Judge: Gary I. Micon, Case: 21CHCV00695, Date: 2024-02-23 Tentative Ruling
Case Number: 21CHCV00695 Hearing Date: February 23, 2024 Dept: F43
Dept.
F-43
Date:
2-23-24
Case
# 21CHCV00695, Restoration Master, Inc. vs. David Alfred Amihere
Trial
Date: 5-6-24
MOTION TO COMPEL SITE INSPECTION AND NON-DESTRUCTIVE
TESTING
MOVING
PARTY: Plaintiff Restoration Masters, Inc.
RESPONDING
PARTY: No response has been filed
RELIEF
REQUESTED
Restoration
Masters has requested an order compelling David Alfred Amihere to permit the
site inspection and nondestructive testing of the residential property which is
the subject of this litigation. Restoration Masters has requested sanctions and
also requests that the Court warn Amihere that if he continues to refuse to
allow an inspection, the Court will exclude evidence of mold and smoke at
trial.
RULING:
Motion to compel site inspection and testing granted; request for sanctions
denied
SUMMARY
OF ACTION AND ANALYSIS
In Cross-Complainant David Alfred Amihere’s (Amihere)
Cross-Complaint, he has alleged that the fire remediation work performed by Cross-Defendant
Restoration Masters, Inc. (Restoration Masters) at Amihere’s home was faulty,
improper, and incomplete. Amihere alleges that smoke and mold that should have
been removed is still present in his home and has caused damages and injuries
to Amihere.
Restoration
Masters argues that the absence or presence of smoke and/or mold is a key issue
in this case based on Amihere’s allegations. Because of this, Restoration
Masters propounded a demand for site inspection and noninvasive testing of
Amihere’s home by Restorations Masters’ environmental expert. Despite the
apparent cooperation of Amihere’s counsel during the meet and confer process,
Amihere himself is refusing to allow the inspection. For this reason,
Restoration Masters only seeks sanctions against Amihere and not his counsel. Restoration
Masters seeks $388.00 in sanctions for attorney fees and costs associated with
this motion.
Amihere
opposes Restoration Masters’ motion on the basis that a previous inspection was
conducted by Restoration Masters’ expert on March 9, 2023. Amihere argues that
any mold and smoke testing could have been done at that time. Amihere also
argues that he should not be sanctioned because he acted with substantial
justification in resisting the site inspection based on his previous
experiences with inspections, as well as the harassment that he faced from the
contractor that he hired after Restoration Masters.
CCP
§ 2031.010(d) allows a party to make a demand for inspection. CCP § 2031.020(a)
allows a defendant to make a demand for inspection or testing without leave of court
at any time. When a party does not comply with the Discovery Act, the party
demanding the inspection may file a motion to compel pursuant to CCP § 2023.010(d).
When
a party engages in acts that constitute a misuse of the discovery process,
sanctions are authorized pursuant to CCP § 2023.030. Requests for sanctions may
be denied where a party shows that they acted with substantial justification.
(CCP § 2023.030(a).)
In
this case, whether mold and smoke damage still exists in Amihere’s home is an
important aspect of Amihere’s case. Restoration Masters’ expert must be allowed
to examine the home to determine if these problems persist. The inspection and
testing should be limited to mold and smoke only.
Amihere
represents to the Court that he has been subjected to hardship because of the
previous inspection and the harassing conduct of his subsequent contractor. He
argues that this hardship made him oppose the requested inspection. He contends
that this means that he acted with substantial justification in opposing the
site inspection and testing. The Court agrees. No sanctions will be imposed on
Amihere.
ORDER
1.
Restoration Masters’ motion to compel site inspection
and non-destructive testing is granted, with the inspection limited to testing
for mold and smoke only.
2.
Restoration Masters’ request for sanctions is denied.