CONTINUED

Background

On April 8, 2019, Plaintiffs Julie Scully and Michael Scully (collectively “Plaintiffs”) commenced this action by filing their initial Complaint.

On April 15, 2012, Plaintiffs filed the operative Second Amended Complaint (“2AC”), which asserts causes of action for legal malpractice and breach of fiduciary duty against Clark Hill PLC, formerly Morris Polich & Purdy, LLP (“CH”) and James C. Earle (“Earle”) (collectively “Defendants”).

On October 15, 2019, CH filed a Cross-Complaint against Plaintiffs asserting causes of action for breach of contract, account stated, open book account, and work labor, and services provided.

On August 17, 2022, Defendants moved for an Order appointing a discovery referee.

On August 26, 2022, Plaintiff filed an Opposition. Defendant filed a Reply on September 1, 2022.

Legal Standard

Code of Civil Procedure section 639 and California Rules of Court rule 3.921 provide for the appointment of a referee on motion of a party or by the court. A referee can be appointed for discovery disputes. (Code Civ. Proc., § 639, subd. (a)(5) “[A referee may be appointed:] (5) 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.”].)

Appointment requires a court finding of “exceptional circumstances.” (Id., § 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.” (Taggeres 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 p. 106.)

The trial courts 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 pp. 105-106.) “Implicit in the statutory requirement that the reference be ‘necessary’ is the Legislature’s acknowledgement of a litigant’s right of access to the courts without they payment of a user’s fee, and the concomitant notion that there ought to be a finding of something out of the ordinary before the services of a referee are forced upon a nonconsenting party.” (Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449.)

Evidentiary Objections and Discussion

Plaintiffs object to the late-filed Supplemental Declaration of Farzad Tabatabai because it presents new evidence that was not originally raised in the moving papers and was filed September 2, 2022, after Defendants’ Reply was due.

Defendants provide good cause as to why the evidence, pertaining to text messages between Randy Beard and Plaintiff Julie Scully relating to the cost of repairs, was not known or made available to Defendants until Mr. Beard provided a printout of text messages in response to a deposition subpoena. (Tabatabai Decl. ¶ 4, Ex. A, B.) The email shows Mr. Beard sent the email with the attached text messages to Defendants on September 1, 2022, at 3:54 pm. (Id. Ex. B.)

According to Defendants, the text messages show that Plaintiff Julie Scully discussed the issue regarding the repair estimates with her attorney and that issues of attorney-client privilege will need to be need to be considered by the Court, thus weighing in favor of appointing a discovery referee under the factors outlined in Taggeres v. Superior Court (1998) 62 Cal.App.4th 94. (Tabatabai Decl. ¶ 11.)

Plaintiffs object to the Declaration of Tabatabai on the basis that issues raised in a reply brief may not be considered by the court unless good cause is shown and grants the other party time for further briefing. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010, Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308 [the trial court had the discretion to accept new evidence with the reply papers as long as the other party had the opportunity to respond.].)

The hearing is CONTINUED to October 10, 2022, to permit Plaintiff to file a response to the late filed Declaration of Tabatabai. Plaintiffs’ response is due no later than September 28, 2022. No further submissions shall be made by any party. Any party in violation of this order is subject to monetary sanctions.

Defendants to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.