Lu v. Superior Court

• Decision Date: 19 June 1997
• Docket Number: No. G020650,G020650
• Citation: 64 Cal.Rptr.2d 561,55 Cal.App.4th 1264
• Parties: , 97 Cal. Daily Op. Serv. 4744, 97 Daily Journal D.A.R. 7763 Ken LU, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; GRAND LINCOLN VILLAGE HOMEOWNER ASSOCIATION, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 561

64 Cal.Rptr.2d 561

55 Cal.App.4th 1264, 97 Cal. Daily Op. Serv. 4744,

97 Daily Journal D.A.R. 7763

Ken LU, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent GRAND LINCOLN VILLAGE HOMEOWNER ASSOCIATION, Real Party in Interest.

No. G020650.

Court of Appeal, Fourth District, Division 3, California.

June 19, 1997.

[55 Cal.App.4th 1266] John A. Barthrop, Orange, for Petitioner.

Laurence M. Watson, County Counsel, and James L. Turner, Deputy County Counsel, for Respondent.

Silldorf, Burdman, Duignan & Eisenberg, Lawrence D. Duignan and Luke P. Ryan, San Diego, for Real Party in Interest.

RYLAARSDAM, Associate Justice.

We hold that under the California Standards of Judicial Administration for Complex Litigation (Cal. Stds. Jud. Admin., § 19; hereafter "complex litigation standard" or "the standard"), a trial court has authority to appoint a discovery referee, even in the absence

of a current discovery dispute. In such a complex case, the court also has authority to appoint the referee to conduct settlement conferences.

FACTS

This is a construction defect case with a large number of separately represented parties. The trial court determined the case was complex and should be dealt with under the complex litigation standard and issued a case management order. The order provides inter alia for the appointment of a discovery referee. In addition, the order appoints the referee "as Mediator in the case, to attempt to assist the parties in resolving it." The order further provides: "All mediation sessions are deemed to be Mandatory Settlement Conferences of this Court, ... As to discovery disputes, each party to the dispute shall contribute equally to the compensation of Referee, subject to a recommendation for reallocation of such expense, depending on the outcome of the matter as determined by the Referee" and "[T]he compensation of the Mediator shall be paid 1/3 by the Plaintiffs, 1/3 (divided pro rata) among the parties identified as Developer/General Contractor; and 1/3 (divided pro rata) among the remaining parties. The Mediator shall have the power to recommend a different allocation, depending upon the nature and purpose of the particular proceedings before him." All parties, except petitioner, agreed to the terms of the case management order and urged its adoption.

Petitioner contends the trial court lacked authority to appoint a discovery referee in the absence of a pending discovery dispute and lacked the authority to order petitioner to participate in a private mediation. We issued an alternative writ and heard argument.

DISCUSSION

The Case Management Order

Subdivision (c) of the complex litigation standard defines "complex litigation" as "those cases that require specialized management to avoid placing unnecessary burdens on the court or the litigants." The standard recognizes "[c]omplex litigation is not capable of precise definition" and "no particular criterion is controlling and each situation must be examined separately." (Cal.Stds.Jud.Admin., § 19, subd. (c).) The trial court's determination that this case fits the criteria for complex litigation under the standard is appropriate. So far, 10 parties are separately represented. The plaintiffs are a homeowners association, governing 42 units, and 200 fictitiously named homeowners who claim extensive construction defects to condominiums and their common areas. The defendants are the general contractor and subcontractors involved in the construction of the condominiums as well as petitioner, who is alleged to be the architect. The type of case here involved, a large construction defect case with many separately represented parties, presents case management problems which make it beneficial for the parties as well as the court to employ the level of case management contemplated by the complex litigation standard.

A useful tool, employed by many judges managing complex litigation, is the case management order. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, (The Rutter Group 1996) 12:438 et seq.) Such an order, preferably made very early in the litigation, lays out a clear path and timetable for the completion of all tasks necessary to ready the case for trial. Items typically covered in an order are: (1) provisions settling the pleadings or providing for alternatives to formal pleadings (e.g. the order may provide each defendant is deemed to have cross-complained against each of the other cross-defendants for contribution and indemnity, thus saving a great deal of paperwork); (2) provisions determining whether severance, consolidation, or coordination with other actions is desirable or providing for the early trial of separate issues; (3) a detailed discovery schedule or provisions for the creation of such a schedule, frequently with the assistance of a discovery referee appointed as part of the case management order; (4) protective orders; (5) special form interrogatories or other orders requiring all parties to disclose certain information, such as insurance coverage, specifics of damages claimed by plaintiffs and specifics of damages acknowledged A case management order assists trial judges in carrying out their responsibilities under the rules adopted by the Judicial Council pursuant to the Trial Court Delay Reduction Act (Gov.Code, § 68600 et seq.). A case which is classified as "complex" under the complex litigation standard will frequently also be exempt from the time standards contained in the differential case management rules adopted by the Judicial Council under a mandate of the Trial Court Delay Reduction Act. (Gov.Code, § 68603, subd. (c).) California Rules of Court, rule 2106, specifies factors the court must consider in determining whether the case should be exempted from these time standards. The presence of these factors also tends to qualify a case as "complex" under the complex litigation standard. Where a case is so exempted, rule 2105, subdivision (d) requires the court to "establish a case-progression plan and monitor the case to ensure timely disposition consistent with the exceptional circumstances, with a goal of disposition within three years." A detailed case management order satisfies this requirement for a "case-progression plan" and enables judges to comply with the requirement they "monitor the case to ensure timely disposition." Case management orders also permit trial judges to carry out their responsibilities under Government Code section 68607, subdivision (a), to "[a]ctively monitor, supervise and control the movement of all cases...."

by defendants; (6) arrangements for sequential settlement conferences or providing for a mediator to schedule and conduct such conferences; (7) appointment of liaison counsel to facilitate communication between court and counsel and between counsel; (8) provisions for the exchange of documents or the creation of a document depository together with orders for documents to be deposited into the depository without formal requests to produce; (9) creation of a master list of parties and attorneys with their addresses and phone numbers and provisions for keeping such a list current and in the possession of the court and all counsel; (10) provisions fixing the last date to bring in new parties; and (11) the date when the case will be at issue.

Appointment of a Discovery Referee

Complex cases invariably involve complex discovery disputes and, unless managed, a case with many separately represented parties has the potential for burdensome and duplicative discovery. It is therefore appropriate for the case management order to provide for the appointment of a discovery referee under Code of Civil Procedure section 639. Such a referee assists the trial judge in resolving discovery disputes. However, even in the unlikely absence of disputes, the referee will work with the attorneys in developing a discovery plan, scheduling discovery in the most efficient, rational and least oppressive manner. For example, the referee can establish a logical sequence for the taking of depositions and service of and responses to other discovery. In cases like this one, which typically require the parties to produce a large number of documents under the procedures provided by Code of Civil Procedure sections 2020 and 2031, the referee can also work with the attorneys to create a document depository, thus avoiding a great deal of work and duplication (in both senses of the word) in preparing and responding to document requests.

Although not directly applicable to this Orange County Superior Court case, the usefulness and propriety of the appointment of a discovery referee early in a multi-party construction defect case is illustrated by the provisions of the Los Angeles County Superior Court Manual on Multi-Party Construction Defect Litigation: "[T]he court may appoint a discovery referee, pursuant to Code of Civil Procedure section 639(e), to confer with counsel and recommend a discovery plan. Such appointment does not require agreement by the parties and the discovery referee will then be available to hear other discovery disputes that may arise." (Id. at p. 15.)

Petitioner's reliance on DeBlase v. Superior Court (1996) 41 Cal.App.4th 1279, 49 Cal.Rptr.2d 229, is misplaced. The two factual bases present in DeBlase are absent here. There, plaintiff, who objected to the appointment of the referee was indigent and As apparent from their support of the court's order, all parties, except petitioner, recognize the case management order and the use of a discovery referee will operate to their benefit and to the benefit of their clients in the form of greater efficiencies and cost savings in preparing the case for trial or settlement. During...