Judge: Mark A. Young, Case: 22SMCV00077, Date: 2022-10-20 Tentative Ruling
Case Number: 22SMCV00077 Hearing Date: October 20, 2022 Dept: M
CASE NAME: Benedict Hills Estates Association, v. Smiley
CASE NO.: 22SMCV00077
MOTION: Motion for a Protective Order
HEARING DATE: 10/20/2022
BACKGROUND
On January 19, 2022, Plaintiff Benedict Hills Estates Association filed the instant conditions, covenants and restrictions (CC&Rs) enforcement action against Defendant Tarick Smiley. Plaintiff seeks to enforce certain CC&Rs preventing Defendant’s unauthorized construction on his property. Plaintiff states two causes of action seeking to enforce the Governing Documents and enforce fines levied on Defendant.
On May 31, 2022, Defendant moved for a protective order limiting inspection of his property. Plaintiff opposes the motion.
Legal Standard
Where good cause is shown, courts may enter protective orders limiting discovery. (See CCP §§ 2019.010, 2019.030.) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP, § 2025.420(b).) Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.) The party seeking protective order has burden of showing¿good cause for order sought. (Fairmont Ins. Co. v. Superior Court¿(2000) 22 Ca1.4th 245, 255.)¿
The court shall restrict the frequency or extent of use of a discovery method provided in if it determines either of the following: 1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; 2) the selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.¿¿(CCP¿§ 2019.030(a).)¿
CCP section 1987.1 provides that a court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy. (See also CCP § 2025.420(a) [“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.”].) CCP sections¿2030.090(a), 2031.060(a),¿and 2033.080(a) provide that a party upon whom interrogatories, inspection demands or request for admissions have been propounded may “promptly” move for a protective order.
Analysis
Defendant moves for a protective order against the inspection of the subject Property. There is no dispute that Plaintiff served a valid inspection demand on Defendant pertaining to the exterior of the Property.
Defendant first argues that the request is an improper end-run around of a trial on the merits. Defendant argues that part of Plaintiff’s prayer requests involves an inspection of the exterior premises. As to the first cause of action, Plaintiff requests that the Court enforce the CC&Rs in the following respects:
(i) restrain defendants from stepping on or in, and from using or occupying, the structure and roof deck or any other unapproved exterior alterations of which the Association is presently unaware, until city approved plans, specifications, and permits for those improvements have been submitted to and approved by the Architectural Committee;
(ii) ordering that Association representatives be allowed access to the exterior of the Property to inspect violations known and unknown,
(iii) ordering that the mural referenced be removed and the wall painted a color that is approved in advance by the Architectural Committee; and
(iv) if the Architectural Committee disapproves of any alteration, defendants shall remove the item(s) and restore the Property to its prior condition.
(Compl., Prayer, ¶ 1.)
In his motion, Defendant reasons that the proposed inspection would “deprive him of a trial on the merits of this action by seeking through discovery the ultimate relief sought in the Complaint[.]” (Mot. p. 3.) Defendant provides no controlling or persuasive authority that this would be improper. Under California law, courts liberally construe discovery permitting it regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, if matter is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) “Any party may obtain discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, of control of any other party to the action.” (CCP, § 2031.010 (a), emphasis added.) A party may demand that any other party allow the party making the demand, or someone acting on the demanding party’s behalf, to enter onto any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it. (CCP, § 2031.010 (d).)
Plaintiff alleges that Defendant violated the CC&Rs by making certain unauthorized improvements on the exterior of the Property. The external condition of the Property is therefore the central dispute at issue. An inspection of the violations would certainly lead to the discovery of admissible evidence. Defendant provides no reason why this authorized discovery device is not reasonably calculated to lead to the discovery of admissible evidence in this case.
Defendant does raise an appropriate privacy concern that inspection should be limited to the exterior of his home. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37 [framework for analyzing privacy interests in discovery].) Plaintiff agrees that it only wants to inspect the exterior of the property, but that the only way to access the second and third story exterior improvements (the deck over the garage and the white structure on top of the house) is through the second story of the home. Defendant also asserts that at least one structure identified in Paragraph 16 of the Complaint (the “white structure”) would require interior access. (Smiley Decl., ¶ 4.) Plaintiff agrees that no photographs will be taken inside the home and no notes of the interior of the home are permitted. Thus, the inspection would require a temporary and non-serious intrusion into the home. Furthermore, the Court finds that no less intrusive means exist to allow the inspection of the improvements.
Finally, Defendant also argues that it is impermissible for Plaintiff not to name or pre-designate the agent that will conduct the inspection. Defendant provides no authority supporting this position, and it is denied.
Accordingly, Defendant’s motion is DENIED. Counsel are ordered to meet and confer on a mutually agreeable date and time for the inspection. The inspection shall occur within 10 days of this order unless both parties stipulate to a different date.
As to sanctions, Plaintiff failed to comply with the requirements of Code of Civil Procedure section 2023.040 in that opposition does not provide adequate notice of the sanctions sought, including identifying against whom the sanctions are sought, the amount of sanctions, and supporting the sanctions request in a memorandum of points and authorities. Thus, the request is denied.