Case Number: MC024201 Hearing Date: May 13, 2014 Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MIGUEL CUEVAS CRUZ )
) Case Number MC 024201
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
MARISELA CONCHAS, ADRIAN ) May 13, 2014
CARDENAS, RAFAEL PAZ, ) Dept. A-11
) Judge Randolph A. Rogers
Defendants )
____________________________________)

The motion of Plaintiff for reimbursement of court reporter and interpreter costs, for trial continuance and discovery cutoff, for allowing Darrin Randall to be present during the deposition of the Defendants, and to set a hearing date on Plaintiff’s proposed motion to amend the Complaint came on for hearing on May 13, 2014.

The motions of Defendants for a protective order excluding Darrin Randall from Defendants’ deposition and to compel Mr. Randall’s deposition came on for hearing on May 13, 2014.

Plaintiff Miguel Cuevas Cruz appeared through his counsel of record, ____________________. Defendant Marisela Chonchas appeared through her counsel of record, ___________________. Defendants Adrian Cardenas and Rafael Paz appeared in propria persona. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The Plaintiff’s motion for costs of the interpreter is GRANTED, with each Defendant Ordered to reimburse Plaintiff for one-half of the total expense of $517.50, which reimbursement shall be without prejudice to reallocation of the expense by the Court. Further, Plaintiff’s motion to amend the Complaint is GRANTED; provided, however, Defendants’ Answer to the original Complaint shall stand as their Answer to the amended Complaint unless Defendants elect to file a new Answer within time allowed by law.

The Plaintiff’s motion to extend the discovery cutoff is granted. The Court Orders that all cutoffs shall be in accordance with the new trial date set at the next trial setting conference (presumably May 13, 2014).

The Plaintiff’s motion to appoint a discovery referee is DENIED without prejudice. The Plaintiff’s motion for costs of the court reporter is DENIED without prejudice to a motion for the cost of expediting the transcript. The Plaintiff’s motion to set a hearing date for Plaintiff’s proposed motion to amend is DENIED as mooted by the grant of the motion as aforesaid.

The Defendant’s motion for a protective order excluding Darrin Randall from Defendants’ deposition is DENIED; provided, however, Plaintiff shall be limited to having either Plaintiff or Mr. Randall personally attend the deposition, but not both. Defendants’ motion to compel Mr. Randall’s deposition is DENIED without prejudice.

SO ORDERED this the _____ day of May, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MIGUEL CUEVAS CRUZ )
) Case Number MC 024201
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
MARISELA CONCHAS, ADRIAN ) May 13, 2014
CARDENAS, RAFAEL PAZ, ) Dept. A-11
) Judge Randolph A. Rogers
Defendants )
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. On May 13, 2013, Plaintiff Miguel Cuevas Cruz filed his complaint against Defendants Marisela Conchas, Adrian Cardenas, Rafael Paz, and Does 1 through 100, inclusive, alleging five causes of action for: (1) breach of contract; (2) specific performance; (3) tortious breach of the implied covenant of good faith and fair dealing; (4) intentional interference with contractual relations; and (5) declaratory relief.

2. On December 24, 2013, Defendant Paz filed a motion to disqualify Plaintiff’s former counsel, Mr. Stephen M. Feldman. Defendant’s motion was denied after a hearing conducted on January 28, 2014.

3. Between February 13 and February 19, 2014, Mr. Feldman was substituted for Mr. Robert Hirschman as counsel for Plaintiff, the paperwork being filed with the court on February 20, 2014.

4. On February 20, 2014, the court granted Plaintiff’s ex parte application to compel Defendant Cardenas’s deposition. The deposition occurred on March 21, 2014.

5. On March 25, 2014, Plaintiff filed an ex parte application, which was deemed notice of motion at the hearing. Counsel for Defendant Conchas, Mr. Weinstein, and Defendants Cardenas and Paz submitted their opposition on the same day, with hearing date scheduled for May 13, 2014.

6. On April 21, 2014, Plaintiff filed its motion for leave to file a First Amended Complaint (“FAC”) and a motion for an order to determine the order of depositions. Defense Counsel filed a declaration on April 29, 2014 in opposition (“Declaration”).

7. Costs of the Interpreter – Parties are normally responsible for bearing the ordinary burden of financing their own suit. See Eisen v. Carlisle & Jaquelin (1974) 417 U.S. 156, 179 (plaintiff in federal class action required to pay costs of notice to class). In addition, “although parties are expected to bear expenses typically involved in responding to discovery requests, such as the expense of producing documents, answering interrogatories or submitting to depositions, each party seeking discovery is expected to bear any special attendant costs.” San Diego Unified Port Dist. V. Douglas E. Barnhart, Inc. (2002) 95 Cal.App.4th 1400, 1404. See In re Puerto Rico Elec. Power Authority (1st Cir. 1982) 687 F.2d 501, 506-7 (party not required to bear cost of translating Spanish documents it produced at opposing party’s request). As such, when a party asks for discovery with “significant special attendant costs beyond those typically involved in routine discovery, the demanding party should bear those costs.” San Diego Unified Port Dist., supra 95 Cal.App.4th at 1405. An interpreter is usually among the costs a propounding party bears.

8. In the present case, Plaintiff sought to depose Defendant Cardenas. Under normal circumstances, Plaintiff is the party seeking discovery, and had a translator been necessary, was required to provide such translator at his own expense. However, here, there is no dispute that Defendant Cardenas did not need a translator. Deposition Transcript at 11:23-24. The dispute arises, however, because of several e-mail exchanges between the parties. On December 4, 2013, the following message was sent from the e-mail address rpgtlc@yahoo.com:

Hello Mr. Feldman, can you please tell me when and where is the deposition suppose (sic) to take place?
Thank you,
Adrian Cardenas

9. This appears to be the e-mail address of Defendant Paz. However, it does not appear that the parties dispute this message originated from Defendant Cardenas. After responding to this message, another e-mail was sent from the same address several hours later stating “[w]e will need an interpreter.” Motion, Exhibit 1. The message contained no further information as to who specifically was making the request. Based on this request, Plaintiff secured the presence of an interpreter for the day of the deposition (ultimately held on March 21, 2014, and not December 10, 2013 as stated in the e-mail). Plaintiff paid a total of $517.50 for the costs associated with the interpreter. Motion, Exhibit 3.

10. It appears that Defendants Cardenas and Paz, both without counsel, communicated with the Plaintiff via e-mail to Plaintiff’s counsel using Defendant Paz’s e-mail address. It also appears that Defendant Cardenas did not use additional means to communicate with Plaintiff. Under such facts, it is unjust to require Plaintiff, who secured the translator at the apparent behest of the Defendants, to pay for the extraneous costs of the interpreter, even if it is unclear which specific Defendant made the request.

11. Mr. Weinstein argues that Plaintiff should bear the costs of the translator because Plaintiff’s counsel failed to contact Defendant Cardenas for verification. While it is true that three months elapsed between the initial communication and the deposition, it seems unlikely that a witness will spontaneously become familiar with another language in three months. It is not unreasonable for Plaintiff to assume that a translator, apparently required in deposition in December, is still needed for deposition in March the following year. Similarly, Plaintiff should be entitled to assume requests from opposing parties are done in good faith and reflect genuine needs and concerns. Plaintiff should not have to assume that he needs to double check and confirm every request originating from the Defendant for authenticity. As such, Plaintiff should not be forced to shoulder the costs of an unnecessary interpreter, provided solely because of Defendant’s request.

12. In addition, in his April 29 Declaration, Mr. Weinstein further argues that the cost should be reduced to $258.75 because there “is no proof whatsoever that Plaintiff’s attorney paid $517.5-0 (sic) for the interpreter.” Declaration ¶15. However, Exhibit 3 of the Motion reflects that Plaintiff was charged for the full $517.50 for a full day interpreter. Absent a showing that this was not the case, Plaintiff is entitled to recover the costs.

13. Accordingly, Plaintiff’s motion for costs of the interpreter is GRANTED, to be split between Defendants Cardenas and Paz without prejudice and subject to reallocation.

14. Standard for Granting Appointment of a Discovery Referee – CCP §639(a)(5) provides for the appointment of a referee without the consent of both parties if it is deemed necessary for discovery. Implicit in such necessity is that there “ought to be a finding of something out of the ordinary before the services of a referee are forced upon a nonconsenting party.” Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449. This implies that discovery issues must be complex or time-consuming to such a degree that a dedicated discovery referee is warranted to resolve them. DeBlase v. Superior Court (1996) 41 Cal.App.4th 1279, 1286. This is the case, for example, where a case is classified as a complex case. See Lu v. Superior Court (1997) 55 Cal.App.4th 1264, 1266 (“We hold that [for complex litigation], a trial court has authority to appoint a discovery referee, even in the absence of a current discovery dispute.”).

15. Discovery disputes, where parties disagree as to the discoverability of a fact or the adequacy of produced evidence, are common. As Defendant notes in opposition, the principal obstruction to the smooth proceeding of deposition was the parties’ disagreement over the presence of Darrin Randall. Declaration of Gary M. Weinstein at ¶12. While the parties have evidenced some unpleasantness between each other, this is not sufficient to elevate it out of the ordinary such that a discovery referee is necessary. The submissions contain no evidence that the dispute is anything beyond ordinary disagreement during discovery. Nor is there any indication that the case presents particularly complex issues arising from discovery or that it would be unduly time-consuming or voluminous. As such, Defendant is correct in asserting that a discovery referee is premature.

16. Accordingly, Plaintiff’s motion for appointment of a discovery referee is DENIED without prejudice.

17. Trial Continuance and Extending Discovery Cutoff – Plaintiff lists this request on the notice of motion, but fails to make any subsequent reference to this request. As the March 25 order already sets the trial setting conference for May 13, 2014, Plaintiff’s request for trial continuance is moot.

18. Code of Civil Procedure §2024.020(a) provides that discovery must be completed 30 days before the initial trial date. However, the parties appear to have waived their right under §2040.020(a). Declaration of Gary M. Weinstein at ¶20. As such, there should be no issue as to discovery cutoff. However, to insure that there is no confusion, the Court Orders that all cut-offs shall be governed by the new trial date as set by the next trial setting conference (presumably May 13, 2014).

19. Presence of Darrin Randall at Deposition – Code of Civil Procedure section 2025.420(b) establishes that, on good cause, the court may issue protective orders to protect any party or deponent from unwarranted annoyance, embarrassment, or oppression. This can include an order excluding “designated persons, other than the parties . . . from attending the deposition” under §2025.420(b)(12). The statutory language implies that nonparties may attend a deposition, and a party moving for a protective order must show good cause in order to exclude such attendance at a deposition.

20. Plaintiff asks the court to permit the individual Darrin Randall, a non-party person, to attend the deposition of Defendants Cardenas and Marisela Conchas. Plaintiff argues that Mr. Randall is well versed in the facts of the case and is present to advise counsel on those facts, particularly because present counsel only recently joined the case, and has yet to familiarize himself with all the details.

21. Mr. Weinstein, conversely, argues that Mr. Randall’s presence infringes upon the Defendants’ privacy. In addition, Defendant Paz and Cardenas assert that Randall “seemed to be a tactic to intimidate” them. Declaration of Defendant Rafael Paz at ¶3. Declaration of Defendant Adrian Cardenas at ¶3.

22. Plaintiff has enunciated good reason for Randall’s presence at the deposition. To the extent that Plaintiff himself cannot be present at the deposition, it may be necessary for Plaintiff’s counsel, in order to conduct a proper deposition, to engage the aid of another to help him understand the case. Particularly where counsel was brought in late in the life of the suit, as is the case here, and may not have sufficient knowledge of the factual specifics of the case, a nonparty who knows of the underlying facts may be needed to ensure counsel is able to effectively represent his client. Defendant Cardenas and Paz’s feelings that Mr. Randall was “trying to stare [them] up and down and either interfere with the process or intimidate [them],” Declaration of Adrian Cardenas at ¶3, in light of Plaintiff’s legitimate needs and the complete lack of any evidence that Mr. Randall interfered with the deposition, do not constitute good cause for excluding Mr. Randall from attending the deposition.

23. In his Declaration, Mr. Weinstein urges the Court to both exclude Mr. Randall from Defendants’ depositions, and also to compel Mr. Randall’s deposition. To the extent that Mr. Randall was present at what appear to be settlement meetings, he cannot be deposed as to his knowledge of those meetings pursuant to Evidence Code §1119. There are also no allegations that Mr. Randall is a direct witness to any of the events in dispute in the case, and the deposition of Mr. Randall would appear to serve no fact-finding purpose to the present litigation.

24. Accordingly, the Defendants’ request for a protective order to have Mr. Darren Randall excluded from Defendant Adrian Cardenas’ deposition is DENIED; provided, however, Plaintiff shall be limited to having either Plaintiff or Mr. Darren Randall personally attend the deposition, but not both. Defendants’ motion to compel Mr. Randall’s deposition is DENIED without prejudice.

25. Costs of Court Reporter – As noted above, the normal costs of discovery are ordinarily borne by the party propounding the request. Under CCP §2025.330(b), the deposition is taken stenographically. Further, CCP §2025.510(b) states that the party noticing the deposition bears the costs of transcription unless the court orders otherwise on motion or a showing of good cause. As such, the costs of the court reporter are usually borne by the deposing party.

26. Plaintiff asserts that “Mr. Weinstein agreed to pay for the cost of the court reporter at the conclusion of the deposition.” Motion at ¶14. In that exchange, the reporter asked if defense counsel wanted to expedite the transcript. Deposition at 15:1-2. Defense counsel answered that he wanted the transcript expedited. Deposition at 15: 6. Plaintiff’s counsel states that defense counsel will “have to pay for the expedite.” Deposition at 15:7-8. Defense counsel agrees. Deposition at 15:9.

27. To the extent that this exchange can be considered defense counsel’s assent to pay, it can only reasonably be construed as an agreement to pay the costs associated with expediting the production and delivery of the transcript. Thus, Plaintiff is not justified in asking for Mr. Weinstein to pay for the total cost of the court reporter. On the invoice Plaintiff provides, there is no indication as to what additional costs were incurred in the expedited transcript. Motion, Exhibit 4. Based on this information, Plaintiff cannot show what costs can be fairly apportioned to Mr. Weinstein.

28. Accordingly, Plaintiff’s motion to have Mr. Weinstein pay the costs of the court reporter is DENIED without prejudice to bringing a motion to pay the costs of expediting the transcript.

29. Hearing Date for Plaintiff’s Proposed Motion to Amend Complaint – Plaintiff timely filed his motion to amend the Complaint on April 21, 2014. The attached copy of the FAC appears, as Plaintiff notes, to describe conduct previously described in the Complaint, but with significantly more detail and with several new causes of actions that appear to arise out of the same transactions.

30. Code of Civil Procedure §473(a)(1) provides the court with the discretion to allow, after notice to the adverse party, “an amendment to any pleading or proceeding” on terms as may be just.” Further, “there is a strong policy in favor of liberal allowance of amendments.” Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296. Indeed, a timely motion that does not prejudice the opposing party is erroneously refused when it deprives the party “the right to assert a meritorious cause of action or a meritorious defense.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.

31. In the present case, prejudice to the Defendants is unlikely because Plaintiff has not asserted any new matters in the proposed FAC. Rather, all causes of action arise from the same underlying operative facts to which the original Complaint alleged. Further, Defendants contend that prejudice exists because the “trial date was already scheduled for April 2014” and that “they would not have to answer an amended complaint . . . caus[ing] additional legal expense and costs.” Declaration at ¶¶13 and 14. However, trial was already continued due to the deposition disputes amongst the parties. Moreover, it appears that many, if not all, of the depositions of the parties have not taken place at all. Considering that all of the Plaintiff’s asserted actions arise out of or are incidental to breach of contract claims, it does not appear that Defendants will suffer particular prejudice in granting Plaintiff leave to amend.

32. Accordingly, Plaintiff’s motion to amend the Complaint is GRANTED; provided, however, Defendants’ Answer to the original Complaint shall stand as their Answer to the amended Complaint unless Defendants elect to file a new Answer within time allowed by law.

SO ORDERED AND ADJUDGED this the ______ day of May, 2014.
_____________________________
RANDOLPH A. ROGERS, JUDGE