Case Number: GC050239    Hearing Date: November 07, 2014    Dept: A

Avila v Bernard R. Rothermund Contractors

PLAINTIFF’S MOTION TO COMPEL INSPECTION
DEFENDANTS’ MOTION TO QUASH SUBPOENA

Calendar: 28
Case No: GC050239
Date: 11/7/14

RELIEF REQUESTED:
1. Defendant, California Convalescent Hospital of Pasadena, Inc.
Order quashing subpoena for inspection of “The Californian-Pasadena Convalescent Hospital”

2. Plaintiff, Julia Avila
Order compelling Christen C. Garret 1998 Trust, to permit inspection of “The Californian-Pasadena Convalescent Hospital”

DISCUSSION:
This case arises from the Plaintiff’s claim that she suffered personal injuries when she slipped and fell on the premises of “The Californian-Pasadena Convalescent Hospital”. The Plaintiff was employed as a nurse. The Plaintiff filed her Complaint against the landlord, Christen C. Garrett 1998 Trust. In addition, the Plaintiff claims that her injuries were caused because the contractors, Bernard R. Rothermund Contractors, Inc. and Roofing Standards, Inc., were negligent in their renovations and remodeling of the premises.
This hearing concerns a dispute regarding the Plaintiff’s right to inspect the premises where she slipped and fell. The Plaintiff served a request for inspection on the Defendant, Christen C. Garrett 1998 Trust, on November 13, 2013 (copy of demand for inspection in exhibit A to Plaintiff’s motion). The Defendant served a response in which it objected that it did not have possession of the premises (copy of response in exhibit B to Plaintiff’s motion).
After lengthy meet and confer efforts, the Plaintiff then served a subpoena for the inspection of the premises on The Californian, which is the Defendant’s tenant (copy of subpoena in exhibit R). The Defendant’s counsel then advised the Plaintiff that it was also representing The Californian and that a motion to quash would be filed (copy of letter in exhibit S).

This hearing concerns the Defendant’s motion to quash the subpoena served on The Californian and the Plaintiff’s motion to compel the inspection of the premises.

1. Defendant’s Motion to Quash Subpoena
CCP section 1987.1 authorizes the Court to make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the Court shall declare, including protective orders. Section 1987.1 authorizes the Court to make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.
This case involves a claim that the Plaintiff slipped and fell on the premises of the Californian. When the Plaintiff was exiting room 9, a plastic bag placed over a fire sprinkler released and dumped water and ceiling fragments onto the Plaintiff and floor. The Plaintiff claims she slipped, hit her head on the bed frame, and then fell onto the floor.
The Plaintiff served a subpoena to inspect the following:

1) the premises of the Californian, including the flooring, ceiling, sprinkler system, and surveillance system of room 9 plus the ingress and egress from room 9;
2) non-destructive testing of the site of the incident, including the flooring, ceiling, sprinkler system, and surveillance system;
3) measuring and surveying the site of the incident, including the flooring, ceiling, sprinkler system, surveillance system, ingress, and egress; and
4) inspection and non-destructive testing of the roof of the Californian.
(see copy of subpoena in exhibit 1 to Defendant’s motion).

The subpoena repeatedly notes that no destructive testing would occur.

The Defendant argues that this inspection will invade the right to privacy. The Defendant’s argument regarding privacy is based on the claim that the room is now a patient’s room. Since the Plaintiff is not seeking to obtain any information whatsoever regarding the patient, private or otherwise, this argument is not apposite.
There is no legal authority holding that the inspection of premises where a slip and fall occurred involves or invades a right to privacy. Accordingly, the Defendant does not offer any grounds to quash the subpoena based on privacy.

The Defendant then argues that the subpoena should be quashed because a neutral, third party should perform the inspection. The Defendant claims that the neutral, third party should be paid by the parties who wish to conduct the inspection, i.e., the Plaintiff.
There is no law cited to demonstrate any legitimate basis for an order that would quash the Plaintiff’s subpoena on this ground. Further, there is no basis to issue a protective order that bars the Plaintiff from inspecting the location at which she slipped and fell with her own expert.

The Defendant offers no evidence that establishes that the Plaintiff’s subpoena is unreasonable, oppressive, or violates the right of privacy. Instead, the Plaintiff’s subpoena includes a reasonable request to inspect the location at which she slipped and fell in order to determine whether there is evidence supporting her claims.

Further, the Defendant’s motion includes an email in exhibit 8 that identifies the extent of the Plaintiff’s requested inspection. The Plaintiff indicates that the inspection would take approximately two hours and include room nine and the hallway around room nine. Further, the Plaintiff states that the expert would like access to the roof and any crawlspace between the roof and ceiling. The Plaintiff states that the expert would like to look at and photograph the fire sprinklers. The Plaintiff states that there is no interest in any other parts of the interior and that no destructive testing would occur.
After more correspondence, the Plaintiff indicated in an email attached as exhibit 10 that the inspection would involve 2 to 3 individuals.
This indicates that the Plaintiff’s subpoena is tailored to seek information relevant to her claims or likely to lead to the discovery of admissible evidence regarding her claim that she slipped and fell in room 9 due to the Defendant’s negligence. The Defendant has not identified any grounds to quash the subpoena.

Accordingly, the Court will deny the Defendant’s request to quash the subpoena.

In her opposition, the Plaintiff requested monetary sanctions. Under CCP section 1987.2, the Court may, in its discretion award the amount of the reasonable expenses incurred in opposing the motion, including reasonable attorney’s fees, if the Court finds the motion was made in bad faith or without substantial justification.
In the pending case, the Defendant’s motion was made without substantial justification. The Plaintiff’s subpoena was a reasonable attempt to obtain discovery of the location at which she slipped and fell. The subpoena was not oppressive because it was tailored to the specific location and to the sprinkler system alleged to be involved in her fall. The subpoena did not seek to invade anyone’s privacy. The Plaintiff’s attorney made numerous efforts to resolve the dispute informally. In response, the Defendant’s attorney obstructed the subpoena with objections that lack merit, e.g.,

1) the inspection area might include individuals in a weakened state, infirm, feeble, and extremely susceptible to stress with the possibility of death;
2) the inspection would invade the right to privacy of “numerous patients”;
See Defendant’s objections in exhibit 2 to Defendant’s motion)

Asserting that an inspection might cause the death of a patient has so little merit that it could be considered an objection made in bad faith.
Further, the Defendant’s attorney then requested numerous conditions for the inspection (see reply papers, declaration of Defendant’s counsel, Matthew Agren, untabbed exhibit 1). This included a request that the Plaintiff agree that, if the patient in room 9 declined to permit the inspection, that the inspection would be re-scheduled until there has been a patient turn-over and the new patient had consented to the inspection. This request could potentially bar the Plaintiff from obtaining any discovery regarding the location if the patient remains in the room for years or if the new patient declined to permit the inspection.
Other limitations included that the Plaintiff would be barred from testing the flooring in room 9, that the Defendant could terminate the inspection for any reason, or that the hospital could require the Plaintiff to pay for temporary safety measures to prevent anyone from falling through a skylight on the roof (see untabbed exhibit 1). Further, it is difficult to avoid drawing the inference, after reviewing the numerous limitations on the inspection identified by Defendant’s counsel in exhibit 1, that the Defendant’s counsel not acting in good faith during the informal attempt to resolve this dispute.
Finally, the premises underwent substantial renovation and remodeling. The Defendant’s counsel makes no effort to explain how a two hour inspection of single room and hallway is more intrusive and invasive than contractors renovating and remodeling the premises.

Accordingly, there are grounds to impose monetary sanctions on the Defendant and its counsel under CCP section 1987.2 because the motion was made without substantial justification. The Plaintiff’s counsel, Sharona Hakim, provides facts in paragraph 14 of her declaration to demonstrate that she expects to spend 6 hours billed at $350 per hour. The Court will adjust the hourly rate down to $250 per hour because this is a reasonable rate to bill for discovery disputes. Accordingly, the amount of monetary sanctions is $1,500.

2. Plaintiff’s Motion to Compel Inspection
The Plaintiff requests an order compelling the Defendant to permit the inspection of the premises. Since the Court will deny the Defendant’s motion to quash, it appears that the Plaintiff’s motion is moot and will be taken off calendar because the inspection will occur pursuant to the subpoena.

At the hearing, the Court will make an inquiry with the parties to determine a date for the inspection. The Court can then issue an order that the inspection will occur pursuant to the subpoena on that date. If the Defendant declines to permit the inspection, pursuant to all aspects sought in the subpoena, on the date set by the Court, then the Plaintiff may file a motion for the appropriate relief, including terminating, evidentiary, issue, and monetary sanctions.

RULING:
1. Defendant, California Convalescent Hospital of Pasadena, Inc.
DENY Defendant’s motion in its entirety.
IMPOSE monetary sanctions on the Defendant in the sum of $1,500.00.

2. Plaintiff, Julia Avila
TAKE OFF CALENDAR motion as moot in light of order on subpoena.
SET date for inspection to occur pursuant to all aspects sought in subpoena.