Preview
1 Fred Norton (SBN 224725)
fnorton@nortonlaw.com
2 Leah Judge (SBN 302406)
ljudge@nortonlaw.com
3 Emily Kirk (SBN 348547)
ekirk@nortonlaw.com
4 THE NORTON LAW FIRM PC
299 Third Street, Suite 200
5 Oakland, CA 94607
Phone: (510) 906-4900
6 Fax: (510) 906-4910
7 Attorneys for Defendants
and Cross-Complainants
8 LYNDON RIVE, NAPA B&B, LLC and
WHISPER HOMES, LLC
9
10 *Additional counsel listed on signature page
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF NAPA, CIVIL DIVISION
13
14 MARCUS KIRKWOOD, Case No. 23CV000634
15 Plaintiff, JOINT STATUS REPORT
16 v.
17 LYNDON RIVE; NAPA B&B, LLC; and
DOES 1-40,
18
Defendants.
19
20 LYNDON RIVE; NAPA B&B, LLC; and
WHISPER HOMES, LLC,
21
Cross-Complainants,
22
v.
23
MARCUS KIRKWOOD
24
Cross-Defendant
25
26
27
28
JOINT STATUS REPORT
CASE NO. 23CV000634
1 Plaintiff and Cross-Defendant Marcus Kirkwood and Defendants and Cross-Complainants
2 Lyndon Rive, Napa B&B, LLC, and Whisper Homes, LLC (together, “the Parties”) hereby submit this
3 joint status report to address the Parties’ efforts to meet and confer concerning the appointment of a
4 discovery referee.
5 On March 4, 2024, the Court issued a tentative ruling on Defendants’ Motion to Compel Further
6 Responses to Requests for Production of Documents Set One. The Court continued the hearing on
7 Defendants’ motion, stated that the Court was without sufficient judicial resources to decide it, and
8 directed the Parties to meet and confer concerning the appointment of a discovery referee. The Parties
9 appeared before the Court at the continued hearing on April 18, 2024, explaining that they had been
10 unable to reach agreement on the appointment of a referee. The Parties have continued to meet and
11 confer but remain unable to reach agreement.
12 The Parties met and conferred during a Zoom conference on May 15, 2024, and extensively via
13 email prior to that date. Although the Parties appear to agree that the Court should appoint a referee,
14 they have not been able to reach agreement on (1) the choice of referee; (2) the scope of the referee’s
15 appointment; or (3) the apportionment of costs. Each issue is addressed below.
16 I. Choice of Referee.
17 a. Defendants’ Position
18 Defendants propose appointing Katherine Gallo, an experienced discovery referee. Ms. Gallo
19 has been a discovery referee, special master, and mediator in Northern California since 1994. Ms. Gallo
20 is especially well known and well regarded for her discovery seminars, in house discovery training, and
21 a blog she has maintained for over a decade about discovery issues and developments under California
22 law, at https://www.resolvingdiscoverydisputes.com/. She has confirmed her availability to serve as a
23 discovery referee in this case.
24 Defendants and their counsel have no personal or professional relationship with Ms. Gallo. Fred
25 Norton, lead counsel for Defendants, briefly served as counsel in a matter more than five years ago in
26 which Ms. Gallo served as a discovery referee. Ms. Gallo had been selected as the referee prior to
27 Mr. Norton’s engagement in the matter and there was no formal motion practice before her, but
28 Mr. Norton found her to be very capable and knowledgeable. Ms. Gallo’s contact information is:
1
JOINT STATUS REPORT
CASE NO. 23CV000634
1 Katherine Gallo, Esq.
2 969G Edgewater Blvd., Suite 345
Foster City, CA 94404
3 (650) 571-1011
klgallo@discoveryreferee.com
4 CA SBN 124869
Discovery Referee / Special Master Rate: $525/hour
5
Plaintiff has objected to the appointment of Ms. Gallo solely on the basis of Mr. Norton’s limited
6
prior experience with her in a single matter. Defendants have no particular knowledge of Ms. Gallo’s
7
approach to discovery disputes, aside from her general competence and what she has published on her
8
blog, which is equally available to Plaintiff’s counsel.
9
Defendants object to the three discovery referees suggested by Plaintiff. In contrast to
10
Ms. Gallo’s focus on discovery and extensive published record on discovery matters, Plaintiffs’ three
11
nominees all appear to offer discovery referee services as a small part of a larger, diverse practice, and
12
appear to have no published articles or decisions related to discovery. Mr. White’s website bio
13
(https://montywhitelaw.com/matthewwhite-2/ ) describes him as an active trial lawyer as well as a
14
mediator, arbitrator, discovery referee and adjunct professor. Mr. Cripe’s website bio
15
(https://camsmediation.com/panelists/don-cripe/ ) describes him as a mediator in a broad range of cases
16
but does not mention discovery at all. Ms. Cusack is a solo practitioner whose varied practice appears to
17
focus on litigating personal injury and family law cases, with no discussion of discovery referee work in
18
particular on her website (https://cusack-law.com/).
19
b. Plaintiff’s Position
20
Plaintiff’s objection to the use of Ms. Gallo is based on the Defendants’ past use of Ms. Gallo
21
that arguably places them at an advantage as to the knowledge and familiarity with Ms. Gallo’s
22
approach to discovery disputes. Plaintiff contends that this advantage can be avoided by appointing a
23
discovery master that neither party has worked with. Also with Ms. Gallo there is a strong indication in
24
her publications that she has promoted herself as a strategic advisor to attorneys interested in obtaining
25
more discovery in situations where there may be a need for the imposition of discretional limits. On at
26
least as to an issue that may be a focal point in this case, i.e., the use of discovery and depositions to
27
obtain information on a person’s felony history, she appears to endorse an aggressive approach that
28
2
JOINT STATUS REPORT
CASE NO. 23CV000634
1 states: “The more time spent on the felony conviction the better.”
2 https://www.resolvingdiscoverydisputes.com/depositions/cross-examination-charcter-evidence/ This is
3 disconcerting due to concerns that discovery concerning a partnership dispute might be overwhelmed by
4 undo emphasis on the circumstances of a felony criminal history involving marijuana that ended over 10
5 years ago. While Plaintiff does not impugn her background as a strategic commentator, Plaintiff is not
6 confident that she will be able to appreciate and apply discovery limitations in a case like this. Plaintiff
7 submitted the names of the following individuals to Defendants on April 16, 2024 (with direct access
8 phone numbers) and believes they are capable and experienced in addressing discovery disputes through
9 court appointment. Plaintiff has personally interviewed the following candidates only as to their
10 experiential history, has not discussed their views on any particular discovery issue. Plaintiff does not
11 agree that they are inexperienced in the supervision of discovery disputes.
12 Matthew White, Esq.
13 1000 Fourth Street, Ste. 425
San Rafael, CA 94901
14 (415) 226 4040
mwhite@montywhitelaw.com
15 Special Master rate $600/hour.
16 Served as discovery referee at Resolution Remedies for past 15 years, assumed Marin Couty
17 Superior Court numerous assignments as discovery referee “pro bono,” served as Judge Pro-Tem for
18 San Francisco and Marin courts for 20 years, Past Chair and President of Marin County Human Rights
19 Commission, President of Marin Trial Lawyers Association, Adjunct Professor Civil Procedure at the
20 University of San Francisco School of Law since 2012, Recognized as Northern California Super
21 Lawyer for 18 years.
Don Cripe, Esq.
22
10214 Foothill Blvd.
23 Rancho Cucamonga, CA 91730
(951) 830 9629, (909) 864 5156
24 doncripe@camsmediation.com
Special Master rate: $500/hour
25
26 Since 2010, 100 percent of his practice has been in ADR and Special Master work, casework
27 places emphasis on business disputes and business dissolution, is very familiar with documents intensive
28 cases, very familiar with discovery issues arising in complex cases.
3
JOINT STATUS REPORT
CASE NO. 23CV000634
Katrin Cusack, Esq.
1 111 Deerwood Road, Suite 200
2 San Ramon, CA 94583
(925) 786 5455
3 https://cusack-law.com/
Special Master Rate: $450/hour
4
5 Served as discovery dispute facilitator and referee for the Superior Court in Contra Costa County
6 for over 10 years and has served as discovery referee in 100s of cases, familiar with the use of discovery
7 in complex litigation, business disputes, dissolutions and contract disputes, is deeply familiar with the
8 oversight and management of discovery phase of litigation, and claims a special ability to diffuse and
9 avoid the escalation of controversy.
10 II. Scope of Appointment.
11 a. Defendants’ Position
12 Defendants propose appointing a referee to handle all pending and future discovery disputes,
13 preserving the right to judicial review of the referee’s decisions. To increase efficiency and reduce
14 costs, Defendants also propose stipulating to waive certain more burdensome requirements of the Code,
15 including the requirement to submit separate statements in connection with motions to compel.
16 There are currently two pending discovery disputes. First, the Court has not ruled on
17 Defendants’ Motion to Compel Further Responses to Requests for Production of Documents Set One.
18 Defendants filed this motion on January 31, 2024. Defendants wish to submit this Motion in its entirety
19 to a discovery referee. Plaintiff disagrees, believing that there is less in dispute between the Parties. He
20 has proposed narrowing the issues to be decided by the referee before the matter is referred to the
21 referee. Defendants rejected this proposal, stating their position that Plaintiff is free to suggest to the
22 referee, by letter brief or other informal process, that the remaining issues to be decided are narrower
23 than the original motion and the parties will proceed as the referee directs. Plaintiff rejects this proposal
24 and apparently is seeking to have the Court refer only discrete portions of the January 31, 2024 motion
25 to the referee.
26 The second dispute concerns the sequence of the depositions of Plaintiff Marcus Kirkwood and
27 Defendant Lyndon Rive. The parties have agreed to submit this dispute to a discovery referee.
28
4
JOINT STATUS REPORT
CASE NO. 23CV000634
1 Discovery is ongoing and Defendants anticipate that there will be additional disputes for a
2 referee to resolve.
3 b. Plaintiff’s Position
4 As to Defendants’ pending motion to compel, Plaintiff contends that Defendants’ offer to refer
5 their motion to a referee in unaltered form, subject to an uncertain conferral process is not sufficient.
6 Plaintiff believes that the nature of the dispute was significantly overstated and that a conferral over the
7 remaining issues is necessary before submission to the referee so that the Court may impose time and
8 cost parameters required of the Court under Code of Civil Procedure Section 639(d)(D)(5). Plaintiff also
9 contends that the pending motion did not benefit from the kind of supervised conferral process that
10 would have resulted in the simplification of the remaining issues in dispute before its submittal for
11 adjudication. Plaintiff believes that if Defendants opt to avoid this conferral, they should incur all the
12 cost of their pending motion.
13 Plaintiff further expresses concern that a division of cost on a 50/50 basis on future matters
14 makes him vulnerable to an abuse of the discovery process designed to place an undue burden on
15 Plaintiff, who has very few personal assets, thereby activating an apportionment of cost pursuant to CCP
16 639(d)(6)(B). Plaintiff therefore agrees to proceed with a referee on a 50/50 basis but reserves the right
17 to adjust the allocation at a later date if the costs become onerous.
18 Plaintiff’s perception of the issues remaining on the existing discovery dispute are as follows: (1)
19 whether a document request asking for documents “relied on” for all claims and defenses is overbroad
20 and/or intrudes on work product; (2) whether Plaintiff’s proposed interpretation of the term “sufficient to
21 show” should be modified; and (3) whether and how Plaintiff should respond to document requests
22 premised on an assertion of fact with which Plaintiff disagrees.
23 The second dispute concerns the sequence of the depositions of Plaintiff Marcus Kirkwood and
24 Defendant Lyndon Rive. The parties have agreed to submit this dispute to a discovery referee.
25 III. Apportionment of Cost.
26 a. Defendants’ Position
27 Defendants believe that the cost of the referee should be split equally. This equal division
28 applies to both pending and future disputes.
5
JOINT STATUS REPORT
CASE NO. 23CV000634
1 b. Plaintiff’s Position
2 Plaintiff believes that absent conferral simplifying the issues to be decided, Defendants should
3 bear the cost of deciding the pending motion. Plaintiff otherwise agrees to share future costs 50/50
4 unless circumstances later indicate a need to adjust or apportion cost. In the event that Plaintiff seeks to
5 change the apportionment from 50/50, the parties agree that he must do so by noticed motion to the
6 Court.
7
8
9
10 Dated: May 21, 2024 Respectfully submitted,
11 THE NORTON LAW FIRM PC
12 /s/ Leah Judge
Fred Norton
13 Leah Judge
Attorneys for Defendants
14 and Cross-Complainants
LYNDON RIVE
15
NAPA B&B, LLC
16 WHISPER HOMES, LLC
17
LEVIN SITCOFF WANEKA PC
18
19 /s/ Peter G. Friesen
Dated: May 21, 2024 Bradley A. Levin
20 Peter G. Friesen
Attorneys for Plaintiff, MARCUS KIRKWOOD
21 LEVIN SITCOFF WANEKA PC
455 Sherman St., Ste. 490
22 Denver, CO 80203
23 Telephone: (303) 575-9390
Fax : (303) 575-9385
24 Email: brad@lsw-legal.com
peter@lsw-legal.com
25
26
27
28
6
JOINT STATUS REPORT
CASE NO. 23CV000634
1 PROOF OF SERVICE
I am employed in the City of Oakland, State of California. I am over 18 years of age and not a
2 party to this action. My business address is 299 Third Street, Oakland, California 94607. On the date
below, I served a true copy of the following document(s):
3
4 JOINT STATUS REPORT
5
BY EMAIL or ELECTRONIC TRANSMISSION: Based on a court order or an
6 ☒ agreement of the parties to accept service by e-mail or electronic transmission, I caused the
7 documents to be sent to the persons at the e-mail addresses listed below. I did not receive,
within a reasonable period of time, after the transmission, any electronic message or other
8 indication that the transmission was unsuccessful.
9
Bradley A. Levin
10 Peter G. Friesen
Attorneys for Plaintiff, MARCUS KIRKWOOD
11
LEVIN SITCOFF WANEKA PC
12 455 Sherman St., Ste. 490
Denver, CO 80203
13 Telephone: (303) 575-9390
Fax : (303) 575-9385
14 Email: brad@lsw-legal.com
peter@lsw-legal.com
15
I declare under penalty of perjury under the laws of the State of California that the foregoing is
16 true and correct.
17
Dated: May 22, 2024 /s/ Diana Abad
18 Diana Abad
19
20
21
22
23
24
25
26
27
28
7
JOINT STATUS REPORT
CASE NO. 23CV000634
Preview
1 Fred Norton (SBN 224725) fnorton@nortonlaw.com 2 Leah Judge (SBN 302406) ljudge@nortonlaw.com 3 Emily Kirk (SBN 348547) ekirk@nortonlaw.com 4 THE NORTON LAW FIRM PC 299 Third Street, Suite 200 5 Oakland, CA 94607 Phone: (510) 906-4900 6 Fax: (510) 906-4910 7 Attorneys for Defendants and Cross-Complainants 8 LYNDON RIVE, NAPA B&B, LLC and WHISPER HOMES, LLC 9 10 *Additional counsel listed on signature page 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF NAPA, CIVIL DIVISION 13 14 MARCUS KIRKWOOD, Case No. 23CV000634 15 Plaintiff, JOINT STATUS REPORT 16 v. 17 LYNDON RIVE; NAPA B&B, LLC; and DOES 1-40, 18 Defendants. 19 20 LYNDON RIVE; NAPA B&B, LLC; and WHISPER HOMES, LLC, 21 Cross-Complainants, 22 v. 23 MARCUS KIRKWOOD 24 Cross-Defendant 25 26 27 28 JOINT STATUS REPORT CASE NO. 23CV000634 1 Plaintiff and Cross-Defendant Marcus Kirkwood and Defendants and Cross-Complainants 2 Lyndon Rive, Napa B&B, LLC, and Whisper Homes, LLC (together, “the Parties”) hereby submit this 3 joint status report to address the Parties’ efforts to meet and confer concerning the appointment of a 4 discovery referee. 5 On March 4, 2024, the Court issued a tentative ruling on Defendants’ Motion to Compel Further 6 Responses to Requests for Production of Documents Set One. The Court continued the hearing on 7 Defendants’ motion, stated that the Court was without sufficient judicial resources to decide it, and 8 directed the Parties to meet and confer concerning the appointment of a discovery referee. The Parties 9 appeared before the Court at the continued hearing on April 18, 2024, explaining that they had been 10 unable to reach agreement on the appointment of a referee. The Parties have continued to meet and 11 confer but remain unable to reach agreement. 12 The Parties met and conferred during a Zoom conference on May 15, 2024, and extensively via 13 email prior to that date. Although the Parties appear to agree that the Court should appoint a referee, 14 they have not been able to reach agreement on (1) the choice of referee; (2) the scope of the referee’s 15 appointment; or (3) the apportionment of costs. Each issue is addressed below. 16 I. Choice of Referee. 17 a. Defendants’ Position 18 Defendants propose appointing Katherine Gallo, an experienced discovery referee. Ms. Gallo 19 has been a discovery referee, special master, and mediator in Northern California since 1994. Ms. Gallo 20 is especially well known and well regarded for her discovery seminars, in house discovery training, and 21 a blog she has maintained for over a decade about discovery issues and developments under California 22 law, at https://www.resolvingdiscoverydisputes.com/. She has confirmed her availability to serve as a 23 discovery referee in this case. 24 Defendants and their counsel have no personal or professional relationship with Ms. Gallo. Fred 25 Norton, lead counsel for Defendants, briefly served as counsel in a matter more than five years ago in 26 which Ms. Gallo served as a discovery referee. Ms. Gallo had been selected as the referee prior to 27 Mr. Norton’s engagement in the matter and there was no formal motion practice before her, but 28 Mr. Norton found her to be very capable and knowledgeable. Ms. Gallo’s contact information is: 1 JOINT STATUS REPORT CASE NO. 23CV000634 1 Katherine Gallo, Esq. 2 969G Edgewater Blvd., Suite 345 Foster City, CA 94404 3 (650) 571-1011 klgallo@discoveryreferee.com 4 CA SBN 124869 Discovery Referee / Special Master Rate: $525/hour 5 Plaintiff has objected to the appointment of Ms. Gallo solely on the basis of Mr. Norton’s limited 6 prior experience with her in a single matter. Defendants have no particular knowledge of Ms. Gallo’s 7 approach to discovery disputes, aside from her general competence and what she has published on her 8 blog, which is equally available to Plaintiff’s counsel. 9 Defendants object to the three discovery referees suggested by Plaintiff. In contrast to 10 Ms. Gallo’s focus on discovery and extensive published record on discovery matters, Plaintiffs’ three 11 nominees all appear to offer discovery referee services as a small part of a larger, diverse practice, and 12 appear to have no published articles or decisions related to discovery. Mr. White’s website bio 13 (https://montywhitelaw.com/matthewwhite-2/ ) describes him as an active trial lawyer as well as a 14 mediator, arbitrator, discovery referee and adjunct professor. Mr. Cripe’s website bio 15 (https://camsmediation.com/panelists/don-cripe/ ) describes him as a mediator in a broad range of cases 16 but does not mention discovery at all. Ms. Cusack is a solo practitioner whose varied practice appears to 17 focus on litigating personal injury and family law cases, with no discussion of discovery referee work in 18 particular on her website (https://cusack-law.com/). 19 b. Plaintiff’s Position 20 Plaintiff’s objection to the use of Ms. Gallo is based on the Defendants’ past use of Ms. Gallo 21 that arguably places them at an advantage as to the knowledge and familiarity with Ms. Gallo’s 22 approach to discovery disputes. Plaintiff contends that this advantage can be avoided by appointing a 23 discovery master that neither party has worked with. Also with Ms. Gallo there is a strong indication in 24 her publications that she has promoted herself as a strategic advisor to attorneys interested in obtaining 25 more discovery in situations where there may be a need for the imposition of discretional limits. On at 26 least as to an issue that may be a focal point in this case, i.e., the use of discovery and depositions to 27 obtain information on a person’s felony history, she appears to endorse an aggressive approach that 28 2 JOINT STATUS REPORT CASE NO. 23CV000634 1 states: “The more time spent on the felony conviction the better.” 2 https://www.resolvingdiscoverydisputes.com/depositions/cross-examination-charcter-evidence/ This is 3 disconcerting due to concerns that discovery concerning a partnership dispute might be overwhelmed by 4 undo emphasis on the circumstances of a felony criminal history involving marijuana that ended over 10 5 years ago. While Plaintiff does not impugn her background as a strategic commentator, Plaintiff is not 6 confident that she will be able to appreciate and apply discovery limitations in a case like this. Plaintiff 7 submitted the names of the following individuals to Defendants on April 16, 2024 (with direct access 8 phone numbers) and believes they are capable and experienced in addressing discovery disputes through 9 court appointment. Plaintiff has personally interviewed the following candidates only as to their 10 experiential history, has not discussed their views on any particular discovery issue. Plaintiff does not 11 agree that they are inexperienced in the supervision of discovery disputes. 12 Matthew White, Esq. 13 1000 Fourth Street, Ste. 425 San Rafael, CA 94901 14 (415) 226 4040 mwhite@montywhitelaw.com 15 Special Master rate $600/hour. 16 Served as discovery referee at Resolution Remedies for past 15 years, assumed Marin Couty 17 Superior Court numerous assignments as discovery referee “pro bono,” served as Judge Pro-Tem for 18 San Francisco and Marin courts for 20 years, Past Chair and President of Marin County Human Rights 19 Commission, President of Marin Trial Lawyers Association, Adjunct Professor Civil Procedure at the 20 University of San Francisco School of Law since 2012, Recognized as Northern California Super 21 Lawyer for 18 years. Don Cripe, Esq. 22 10214 Foothill Blvd. 23 Rancho Cucamonga, CA 91730 (951) 830 9629, (909) 864 5156 24 doncripe@camsmediation.com Special Master rate: $500/hour 25 26 Since 2010, 100 percent of his practice has been in ADR and Special Master work, casework 27 places emphasis on business disputes and business dissolution, is very familiar with documents intensive 28 cases, very familiar with discovery issues arising in complex cases. 3 JOINT STATUS REPORT CASE NO. 23CV000634 Katrin Cusack, Esq. 1 111 Deerwood Road, Suite 200 2 San Ramon, CA 94583 (925) 786 5455 3 https://cusack-law.com/ Special Master Rate: $450/hour 4 5 Served as discovery dispute facilitator and referee for the Superior Court in Contra Costa County 6 for over 10 years and has served as discovery referee in 100s of cases, familiar with the use of discovery 7 in complex litigation, business disputes, dissolutions and contract disputes, is deeply familiar with the 8 oversight and management of discovery phase of litigation, and claims a special ability to diffuse and 9 avoid the escalation of controversy. 10 II. Scope of Appointment. 11 a. Defendants’ Position 12 Defendants propose appointing a referee to handle all pending and future discovery disputes, 13 preserving the right to judicial review of the referee’s decisions. To increase efficiency and reduce 14 costs, Defendants also propose stipulating to waive certain more burdensome requirements of the Code, 15 including the requirement to submit separate statements in connection with motions to compel. 16 There are currently two pending discovery disputes. First, the Court has not ruled on 17 Defendants’ Motion to Compel Further Responses to Requests for Production of Documents Set One. 18 Defendants filed this motion on January 31, 2024. Defendants wish to submit this Motion in its entirety 19 to a discovery referee. Plaintiff disagrees, believing that there is less in dispute between the Parties. He 20 has proposed narrowing the issues to be decided by the referee before the matter is referred to the 21 referee. Defendants rejected this proposal, stating their position that Plaintiff is free to suggest to the 22 referee, by letter brief or other informal process, that the remaining issues to be decided are narrower 23 than the original motion and the parties will proceed as the referee directs. Plaintiff rejects this proposal 24 and apparently is seeking to have the Court refer only discrete portions of the January 31, 2024 motion 25 to the referee. 26 The second dispute concerns the sequence of the depositions of Plaintiff Marcus Kirkwood and 27 Defendant Lyndon Rive. The parties have agreed to submit this dispute to a discovery referee. 28 4 JOINT STATUS REPORT CASE NO. 23CV000634 1 Discovery is ongoing and Defendants anticipate that there will be additional disputes for a 2 referee to resolve. 3 b. Plaintiff’s Position 4 As to Defendants’ pending motion to compel, Plaintiff contends that Defendants’ offer to refer 5 their motion to a referee in unaltered form, subject to an uncertain conferral process is not sufficient. 6 Plaintiff believes that the nature of the dispute was significantly overstated and that a conferral over the 7 remaining issues is necessary before submission to the referee so that the Court may impose time and 8 cost parameters required of the Court under Code of Civil Procedure Section 639(d)(D)(5). Plaintiff also 9 contends that the pending motion did not benefit from the kind of supervised conferral process that 10 would have resulted in the simplification of the remaining issues in dispute before its submittal for 11 adjudication. Plaintiff believes that if Defendants opt to avoid this conferral, they should incur all the 12 cost of their pending motion. 13 Plaintiff further expresses concern that a division of cost on a 50/50 basis on future matters 14 makes him vulnerable to an abuse of the discovery process designed to place an undue burden on 15 Plaintiff, who has very few personal assets, thereby activating an apportionment of cost pursuant to CCP 16 639(d)(6)(B). Plaintiff therefore agrees to proceed with a referee on a 50/50 basis but reserves the right 17 to adjust the allocation at a later date if the costs become onerous. 18 Plaintiff’s perception of the issues remaining on the existing discovery dispute are as follows: (1) 19 whether a document request asking for documents “relied on” for all claims and defenses is overbroad 20 and/or intrudes on work product; (2) whether Plaintiff’s proposed interpretation of the term “sufficient to 21 show” should be modified; and (3) whether and how Plaintiff should respond to document requests 22 premised on an assertion of fact with which Plaintiff disagrees. 23 The second dispute concerns the sequence of the depositions of Plaintiff Marcus Kirkwood and 24 Defendant Lyndon Rive. The parties have agreed to submit this dispute to a discovery referee. 25 III. Apportionment of Cost. 26 a. Defendants’ Position 27 Defendants believe that the cost of the referee should be split equally. This equal division 28 applies to both pending and future disputes. 5 JOINT STATUS REPORT CASE NO. 23CV000634 1 b. Plaintiff’s Position 2 Plaintiff believes that absent conferral simplifying the issues to be decided, Defendants should 3 bear the cost of deciding the pending motion. Plaintiff otherwise agrees to share future costs 50/50 4 unless circumstances later indicate a need to adjust or apportion cost. In the event that Plaintiff seeks to 5 change the apportionment from 50/50, the parties agree that he must do so by noticed motion to the 6 Court. 7 8 9 10 Dated: May 21, 2024 Respectfully submitted, 11 THE NORTON LAW FIRM PC 12 /s/ Leah Judge Fred Norton 13 Leah Judge Attorneys for Defendants 14 and Cross-Complainants LYNDON RIVE 15 NAPA B&B, LLC 16 WHISPER HOMES, LLC 17 LEVIN SITCOFF WANEKA PC 18 19 /s/ Peter G. Friesen Dated: May 21, 2024 Bradley A. Levin 20 Peter G. Friesen Attorneys for Plaintiff, MARCUS KIRKWOOD 21 LEVIN SITCOFF WANEKA PC 455 Sherman St., Ste. 490 22 Denver, CO 80203 23 Telephone: (303) 575-9390 Fax : (303) 575-9385 24 Email: brad@lsw-legal.com peter@lsw-legal.com 25 26 27 28 6 JOINT STATUS REPORT CASE NO. 23CV000634 1 PROOF OF SERVICE I am employed in the City of Oakland, State of California. I am over 18 years of age and not a 2 party to this action. My business address is 299 Third Street, Oakland, California 94607. On the date below, I served a true copy of the following document(s): 3 4 JOINT STATUS REPORT 5 BY EMAIL or ELECTRONIC TRANSMISSION: Based on a court order or an 6 ☒ agreement of the parties to accept service by e-mail or electronic transmission, I caused the 7 documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable period of time, after the transmission, any electronic message or other 8 indication that the transmission was unsuccessful. 9 Bradley A. Levin 10 Peter G. Friesen Attorneys for Plaintiff, MARCUS KIRKWOOD 11 LEVIN SITCOFF WANEKA PC 12 455 Sherman St., Ste. 490 Denver, CO 80203 13 Telephone: (303) 575-9390 Fax : (303) 575-9385 14 Email: brad@lsw-legal.com peter@lsw-legal.com 15 I declare under penalty of perjury under the laws of the State of California that the foregoing is 16 true and correct. 17 Dated: May 22, 2024 /s/ Diana Abad 18 Diana Abad 19 20 21 22 23 24 25 26 27 28 7 JOINT STATUS REPORT CASE NO. 23CV000634