Judge: Yolanda Orozco, Case: 19STCV12018, Date: 2022-12-08 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 19STCV12018    Hearing Date: December 8, 2022    Dept: 31

MOTION FOR ORDER APPOINTING DISCOVERY REFEREE IS CONTINUED 

Background 

On April 8, 2019, Plaintiffs Julie Scully and Michael Scully (collectively “Plaintiffs”) commenced this action. 

On April 15, 2012, Plaintiffs filed the operative Second Amended Complaint (“SAC”), 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. The hearing was again CONTINUED on October 10, 2022 so that the Motion for Terminating Sanctions filed by Defendant could be heard. 

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 

Defendant’s prior motion to appoint a discovery referee was continued because a motion for terminating sanctions was pending. (Min. Or.  10/10/22.) 

This Court ordered the parties to meet in good faith and attempt to resolve the remaining discovery issues, and if the parties continued their  “discovery war on all fronts,” the Court would consider appointing a discovery referee. 

On November 18, 2022, this Court imposed evidentiary sanctions against Plaintiffs as follows: 

1)     Plaintiffs shall be precluded from presenting evidence or argument that in the Green Scene Matter Defendants concealed from Plaintiffs any cost estimate for the repair of the Property from Randy Beard. 

2)     Plaintiffs shall be precluded from offering any evidence or argument that Defendants engaged in unprofessional or antagonistic conduct with opposing counsel. 

3)     In addition, Plaintiffs were ordered to make Randy Beard available for deposition at their cost for a court reporter and videographer and must produce within 30 days all documents previously requested by Defendants up to the date Plaintiffs retained Mr. Beard as an expert in this case. 

(See Min. Or. 11/18/22.) 

The Court also awarded Defendants monetary sanctions in the amount of $37,545.00. 

On December 05, 2022, Plaintiffs filed a Declaration in Opposition to the Motion to Appoint a Discovery Referee. 

Plaintiffs explain that they sent a letter to Defense counsel explaining the following:

·       The Dale Kessler report on the September 5, 2018 billing entry is the Dale Kessler’s September 14, 2018, report. (Frank Decl. ¶ 1.) Plaintiffs’ include an email from Dale Kessler confirming that the report referenced in his September 5, 2018 billing entry is his September 14, 2018 report. Plaintiffs assert that the report was produced to Defendants on June 17, 2011. This information was relayed to Defendants on December 1, 2022. (Frank Decl. ¶ 3, Ex. 1.) 

·       On December 02, 2022, Plaintiffs produced documents from Dale Kessler to Defendants, including Kessler’s structural plans, design drawings, structural calculations, and prior September 14, 2018 reports. (Frank Decl. ¶ 4, Ex. 2.) 

·       Plaintiffs represent that on December 02, 2022, they reached out to John Crystal Pools to gather any documents on the Scullys and now assert that those documents will be produced. (Id.) 

Defendants have not filed a declaration in response to this hearing. However, Defense Counsel’s declaration in support of terminating sanctions supports the finding that discovery issues remain to be resolved that may have not been fully resolved by the motion granting terminating sanctions on November 18, 2022. Some of those issues are: 

·       Discovery responses that lack written responses and are unverified. (Tabatabai Decl. ¶ 9, filed in Support of Terminating Sanctions)

·       Existence of documents and additional witnesses that have not been produced, such as relating to Coast to Coast Plumbing and references to “Pancho”. (Tabatabai Decl. ¶ 13, Ex. L, filed in Support of Terminating Sanctions)

·       There are no updated declarations by Plaintiffs that they have made a diligent search and reasonable inquiry to produce the documents requested. This includes emails with Mr. Beard or that the Scullys searched their backups or that no backups exist for their email or text communications, including Plaintiff Julie Scully’s old cellphone. 

It appears that Plaintiffs have made some progress in meeting their discovery obligations. Also,  documents from John Crystal Pools have still not been produced and other discovery issues are pending. Importantly, no additional motions to compel have been filed by the parties. Thus, it appears to the Court that the “exceptional circumstances” required for the appointment of a discovery referee may not be present at this time.  The Court will continue the Motion for Appointment of a Discovery Referee so that the remaining discovery matters may be resolved. The Court strongly urges the parties to continue working together to resolve all such matters. 

Conclusion  

Defendants’ Motion to Appoint a Discovery Referee is CONTINUED to February 17, 2023, at 8:30 .m. 

Defendants to give notice.