MIGUEL ROJAS HERNANDEZ ET AL VS POTRERO INC ET AL

Tentative Rulings

Case Number: BC649204    Hearing Date: August 26, 2020    Dept: C

HERNANDEZ, et al. v. POTRERO, INC., et al.

CASE NO.:  BC649204

HEARING:  8/26/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#6

TENTATIVE ORDER

The court reserves ruling on the motion, and will hear from the parties.

Defendant California Force Patrol, Inc. moves for appointment of a Discovery Referee pursuant to CCP § 639.

“(a) … (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.” (CCP § 639(a)(5).)

The Court is to review the following factors to determine whether the appointment of a referee is appropriate: "...(l) 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 assertion of privilege) make the inquiry inordinately time-consuming." (Taggares, et al. v. Superior Ct. (1998) 62 Cal.App.4th 94, 105.) The Court has the authority to appoint if "one or more of the above factors make an appropriate reference." (Id. at 106.) The court may also consider other factors in favor of appointment, including whether there is a contentious dispute between the parties (Id. at 98); whether an appointment would encourage or facilitate a reasonable approach to discovery (Id. at 104), and whether a neutral officer is required to preside over deposition proceedings (DeBlase v. Superior Ct. (1986) 41 Cal.App.4th 1279, 1284.)

The court finds that a Discovery Referee is appropriate in this action. The parties have a history of contentious discovery disputes. Gemini Insurance Company initially sought the appointment of a Discovery Referee in December of 2017. However, at that time, there was insufficient evidence to support the appointment of a discovery referee at Plaintiff’s sole expense. The request was renewed in October of 2018 when the discovery disputes went unresolved. That motion was withdrawn as there was a stay of proceedings in effect at the time.

Since that time, the parties have been unable to resolve their discovery disputes informally. Motions for a protective order, motions to quash, and ex parte applications were filed to prevent Plaintiffs’ counsel from taking the deposition of trial counsel. Those motions have since been withdrawn. Two discovery motions have been reserved for October 27, 2020. Further, witness depositions were being interrupted and allegations of threatening behavior at depositions are being asserted by both sides. There are 15 percipient witness depositions to be taken, and another 15 expert depositions to be taken before trial. Further, despite three court orders requiring Plaintiff Hernandez to be deposed a second time, Defendants have not been able to depose Hernandez.

At this juncture, based on the contentious nature of this action, the age of this case, counsels’ conduct at the depositions, and the parties’ continued inability to resolve their own discovery disputes, the court finds that a Discovery Referee is best suited for this matter, and can give the parties the immediate assistance that they require.

On 7/29/20, this court ordered the parties to each file a Statement of Preferred Referees, along with any statement regarding the parties’ inability to pay a pro rata share of the referee’s fees; and to appear at a continued hearing on 8/12/20.

This court is in receipt of Plaintiff’s Statement of Preferred Referees. Defendant did not file any Statement of Preferred Referees and did not appear at the 8/12/20 hearing.

In his statement, and at the hearing, Plaintiff’s counsel represented that his clients have the inability to pay their pro rata share of the discovery fees. Absent any evidence to the contrary, this court will accept counsel’s representation. (DeBlase v. Superior Court (1996) 41 Cal.App.4^th 1279, 1283.) Therefore, pursuant to CCP § 639(d)(6)(A), this court may not appoint a referee unless Defendant agrees “voluntarily to pay [Plaintiffs’] additional share of the referee’s fee.”

Since Defendant did not appear at the 8/12/20 hearing, the court continued the hearing to determine whether Defendant will voluntarily agree to pay the discovery referee fees.

It appears the Court’s notice to defendants was sent to the incorrect addresses and therefore defendants did not receive notice of the August 12^th hearing.

The court will therefore consider the Defendant’s statement of preferred referees and Defendant will be given an opportunity to respond to this court’s query regarding CCP § 639(d)(6)(A).

Case Number: BC649204    Hearing Date: August 12, 2020    Dept: C

HERNANDEZ, et al. v. POTRERO, INC., et al.

CASE NO.:  BC649204

HEARING:  8/12/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

TENTATIVE ORDER

Defendant California Force Patrol, Inc.’s motion for appointment of discovery referee is GRANTED.

Clerk to give NOTICE.

Defendant California Force Patrol, Inc. moves for appointment of a Discovery Referee pursuant to CCP § 639.

“(a) … (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.” (CCP § 639(a)(5).)

The Court is to review the following factors to determine whether the appointment of a referee is appropriate: "...(l) 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 assertion of privilege) make the inquiry inordinately time-consuming." (Taggares, et al. v. Superior Ct. (1998) 62 Cal.App.4th 94, 105.) The Court has the authority to appoint if "one or more of the above factors make an appropriate reference." (Id. at 106.) The court may also consider other factors in favor of appointment, including whether there is a contentious dispute between the parties (Id. at 98); whether an appointment would encourage or facilitate a reasonable approach to discovery (Id. at 104), and whether a neutral officer is required to preside over deposition proceedings (DeBlase v. Superior Ct. (1986) 41 Cal.App.4th 1279, 1284.)

The court finds that a Discovery Referee is appropriate in this action. The parties have a history of contentious discovery disputes. Gemini Insurance Company initially sought the appointment of a Discovery Referee in December of 2017. However, at that time, there was insufficient evidence to support the appointment of a discovery referee at Plaintiff’s sole expense. The request was renewed in October of 2018 when the discovery disputes went unresolved. That motion was withdrawn as there was a stay of proceedings in effect at the time.

Since that time, the parties have been unable to resolve their discovery disputes informally. Motions for a protective order, motions to quash, and ex parte applications were filed to prevent Plaintiffs’ counsel from taking the deposition of trial counsel. Those motions have since been withdrawn. Two discovery motions have been reserved for October 27, 2020. Further, witness depositions were being interrupted and allegations of threatening behavior at depositions are being asserted by both sides. There are 15 percipient witness depositions to be taken, and another 15 expert depositions to be taken before trial. Further, despite three court orders requiring Plaintiff Hernandez to be deposed a second time, Defendants have not been able to depose Hernandez.

At this juncture, based on the contentious nature of this action, the age of this case, counsels’ conduct at depositions, the parties’ continued inability to resolve their own discovery disputes, and the court’s overloaded calendar due to the Covid-19 pandemic, the court finds that a Discovery Referee is best suited for this matter, and can give the parties the immediate assistance that they require.

Accordingly, the motion is GRANTED.

At the hearing on 7/28/20, this court ordered the parties to each file a Statement of Preferred Referees, along with any statement regarding the parties’ inability to pay a pro rata share of the referee’s fees.

This court is in receipt of Plaintiff’s Statement of Preferred Referees. Defendant did not file any Statement.

The court orders the appointment of the referee for all discovery purposes in this action. (CCP § 639(c).)

As delineated above, exceptional circumstances in this matter warrants the appointment of a discovery referee based on the multiple discovery issues that have yet to be resolved in this matter, the contentious nature of the parties and/or counsel, and the need for a neutral officer to preside over deposition proceedings if the need arises. (CCP § 639(d)(2).)

The subject matter of this lawsuit concerns assault, battery, and premises liability allegations. (CCP § 639(d)(3).)

The Court appoints Amy Fisch Solomon, Esq. at the maximum hourly rate of $490.00. Ms. Solomon’s business address is 1851 E. First Street, Suite 1600, Santa Ana, CA 92705, and her telephone number is (714) 834-1340. (CCP § 639(d)(4) and (5).)

The court notes that no party has submitted any evidence establishing their inability to pay a pro rata share of the referee’s fee, and there is no record that any party is proceeding in forma pauperis. (CCP § 639(d)(6)(A).)

Case Number: BC649204    Hearing Date: July 28, 2020    Dept: C

HERNANDEZ, et al. v. POTRERO, INC., et al.

CASE NO.:  BC649204

HEARING:  7/28/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#7

TENTATIVE ORDER

I. Defendants Robert and Shyr-Jin Tsay’s demurrer to Plaintiffs’ second amended complaint is SUSTAINED with 10 days leave to amend.

II. Defendants Robert and Shyr-Jin Tsay’s motion to strike is MOOT.

III. Defendant California Force Patrol, Inc.’s motion for appointment of discovery referee is GRANTED.

IV. Motion to compel Defendant Shyr Jin-Tsay’s deposition and to vacate the discovery stay as to Shyr Jin-Tsay is DENIED.

Plaintiff to give NOTICE.

I-II. Demurrer and Motion to Strike

Defendants Robert Tsay (“Robert”) and Shyr-Jin Shay (“Shyr-Jin”) demurs to the 4^th – 6^th causes of action on the grounds that they fail to state facts sufficient to constitute causes of action and are uncertain.

Newly added Defendants Robert and Shyr-Jin are identified as “manager, director and/or officer of Potrero Inc.” (SAC, ¶ 10.) However, the SAC does not contain any allegations of wrongful conduct on the part of these individuals. "Ordinarily, a corporation is regarded as a legal entity separate and distinct from its stockholders, officers and directors." (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 993). "It is well settled that corporate directors cannot be held vicariously liable for the corporation's torts in which they do not participate. Their liability, if any, stems from their own tortious conduct, not from their status as directors or officers of the 14 enterprise." (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 503).

Plaintiffs fail to allege any facts supporting individual liability against these demurring Defendants. Accordingly, demurrer is SUSTAINED with 10 days leave to amend. Accompanying motion to strike is MOOT in light of the court’s grant of leave to amend.

III. Discovery Referee

Defendant California Force Patrol, Inc. moves for appointment of a Discovery Referee pursuant to CCP § 639.

“(a) … (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.” (CCP § 639(a)(5).)

The Court is to review the following factors to determine whether the appointment of a referee is appropriate: "...(l) 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 assertion of privilege) make the inquiry inordinately time-consuming." (Taggares, et al. v. Superior Ct. (1998) 62 Cal.App.4th 94, 105.) The Court has the authority to appoint if "one or more of the above factors make an appropriate reference." (Id. at 106.) The court may also consider other factors in favor of appointment, including whether there is a contentious dispute between the parties (Id. at 98); whether an appointment would encourage or facilitate a reasonable approach to discovery (Id. at 104), and whether a neutral officer is required to preside over deposition proceedings (DeBlase v. Superior Ct. (1986) 41 Cal.App.4th 1279, 1284.)

The court finds that a Discovery Referee is appropriate in this action. The parties have a history of contentious discovery disputes. Gemini Insurance Company initially sought the appointment of a Discovery Referee in December of 2017. However, at that time, there was insufficient evidence to support the appointment of a discovery referee at Plaintiff’s sole expense. The request was renewed in October of 2018 when the discovery disputes went unresolved. That motion was withdrawn as there was a stay of proceedings in effect at the time.

Since that time, the parties have been unable to resolve their discovery disputes informally. Motions for a protective order, motions to quash, and ex parte applications were filed to prevent Plaintiffs’ counsel from taking the deposition of trial counsel. Those motions have since been withdrawn. Two discovery motions have been reserved for October 27, 2020. Further, witness depositions were being interrupted and allegations of threatening behavior at depositions are being asserted by both sides. There are 15 percipient witness depositions to be taken, and another 15 expert depositions to be taken before trial. Further, despite three court orders requiring Plaintiff Hernandez to be deposed a second time, Defendants have not been able to depose Hernandez.

At this juncture, based on the contentious nature of this action, the age of this case, counsels’ conduct at depositions, the parties’ continued inability to resolve their own discovery disputes, and the court’s overloaded calendar due to the Covid-19 pandemic, the court finds that a Discovery Referee is best suited for this matter, and can give the parties the immediate assistance that they require.

Accordingly, motion is GRANTED. Costs to be borne equally between the parties.

The parties are ordered to meet and confer regarding a Discovery Referee. If the parties cannot agree on a Discovery Referee, each party will file a separate Statement of Preferred Referees, listing its top two Referees. This court will select a Discovery Referee from the lists, and will notify the parties of the court’s selection.

IV. Deposition

Plaintiffs’ motion to compel Defendant Shyr Jin-Tsay’s deposition; to vacate discovery stay; and for sanctions is DENIED.

On 12/18/19, this court imposed a stay on all discovery until the hearing on appointing a discovery referee. Any discovery prior to 7/28/20 violates the discovery stay. The stay will be lifted once a Discovery Referee is chosen.

Case Number: BC649204    Hearing Date: January 23, 2020    Dept: SEC

HERNANDEZ v. POTRERO, INC.

CASE NO.: BC649204

HEARING: 01/23/2020

JUDGE: OLIVIA ROSALES

#7

TENTATIVE ORDER

Defendant CALIFORNIA FORCE PATROL, INC’s Motion for Appointment of Discovery Referee is DENIED. CCP §639.

Moving Party to give Notice.

“When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases…. (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.” (CCP §639(a)(5).) Such an appointment is authorized only where necessary, and it is improper to issue a blanket order directing any and all discovery motions to a referee for routine matters. (See Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449 fn. 4.) An appointment is justified only where the majority of factors justifying reference, including that multiple issues need to be resolved, multiple motions must be heard simultaneously, the present motion is only one in a continuum of many, and there are numerous and voluminous documents to be reviewed which make the inquiry inordinately time consuming, are present. (See Taggares v. Superior Court (1998) 62 Cal.App.4th 94.; See also CRC Rule 3.920(c).)

Currently, there are only four discovery hearings scheduled to take place before this Court. This does not appear to satisfy the requirement of multiple, simultaneous, continuous, or complex discovery issues contemplated in appointing a referee. While the Court acknowledges that the litigation in this case appears contentious, that alone is not sufficient to grant a Motion for a Discovery Referee. The motion to appoint a discovery referee is denied.

The Court notes that this is Defendant’s second request for the appointment of a discovery referee.

Case Number: BC649204    Hearing Date: November 21, 2019    Dept: SEC

Case Number: BC649204    Hearing Date: October 31, 2019    Dept: SEC

HERNANDEZ v. POTRERO, INC.

CASE NO.:  BC649204

HEARING: 10/31/19

JUDGE: MARGARET M. BERNAL

#2

TENTATIVE ORDER

Plaintiffs MIGUEL ROJAS HERNANDEZ and GUADALUPE ROJAS’s Motion for Leave to File a Second Amended Complaint is GRANTED.

Moving Party to give Notice.

The Proposed Second Amended Complaint, attached as Exhibit 1 to the Declaration of Michael J. Libman is NOT deemed served and filed as of the hearing date. Plaintiffs MIGUEL ROJAS HERNANDEZ and GUADALUPE ROJAS are ORDERED to SERVE and FILE its Second Amended Complaint within 5 court days of October 31, 2019. Responsive pleadings are to be filed in accordance with the rules of civil procedure.

California recognizes “a general rule of…liberal allowance of amendments…” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

Here, the Court finds that Plaintiffs should be afforded the opportunity to allege a claim for punitive damages and add additional defendants ROBERT TSAY and SHYR-JIN TSAY. Defendant(s) maintain the right to demur, file a motion to strike, or move for summary judgment. Plaintiffs’ Motion is granted.