Judge: Anne Hwang, Case: 21STCV24369, Date: 2023-11-16 Tentative Ruling

Case Number: 21STCV24369    Hearing Date: November 16, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

Plaintiff Eric Schiffer (Plaintiff) alleges that he was injured after a staircase collapsed on property he was leasing from Defendants William Chais as Trustee of the William and Wrenn Chais 1994 Trust; and Wrenn Chais, as Trustee of the William and Wrenn Chais Trust 1994 (Defendants). Plaintiff served a demand for inspection of the subject premises and staircase.  

 Defendants now move for a protective order to prohibit inspection entirely, or in the alternative, limit the scope to the subject staircase where Plaintiff fell and require any person inspecting to sign a liability waiver. Plaintiff opposes and Defendants reply.

LEGAL STANDARD

Under Code of Civil Procedure section 2017.020 courts “shall limit the scope of discovery if” the court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.) The “motion shall be accompanied by a meet and confer declaration.” (Id.) The party seeking the protective order has the burden to show that good cause exists to grant the protective order. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Similarly, courts must restrict the frequency or extent of a discovery method such as a demand for inspection if it determines either of the following:

“(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.

(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc. § 2019.030.) This can be done by moving for a protective order.

Additionally, discovery can be limited if it infringes on the right of privacy. “The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. [Citation omitted.] In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation omitted.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [citation omitted].” (Williams v. Superior Court (2017) 3 Cal.5th 531, 533 [citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35].)

MEET AND CONFER

The Court finds that Defendants have complied with the meet and confer requirements by attempting to informally resolve the issue. (Ortiz Decl. ¶ 3–4.)

DISCUSSION

The demand for inspection “requests entry to the premises located at 19232 Pacific Coast Highway, Malibu, California, for the purpose of inspecting, photographing, measuring, surveying, and mapping the house and staircase leading from the house to the beach. No destructive testing will occur during the inspection.” (Ortiz Decl. ¶ 2, Exh. A.)

Plaintiff argues that he has agreed to limit inspection to the subject stairwell, staircase, and landing; and require inspectors to sign a waiver of liability. (Opp., 1.)

Therefore, the remaining issue is whether the Court should limit inspection of the staircase entirely. Defendants contend that the subject staircase was repaired and replaced after the incident. (Motion, 5.) Therefore, since the incident occurred in July 2019, any inspection would rely on speculation to ascertain the previous condition of the property. They also argue that the information can be sought through less intrusive means, such as written discovery or depositions.

Plaintiff seeks to measure the “dimensions of the staircase, the distance he fell, and the width of the stairwell (which has not been altered), the handrail (which has not been altered), and, the landing to which the staircase is attached (which has not been altered).” (Opp., 2.) As a result, it appears there may be aspects of the staircase that are in its original condition. Defendants’ counsel only declared that the subject stairs were replaced, but not the entire staircase. (See Ortiz Decl. ¶ 5.) Still, even if fully repaired, inspection of the staircase appears to be reasonably calculated to lead to evidence regarding the distance that Plaintiff fell. Additionally, this inspection, which Plaintiff estimates will take two or three hours, appears less intrusive, and as a result, does not outweigh the likelihood that it will lead to admissible evidence. Defendant also fails to show how this inspection is duplicative of other discovery that Plaintiff possesses.

In addition, Defendant mainly argues a right of privacy in connection to inspecting the entire property. Now that Plaintiff has agreed to limit inspection to the external staircase leading from the house to the beach, the privacy interest is lessened. In any event, Defendant never discussed the Hill factors with regard to this outdoor and limited inspection. Therefore, the Court overrules the privacy objection.

The motion therefore is granted limiting inspection to the subject stairwell, staircase, and landing and requiring any inspectors on-site to sign a waiver of liability.

Sanctions are mandatory against the party that unsuccessfully makes or opposes a motion for a protective order unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. §§ 2017.020 (b); 2019.030 (c).) Here, neither party seeks sanctions. The Court finds that the parties had a legitimate dispute and therefore the imposition of sanctions would be unjust.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendants’ Motion for Protective Order in part.

Defendants to provide notice and file a proof of service of such.