Judge Helen Zukin, Case 20SMCV01043 2022-12-14 Tentative Ruling

Judge: Helen Zukin, Case: 20SMCV01043, Date: 2022-12-14 Tentative Ruling

Case Number: 20SMCV01043 Hearing Date: December 14, 2022 Dept: 207

Background

This action arises from allegations of construction defect concerning a condominium unit purchased by Plaintiffs Felipe Rodriguez and Mary Barrett (“Plaintiffs”). Each unit of the subject condominium are part of Defendant homeowners’ association 1401 Camden, Inc. Association (“Defendant”). Defendant brings this motion for protective order and sanctions, arguing Plaintiffs have performed unauthorized destructive testing on the common areas of the condominium which are maintained and controlled by Defendant. Defendant’s motion seeks monetary sanctions, as well as issue and evidentiary sanctions, and a protective order prohibiting any further such testing. Plaintiffs oppose Defendant’s motion.

Legal Standard

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (C.C.P. § 2031.060(b).) Section 2031.060(b) provides a nonexclusive list of directions that may be included in a protective order, including orders directing that the items not be produced or made available or that the time to respond be extended. (Ibid.) “‘[T]he issuance and formulation of protective orders are to a large extent discretionary”’ and a ruling on such motions will not be disturbed absent abuse of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-17.) The burden is on the party seeking the protective order to show good cause for the order sought. (Id. at 318.)

To obtain discovery sanctions based on the spoliation of evidence, the moving party must make a prima facie showing that the opposing party destroyed evidence causing “a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.) If the moving party meets this initial burden, the burden shifts to the responding party to show that the moving party has not been prejudiced by the loss of evidence. (Ibid.) Discovery sanctions should be tailored to remedy discovery abuse and should not put the moving party in a better position than he would have been had he obtained the requested discovery. (Id. at p. 1223.)

Analysis

Defendant seeks sanctions against Plaintiffs for conducting testing on the common areas of the subject condominium without approval or consent of Defendant. Defendant argues Plaintiffs had no legal right to conduct testing on the common areas without Defendant’s consent or approval, and if they wished to do so they were obligated to pursue such testing through a request for production under the Civil Discovery Act.

Plaintiff Rodriguez has submitted a declaration claiming that he was the sole person responsible for this testing. (Rodriguez Decl. at ¶ 2.) However, Rodriguez attaches a report from third party Pete Fowler which indicates he personally performed testing. Defendant has also produced evidence showing other third parties, including Rodriguez’s employee Kathie Kent, performed, participated, or were present for the testing. Rodriguez also attempts to downplay the testing, which was performed, stating it only involved spraying water from an ordinary garden hose onto the roof “for approximately four minutes.” (Id. at ¶6.) However, this statement is also belied by Fowler’s report, which states testing was performed at five different locations for upwards of ten minutes per location. (Ex. 6 to Rodriguez Decl. at 3.)

Rodriguez also claims he had permission from Defendant to perform the testing in November 2022. In support of this claim, he points to a February 2020 email which pre-dates the initiation of this lawsuit in which a board member said, “Let’s talk to the group and figure out a schedule to get your leak test completed so we can know where your issue is.” (Rodriguez Decl. at ¶3.) Rodriguez claims he received approval from the Board of Directors to proceed with a water test of the roof, but concedes he has no documentary evidence showing this approval. (Id.) Approximately two and a half years later, and after Plaintiffs’ filing of this lawsuit, Rodriguez sent a series of emails to Benjamin Hyles, the Community Manager of the Association, stating he was going to unilaterally perform the testing unless Hyles responded to his emails within 24 hours and told him not to proceed. (Id. at ¶4.)

The Court finds these facts are insufficient to show Defendant consented to or authorized the testing. Even if the Court were to presume the board orally authorized the testing in February 2020, Plaintiffs have not demonstrated this approval gave them the right to perform testing in perpetuity. Additionally, the February 2020 email Plaintiffs rely on indicates the testing would be jointly scheduled and performed rather than unilaterally scheduled and performed by Plaintiffs without the presence of Defendant or their experts.

Nor can Plaintiffs credibly claim Defendant waived any right to object to, observe, or participate in the testing because Hyles did not respond to one of Rodriguez’s emails within 24 hours. “All case law on the subject of waiver is unequivocal: Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts. [Citations]. The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and doubtful cases will be decided against a waiver.” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60 [internal quotations omitted].) Hyles’ purported failure to satisfy Rodriguez’s unilateral 24-hour deadline does not support a finding of waiver by Defendant.

The Court finds Plaintiffs’ unauthorized testing of common areas was a misuse of discovery as such testing should have been performed pursuant to a request for inspection and testing under the Civil Discovery Act. (C.C.P. §§ 2023.010(b), (d).) The Court may impose a terminating sanction, issue sanction, or evidence sanction against anyone engaging in conduct that is a misuse of the discovery process. (C.C.P § 2023.030.)

Defendant asks the Court to impose monetary sanctions against Plaintiffs to recover the cost of bringing this motion, as well as issue and evidence sanctions prohibiting Plaintiffs “from using or introducing evidence relating to allegations of the common areas Plaintiffs arranged to have inspected, tested, destructively tested, repaired and modified” and “from offering or introducing any evidence of water intrusion, or damage from water intrusion including staining and mold, resulting from the common areas that were inspected, tested, destructively tested, modified and repaired without the consent of 1401 CAMDEN, INC.” (Motion at 5-6.) Defendant argues these sanctions are justified because “Simply put, Plaintiffs created the problems, not fixed them.” (Id. at 6.)

Upon review of Defendant’s motion, the Court finds Defendant has failed to make the requisite showing that the testing in question created a substantial probability of damaging its ability to defend against Plaintiffs’ claims. While Defendant repeatedly characterizes the testing as destructive testing which irrevocably altered the common areas of the property, Defendant has not put forth evidence from which the Court can determine the validity of these assertions. Defendant relies on the federal case Mirchandani v. Home Depot, U.S.A., Inc. in support of the assertion this testing was destructive, but the Court’s ruling in Mirchandani was based on express findings by the Court as to the nature of the subject testing: “Plaintiffs have requested the opportunity to substantiate their theory by conducting metallurgical and hardness tests on one of the two bolts in the relevant hinges. Because such testing would irreversibly alter the bolt subjected to testing, and consequently, the composition of the ladder at issue in this case, plaintiffs' motion may be characterized as a motion for ‘destructive testing.’” (Mirchandani, (D.Md. 2006) 235 F.R.D. 611, 612.) The Court has before it no evidence from which it can conclude Plaintiffs’ testing irreversibly altered the common areas such as to invalidate all subsequent testing or prevent Defendant from defending against Plaintiffs’ claims concerning water leaks in those areas.

However, the Court agrees monetary sanctions alone would be an insufficient remedy for Plaintiffs’ unauthorized testing. Accordingly, the Court orders Plaintiffs are prohibited from introducing evidence at trial obtained through unauthorized testing of the common areas.

The Court also orders Plaintiffs, and any third parties acting under their direction or on their behalf, to refrain from performing any further testing on the common areas except as permitted under the Code of Civil Procedure. As for Defendant’s request for monetary sanctions in the amount of $4,000 for attorney’s fees incurred in bringing this motion, the Court finds the amount sought is excessive and in its discretion it will award Defendant monetary sanctions of $2,500.

Conclusion

Defendant’s motion for protective order and sanctions is GRANTED in part and DENIED in part. Plaintiffs, and any third parties acting under their direction or on their behalf, are hereby ordered to refrain from performing any further testing on the common areas except as permitted under the Code of Civil Procedure. Additionally, Plaintiffs will be precluded from introducing any evidence obtained through unauthorized testing of the common areas of the condominium. The Court imposes a monetary sanction against Plaintiffs in the amount of $2,500, to be delivered to Defendant’s counsel within 15 days of the date of this order. In all other respects, Defendant’s motion is denied.