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Wong v. 396 Investment Co.5/17/2005
ng without notice. In his findings and recommendations in response thereto, the discovery referee stated: "Section 16 is clear and unequivocal: Any party wishing to conduct invasive testing on any property must notice the testing. There is no exclusion or exception for a party's testing on its own property. . . ." (Underlining replaced with italics.) The discovery referee also explained at length why the other parties to the litigation were prejudiced by the unnoticed borings. In conclusion, he recommended that Anaheim "be prohibited from using, relying upon or introducing in evidence any data or information obtained from the Borings, including but not limited to any data or information from the core samples or piezometer readings." The court thereafter adopted and implemented the discovery referee's findings and recommendations as an order of the court.
We agree that case management order number 4 is clear and unequivocal. Moreover, Anaheim's cite to Pullin v. Superior Court (2000) 81 Cal.App.4th 1161 is unavailing inasmuch as that case did not have to do with the violation of a case management order. The court in the matter before us did not abuse its discretion in excluding Anaheim's evidence derived from the unnoticed borings. (See Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th 1422, 1431-1432.)
(e) New Grading Plans
Finally, Anaheim maintains that the court erred in excluding evidence pertaining to the re-grading and development of the slope by a non-party developer. Anaheim asserts that this exclusion damaged its defense to the dangerous condition claims. It explains that a dangerous condition only exists when an adjacent property owner exercises due care and still suffers injury, and that the evidence it sought to have admitted would have shown that the reservoir would have posed no danger to the plaintiffs' properties if they had been used with due care.
Anaheim claims that the court excluded the evidence based on Evidence Code section 1151, having to do with remedial or precautionary measures, and erred in so doing. 396, on the other hand, asserts that the evidence was properly excluded under Evidence Code section 352, having to do with undue prejudice. The reporter's transcript reflects that the court considered both statutory provisions.
The court stated, inter alia: "I understand the city is offering it to negate any concept of dangerous condition because they're really saying to me, I think, a properly designed project can be built on this; therefore, the reservoir is not in itself a dangerous condition. It may have leaked and that leakage may have drifted over and caused water to build up, but the design before was inadequate. Now there is a design going in there that is adequate. And that's the problem I have. I can't figure out how the jury is going to separate those two concepts." It also said: "But I do not wish to foreclose this issue of what's going on out there. But I think that you're going to have to convince me that it is more probative than prejudicial . . . ." The court also indicated that inasmuch as 396, through settlement, had provided funding that enabled the plaintiff homeowners to leave their homes, 396 had facilitated the new construction, and "arguably what 396 did is remediation after the event which caused the injury. That's what I'm relying on." Ultimately, the court sustained the objections to the evidence, without prejudice.
We agree with the trial court that 396 and its insurers, by participating in the settlement agreements, facilitated the scheme to transfer title to the plaintiffs' properties to a third-party developer for the demolition of the homes and reconstruction of the hil
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