Judge: Mark H. Epstein, Case: 19SMCV02200, Date: 2023-12-19 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

Case Number: 19SMCV02200    Hearing Date: April 9, 2024    Dept: I

The motion for terminating sanctions is DENIED IN PART AND GRANTED AS TO THE ALTERNATIVE REQUEST TO EXCLUDE ADMISSION OF ANY OPINION OR TESTIMONY CONCERNING THE TEST IN QUESTION.  The motion to disqualify is DENIED.  The application for an order nunc pro tunc is GRANTED, as the prior order did contain a clerical error as suggested by defendant.  That order will be amended in the manner suggested in defendants’ application filed 2/26/24.  The court will inquire whether the sanctions were paid.

This is a landlord-tenant action filed by the tenant against the landlords.  Although plaintiff has not lived in the unit for some time due to alleged hazardous conditions, she has continued to maintain legal possession of the unit.  At issue in this motion is an inspection done by her expert.

Although plaintiff has possession of her unit, and she has legal access to common spaces, she does not have access to the entire property.  Some of that property is under defendants’ exclusive control.  As to those areas, plaintiff cannot insist on access, even to do an inspection relevant to the case.  What she can do, of course, is serve process demanding an inspection and, if there is an objection, bring the matter to the court’s attention.  Indeed, she attempted that once already, although her motion was denied for procedural reasons.

The basic facts underlying the instant motion are not really disputed.  Plaintiff wanted an inspection of the crawlspace under the unit.  However, that is not a part of the leasehold and thus remains within defendants’ exclusive control.  Rather than seek a judicial order allowing her expert to inspect that area for mold or other hazards (as she had done unsuccessfully before due to technical issues but had done successfully at another point in the past), plaintiff, with her counsel’s knowledge, invited the expert to the premises.  While there, the expert removed an unlocked screen giving him access to the crawl space.  The expert did not enter the crawl space—apparently because it would have been a tight fit.  What he did do was to shine a flashlight into that area and put his head in and breathe and observe.  He then replaced the screen.  At his deposition, he testified as to what he observed during that visit.

That led the defense to seek terminating sanctions and to disqualify the expert and counsel (because counsel had advance knowledge that the expert would do this).  The court thinks that defense counsel’s motion overkill—to put it nicely.

The court agrees with the defense that this is technically a trespass.  Plaintiff did not have a possessory right to the crawl space.  The expert should not have removed the screen—even though doing so apparently did no damage and the screen was replaced—and should not have physically intruded into the space, even though it was only his head.  Were defendant to sue in tort, defendant would likely recover, but only nominal damages—perhaps $1.00.  It is that minor.  Terminating sanctions are an extreme remedy and ought to be imposed only with extreme caution.  (Raush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210.)  This technical trespass hardly warrants that.  What it does warrant, though, is an order that plaintiff not be allowed to gain by its unlawful action—even if the unlawful part was pretty darn minor.  Thus, the expert will be precluded from opining based on that examination or testifying about the examination at trial unless the defense opens the door by bringing the inspection up.  (Bringing up the issue of mold is not opening the door; the defense would have to bring up the inspection itself, for example.)  With that exclusion, the court sees no basis to disqualify the expert.  Further, disqualification of counsel is also an extreme remedy, often smacking of an attempt to obtain a tactical advantage more than truly trying to protect the court’s integrity.  The court will not comment further.

Because the motion was so far over the top, monetary sanctions are DENIED.

The court will inquire as to third party mediation efforts.  The court notes that there is a trial coming up next month.  The court is aware that the parties mediated back in 2021.  The court believes that another effort ought to be made using a third party.  The court will discuss that matter with the parties or, in the alternative, an MSC.  The court states that it is more likely than not that at least an MSC will be ordered.  If that occurs, the court expects lead counsel, any carrier, and all parties to be present at the MSC (perhaps virtually) and with full authority to settle the case at the other side’s last offer/demand without the need to obtain further permission.  That does not mean that the case must settle (of course), but it does mean that the players must all be present and with full authority to act.

The court also notes that there is a hearing on the motion to file additional in limine motions coming in a couple of weeks.  The court will not rule prior to the hearing date, but advises the moving party that (in the words of the Magic 8-Ball) the chances of success are “Very doubtful.”