This is a construction defect case filed by plaintiff The Irvine Company LLC (“Irvine”), the owner of a 439-unit apartment project commonly known as “The Redwoods” located in San Jose, California. In the operative First Amended Complaint (“FAC”), filed March 27, 2013, Irvine sues defendant Douglas Ross Construction (“DRC”) and Doe defendants for (1) breach of prime contract; (2) breach of express warranty; (3) breach of implied warranty; (4) breach of subcontracts; (5) breach of express indemnity; (6) negligence; and (7) strict liability in tort.

On April 4, 2013, DRC filed its Answer and Cross-Complaint for breach of contract, contribution, express and implied indemnity and declaratory relief against Moe defendants.

On September 18, 2013, the Court (Hon. J. Kleinberg) issued Case Management Order (“CMO”) No. 1 (Redwoods) setting forth various specialized management matters, appointing William F. Pagano as Special Master and Ross R. Hart as mediator, establishing a Discovery Committee (consisting of counsel for Irvine, Lead Defense Counsel, and one or two cross-defendant parties), staying all discovery not specifically permitted in CMO No. 1, and scheduling destructive testing and submission of cost repair estimates. The permitted discovery consists of an initial production of non-privileged/protected documents generally related to the development, design, construction, supply of labor and materials or repairs and maintenance of the Redwoods and designation of a document depository. CMO No. 1 also provides for certain written discovery (special interrogatories, scope of work interrogatories, insurance interrogatories), insurance coverage mediation, and depositions as scheduled by the Discovery Committee (including depositions of PMKs and expert witnesses).

On October 17, 2013, DRC filed a Moe Amendment to its Cross-Complaint, substituting cross-defendant Poured Floors, Inc., dba Aerolite, as Moe 11 and Dimetrius Painting II, Inc. (“Dimetrius Painting”, erroneously sued as “Demetrius Painting”) as Moe 15. On January 8, 2014, Poured Floors filed its Answer to the Cross-Complaint and filed a Cross-Complaint for equitable/implied indemnity, apportionment and contribution and declaratory relief against Moe defendants.

Poured Floors now moves to lift the discovery stay. Poured Floors argues that its due process rights have been denied because CMO No. 1 was entered prior to any cross-defendants being brought into the case, and therefore, it had no notice or opportunity to negotiate or challenge the terms of the CMO. Poured Floors also argues that there was no agreement of the parties to the appointment of the Special Master, since the majority of parties were added after CMO No. 1 was entered. Poured Floors complains that the CMO requires DRC and cross-defendants to respond to two sets of interrogatories within 45 days of their entry into the case, while Irvine is not required to respond to a single interrogatory. Poured Floors further complains that the CMO does not require Irvine to identify any amounts it is claiming as Stearman damages, or for DRC to identify its damages for cross-defendants’ breach of their duty to defend pursuant to Crawford v. Weather Shield (2008) 44 Cal.4th 541. Poured Floors moves in the alternative to amend CMO No. 1 to require (1) Irvine to respond to interrogatories concerning their claims; and (2) the production of all documents supporting claims of Stearman and Crawford damages.

Dimetrius Painting joins in the motion.

In its opposition brief, Irvine argues the motion should be denied because it was not brought before Special Master Pagano, who was appointed to hear and make recommendations on all discovery matters. Irvine further argues the motion is untimely because it was not brought within 30 calendar days after Poured Floors’ first appearance in the litigation as required by CMO No. 1 for all objections thereto. Irvine further contends that there is no good cause for the motion because the use of case management in complex cases would be defeated if the Court was forced to await the appearance of every single defendant, and Poured Floors has not demonstrated how it has been prejudiced.

DRC also opposes the motion, arguing that complex cases such as this require specialized management to keep down costs and expedite the case, that Poured Floors’ rights have not been denied by CMO No. 1, and it is Poured Floors who is placing unnecessary burdens on the Court with this motion, since it should have raised issues regarding discovery with the Special Master. Regarding Stearman and Crawford damages, DRC argues these issues are premature, and Special Master Pagano has the authority to determine issues related to these damages. DRC argues the appointment of a special master is necessary to the management of this complex case.

Judicial Notice

In opposition, DRC requests judicial notice of: (1) California Rules of Court, rule 3.400; (2) California Evidence Code sections 450-460; (3) the Superior Court of California, County of Santa Clara Online Document List for this case; (4) Poured Floors’ Judicial Counsel form CM-100, filed March 4, 2014; and (5) Joint Case Management Statement, filed March 3, 2014.

The Court must take judicial notice of the California Evidence Code because it is the public statutory law of this state. (See Cal. Evid. Code, § 451, subd. (a).) The Court may take judicial notice of court records filed in this action, as well as the California Rules of Court. (See Cal. Evid. Code, § 452, subds. (d) [court records], (e) [rules of court].) The request is GRANTED.

Discussion

Regarding the timeliness of the motion, CMO No. 1 provides: “Any party who appears in the litigation after the date this Order is entered and who objects to any part of this Order shall bring those objections to the attention of the Court in a noticed motion to amend this Order no later than thirty (30) calendar days after the date of that party’s first appearance in this litigation.” Here, Poured Floors was added as a cross-defendant on October 17, 2013 and made its first appearance by filing its Answer to DRC’s Cross-Complaint on January 8, 2014. The instant motion was filed on February 27, 2014, which was more than 30 days after Poured Floors’ first appearance. Poured Floors’ attorney submits that “[o]n or about February 6, 2014 our office informed the Court of our objection to the Case Management Order No. 1 and requested the hearing date for this motion.” However, obtaining a hearing date for a motion challenging the CMO is not the equivalent of “bring[ing] those objections to the attention of the Court in a noticed motion” within the time specified. Even if Poured Floors fully explained to the Court’s clerk the basis for its objection on February 6, 2014, the objection was not brought “in a noticed motion” on February 6, 2014 to satisfy the CMO’s time limits.

Even if the motion was timely filed, Poured Floors does not sufficiently demonstrate a due process violation based on CMO No. 1, which represents a valid exercise of the Court’s discretion and flexibility to manage this complex matter in an efficient and expeditious manner. “A useful tool, employed by many judges managing complex litigation, is the case management order. [Citation.] Such an order, preferably made very early in the litigation, lays out a clear path and timetable for the completion of all tasks necessary to ready the case for trial.” (Lu v. Superior Court (1997) 55 Cal.App.4th 1264, 1267-1268.) “It is within the spirit of the standard and trial judges should be encouraged to use their inherent powers under Code of Civil Procedure section 187 to manage such complex cases in the most efficient and expeditious manner. Section 187 provides: ‘When jurisdiction is, . . . conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.’ [¶] The flexibility afforded courts by Code of Civil Procedure section 187 is particularly apt in cases managed under the complex litigation standard.” (Id. at p. 1271.)

Here, CMO No. 1 provides for a streamlined discovery process to promote efficient identification of pertinent issues and evidence. At the same time, it allows “any party” to seek discovery not expressly permitted by appealing to the Special Master. “For good cause demonstrated by any party after application by noticed motion, the Special Master may grant leave to propound discovery not permitted in this Order, order a party to respond to the discovery permitted in this Order, or otherwise lift the discovery stay early.” Thus, Poured Floors still has available means to seek discovery in spite of the discovery stay, or may ask the Special Master to lift the stay altogether. Regarding Stearman and Crawford damages, DRC’s point is well-taken that these issues are premature, since DRC is still awaiting Irvine’s cost of repair estimates, and these issues can be raised with the Special Master at a later time. Poured Floors is not denied due process simply because this complex case is proceeding on a managed schedule that focuses on the central issues and evidence in the case.

Poured Floors also seems to challenge the appointment of Special Master Pagano. In its reply brief, Poured Floors clarifies that it is not opposing the appointment of a Special Master, but is merely asking that the Special Master be agreed upon as required by California Code of Civil Procedure section 638. However, there is no dispute that Mr. Pagano’s appointment was agreed upon by the parties in the case at the time CMO No. 1 was entered, and the addition of substituted cross-defendants does not change that fact. To the extent Poured Floors’ motion constitutes an objection to the appointment of Mr. Pagano pursuant to California Code of Civil Procedure section 642, Poured Floors provides no grounds for his disqualification pursuant to section 641.

For all of these reasons, Poured Floors’ motion to lift the discovery stay and alternative motion to amend CMO No. 1 are DENIED.