Judge: Ronald F. Frank, Case: 22TRCV00584, Date: 2024-02-22 Tentative Ruling
Case Number: 22TRCV00584 Hearing Date: March 7, 2024 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: March 7, 2024
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CASE NUMBER: 22TRCV00584
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CASE NAME: Casino, LLC, et al
v. Apex Mechanical Services, Inc, et al.
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MOVING PARTY: Defendant/Cross-Complainant, Apex
Mechanical Services, Inc.
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RESPONDING PARTY: Plaintiffs,
Casino, LLC dba Larry Flynt’s Lucky Lady Casino and Affiliated FM Insurance
Company
TRIAL DATE: November 12, 2024
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MOTION:¿ (1) Motion to Compel Visual
Inspection
(2) Request for
Sanctions
Tentative Rulings: (1) GRANTED, with the inspection
to be conducted on April 3 if the parties cannot agree to another date
(2) Request for
Sanctions is conditionally GRANTED, but not attorney’s fees, as discussed below
I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On July 14, 2022, Plaintiffs, Casino, LLC dba Larry
Flynt’s Lucky Lady Casino and Affiliated FM Insurance Company (collectively
“Plaintiffs”) filed this action against Apex Mechanical Services, Inc, Roessler
Design Group, and DOES 1 through 10 (collectively “Defendants”) alleging a
cause of action for negligence.
Apex notes in its moving papers that it has sought
to conduct a visual inspection of the roofing materials and ceiling debris from
the incident since November 2022. However, Plaintiff, Casino and Apex agreed to
postpone the inspection until after Roessler appeared in the case. Apex further
notes that despite its attempts to schedule a visual inspection for over five
months to move this matter forward, Plaintiff Casino has – on numerous
occasions – refused to comply or cooperate. Apex further notes that Plaintiff,
Casino, cancelled the two formerly noticed visual inspections just before they
were set to take place, on October 23, 2023 and December 5, 2023. Further, Apex
notes that it has attempted to re-notice the inspection, but that this has been
refused by Plaintiff, Casino.
On July 14, 2023, Apex notes that it served a
subpoena on Pinnacle. Apex contends its process server followed up on that
subpoena three times, on July 27, 2023, August 2, 2023, and August 9, 2023.
Apex’s counsel of record contends that the documents were received via mailed
flash drive on October 12, 2023. On October 24, 2023, Apex notes it sent a meet
and confer letter to Pinnacle, requesting that Pinnacle supplement its
production. Despite this, Apex notes that Pinnacle never responded to that meet
and confer letter. On December 14, 2023, Apex notes that it reached out to
Plaintiff, Casino’s counsel of record to get an update, and again on January 9,
2024. However, to date, Apex notes that Plaintiff, Casino, has not responded.
As such, Apex has brought this Motion to Compel Visual
Inspection.
B. Procedural¿¿¿
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On
January 19, 2023, Apex filed its Motion to Compel Inspection. On February 23,
2024, Plaintiff, Casino, filed an opposition brief. On February 29, 2024, Apex
filed a reply brief.
II. MEET AND CONFER
The Court notes that Apex’s
counsel of record reached out on October 24, 2023, through certified mail, and
sent a meet and confer letter to Pinnacle to try and informally resolve the
deficiencies. (Declaration of Matthew J. Yarling (“Yarling Decl.”), ¶ 19.)
Nonetheless, Apex contends that Pinnacle never responded to the letter.
III. ANALYSIS¿¿
A. Legal Standard
Any party may obtain discovery by inspecting, copying,
testing, or sampling documents, tangible things, land or other property, and
electronically stored information in the possession, custody, of control of any
other party to the action. (Code Civ. Proc., § 2031.010, subd.
(a).) A party may demand that any other party produce and permit the
party making the demand, or someone acting on the demanding party’s behalf, to
inspect and to photograph, test, or sample any tangible things that are in the
possession, custody, or control of the party on whom the demand is made.
(Code Civ. Proc., § 2031.010, subd. (c).) A party may demand that any
other party allow the party making the demand, or someone acting on the
demanding party’s behalf, to enter onto any land or other property that is in
the possession, custody, or control of the party on whom the demand is made,
and to inspect and to measure, survey, photograph, test, or sample the land or
other property, or any designated object or operation on it. (Code Civ.
Proc., § 2031.010, subd. (d).)
The party to whom a demand has been directed, and any other
party or affected person, may promptly move for a protective order. This
motion shall be accompanied by a meet and confer declaration. (Code Civ.
Proc., § 2031.060, subd. (a).) The party to whom a demand for inspection
has been directed shall respond separately to each item or category of item
with: (1) a statement that the party will comply with the particular demand for
inspection; (2) a representation that the party lacks the ability to comply
with the demand for inspection; or (3) an objection to the particular demand
for inspection. (Code Civ. Proc., § 2031.210, subd. (a).)
If a party to whom a demand for inspection is directed fails
to serve a timely response to it, that party waives any objection to the
demand, including one based on privilege or on the protection for work
product. The court, on motion, may relieve that party form this waiver on
its determination that both: (1) the party has subsequently served a response
that is in substantial compliance, and (2) the party’s failure to serve a
timely response was the result of mistake, inadvertence, or excusable neglect.
(Code Civ. Proc., § 2031.300, subd. (a).) The party making the demand may
move for an order compelling response to the demand. (Code Civ. Proc., §
2031.300, subd. (b).) Within 30 days of a demand for inspection, the party
to whom the demand is directed shall serve the original of the response to it
on the party making the demand and a copy on all other parties who have
appeared in the action. (Code of Civ. Proc., § 2031.260, subd.
(a).)
B.
Discussion
Plaintiff, Casino does not indicate in
its opposition that it opposes the inspection. Instead, Casino contends that due
to circumstances outside of Plaintiff’s
control, the storage facility where the materials are located (Rest Your Case
in Irwindale) has been unwilling to allow the rescheduling of the inspection
due to claimed unpaid invoices. Casino notes that the issue is in the process
of being resolved, and is reasonably anticipated to be fully resolved very
soon.
Apex’s reply brief discusses the issues
involved with Casino’s failure to preserve evidence. Apex also argues that
Casino’s failure to preserve evidence amounts to spoliation of evidence, and
thus contends that this party should be subject to adverse discovery sanctions
and evidentiary presumptions for spoliation of evidence.
The Court’s resolution of this discovery
dispute is one that it would have expected seasoned trial attorneys such as those
involved in this case should have arrived at without court intervention. The Court will GRANT the motion to compel,
and if there remains an unpaid invoice that the storage facility is using to
forestall necessary discovery in this case, then Apex’ lawyers shall advance the
payment of that invoice to Rest Your Case and the Court will award the amount of
that payment as a monetary sanction. Casino
is ordered to either fully pay the storage facility’s outstanding invoice(s) within
10 days of this ruling, or else to send Apex’ counsel the invoice so Apex an
advance the amount, move forward with the inspection, and obtain reimbursement
later. Why counsel could not simply
agree to divide the cost of the unpaid invoice and go forward with the noticed
inspection in December is a great unknown, given how all parties benefit from attending
the inspection and from the preservation of the evidence by an independent third
party. Why counsel could not agree to divvy
up and share the cost since December -- given the logistical nightmare of arranging
to have experts on hand and lawyers on hand -- is also a great unknown, but the
Court will break the logjam. Absent agreement
of the parties to a different date and time, the Court Orders the visual
inspection to occur on April 3, 2024 commencing at 9:30 a.m. at the evidence
storage facility in Irwindale.
C.
Sanctions
Under California Code of Civil Procedure
section 2023.030, subd. (a), “[t]he court may impose a monetary
sanction ordering that one engaging in the misuse of the discovery process, or
any attorney advising that conduct, or both pay the reasonable expenses,
including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by
any provision of this title, the court shall impose that sanction unless it
finds that the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction unjust.”
Failing to respond or to submit to an authorized method of discovery is a
misuse of the discovery process. (Code of Civ. Proc., § 2023.010.)
Here, the Court agrees that this discovery is clearly
relevant. The Court further agrees that a request for some monetary sanction is
a reasonable one to make, since resolution of the invoice issue is largely the
responsibility of Casino. But because all parties benefit from the preservation
of the evidence but only one party has thus far been directly responsible for
the storage cost, the Court is denying the requested legal fees sanctions at this
time. The Court conditionally imposes a different sanction: if Casino or its
lawyers or its insurer has not fully paid the storage facility’s invoices due
through the date of the inspection, then Apex’ lawyers shall advance the payment
of that invoice to Rest Your Case and the Court will award the amount of that payment
as a monetary sanction against Casino.
That monetary sanction shall be paid by Casino and its lawyer within 30
days of the date the inspection takes place.
The Court will later consider whether the storage costs charged by Rest
Your Case should be recoverable as litigation costs in this case if Plaintiff
is the prevailing or is deemed to be the prevailing party.