2015-00186569-CU-PO

Dean Higgs vs. Plum Healthcare Group, LLC

Nature of Proceeding: Motion for Appointment of Discovery Referee

Filed By: Barber, D. Scott

Defendants Plum Healthcare Group, LLC; Oleander Holdings, LLC dba Sacramento Post-Acute; Bay Bridge Capital Partners, LLC; New Sisu Holdco, LLC; Flower Farm Group, LLC; Opco Holdings, LLC; and California Opco, LLC (collectively, “Defendants”) motion for appointment of a discovery referee is GRANTED.

Defendants contend Plaintiff has noticed over 70 depositions, the notices of which contain 774 requests for production of documents, all within a short period of time. During this same time-frame, Plaintiff also served 5 sets of discovery on Sacramento Post-Acute (including form interrogatories, special interrogatories, requests for production of documents, and requests for admission), two sets of discovery to Plum Healthcare Group, LLC, and initial discovery to the five defendants who were brought in as DOE defendants which each contain 68 special interrogatories. (Barber Decl. ¶

6.) This also does not include multiple depositions of former employees of Sacramento Post-Acute and Plum Healthcare Group which have not yet been served on Defendants and which Defendants are only aware because their former employees have been calling, stating they have been served with subpoenas and asking for representation. (Barber Decl. ¶ 7.) This Court has already heard 10 motions to compel in this action.

Defendants contend Plaintiff’s counsel has noticed multiple depositions with voluminous requests for production within an unreasonable time frame or for dates when Plaintiff’s counsel knows Defendants are unavailable. (Barber Decl. ¶¶ 11-12.) Defendants also contend Plaintiff’s counsel has filed premature motions to compel rather than working with defense counsel to get the requested depositions set. (Barber Decl. ¶ 13.)

Defendants argue they have asked Plaintiff’s counsel to stipulate to the appointment of a discovery referee, but Plaintiff’s counsel as refused. (Barber Decl. ¶ 8.)

Defendants request the Court appoint a discovery referee for all discovery disputes and, specifically, to assist the parties in scheduling over 70 depositions.

In limited circumstances, the Court may appoint a referee, without the agreement of the parties. (Cal. R. Ct. 3.920(a).) 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.) In the instant case, a majority of the factors are present. “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 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 v. Superior Court (1998) 62 Cal.App.4th 94, 105-106, C.C.P., sec. 639.)

Here, the Court has already settled myriad discovery disputes between the parties (10 motions to compel) and based on the multitude of depositions noticed, amount of written discovery served, and the parties long-standing demonstration of their inability to properly meet and confer with one another, the Court perceives there are multiple issues to be resolved and the present motion is but only one of a continuum of many more to come.

Plaintiff argues in opposition that the Taggares factors are not met because there are no discovery motions pending before the court and whether there will be multiple future motions is currently unknown. The Court is not persuaded by this argument. First, Plaintiff’s counsel has stated in recent meet and confer communications that Plaintiff intendeds to file one more motion to compel. (Barber Decl. ¶ 7.) Second, had this motion been filed earlier when three discovery motions were pending to be heard on the same day (November 28, 2018), it is highly likely that all of the Taggares factors would have been met and a discovery referee appointed at that time. Thus, the mere fact that this motion has finally been made after 10 discovery motions have already been heard by this Court, but there happen to be no pending discovery motions, is not an absolute bar to the appointment of a referee. Finally, the Court may rely on his extensive experience in handling elder abuse cases that are frequently litigated between the same counsel representing the parties in this case to know that future discovery motions will occur, especially in light of the numerous depositions noticed and written discovery that has been served, and the parties’ contentious attitudes towards one another.

Accordingly, given the foregoing and the Court’s limited resources, the Court concludes that the appointment of a discovery referee pursuant to CCP § 639(a)(5) is necessary and vital and that the referee shall hear and determine any and all discovery motions and disputes relevant to discovery and report findings and make a recommendation to the Court.

If the parties are able to agree, the parties shall submit a stipulation of the appointment of a specified referee, together with a declaration as to his or her hourly rate and

willingness to serve. (See Code Civ. Proc. § 639; Cal. R. Ct. 3.922.) 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 no later than January 18, 2019.

The Court will thereafter appoint a discovery referee to provide his or her report and recommendation as to the discovery dispute. The referee’s fees shall be paid equally by the parties, absent a report and recommendation in the alternative from the referee. (See, e.g., Code Civ. Proc. § 645.1(b).)

As a result, the Court hereby appoints a referee pursuant to CCP § 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.”

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.