Pullin v. Superior Court

Opinion

VOGEL (Miriam A.), J.

We publish this opinion to confirm that, as the plaintiff in this case claims, there is nothing in the Civil Discovery Act (Code Civ. Proc., § 2016 et seq.) to prevent a party from conducting a unilateral investigation without resort to any statutory discovery device, provided only that the investigation is lawful.

1

We issue a peremptory writ as prayed.

Facts

On a rainy day in February 1998, Lincoln Pullin slipped and fell at a Vons Market in Inglewood. In January 1999, Pullin sued The Vons Companies, Inc. for negligence. Vons answered, and the case was ultimately set for trial. Pullin retained a forensic safety engineer, Ralph Engdahl, and designated Engdahl as his expert on the issue of liability. Vons noticed Engdahl’s deposition. Pullin, in turn, telephoned Vons’s lawyer to ask for permission for Engdahl to “conduct tests” on the floor at the Inglewood market. Vons’s

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lawyer responded with a dissertation on Pullin’s “failure to timely serve a proper request for an inspection” and refused to allow Engdahl to inspect the premises or conduct any tests.

On February 17, while the Inglewood store was open for business, Engdahl went to the store, examined the spot where Pullin had fallen, used a “small machine” to conduct a test on the floor, purchased an item, then left the store. The entire process took about 15 minutes. No one complained. No one asked him to leave. No damage was done. Based on his test, Engdahl was prepared to testify at trial that, when wet, the “co-efficient of friction on the floor” was below acceptable safety standards, and that the condition of the floor caused Pullin’s fall.

Engdahl’s deposition was taken the next day, at which time Vons’s lawyer learned about Engdahl’s test. Shortly thereafter, Vons filed a motion in limine in which it asked for an order excluding Engdahl’s testimony and the results of his tests, describing Pullin’s conduct as an “outrageous” abuse of the discovery process.

2

In opposition, Pullin said that nothing that Engdahl did was prohibited by any statute or rule, and that the Discovery Act is permissive, not mandatory. The trial court agreed with Vons, suggesting at the hearing on Vons’s motion that Vons had the right to be present at all tests conducted by Pullin, describing Pullin’s conduct as “secretive,” and finding that it was “contrary to the spirit of our discovery laws.” At the end of the hearing, the trial court excluded the test and any reference to it by Engdahl.