2012-00127420-CU-BC

Coleen Weeks vs. Andrew Scarborough

Nature of Proceeding:   Motion to Compel Inspection of Real Property

Filed By:  Campbell, Mark A.

Defendants Andrew and Tiffany Scarborough’s Motion to Compel Inspection and
Testing of Real Property is GRANTED. The cross-requests for imposition of sanctions
are DENIED.

The Court granted the unopposed ex parte application to hear this motion on
shortened time, as trial is set for Monday, July 7, 2014.  Although plaintiff objects that
this discovery motion is not timely heard C.C.P., sec.  2024.020 permits any party, as
a matter of right to have motions concerning discovery heard on or before the 15th
day, before the date initially set for the trial of the action. The June 18 hearing date is
more than 15 days before the July 7 trial date, thus the plaintiff’s objection is overruled.

Plaintiff Coleen Weeks’ complaint alleges causes of action for breach of contract;
negligent misrepresentation/ concealment and failure to disclose defects in a single
family residence that the plaintiff purchased from the defendants.

Among other allegations, plaintiff contends that the defects include expansive soils and
excessive subterranean water which led to moisture coming through the concrete slab
of her floor. Plaintiff contends this moisture, in turn, caused the failure of the wood  flooring she installed in the home shortly after buying it from the defendants.

Defendants have cross-complained against the wood flooring installer contending that
he was negligent in the installation of the flooring and it is his negligence that is the
cause of the failure of the floor.

On May 2, 2014, moving party defendants served a demand for inspection and testing
on plaintiff, to take place on June 6, 2014.  The Request was to (1) “Visually examine,
photograph, and or video tape the interior and exterior of the subject property. (2)
Conduct non-destructive testing and measurements, including, but not limited to taking
moisture meter surveys and reading and measurements of the interior floors. (3)
Remove the two mismatched flooring planks near the front door of the home which,
according to cross-defendant Timothy Smith, he installed as a temporary fix, followed
by measurement, inspection and photographing the concrete slab beneath, the Bostik
moisture vapor prevention material (MVP4), the Bostiks best adhesive and the flooring
installed by Timothy Smith and his employees. and (4) Perform an (IN-SITU) relative
humidity and PH probe test on the slab in that location and at five other locations to be
selected in the home. This test involves drilling a three quarter inch diameter hole
approximately two inches deep into the concrete slab. The representative will return
after 72 hours to measure the humidity and PH inside. The representatives will repair
the holes in the concrete and flooring. This is a standard test in conformity with ASTM
F2170-02 published in 2002.”

Code Civ. Proc.  § 2024.020 also provides that any party shall be entitled as a matter
of right to complete discovery proceedings on or before the 30th day before the date
initially set for trial.  Here, June 6, 2014 is exactly 30 days before the trial date of July
7, 2014.

Plaintiff served a timely objection to the Request for Inspection on June 4, 2014.
C.C.P., sec. 2031.260 provides for a response within 30 days after service of the
demand, extended by five days for service by mail. C.C.P., sec. 1013. (See, Weil &
Brown, Civil Proc. Before Trial, sec. 8.1459 (TRG 2012) Thus, moving parties’
objection that the response was untimely is overruled.

Plaintiff’s Response objects only to Inspection Request no. 4, on the grounds  that
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although the inspection is to take place on the 30   day, the defendant seeks to have a
representative  “return after 72 hours to measure the humidity and PH inside”, which is
beyond the 30 day discovery cut-off before trial. Additionally, plaintiff objects that the
inspection is not sufficiently specific, as required by C.C.P., sec. 2031.030(c) (4).

No objection was made to Requests nos. 1-3, thus plaintiff has waived her objections
thereto.

The Court overrules plaintiff’s objection that the Request for Inspection no. 4 is not
sufficiently specific.  As to the provision that there will be a return after 72 hours to
inspect, the Court finds that the 30 day discovery cut-off before trial is not violated, as
Code Civ. Proc. § 2024.010 provides: “As used in this chapter, discovery is considered
completed on the day a response is due or on the day a deposition begins.”  Here, the
“response” was due on June 6, 2014 or by analogy the deposition begun; therefore the
follow-up 72 hour inspection does not violate that section.

The motion is granted. Counsel shall cooperate in scheduling the inspection for the
earliest possible date.

The cross-requests for imposition of sanctions are denied.  The Court cannot find that
the opposing party plaintiff has entirely cooperated with moving parties’ meet and
confer efforts in good faith, but finds that the moving parties have waited until the
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proverbial 11   hour to conduct this discovery, necessitating this flurry of last minute
discovery.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item   7     2012-00127420-CU-BC

Coleen Weeks vs. Andrew Scarborough

Nature of Proceeding:     Motion to Compel Further Responses to Request for Production of

Filed By:   Nicholson, Suzanne M.

Defendants Andrew and Tiffany Scarborough’s Motion to Compel Further Responses
to Request for Production of Documents (Set One) from Cross-defendants Jeremy
Gyori and Gyori Development Co. is GRANTED. The cross-requests for imposition of
sanctions are DENIED. CCP 2031.310.

Plaintiff Coleen Weeks’ complaint alleges causes of action for breach of contract;
negligent misrepresentation/ concealment and failure to disclose defects in a single
family residence that the plaintiff purchased from the defendants Scarborough.

Among other allegations, plaintiff contends that the Scarboroughs failed to disclose
expansive soils, water intrusion and vapor transmission through the concrete slap,
defective irrigation system and improper draining system.

The Scarboroughs have cross-complained against contractor Jeremy Gyori and Gyori
Development Company (GDC), who performed work at the property for equitable
indemnity, apportionment, and declaratory relief, alleging that the damages sought by
Weeks in her complaint are not the result of any nondisclosure or concealment on
defendants’  part, but of work performed by Gyori and GDC.

On March 13, 2014, the Scarboroughs propounded requests for production of
documents (set one) on Gyori and GDC.  Gyori and GDC served responses on April
23, 2014. Gyori and GDC asserted objections to every request, but as to most
responded that any responsive documents in Gyori/GDC’s possession, custody or
control would be produced. There were several requests, however, as to which only
objections were asserted, and no documents were produced.

Following meet and confer efforts, this motion followed, on shortened time per ex parte
order.

The Court finds that the objections on the grounds of relevance, vague and
ambiguous, overbreadth and compound are not well taken.  The objections on the
grounds that any of the documents requested implicate the attorney-client privilege or
attorney work product doctrine do not appear to be well-taken, as the documents
requested are communications with plaintiff’s counsel.   The objection that the
documents request premature disclosure of expert reports was obviated by the moving
party’s clarification that no expert reports were requested. The objection on the
grounds of “proprietary information” is unclear, and does not appear to be made in
good faith, as further correspondence reflects that counsel does not understand the
term “water intrusion”.

In opposition, Cross-defendants contend that Jeremy Gyori testified at his deposition
that he understood that everything had been supplied should be sufficient. The Court
does not find that deposition testimony is an adequate substitute for a verified
response to written discovery, especially as is it is qualified by the deponent’s
“understanding”.

Additionally, Cross-defendants assert that their Response to Cross-complainant’s
Supplemental Request for Production of Documents (Set One) represented that
responding party has no further supplemental responses to Cross-complainants’
document request.  This appears to be a different written request for discovery, which
does not address the issues before this Court.

As to the meet and confer, the Court finds that the blame for inadequate meet and
confer rests equally on both parties.  The moving party waited until the proverbial 11th
hour, but the responding party refused to agree to any extension of time in which to
move to compel. The Separate Statement reflects that although moving party clarified
that expert reports were not being requested in the meet and confer process, the
responding party failed to accept that clarification of the requests and relied upon its
objections.

Cross-defendants are ordered to provide further responses to Requests Nos. 5, 6, 21,
45, 47 and 57 and provide all responsive documents to the Request for Production of
Documents (Set One) to counsel for defendants not later than Wed., June 25, 2014. If
all responsive documents have already been produced, the responding party shall
clearly so state in response to each request. If any documents are withheld on the
grounds of the privilege objections asserted, counsel shall also provide a privilege log
identifying each document by Bates number, date, authors, recipients, general subject
matter and the privilege asserted.  The purpose of providing a specific factual
description of documents is to permit a judicial evaluation of the claim of privilege.
Hernandez v. Superior Court (2003) 112 Cal. App. 4th 285, 292.

The cross-requests for Sanctions are DENIED, as this motion should not have been
required if counsel accepted the reciprocal responsibilities imposed upon them by the
Discovery Act.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.