Judge: Michelle C. Kim, Case: 21STCV23784, Date: 2023-08-07 Tentative Ruling
Case Number: 21STCV23784 Hearing Date: August 7, 2023 Dept: 31
TENTATIVE
Plaintiffs’ motion for a protective order
is DENIED.
Legal Standard
Code of Civil Procedure section 2017.020
provides that: “The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly outweighs
the likelihood that the information sought will lead to the discovery of
admissible evidence. The court may make this determination pursuant to a motion
for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer
declaration under Code of Civil Procedure section 2016.040.” (Code Civ.
Proc.,¿§ 2017.020(a).)
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.¿
¿
(Code Civ.
Proc.,¿§ 2019.030(a).)¿
Furthermore, 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.)¿
Discussion
Plaintiffs move for a Protective Order,
limiting Plaintiffs’ obligations to store the defective pipes removed from its
apartment complexes, the Lorenzo, the Broadway, and the DaVinci. Due to
repeated failures and leaks, Plaintiffs were forced to conduct a full-removal
of the hot water Aquatherm Green Pipes installed in the Lorenzo, which is a
900+ unit apartment complex. Now, leaks have started to occur at Plaintiffs’
other properties in which the Aquatherm Green Pipes were installed, the DaVinci
and the Broadway. At Defendants’ insistence, Plaintiffs have been preserving
all of the hot water pipes removed from the Lorenzo. The hot water pipes
removed from the Lorenzo alone more than fill Plaintiffs’ storage warehouse.
The annual costs of continued storage exceed $100,000 per year. Given that
Plaintiffs will soon need to begin a similar replacement process at its other
apartment complexes, the DaVinci and the Broadway, these costs will increase
even further if Plaintiffs are forced to store indefinitely all of their
defective Aquatherm pipes as well. And, as a practical matter, it would be both
impossible for the parties to test all of the pipes that have been removed and
a complete waste of time and resources for the parties to make the attempt. The
bulk of the pipes removed are wholly duplicative of one another, and the costs
of storing so many excess pipes has become prohibitive.
All in all, the Lorenzo consists of ten
water systems. (Cartmell Decl., ¶ 9.) It is possible to fully test the Lorenzo
pipes by sampling pipes from each of the ten water systems according to
differences in the following variables, which could potentially impact the rate
at which the pipes degrade: (a) temperature; (b) fluid velocity; (c) constant
and variable flow; (d) pipe diameter; (e) exposure; and (f) fluid chemistry.
(Cartmell Decl., ¶ 11.) Plaintiffs will also preserve at least one pipe from
each manufacturing batch number from each system. (Id.) Overall, this sampling
only requires the collection and storage of 380-400 pieces of 6-foot pipe, which
can be stored in 8-15 palettes (depending on palette size). (Cartmell Decl., ¶
16.) Notably, this storage estimate is quite conservative, as it still enables
all parties to separately test samples from each of the Lorenzo’s ten systems,
rather than treating 2-3 systems as representative and limiting testing to
samples from those systems. (Cartmell Decl., ¶ 15.) Plaintiffs can safely
dispose of over 90% of the pipes in storage, and reduce their storage costs
from over $100,000 to approximately $10,000 per year (which is still expensive,
but at least proportionate to the needs of the case). (Cartmell Decl., ¶ 17;
Chen Decl., ¶ 18.)
The Court finds that
Plaintiffs have not adequately explained how the samples from each of the ten
systems will be representative of all the piping. As Defendants explain,
plumbing products are unique in the sense that their performance is
inextricably bound up with the design, installation and operation of the
systems in which they are installed. (Paschal Decl., ¶ 3; Rapp Decl., ¶ 4.) The
lack of performance can be due to myriad issues including whether the products
are properly installed (which may be different from product to product);
whether the system was designed to operate within the technical parameters of
the product, use in accordance with the applicable building and/or system codes
and damage caused by factors external to the system. (Paschal Decl., ¶ 4.) Even
if the products are installed in a system that is appropriately designed, if
that system is then operated outside of its intended design parameters, the
pressure and temperatures in the system may exceed those published by the
manufacture and/or allowed by the applicable, local system codes. (Id.) The
same result can occur if the equipment on the system – the pumps, boilers,
pressure regulating valves, and/or other crucial pieces of equipment are not
properly operated or maintained, especially as a system ages. (Id.) Each of the
pieces of equipment – pumps, boilers, valves and more – need maintenance to
operate properly. (Id.) The operation of each piece of equipment has the
potential to affect the conditions of the system as a whole. (Id.) Moreover, a
piping system may have certain general conditions germane to the system as a whole
but can also have localized conditions within discrete physical locations based
on such factors as piping configuration, usage (including day/night
differentials and relevant demands on the system, equipment operations and so
on.) (Id., ¶ 5.)
Additionally, in considering whether the discovery is unduly
burdensome or expensive, the court takes into account “the needs of the case,
the amount in controversy, and the importance of the issues at stake in the
litigation.” (Code Civ. Proc., § 2019.030, subd. (a)(2).) People ex rel.
Harris v. Sarpas, 225 Cal. App. 4th 1539, 1552.) As Plaintiffs claim
damages in the amount of $28 million, the costs of storage in the amount of
$100,000 per year do not appear to be unduly expensive in light of the needs of
the case.
Importantly, Plaintiffs have cited to no case that would
empower the court to allow Plaintiffs to dispose of the alleged defective
products at the heart of this case, over Defendants’ objection. The Court notes
that this may amount to spoliation of evidence.
In the alternative, Plaintiffs request
the court to shift the costs of storage to Defendants. Plaintiffs cite San
Diego Unified Port District v. Barnhart, Inc., 95 Cal. App. 4th 1400, 1404
(2002) for the proposition that courts frequently employ cost-shifting measures
when a party requests excessively burdensome, but relevant, discovery.
In San Diego, the Court of Appel held that a trial
court exceeded its discretion by ordering the defendants to share in the costs
of testing sought by other defendants. (San Diego, 95 Cal. App.
4th at 1404-05.) The San Diego court recognized that “parties are
expected to bear expenses typically involved in responding to discovery
requests, such as the expense of producing documents, answering interrogatories
or submitting to depositions,” but that “each party seeking discovery is
expected to bear any special attendant costs.” (Id. at
1404.) “When a party demands discovery involving significant ‘special
attendant’ costs beyond those typically involved in responding to routine
discovery, the demanding party should bear those costs.” (Id. at
1405.)
Here, Plaintiffs fail to demonstrate that the costs at issue
involve “special attendant” costs beyond those typically involved in responding
to discovery. First, Plaintiffs have conceded that there is no discovery
demand for the inspection of the pipes pending. As such, there is no discovery
request at issue for Defendants to bear the costs of. In addition, the pipes’
alleged defective condition forms the very basis of Plaintiffs’ lawsuit, and
Defendants should be afforded the opportunity to test them from samples that
are representative of all the piping.
For these reasons, the court denies the request for Defendants
to bear the costs of storage. However, the court orders the parties to meet and confer regarding the sampling o fthe piping in order to come to a resoslution, and Defendants are strongly encouraged to start th eprocess of testing the piping.
Conclusion
Accordingly, Plaintiffs’ motion
for a protective order is DENIED.
Moving party is ordered to give
notice.