Judge: Nathan R. Scott, Case: American Building Innovations v. Balfour Beatty Construction, Date: 2022-09-02 Tentative Ruling

Defendant Balfour Beatty Construction LLC’s sanctions motion is granted in part. (See Code Civ. Proc. § 2023.030.)

The court issues an evidentiary sanction precluding plaintiff American Building Innovation LP from relying at trial (either directly by offering into evidence or indirectly though expert opinion) on:

(1) any documents responsive to defendant’s requests for production (set three) that were not produced in response to those requests, and

(2) any information responsive to defendant’s special interrogatories (set one), #29 & 41-42, that were not produced in response to those requests.

Plaintiff shall pay $6,000 in discovery sanctions to defendant.

Defendant has shown plaintiff willfully misused the discovery process by willfully failing to make a diligent search of its own documents and willfully withholding responsive documents from defendant – only to instead provide them to its own expert.  (Scholz decl., ¶¶ 10-11, 17-18, 20-22 & Exs. 3, 5; Bennett decl. ¶¶ 3-4.)  Belated disclosure through experts is no substitute for prompt disclosure to written discovery.

The same lack of diligence caused plaintiff to willfully withhold information responsive to the special interrogatories until plaintiff’s PMQ deposition – and even then plaintiff failed to provide full disclosure.  (Scholz decl., ¶¶ 12-13, 19, 23-24 & Exs. 4, 6-7.) 

The legal system prefers “discovery over trial by surprise.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 540-541.) 

Defendant is ordered to give notice.