Judge: Yolanda Orozco, Case: 19STCV12018, Date: 2023-02-17 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: February 17, 2023    Dept: 31

MOTION FOR ORDER APPOINTING DISCOVERY REFEREE 

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. 

The hearing was again continued on December 08, 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.)¿¿  

Discussion 

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

On January 11, 2023, the Court convened an Informal Discovery Conference with the parties.  There was some agreement on the supplementation of responses. It appeared then that some discovery issues remain, although the Court encouraged the parties to continue to meet and confer in good faith.    

Since the IDC, no discovery motions have been scheduled and the parties have not filed anything that establishes the “exceptional circumstances” required for the appointment of a referee. The Court finds that no exceptional circumstances are present at this time. 

Conclusion 

The Motion for Appointment of a Discovery Referee is DENIED.    

Defendants to give notice.