Roy E Stephenson vs Hickingbotham Limited et al
Case No: 17CV00955
Hearing Date: Fri Mar 01, 2019 9:30

Nature of Proceedings: Motion: Reconsideration of the Court’s Sua Sponte Order Appointing Discovery Referee

Tentative Ruling: The court denies plaintiff Roy E. Stephenson’s Motion For Reconsideration of the Court’s Sua Sponte Order Appointing a Discovery Referee.

Background: In this action, plaintiff Roy E. Stephenson alleges that defendant Desert European Motorcars, Ltd. (DEM) sold a vehicle as new when it had been extensively used as a dealer “demo” car and seeks damages against DEM and its employees based upon the misrepresentation.

On January 11, 2019, after ruling on plaintiff’s Motion to Compel Further Responses to Special Interrogatories, Set One, granting the motion as to eight responses and denying the motion as to 22 responses, the court stated:

“The Court has already ruled on a least five discovery motions and two more are pending.

“The Court vacates the hearings on 1/18/2019 and 1/25/2019. The Court appoints R. A. Carrington as the discovery referee in this matter. All future discovery motions shall be heard and considered by Mr. Carrington. The costs of the discovery referee shall be borne by the parties pro rata unless Mr. Carrington finds it would not be equitable. The costs paid may be re-allocated at the time of trial or other resolution of this matter. The parties are ordered to notify Mr. Carrington of his appointment in this matter.”

(Plaintiff says that the first sentence above is not part of the court’s order. But the court quotes that directly from the January 11 Order After Hearing.)

The clerk mailed notice of the ruling on January 14. On January 29, plaintiff filed a motion for reconsideration of the order appointing a discovery referee. Defendants oppose the motion arguing that it is not timely served; the court’s appointment of the discovery referee was necessary and proper under CCP § 639; and plaintiff has not provided new facts, circumstances, or law that justify reconsideration.

1. Timing of Motion: The timing of the motion is questionable. An application for reconsideration must be made within 10 days after service of written notice of entry of the order. CCP § 1008(a). That period is extended five days by CCP § 1013 when notice is by mail. The application for reconsideration was to be made on January 29. Plaintiff filed his motion on January 29, but the proof of service attached to that motion says it was served by mail and email on January 30. On the 29th, one cannot state under penalty of perjury that he served something on the 30th. Defendants indicate that the motion was served on January 30.

CCP § 1008 is unique in that it provides a time for making an application to the judge but says nothing about service. Motions must be “served and filed” 16 court days before the hearing (plus five days for mailing). January 30 is the date on which notice of the motion and hearing must be served. The court determines that the motion is timely filed (January 29) and served (January 30).

2. Grounds for Reconsideration: An application for reconsideration must be based upon new or different facts, circumstances, or law. CCP § 1008(a). Plaintiff briefed the issue of a discovery referee in his January 8 submission. He argues the same points here, so the motion for reconsideration does not present new facts, circumstances, or law. Plaintiff certainly does not provide a satisfactory explanation for the failure to produce new evidence earlier. Pazderka v. Caballeros Dimas Alang, Inc., 62 Cal.App.4th 658, 670 (1998).

3. Justification for Referee: A court may, on its own motion, appoint a referee: “When the court in any pending action determines that it is necessary for the court 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(a)(5).

“Unless both parties have agreed to a reference, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference 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 (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.” Taggares v. Superior Court, 62 Cal.App.4th 94, 105 (1998)

The court ordered the discovery referee because of the volume and complexity of the discovery and motions regarding discovery. Defendants say that plaintiff has served 198 requests for admissions, 512 requests for production, and 175 special interrogatories. [Duffy Dec. ¶3] Plaintiff does not dispute this but complains of defendants’ veracity in discovery responses.

Multiple motions were not scheduled simultaneously. Rather, plaintiff scheduled them to take up defendants’ and the court’s time on three successive CLM calendars—January 11, 18, and 25. The pending motions are two in a continuum of many. Plaintiff has recently added more defendants

Plaintiff insists that these are because of the inadequacy of defendants’ discovery responses. But the most recent ruling reflects that discovery disputes are not so one-sided. The court did not order further responses to 73% of the interrogatories in dispute.

The court does not find a basis for reconsideration of its appointment of a discovery referee. Even if it did, the court would reaffirm the appointment.

Plaintiff asks that the court reconsider the allocation of costs of the referee because defendants have greater resources than plaintiff. In his reply, plaintiff references a sale of the DEM business for in excess of $22,000,000 and states that defendants’ litigation costs are being paid by insurance.

Plaintiff cites cases indicating that the court must consider a party’s inability to pay a referee’s fees. Hood v. Superior Court, 72 Cal.App.4th 446, 449 (1999); Taggares v. Superior Court, supra, 62 Cal.App.4th at 103. But plaintiff provides no evidence of his inability to pay the referee’s fee. He only suggests evidence (for which counsel’s declaration lacks foundation) that defendants have greater resources. Neither party has established economic inability to pay a pro rata share of the referee’s fee. CCP § 639(b)(6).

The court denies plaintiff Roy E. Stephenson’s Motion For Reconsideration of the Court’s Sua Sponte Order Appointing a Discovery Referee.