Judge: John C. Gastelum, Case: 21-01228408, Date: 2023-01-05 Tentative Ruling

Motion to Compel Production

Defendants Stephen Hauschka and Lindsey Hauschka, Trustees of The Stephen Hauschka and Lindsey Hauschka Revocable Trust dated February 3, 2015, et al. and NOT EGGING, LLC’s (“Defendants”) Motion to Compel a site inspection of 408 Mendoza Terrace, Corona Del Mar, California, 92625 for the purposes of a “destructive testing site inspection” is DENIED.

As presented, there is no formal demand associated with the motion as required under Code of Civil Procedure section 2031.030, which states that each demand shall be identified by set number and demand number and sets forth additional requirements regarding the form of the demand.  (Code Civ. Proc., § 2031.030, subd. (a) and (b).) 

The Motion also fails to establish that the demand was served on Plaintiff pursuant to Code of Civil Procedure section 2031.040, which states that “[t]he party making a demand for inspection, copying, testing, or sampling shall serve a copy of the demand on the party to whom it is directed and on all other parties who have appeared in the action.”  (Code Civ. Proc., § 2031.040.)

Here, the demand is presented as a follow up letter to a site inspection that occurred on June 2, 2022 and is not associated with any demand number, discovery set number, or proof of service regarding when the demand at issue was served on Plaintiff.  Because the Motion fails to set forth these basic procedural requirements of a demand for inspection, the court is unable to assess: (1) whether this motion should be properly presented as a motion to compel or motion to compel further based on the inspection that took place on June 2, 2022; (2) the timing of the motion; and (3) whether a separate statement was required.  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404; Code Civ. Proc., § 2031.310, subd. (c); and Cal. Rules of Court, rule 3.1345, subd. (a)(3).)

Even if the June 30, 2022 letter could be properly assessed by the Court as a formal demand, the scope of the inspection remains uncertain.  For example, it appears that, in their June 30, 2022 letter, Moving Defendants request to make “a limited number of small holes as well as some boring samples to be taken at various locations on the Property.”  Moving Defendants do not establish any certainty regarding (1) how the “limited number of small holes will be made;” (2) how many holes constitute a “limited number;” (3) what constitutes a “small hole;” (4) how many “boring samples” will be taken; or (5) the number, width, depth, and locations of the “boring samples.” 

Thus, the June 30, 2022 letter does not describe the “destructive testing site inspection” or the manner in which the “destructive testing site inspection” will be performed with the requisite reasonable particularity and specificity required under Code of Civil Procedure section 2031.030(c)(1)-(4), especially given the seemingly destructive nature of the “destructive testing site inspection.”  (See Code Civ. Proc., § 2031.030, subd. (c)(1)-(4).)

As such, the Motion is DENIED.

Moving Party is to give notice.