Judge: Yolanda Orozco, Case: 19STCV12018, Date: 2022-10-10 Tentative Ruling
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Case Number: 19STCV12018 Hearing Date: October 10, 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, 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.
On September 09, 2022, the hearing was CONTINUED to allow Plaintiff’s counsel to file a response to the late-filed Declaration of Farzad Tabatabai.
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.)
Discussion
Plaintiffs’ Objections
Plaintiffs object to the 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. Plaintiff has now been given additional to respond to the Tabatabai Declaration.
Defendants persuasively argue that text messages between Randy Beard and Plaintiff Julie Scully relating to the cost of repairs, were not known or made available to Defendants until Mr. Beard recently provided a printout of text messages in response to his 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 considered by the Court, which weighs 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.)
Furthermore, Randy Beard was retained as an expert witness for the Plaintiffs on August 19, 2022, and Plaintiffs’ counsel asserts that the communications are protected from disclosure by attorney-client privilege and Plaintiffs were not obligated to disclose communications between Randy Beard and the Plaintiffs until the expert designation was made.
Plaintiffs oppose the motion for three reasons. First, Plaintiffs assert that Defendants have withdrawn all discovery motions, except for one discovery motion set to be hard on September 22, 2022. Second, Defendants have failed to show future discovery disputes will arise. Third, the appointment of a discovery referee would significantly increase the costs of the litigation for Plaintiffs who would have to pay half of a discovery referee’s fee to resolve any discovery disputes, regardless of who initiated the dispute.
Defendants’ Arguments in Favor of a Discovery Referee
Defendants assert that a discovery referee will help streamline the case and avoid delays, making the litigation cheaper.
Defendants have shown that in the past there have been various discovery disputes, including “four (4) Informal Discovery Conferences ("IDC"), nine (9) discovery related motions filed by Defendants, and one (1) ex parte motion related to discovery” which this court has granted in full or in part. As recently as May 18, 2022, this Court has found Plaintiffs “abused the discovery process necessitating multiple court orders and continue to flaunt the process despite being ordered to produce responsive documents.” (Min. Or. 05/18/22.)
“Plaintiffs continue to continue to over-identify a large universe of documents, and by doing so, have engaged in document-dump tactics that operate as a concealment tactic. Plaintiffs cannot simply claim that the documents exist in the responses, and it is up to Defendants to find them without proper itemization. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1210.) The Court previously identified this tactic as abusive, and even if Plaintiffs have reduced the total amount of documents, the document production still includes tens of thousands of pages. Further, Defendants persuasively show that Plaintiffs have not produced all responsive documents, e.g., documents referenced in a billing invoice, and at times have redacted the documents without explanation, e.g., a redacted billing invoice. Finally, Defendants persuasively show that Plaintiffs continue to flaunt the court orders by including material that the Court ordered was non-responsive., e.g., a document Bates stamped SCULLY 0018232, or documents that on their face are non-responsive, e.g., deposition testimony that has nothing to do with damages.” (Id.)
Defendants assert the Court has not granted a single motion to compel against Defendants but has granted eight (8) discovery motions in full or in part against Plaintiffs and sanctioned Plaintiffs multiple times.
After Defendants moved to appoint a discovery referee Plaintiffs moved to withdraw the six discovery motions pending, which Defendants assert were filed without responding to meet and confer efforts and after Defendants had agreed to provide further responses. Moreover, another IDC had been set for October 7, 2022 which the Court took off-calendar pending this Motion.
Defendants further assert that multiple discovery issues remain pending, including the initial round of discovery served on Plaintiff more than three (3) years ago. Defendants represent that the nine (9) discovery motions filed by Defendants pertain only to the initial round of discovery first served in 2019 and that “[t]he vast majority of discovery remains to be conducted.” (Reply 4:23-24.) This includes depositions of the Parties and expert witnesses. Defendants provide the supplemental declaration of Farzad Tabatabai to assert that issues of attorney-client privilege, relating to a text message between Parties that contradicts Plaintiff’s sworn assertions regarding disclosure of the repair estimates and which Plaintiffs are alleged to have disclosed to their attorney, will likely need to be considered by the Court. (Supp. Tabatabai Decl. ¶ 12.)
While it appears that multiple discovery issues may remain to be resolved in the future, it appears to the Court that the discovery issues which lead up to this motion have been largely resolved. And the Court believes a positive step has been taken by Plaintiffs in their withdrawal of 6 discovery motions. The fact that an additional IDC was calendared by the parties does indicate that some discovery issues remain. However, the fact remains that the parties seem unable and or unwilling to engage in robust and good faith discussions with an eye toward resolving, or at least narrowing, their differences. To grant this motion at this time would require the Court to find extraordinary circumstances. The only extraordinary circumstance is the parties unwillingness to resolving their discovery disputes on their own.
A Motion for Terminating Sanctions was filed by Defendants and is set to be heard on October 18, 2022. The basis for the Defendants’ Motion for Terminating Sanctions is the Plaintiffs’ past discovery misconduct and allegations that the Plaintiffs are withholding documents and other discovery.
Given the pendency of the motion for terminating sanctions, the Court finds it prudent to continue the discovery referee motion until after that motion is heard, and until after the Court is satisfied that the parties have met in good faith to attempt to resolve the remaining discovery issues with no additional discovery motions needing to be filed. The fact that discovery issues may arise in the future is not a sufficient ground to appoint a referee at this time. If the parties continue on the path of discovery war on all fronts, the Court may well be compelled to appoint a referee.
Conclusion
For the reasons stated, Defendant’s Motion to Appoint a Discovery Referee is CONTINUED to December 8, 2022.
Defendants to give notice.