DeBlase v. Superior Court

• Decision Date: 17 January 1996
• Docket Number: No. B092526,B092526
• Citation: 49 Cal.Rptr.2d 229,41 Cal.App.4th 1279
• Court: California Court of Appeals Court of Appeals
• Parties: Josefa DeBLASE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; HOFFMAN BROTHERS, INC., Real Party in Interest.

Page 229

49 Cal.Rptr.2d 229

41 Cal.App.4th 1279

Josefa DeBLASE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

HOFFMAN BROTHERS, INC., Real Party in Interest.

No. B092526.

Court of Appeal, Second District, Division 4, California.

Jan. 17, 1996.

Steven B. Stevens, Watkins & Stevens, Arnold W. Schwartz, and Mazursky, Schwartz & Angelo, Los Angeles, for Petitioner.

No appearance for Respondent.

Edmund G. Farrell III and Murchison & Cumming, Los Angeles, for Real Party in Interest.

KLEIN, Associate Justice. ^*

Josefa DeBlase petitions for a peremptory writ of mandate after the trial court referred a discovery motion to a private referee over her objection that she could not afford to pay any portion of the referee's fee.

Petitioner was injured at work while using a power press. She received workers' compensation benefits and sued both the distributor and the manufacturer of the press.

Hoffman Brothers, Inc., an Illinois firm, was the distributor. J. Sandt Aktiengesellschaft, a German firm, was the manufacturer. In 1970 Sandt had sold the press to Hoffman, F.O.B. Hamburg.

Hoffman answered petitioner's complaint. Sandt specially appeared to contest personal jurisdiction. Petitioner obtained a continuance of the hearing to undertake discovery concerning the jurisdiction issue.

Petitioner served documents requests on both defendants. She asked for all purchase orders, invoices, bills of lading, catalogs, advertisements, and correspondence related to Sandt power presses of any model, anywhere in the world, for a 28-year period.

Hoffman objected to these requests as broad, vague, ambiguous, irrelevant, burdensome, and oppressive; it produced nothing. The usual ensuant exchange of rude letters was unfruitful. Petitioner filed a motion to compel further responses. At the hearing, the trial court asked the parties' views on a reference. Petitioner's counsel said, "my client can't afford a discovery referee." Petitioner agreed that the discovery dispute would require considerable study. Petitioner suggested the trial court postpone the hearing until it could find the necessary time. She also alerted the court that a similar motion to compel, brought against Sandt, was scheduled in the same court in three weeks. Hoffman said it had no doubt that petitioner lacked funds, but argued the unfairness of shifting the burden of petitioner's litigation costs to the defense just because the latter was better financed.

The court ruled that it would appoint a referee, with the amount and apportionment of fees to be determined by the court after hearing the referee's recommendation in that regard.

This petition followed. We invited oral argument because of the importance to litigants and the bar of this recurring problem.

I.

We will review the applicable statutes, rules, and cases. Government Code section 68511.3 directed the Judicial Council to adopt uniform rules of court for litigants proceeding in forma pauperis. Such rules must protect the confidentiality of the financial information provided to the court by these litigants.

The result was rule 985. It provides that every litigant granted leave to proceed in forma pauperis is excused from paying clerk's fees for filing, issuance of process, photocopying, and certain other items. (Rule 985(i).) It provides that the court may decide to waive certain additional fees, such as jury fees and fees of court-appointed experts. (Rule 985(j).)

Code of Civil Procedure section 639, subdivision (e), empowers the court, acting with or without the parties' consent, to appoint a referee to hear discovery disputes and report findings and recommendations to the court. Sections 645.1 and 1023 authorize the court to determine the referee's fee and to order the parties to pay it "in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties."

Rules 244.2(a) and 244.2(e)(4) restate the superior court's obligation to determine the fee allocation and authorize the court to consider the referee's recommendation thereon. Rule 532.2 does the same for municipal courts.

There are two cases. In Solorzano v. Superior Court (1993) 18 Cal.App.4th 603, 22 Cal.Rptr.2d 401, the three plaintiffs had been granted leave to proceed in forma pauperis. The trial court, at the time of the discovery reference, ordered the parties to share the fee equally, over plaintiffs' objection. Later, when informed of the availability of a highly qualified referee to serve pro bono, the trial court did not relent. The court of appeal ruled that because requiring an indigent litigant to pay part of a referee's fee is not "fair and reasonable" within the meaning of section 645.1, the trial court must find another means to resolve the discovery dispute. It suggested a trial court facing such a situation handle the dispute itself without assistance, or appoint a referee willing to serve without compensation or a retired judge sitting on assignment (and paid by the public).

In McDonald v. Superior Court (1994) 22 Cal.App.4th 364, 27 Cal.Rptr.2d 310, a plaintiff, though not proceeding in forma pauperis, pronounced herself penurious under penalty of perjury. The trial court ordered that the parties bear the referee's fee equally, subject to readjustment after it received the referee's recommendation thereon. The court of appeal held the trial court abused its discretion by failing to consider plaintiff's impecuniousness in making its order. It directed the trial court to consider, in determining how the referee's fees should be paid, the financial impact on the plaintiff. It said it was holding "that whenever the issue of economic hardship is raised before the commencement of the referee's work, the referring court must determine a fair and reasonable apportionment of reference costs before issuing its order." (22 Cal.App.4th at p. 370, 27 Cal.Rptr.2d 310.)

II.

We will address some of the questions Solorzano and McDonald left unanswered.

First, in considering a litigant's indigence in connection with a possible discovery reference, a trial court has the flexibility, if it wishes, to accept counsel's representations, without requiring a written or spoken declaration, documentary evidence, or an application to proceed in forma pauperis, unless the court has reason to suspect the representations are inaccurate. Certainly, if counsel has reason to anticipate that a reference may be contemplated, counsel should bring a declaration to court. But the court is not required to insist on formal proof of indigence if it is convinced such proof is unnecessary, for every needless continuance of a discovery hearing inflicts unwarranted delay, inconvenience, and expense on the court and the parties. (See Solorzano at p. 615, 22 Cal.Rptr.2d 401 [courts should be mindful of the economic burden of references on nonindigent parties of modest means].)

Second, in those cases where a party claims indigence, a trial court should be prepared to devote more of its own time studying the merits of a discovery dispute than it otherwise would. This approach will help assure access to the judicial process, as well as addressing a public perception that discovery disputes are sometimes referred automatically, without due evaluation of the necessity for the reference and its impact on the parties. (Solorzano at p. 615, 22 Cal.Rptr.2d 401; see "Litigation Section Survey on Los Angeles Superior Court References," in Los Angeles County Bar Association Litigation Section Newsletter (Winter 1994).) Certain patterns of discovery disputes are especially appropriate for references, such as claims of privilege requiring sifting through numerous documents, depositions requiring the presence of a neutral presiding officer, ongoing discovery disputes; and cases where all parties desire a reference. On the other hand, many discovery disputes, on modest examination, prove more voluminous than complex, and these should not routinely be sent to private referees.

Third, in this connection, a court should consider whether factors apart from the merits may simplify the task of deciding the discovery motion properly. In the present case, for example, two such factors warranted the court's attention. Petitioner's motion to compel Sandt to produce the same documents was already pending, so it might have been expedient to postpone action on the Hoffman motion in order to hear and decide the two motions together. Also, a cursory inspection of the motion would have revealed that the parties had made no serious informal attempt to discuss whether Hoffman might be willing to produce some documents without court intervention. (See Code Civ.Proc., § 2031, subd. (l ) [every motion to compel must be accompanied by a declaration stating facts showing the moving party's reasonable and good faith attempt at an informal resolution of the issue].)

Fourth, in exercising its discretion how to handle a discovery dispute in which a reference appears appropriate,...