Judge Lee S. Arian, Case Number: 22STCV28139, Date: 2024-01-19 Tentative Ruling

The litigation involves an alleged injury from an incident involving a cement pump on or around the morning of March 31, 2021, at around 8:30 a.m. Plaintiff Hector Hipolito (“Plaintiff”) alleges that he was placing and finishing concrete at 3860 Grand View Blvd., Los Angeles, California 90066 (the “Premises”) when he was injured due to a malfunctioning and/or negligently operated and maintained concrete truck owned by Defendant M2 Concrete Pumping, LLC (“M2”).

On August 29, 2022, Plaintiff filed this action against Defendants M2 Concrete Pumping, LLC; Catalina Pacific Concrete Company; Always Pumping; and Builders Firstsource-Atlantic Group, LLC (collectively, “Defendants”) for injuries arising from the incident described above. On November 16, 2022, M2 Concrete Pumping, LLC cross-complained against Catalina Pacific Concrete Company and Always Pumping for indemnification, apportionment of fault, and declaratory relief. The same day, Builders Firstsource-Atlantic Group, LLC cross-complained against M2 Concrete Pumping, LLC; Catalina Pacific Concrete Company; Always Pumping; and Bercow O’Byrne Construction, Inc.

On October 16, 2023, Catalina Pacific Concrete Company propounded a Second Amended Demand for Inspection of Tangible Things. On November 13, 2023, Builders FirstSource served an Objection to the Demand for Inspection.

Defendant/Cross-Defendant Catalina Pacific Concrete Company (“Catalina”) moved to compel further responses to the inspection demand on December 29, 2023.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to an inspection demand when an answer to the requests are evasive or incomplete or when an objection is without merit or too general.

A motion to compel further responses must set forth specific facts showing “good cause” justifying the discovery sought by the demand and must be accompanied by a declaration showing a “reasonable and good faith attempt” to resolve the issues outside of court. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) Absent a claim of privilege or attorney work product, the moving party meets its burden of showing good cause by a fact-specific showing of relevance. (See Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) If the moving party has shown good cause, the burden is on the objecting party to justify the objections. (Ibid.)

Notice of the motion must be given within 45 days of service of the verified response; otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2031.310, subd. (c).) The motion must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b); Code Civ. Proc., § 2031.310, subd. (b).)

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).

The Court also finds that Catalina has satisfied its obligation to meet and confer.

Catalina argues good cause based on the fact that M2 employee Michael Bernard testified that two pieces of shotcrete were recovered from the scene after being found in the liquid concrete that was being used to create the footing on the premises at the time of the incident, and M2 asserts that these pieces came from Catalina’s truck, traveled through the concrete pumping hose, and struck Plaintiff. (Mot., pg. 7.) Catalina further argues that Plaintiff makes a similar assertion in response to discovery: “Defendant Catalina Pacific created a dangerous condition at the premises when it failed to properly maintain and operate its concrete truck at the site of the incident and permitted shotcrete from getting into the pump/hose being operated by defendant M2 Concrete which created blockage and pressure to building up in the hose either being directed by, or in the close vicinity of Plaintiff. The pressure caused the hose to whip violently striking Plaintiff causing significant injuries to Plaintiff.” (Mot., pg. 7.) Catalina argues that obtaining a core sample is relevant to determine the likelihood that the cementitious paste covering the shotcrete recovered was carried through the pump with the concrete that was being poured at the time of the incident. (Mot., pgs. 7-8.) Catalina intends to inspect and reverse engineer the concrete core and cement paste covering the subject pieces of shotcrete to determine whether the concrete samples are sufficiently similar in order to verify or refute M2’s assertions. (Mot., pg. 8.)

Catalina also argues good cause based on the fact that M2 asserts that Catalina did not provide concrete in proper density, temperature, consistency, and moisture, which caused part of it to harden and create projectiles which traveled through the hose and struck Plaintiff. (Mot, pg. 8.) Thus, inspection and testing of a concrete core sample is also relevant to determine whether the concrete delivered by Catalina was of the proper density, temperature, consistency, and moisture such that it could have hardened and caused the incident asserted by M2. (Mot., pg. 8.) M2 has also asserted that there was a bad batch or bad mix of concrete which caused the incident, and Catalina contends that concrete coring and analysis will help determine whether the mix was defective such that it would cause Plaintiff’s injuries. (Mot., pg. 9.)

Because the reasons Catalina asserts are relevant to the question of its liability, if any, for Plaintiff’s injuries and Catalina has supported its reasons with specific facts set forth by a declarant with personal knowledge, Catalina has shown good cause for it motion.

Defendant/Cross-Complainant Builders Firstsource-Atlantic Group, LLC (“Builders”) opposes Catalina’s discovery request on the grounds that 1) the removal of concrete would be invasive and would materially alter the premises in a negative manner, and 2) the testing is not reasonably calculated to develop admissible evidence. No competent evidence supports either argument.

Moreover, Builders’ arguments are premised on California Code of Civil Procedure sections 2017.020. That section allows for a protective order limiting discovery if the Court determines that the burden, expense or intrusiveness of the discovery outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. Builders, however, does not ask for a limit to the requested discovery; it asks for a prohibition. It also has not sought a protective order.

Moreover, given the allegations here, the Court finds the requested discovery to be potentially highly relevant. Builders argues that the testing is not reasonably calculated to lead to admissible evidence because the results would be inconclusive. (Opp., pg. 4.) But that is putting the cart before the horse. We do not know what the results will be. It further argues that given how much concrete from different trucks has been poured into the slab, it is highly speculative that any sample from the slab will correlate to the concrete poured at the time of the incident. (Opp., pg. 5.) But, this argument goes to the weight that a trier of fact may give that evidence rather than to its relevance. And, most significantly, as note above, Builders fails to support its assertions with admissible evidence – it is all based on lawyer argument. Thus, it has not justified its objections.

Where the court grants a motion to compel further responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification, or the sanction would otherwise be unjust. (Code Civ. Proc., §§ 2031.310, subd. (h), 2030.300, subd. (d).)

Catalina’s request for sanctions is DENIED. While Builders wholly failed to support its bases for opposing the discovery demand, the issue itself is not entirely clear cut, and the Court finds a sanction under these unique circumstances to be unjust.

Catalina’s motion to compel further responses to inspection demand is GRANTED. Builders is ordered to permit an inspection demand as requested by Catalina within 20 days of the issuance of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court