2015-00173977-CU-WT

Mary Rossi vs. Farmers Insurance

Nature of Proceeding: Motion to Stay or Con’t the Motion to Compel and Motion for

Filed By: Keister, Kara

Defendant Farmer Insurance Exchange’s (“Defendant”) motion to stay or continue the hearing on Plaintiff’s motion to compel scheduled for April 2, 2018, and Plaintiff’s motion for terminating sanctions scheduled for April 9, 2018, or, in the alternative, for the appointment of a discovery referee is ruled upon as follows.

In this employment action, plaintiff Mary Rossi (“Plaintiff”) alleges she has been a claims adjuster for 25 years, 13 of which were with Defendant. In recognition of her abilities, for the last 10 years she was an adjuster with Defendant’s special group, National Liability Claims (“NLC”) which handled the most catastrophic claims nationwide. In 2012, a new three phase certification program for the NLC adjusters was instituted. Plaintiff alleges it became a means to discriminate against or had a discriminatory impact on female adjustors. Plaintiff complained, but no action was taken. The certification test was not intended to result in terminations and demotions. Plaintiff alleges she resigned/was terminated because she identified the discrimination.

Trial is currently set for May 1, 2018.

Defendant now requests a stay or continuance so the parties can meet and confer and informally resolve all discovery issues without further burdening this Court. Currently pending is Plaintiff’s motion to compel further responses to Plaintiff’s Request for Production, Sets Three and Four and Plaintiff’s motion for terminating sanctions. Both motions are currently set to be heard on April 9, 2018. Plaintiff’s motion to compel further responses to Plaintiff’s Special Interrogatories, Set Three was heard on March 21, 2018, and denied.

Defendant contends a stay or continuance of these motions is warranted as Plaintiff conducted no written discovery during an initial 20 month and subsequent 10 month stretch of time in this three year old case and is now compressing years of discovery into a limited time frame, while at the same time routinely rejecting requests for extensions, serving meet and confer letters that are hundreds of pages long, unreasonably demanding responses within days, and refusing to meet and confer in good faith and instead bringing discovery motions. Defendant contends this is a complex employment action involving nuanced issues that take time to properly evaluate. In addition, the Court recently permitted the Plaintiff to inquire into “me too” evidence.

Preliminarily, it must be observed that the Court has inherent authority to control its docket. Courts routinely stay matters where circumstances warrant. (Frieberg v City of

Mission Viejo (1995) 33 Cal. App. 4th 1484, 1489 [“Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.”].) On a motion to stay, the moving party bears the burden of proof. (Great American Ins. Co. v. Superior Court (2009) 178 Cal. App. 4th 221, 241.)

However, the Court is not persuaded that Defendant has met its burden and that granting a stay in this action is warranted. Further, Defendant has not presented any evidence that continuing the pending discovery motions would resolve any of the current disputes between the parties. There is an upcoming current trial date of May 1, 2018, and as noted by Plaintiff, the parties already met and conferred regarding the pending discovery motions on March 16, 2018, per this Court’s request, and again on March 19, 2018, per the parties’ agreement. Following these two meet and confer sessions, the parties agreed to disagree and neither side requested or thought further meeting and conferring would be productive. (Declaration of Chris Whelan at ¶ 3.) Continuing the pending discovery motions would only serve to delay the resolution of these matters and potentially compromise each side’s ability to prepare for the fast approaching trial date. Accordingly, the motion on this ground is DENIED.

In the alternative, Defendant requests a discovery referee be appointed. Defendant contends a discovery referee is necessary because there are multiple issues to be resolved, multiple pending discovery motions, and Defendant has produced approximately 8,700 complex documents.

Plaintiff does not agree to the appointment of a discovery referee. Plaintiff contends appointing a discovery referee would be unnecessarily costly, time consuming, and inefficient as this Court is very familiar with the issues at this point. Further, Plaintiff contends the parties have met and conferred regarding the two pending discovery motions to be heard on April 9, 2018, and oppositions have been filed by Defendant. Lastly, Plaintiff contends appointment a discovery referee would result in a third continuance of the trial, which would prejudice Plaintiff.

An order directing all discovery matters to a discovery referee is appropriate in the “unusual case where a majority of the factors favoring reference are present.” ( Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105.) “These include (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 light of the issues based on assertions of privilege) make the inquiry inordinately time-consuming.” (Id. at 105-106.) 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. Taggares, supra, 62 Cal.App.4th at 05-106, Code Civ. Proc. § 639.)

Here, as seen from the multiple motions set to be heard simultaneously, whose supporting papers stand larger than an entire calendar, there are numerous issues to be resolved. Further, as seen from the parties’ unsuccessful meet and confer efforts, in addition to the previous eight discovery motions that have been heard by this Court, the present motions appear to be only two of a continuum of many as the parties prepare for an May 1 trial. Further, the number of documents to be reviewed by the Court make the inquiry inordinately time consuming given the Court’s limited resources. Given that trial is still three weeks away, the appointment of a discovery referee to determine the pending and any remaining discovery disputes that may arise does not necessarily result in the need to continue trial.

As a result, the Court hereby appoints a referee pursuant to Code of Civil Procedure section 639(a)(5) to “hear and determine any and all discovery motions and disputes relevant to discovery and to report findings and make a recommendation.”

Counsel for the parties shall submit a Stipulation to the appointment of a specified referee, together with a declaration as to his or her hourly rate and willingness to serve. In the event the parties cannot agree upon a referee, the following procedure will be employed: the parties shall exchange lists of three (3) potential referees, together with their hourly rate(s) and confirmation that the proposed referees are available and willing to serve as a court appointed referee. The parties shall each be entitled to strike two names from the other’s list. Thereafter, the parties shall present a joint declaration setting forth the two remaining names to the Court and the Court will appoint a referee from those two names. The parties shall submit the Stipulation or the joint declaration to the Court, not later than April 11, 2018.

The Court will thereafter appoint a discovery referee to provide his or her report and recommendation as to these disputes, and any further discovery disputes. The referee’s fees shall be paid equally by the parties, absent a report and recommendation in the alternative from the referee.