2018-00235555-CU-MC

Mary Castex vs. Eskaton Properties, Inc.

Nature of Proceeding: Motion to Compel 1) Form Interrogatories 2) Special Interrogatories

Filed By: Garcia, Stephen M.

Plaintiff Mary Castex’s motion to compel further responses to form and special interrogatories is continued on the Court’s own motion to Monday, November 19, 2018 at 2 p.m. in this department.

In this elder abuse case, Plaintiff seeks to compel Defendants Eskaton Properties, Inc. et al. to provide further responses to her discovery. At issue on the three motions on today’s calendar are over 100 interrogatory responses, almost 60 requests for production and 31 requests for admission. The separate statements and declaration total almost 700 pages. To further complicate matters, Plaintiff partially withdrew the motion to compel further interrogatory responses with respect to certain interrogatories apparently in response to further responses served by Defendant after the motion was filed and filed amended separate statements and declarations after the motion was filed which total almost 1,000 pages. This does not even include the various memoranda of points and authorities for each of the three motions. The amount of paper filed in connection with these motions far exceeds a complex summary judgment motion and in fact substantially exceeds the entirety of the papers filed on entire law and motion calendars. While Plaintiff withdrew the motions to compel further responses to request for production of documents and requests for admission, she did not do so until the time to file a reply for the motions.

The Court finds that further substantial additional meet and confer efforts are required before the Court expends its limited judicial resources on this matter. Indeed, it is not even entirely clear which of the numerous interrogatory responses are still at issue. Further, the instant motions appear to raise the issue of whether meet and confer efforts were sufficient and whether objections were waived. The Court would note that the issue of third party privacy rights is involved in the motion to compel further interrogatory responses and such rights cannot be waived by Defendants even if other objections were waived by a timely failure to respond.

Further, from what the Court can discern from the presented mass of paper, the interrogatories also appear to involve the issue of contact information regarding potential witnesses and employees. These are issues that should easily be resolved in the meet and confer process. With respect to current employees Defendant can easily identify the employees and indicate that they can be contacted through Defendants’ counsel. As to former employees, Defendants must provide contact information to the extent they have such information. As to witnesses (many appear to be residents), the Court also expects the parties to resolve such issue informally, through, for example, a potential opt-in letter as apparently proposed by Plaintiff.

The parties are hereby ordered to engage in further meet and confer efforts. The Court expects the parties to engage in extensive, focused and directed meet and confer efforts regarding all of the numerous issues raised in the motion to compel further interrogatory responses. The parties are directed to commence the meet and confer efforts forthwith. Such additional efforts have the potential to eliminate, or at a minimum, significantly narrow the issues raised in the various motions. Indeed, it appears that meet and confer efforts which took place after the motions were filed resulted in the withdrawal for the motions to compel further responses to requests for admissions and production. No later than November 5, 2018, counsel for the parties shall file a joint declaration detailing the specific meet and confer efforts conducted by the parties, including the dates and lengths of such efforts, and clearly indicating which discovery issues have been resolved, and which issues (if any) remain unresolved, and why.

The parties are reminded that the “very purpose of an order to meet and confer is to obtain a negotiated resolution of a discovery dispute without having to expend judicial

time to sort out which party is correct and what relief shall be granted. What the court seeks is an agreement by the parties which resolves the dispute.” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 117.) The Court will decide Plaintiff’s request for sanctions in large part based on the joint declaration.

The Court notes that in addition to the three motions on today’s calendar (two of which were dropped), the Court has already ruled on Plaintiffs’ motion to compel a PMK deposition, In addition, Defendants had a motion to compel Plaintiffs’ deposition set for October 18, 2018 though it has since been dropped. Further, yet another motion to compel was filed by Plaintiff on October 5, 2018 and set for November 5, 2018 which itself approaches 500 pages in total. The Court will likely continue that motion as well. Given that this case was only recently filed on June 22, 2018, this Court perceives that these disputes are likely a continuum of many. To that end, the Court encourages the parties to strongly consider stipulating to the appointment of a discovery referee and presenting such stipulation to the Court. In the event that the parties do not stipulate to the appointment of a discovery referee, the Court is strongly considering appointing a referee on its own motion pursuant to CCP § 639(a)(5) to address all discovery disputes in this matter and may well do so on the date of the continued hearing.

Indeed, if the parties do not stipulate to a referee and that parties fail to meet and confer and significantly reduce the issues that are presented, the Court will most likely appoint a discovery referee. 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. (Id., at 105-106; CCP § 639.)

All of the factors are present in the instant case. Here, as seen from the various motions, there are multiple issues to be resolved. Indeed, the issues range from the phrasing of the discovery requests, whether objections have been waived, whether the parties properly met and conferred, whether the requests improperly seek third party private information, etc. In addition, there were multiple motions to be heard simultaneously as seen from the number of motions on today’s calendar. Further, although this case was only recently filed, the Court has already ruled on one discovery motion, there were three on today’s calendar, one coming up on October 18, 2018 and yet another on November 5, 2018. This leads the Court to conclude that these motions are but a continuum of many. Finally, as seen from the sheer volume of paper submitted in connection with the motions, these motions unduly impact the court’s time and/or limited resources.

As a result, in the event the parties are unable to reach a stipulation for the appointment of a discovery referee or significantly narrow the issues presented on, the Court fully anticipates appointing 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.”

If the continued hearing date is not convenient, counsel may meet and confer on a

later hearing date and inform the clerk of the same.

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