Judge: Mel Red Recana, Case: 19STCV31606, Date: 2024-04-09 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 19STCV31606    Hearing Date: April 9, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing Date:             April 9, 2024

Moving Party:             Defendant Mission Critical Restoration Services, Inc. dba Servpro of Torrance

Responding Party:      None

Motion for Site Inspection

The court has considered the moving papers. No opposition has been received.

The court GRANTS Defendant Mission Critical Restoration Services, Inc. dba Servpro of Torrance’s motion for site inspection. The site inspection of Plaintiffs’ premises shall occur within 30 days of this Order.

Also, the court GRANTS the request for monetary sanctions against Plaintiffs and their attorney of record, jointly and severally, in the reduced amount of $622.50. Plaintiffs are ordered to tender payment to Defendant Mission Critical Restoration Services’ counsel within 30 days of this Order.

Background

Plaintiffs Brian Rucker and Valentina Malofiy initiated this action on September 5, 2019. Plaintiffs filed the operative First Amended Complaint (“FAC”) on October 26, 2020 against ServPro Industries, Mission Critical Restoration Services, Inc. dba ServePro of Torrance (“Mission Critical Restoration Services, Inc.”), Farmers Group, Inc., Farmers Insurance Exchange, and Mid-Century Insurance Company, alleging causes of action for: (1) Negligence; (2) Breach of Fiduciary/Contract; (3) Declaratory Judgment/Breach of Contract; (4) First Party Insurance Bad Faith – Tortious Breach of Implied Covenant of Good Faith and Fair Dealings; and (5) Negligent Infliction of Emotional Distress. Plaintiffs allege that Defendants negligently failed to correctly mitigate smoke damage to Plaintiffs’ home, which led to the release of massive amounts of asbestos that rendered the home unlivable. Plaintiffs have also alleged facts supporting a bad faith insurance claim.

On December 7, 2023, Defendant Mission Critical Restoration Services filed the instant motion for order permitting entry upon land and to conduct a site inspection of Plaintiffs’ premises. Additionally, it seeks monetary sanctions against Plaintiffs and their attorney of record, jointly and severally, in the amount of $960.

As of April 4, 2024, no opposition has been filed to the instant motion.

Legal Standard

Code of Civil Procedure § 2031.010(d) allows a party to make a demand for inspection. Code of Civil Procedure § 2031.020(a) allows a defendant to make a demand for inspection or testing without leave of court at any time. When a party does not comply with the Discovery Act, the party demanding the inspection may file a motion to compel pursuant to Code of Civil Procedure § 2023.010(d). 

Discussion

A.    Merits

Here, on September 27, 2023, Defendant Mission Critical Restoration Services served Plaintiffs with a Demand for Inspection that requested Plaintiffs to make their home, located at 26136 Veva Way, Calabasas, California, to be available for inspection on November 1, 2023 at 10:00 a.m. (McNamara Decl. ¶ 2, Exh. A.) Eventually, Plaintiffs counsel responded on October 27, 2023 and indicated that the inspection would have to be rescheduled so that Plaintiffs could be present. (Id. at ¶ 6.) Defendant Mission Critical Restoration Services requested alternative dates, but Plaintiffs failed to respond even after a follow-up request was made. (Id. at ¶¶ 7-12.) To date, alternative dates have not yet been provided. (Id. at ¶ 11.) Thus, Defendant Mission Critical Restoration Services argues that the site inspection is necessary based on Plaintiffs’ allegations that it had contributed to the spread of asbestos during a smoke remediation.

Under the circumstances, a site inspection is warranted because Plaintiffs allege that asbestos was spread in the subject property, and Defendant Mission Critical Restoration Services should have an opportunity to determine whether asbestos is present in the subject property and to determine the cause of this spread in asbestos.

Accordingly, Defendant Mission Critical Restoration Services’ request for entry on the subject property and to conduct a site inspection is granted.

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B.    Sanctions

When a party engages in acts that constitute a misuse of the discovery process, sanctions are authorized pursuant to Code of Civil Procedure § 2023.030. Requests for sanctions may be denied where a party shows that they acted with substantial justification. (Code of Civil Procedure § 2023.030(a).) 

Here, Defendant Mission Critical Restoration Services requests monetary sanctions against Plaintiffs and their attorney of record, jointly and severally, in the amount of $960, inclusive of costs. Counsel McNamara attests that he spent two hours preparing the instant motion at a rate of $225 per hour. (McNamara Decl. ¶ 14.) He also anticipates spending an hour reviewing the opposition and preparing a reply and an additional hour in attending the hearing. (Ibid.)

While sanctions are warranted against Plaintiffs for failing to submit to an authorized discovery method, the amount requested is excessive because no opposition has been filed and any appearance will likely be conducted remotely. Therefore, the court reduces Defendant Mission Critical Restoration Services’ request for monetary sanction to $622.50, consisting of 2.5 hours of attorney time at an hourly rate of $225 and the filing fee of $60.

Accordingly, the request for monetary sanctions against Plaintiffs and their attorney of record, jointly and severally, is granted in the reduced amount of $622.50.

Conclusion

Based on the foregoing, the court GRANTS Defendant Mission Critical Restoration Services’ motion for order permitting entry upon land and to conduct a site inspection of Plaintiffs’ premises. The site inspection shall occur within 30 days of this Order.

Also, the request for monetary sanctions against Plaintiffs and their attorney of record, jointly and severally, is granted in the reduced amount of $622.50. Plaintiffs are ordered to tender payment to Defendant Mission Critical Restoration Services’ counsel within 30 days of this Order.

It is so ordered.

Dated: April 9, 2024

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ROLF M. TREU

Judge of the Superior Court