SANDRA ORTEGA ET AL VS JANET WILSON ET AL

Tentative Rulings

Case Number: BC663633    Hearing Date: February 06, 2020    Dept: SWB

Hearing Date: February 6, 2020

Moving Parties: Plaintiffs Sandra Ortega, et al.

Responding Party: Defendant Anita Estes

Motion to Compel Attendance and Production of Documents at Deposition

The court considered the moving, opposition, and reply papers.

RULING

The motion is CONTINUED to March 4, 2020, at 8:30 a.m. to be heard with defendant’s motion for protective order. The motion for protective order set for February 27, 2020 is advanced and continued to March 4, 2020, at 8:30 a.m. The court sets an OSC for February 11, 2020, at 8:30 a.m. re why a discovery referee should not be appointed. The motions set for February 11, 2020 and February 25, 2020 are continued to March 5, 2020, at 8:30 a.m.

BACKGROUND

On June 1, 2017, plaintiffs Sandra Ortega, Jonathan Ortega, and minors Daniel O., Matthew L., and Destiny L., by and through their guardian ad litem, Sandra Ortega filed a complaint against Janet Wilson and the Janet Wilson Trust. Plaintiffs asserted nine causes of action against defendants Wilson and Trust in the complaint: (1) private nuisance, (2) breach of warranty of habitability, (3) negligent maintenance of premises, (4) intentional infliction of emotional distress (“IIED”), (5) negligence per se, (6) breach of covenant of good faith and fair dealing, (7) breach of implied covenant of quiet enjoyment, (8) violation of the Fair Employment and Housing Act (“FEHA”), and (9) retaliatory eviction.

On May 22, 2018, plaintiffs filed a FAC against defendants Wilson, Trust, Sand-Sea Property Management, Inc., Anita K. Estes for the same nine causes of action.

On August 23, 2018, the court overruled defendants’ demurrers to the FAC as to the fifth, sixth, and ninth causes of action and sustained with leave to amend the eighth cause of action for violation of the FEHA. The court also granted defendants’ motions to strike punitive damages with leave to amend as to the fourth and fifth causes of action and denied their motions as to the ninth cause of action.

On September 11, 2018, plaintiffs filed a SAC against defendants asserting the same nine causes of action.

On February 22, 2019, the court overruled defendants’ demurrer as to the eighth cause of action and granted defendants’ motion to strike without leave to amend as to paragraph 104 (under plaintiffs’ fifth cause of action for negligence per se) and denied defendants’ motion to strike as to paragraph 137 (under plaintiffs’ ninth cause of action for retaliatory eviction) and prayer for punitive and exemplary damages. The court ordered defendants to file an answer within ten days.

Trial is set for May 19, 2020.

LEGAL AUTHORITY

The court has power to appoint a referee to supervise the deposition, if necessary, to hear and determine any and all discovery motions and disputes relevant to discovery in the action, and to report findings and make recommendations thereon. CCP §639(a)(5); Jogani v. Jogani (2006) 141 Cal. App. 4th 158, 176. Under §639(d), all appointments of referees pursuant to this section shall be by written order and shall include the following: “When the referee is appointed pursuant to paragraph (a)(5), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.” Discovery referees are improper in routine matters. See Hood v. Superior Court (1999) 72 Cal. App. 4th 446, 449, n. 4. “Exceptional circumstances” are required 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(d)(2). Circumstances are “exceptional,” for instance, where there are multiple issues to be resolved, where multiple motions will be heard simultaneously, where many complicated motions are filed, and generally, where there are numerous and voluminous documents to be reviewed which make the inquiry “inordinately time consuming.” Taggares v. Superior Court (1998) 62 Cal. App. 4th 94, 105. In addition, a discovery referee may be appointed to monitor depositions where antagonism between the parties and/or counsel might otherwise prolong the proceedings and frustrate discovery. Cal. Practice Guide: Civ. Proc. Before Trial, ¶8:1804.5. “Where either party anticipates that the other will try to frustrate legitimate discovery at a deposition, the referee’s presence can curtail such conduct.” Id., ¶8:873.

Under CCP §645.1(b), when a referee is appointed pursuant to section 639, at any time after a determination of ability to pay is made as specified in section 639(d)(6), the court may order the parties to pay the fees of referees who are not employees or officers of the court at the time of appointment, as fixed pursuant to section 1023, in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties. Under section 639(d)(6)(A), the written order shall include “[e]ither a finding that no party has established an economic inability to pay a pro rata share of the referee’s fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee’s fees and that another party has agreed voluntarily to pay that additional share of the referee’s fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.” If a party demonstrates that the costs associated with a reference impose a significant hardship, it is inappropriate for the court to order that party to contribute such costs. DeBlase v. Superior Court (1996) 41 Cal. App. 4th 1279. California Rules of Court Rule 3.922(f) requires that, prior to entering an order of referral, the court must first find that no party established an economic inability to pay a pro rata share of the referee’s fees or that the other party has agreed voluntarily to pay the additional share of the referee’s fees. Where no party has established an inability to pay a pro rata share of the referee's fees, the court may order the fees to be split on a pro rata basis. Civ. Proc. Before Trial, ¶8:1804.20.

All appointments under CCP §639 shall include the maximum hourly rate and number of hours the referee may charge. Upon the written application, the court may, for good cause, modify the maximum number of hours.

DISCUSSION

There are 14 discovery motions scheduled or reserved from February 11, 2020 to May 29, 2020. There appears to be exceptional circumstances to appoint a referee. There are multiple issues to be resolved, multiple motions would be heard simultaneously, and there are numerous documents to be reviewed which make the inquiry “inordinately time consuming.”

The court sets an OSC re why a discovery referee should not be appointed.

Plaintiffs are ordered to give notice of this ruling.