Judge Donald F. Gaffney, Case Kress v. Turtle Rock Terrace Community Association 2022-09-07 Tentative Ruling

Judge: Donald F. Gaffney, Case: Kress v. Turtle Rock Terrace Community Association, Date: 2022-09-07 Tentative Ruling

TENTATIVE RULING:

Motion for Leave to Conduct Discovery

Defendant/Cross-Complainant Turtle Rock Terrace Community Association (the “Association”) moves for leave to conduct intrusive testing on Plaintiffs’ Property consisting of soil probes on the slope side of Plaintiffs’ Property rear yard wall and an inspection of irrigation lines outside Plaintiffs’ rear yard wall. For the following reasons, the motion is GRANTED.

The Association’s Cross-Complaint alleges the Plaintiffs/Cross-Defendants (the “Kresses”) modified the Association’s slope easement without prior approval from the Association, modified the top of slop of the easement, installed a wall closer than 10 feet from the top of slope, and removing and/or damaging Association improvements within the slope easement. (Cross-Compl. ¶ 13.)

Background

In March 2020, the Association served a notice of inspection for the Kresses’ side and rear yards, as well as the slope. In response, the Kresses moved for a preliminary injunction preventing the Association from entering the Kresses’ property for anything other than landscaping and maintenance. On 12/01/2020, this court issued a Preliminary Injunction enjoining the Association from entering the Kresses’ property for any purpose other than landscaping and maintenance.

Thereafter, the Association served an inspection demand for non-intrusive testing of the Plaintiffs’ property, including visual inspection, photographing and measuring of the property. The Kresses refused to comply, and the Association moved to compel the inspection.

On 06/03/2021, this court granted the Association’s motion to compel visual inspection of Plaintiffs’ property. This court also modified the preliminary injunction as follows:

Pending trial of this matter, or further order of this Court, Defendant TURTLE ROCK TERRACE COMMUNITY ASSOCIATION, its agents, representations [sic], and all others acting in concert therewith, shall not enter any portion of Plaintiffs’ Property to inspect or conduct testing in relation to any matter at issue in this litigation until Defendant files a motion with the court for leave to inspect or to conduct testing and such leave is granted by the court. The parties, however, may and are strongly encouraged to stipulate to any inspections or testing that are permissible under the Discovery Act.

Thereafter, the Association conducted a visual inspection of Plaintiffs’ Property. Measurements taken at that inspection suggest the newly constructed fence may be constructed beyond the pre-existing top of slope when compared to design plans Plaintiffs previously submitted to the Association. (See Staley Decl. ¶ 3, Ex. 7; Nardella Decl. ¶ 5.) Plaintiff Philip Kress also testified at deposition that the new fence was constructed closer to the crest of the hill, away from his residence. (Kress Depo. at 60:14-22.)

On 05/26/2022, Defendant initiated the meet and confer process by requesting the testing sought herein. (See Tabbak Decl. ¶ 5, Ex. 3.)

Relevant Legal Principles

The preliminary injunction issued by this court mandates that:

The Discovery Act provides in relevant part that:

Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. . . .

(Code Civ. Proc., § 2017.010.)

The Discovery Act further provides that the court “shall limit the scope of discovery if it 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.” (Code Civ. Proc., § 2017.020.)

Burden

The parties dispute which burden applies in this matter. Plaintiffs contend Defendant must show good cause for the requested discovery. Defendant, on the other hand, argues that it must show only that the requested discovery is within the scope of the Discovery Act.

The applicable burden is immaterial to the disposition of this motion, as Defendant Association meets the more stringent good cause burden justifying the requested discovery.

Good Cause for the Requested Inspection

To establish “good cause,” the burden is on the moving party to demonstrate both: (1) relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case), and (2) specific facts justifying discovery. (Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117.) Specifically, the moving party can also show good cause by “identify[ing] a disputed fact that is of consequence in the action and explain[ing] how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News, LLC v. Super. Ct. (2014) 226 Cal.App.4th 216, 224 [disapproved on other grounds by Williams v. Super. Ct. (2017) 3 Cal.5th 531].) The fact that there is no alternative source for the information sought is an important factor in establishing good cause for inspection, but is not necessary in every case. (Associated Brewers Distrib. Co., Inc. v. Super. Ct. (1967) 65 Cal.2d 583, 588.)

Here, Defendant Association shows the evidence is relevant to prove an issue central to its cross-claims—that Plaintiffs modified the existing berm and made improvements within the Association’s slope maintenance easement area. A visual inspection alone is insufficient, as evidenced by the fact that the parties argue about the significance of the visual observations made. For example, the Defendant Association contends the longitudinal crack indicates Plaintiff placed soil on the slope side of the wall, whereas Plaintiffs contend the crack does not suggest improper compaction. (Cf. Mot. at 11:23-12:25; Opp. at 7:15-20.) Defendant Association also explains that this testing can prove that Plaintiffs modified the existing berm, as the soil core samples taken from Plaintiffs’ property can be compared with those from adjacent properties that have never been modified. (Reply at 7:3-16.) Specifically, there is good cause to drive the probes 12-24” because the footing and wall extend 16-18” underground (4-6” underground block course and 12”x12” footing).

Plaintiffs’ Right to Privacy

Plaintiffs argue the intrusive testing invades Plaintiffs’ right to privacy, and no compelling interest justifies the invasion.

The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provisions central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)

A compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 556.) However, when “lesser interests are at stake . . . the strength of the countervailing interest sufficient to warrant disclosure of private information vary according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures. (Ibid.)

Here, any invasion of the Kresses’ privacy is minimal. The requested testing will take place on the perimeter of Plaintiffs’ property and involves taking and testing the composition of soil as well as a visual inspection of Plaintiffs’ irrigation system. The court finds that the Association’s need for additional evidence tending to prove or disprove its cross-claims outweighs any invasion of the Kresses’ privacy.

Undue Burden or Expense

Plaintiffs argue that the requested testing is unduly burdensome because it will cost Plaintiffs $3,000 for Plaintiffs’ expert to attend and monitor the testing and review the resulting lab data. (Tofani Decl. ¶ 12.) This burden and expense, however, does not clearly outweigh the likelihood that the information sought will lead to the discovery of admissible evidence.

At a mutually agreeable time no later than September 21, 2022, Plaintiffs are ordered to permit Defendant Association to conduct the following testing on Plaintiffs’ property located at 19251 Beckwith Terrace, Irvine, CA 92603:

(1) Defendant shall be allowed to probe the soil on the slope side of the Plaintiffs’ Property rear yard Wall in the locations identified by red dots on Exhibit 18 to the Tabback Declaration. A CA modified hand sampler 2-1/4” in diameter shall be utilized, hand-driven approximate 12-24” deep in these six (6) locations, in order to obtain an adequate representative sample. The holes will then be backfilled with imported soil, tamped in place by hand; and

(2) Defendant shall be permitted to inspect the irrigation lines installed by Plaintiffs outside the rear yard Wall. The irrigation lines shall be observed on the surface without exposing any irrigation lines.

Moving party to give notice.