Judge: Mark H. Epstein, Case: 19SMCV00681, Date: 2023-04-19 Tentative Ruling

Case Number: 19SMCV00681    Hearing Date: April 19, 2023    Dept: R

This is a motion to compel an inspection in a construction defect and fraud case.  A few preliminary issues.

First, the court STRIKES any reference to Hewitt’s purported criminal history.  The court is not convinced that there is any relevance whatsoever to that alleged history.  It certainly is not sufficient to warrant a good faith fear of physical endangerment.  Hewitt, Hewitt’s expert, and Hewitt’s counsel will all be present; the likelihood of violence is remote and thus the court believes that the reference was a sort of ham-handed attempt to prejudice the court.

Second, the court DENIES Hewitt’s request for terminating sanctions.  Not only is such a request procedurally improper, even were it procedurally proper it so lacks merit that the court can only believe that the request was a sort of ham-handed attempt to prejudice the court.  The same is true of the request for evidentiary sanctions. 

Which brings the court to the request itself.  Plaintiffs are correct that a joinder is not the better way to preserve a request.  The problem with a joinder is that it stands or falls with the main request.  Here, the main request appears to have been essentially withdrawn.  That said, in the interest of efficiency, the court will at least consider this motion on its merits rather than have Hewitt file a new motion this afternoon.  The joinder procedure does, however, play directly into plaintiffs’ hand as to Hewitt’s motivations in bringing the motion.

The court is concerned that Hewitt, in his moving papers, failed to discuss the prior two inspections—especially given that either he or his counsel attended them.  Hewitt was plainly aware of the inspections and the court assumes he had ample opportunity to have an expert present during those inspections.  Hewitt has failed to explain adequately why that was not the case or why Hewitt waited until now to finally (and belatedly) have an expert inspect the property.  Further, keeping what discussion there is pertaining to this argument (that plaintiffs were obviously going to raise) to reply strikes the court as a poor tactic.  The better way to deal with it would have been in the moving papers so that the reasons could have been spelled out and plaintiffs could have addressed them in reply.  By not giving plaintiffs the chance to reply, the court is forced to use its imagination as to what possible replies there could be.  There are many if one is limited only by one’s imagination.  That does not mean that the court will actually presume reasons for which there is neither evidence nor argument; what it does mean is that Hewitt’s motion is not as strong as it perhaps could have been.

The court is also not convinced that Hewitt has adequately explained why he needs to inspect the area he claims to want to inspect.  Hewitt does give an explanation, but the court did not find it particularly compelling.  This is plaintiffs’ personal home and they have a right to privacy.  That right can be overcome by the need to do an inspection, but the inspection cannot be overly intrusive, and this one appears to be.  With that said, though, Hewitt’s expert would be allowed to look at the work done for which plaintiffs seek reimbursement to see that the repairs were reasonable and to give support as to the ability to determine whether the costs were reasonable. 

An inspection limited to the garage, guest house foundation, and roof would be proper.  That is the scope of the work Hewitt was responsible to do according to the complaint.  The guest house itself would appear to be beyond the scope of reasonableness.  And the notice of repairs did not include the guest house, either.  As an aside, given that notice, Hewitt’s accusation of spoliation is finding little traction with the court.

The bottom line is that Hewitt’s motion is DENIED WITHOUT PREJUDICE.  A narrower scope might well be allowed, but even then, Hewitt will need to explain in any motion to compel why it is needed now in light of the prior inspections.  While a defendant is entitled to inspect, at the same time a defendant’s inspection cannot be harassing.  The court would have expected defense counsel to have coordinated; the failure to do so could make a later inspection unduly harassing, intrusive, and burdensome.  The court is not saying that such is the situation here, at least with a more targeted scope.

The request for sanctions is DENIED. 

Finally, Hewitt’s reply keeps referring to representations or concessions by plaintiffs.  The court believes that Hewitt is overplaying that card.