Litigant’s Claims Of Inability To Pay Was Not Adequately Documented And Raised Too Late.
In Duran v. Atlantic Memorial Hospital Associates, Inc., Case No. B286660 (2d Dist., Div. 7 Apr. 8, 2020) (unpublished), a litigant was ordered to bear 50% of a discovery referee’s costs. CCP § 639(a)(5) does allow a trial court to apportion a referee’s costs, modified by the condition that it must also gauge whether the party has the economic ability to pay under § 639(d)(6)(A). It is an abuse of discretion for the lower court to not consider inability to pay in this area of the law. (McDonald v. Superior Court, 22 Cal.App.4th 364, 370 (1994).). The appellate court determined there was no abuse of discretion in the discovery referee fee apportionment, given that the appealing litigant did not specify the limited funds available to the party and given that the litigant waited way down the line to claim financial distress, which was a credibility issue for the lower court to weigh against the litigant.
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