San Diego Unified Port Dist. v. Barnhart

• Decision Date: 11 January 2002
• Docket Number: No. D035161.,D035161.
• Citation: 116 Cal.Rptr.2d 65,95 Cal.App.4th 1400
• Court: California Court of Appeals Court of Appeals
• Parties: SAN DIEGO UNIFIED PORT DISTRICT, Plaintiff and Respondent, v. DOUGLAS E. BARNHART, INC. et al., Defendants and Appellants.

116 Cal.Rptr.2d 65

95 Cal.App.4th 1400

SAN DIEGO UNIFIED PORT DISTRICT, Plaintiff and Respondent, v. DOUGLAS E. BARNHART, INC. et al., Defendants and Appellants.

No. D035161.

Court of Appeal, Fourth District, Division 1.

January 11, 2002.

Marks & Golia, Robert J. Marks, San Diego, P. Randolph Finch, Jr., and Jason R. Thornton for Defendant and Appellant Douglas E. Barnhart, Inc.

Manning & Marder, Kass, Ellrod, Ramirez and John D. Marino, San Diego, for Defendant and Appellant SGPA Architecture and Planning.

Murphy, Austin, Adams, Schoenfeld, D. Michael Schoenfeld and V. Blair Shahbazian for Plaintiff and Respondent.

BENKE, Acting P.J.

Plaintiff San Diego Unified Port District (the District) filed the instant action against defendants Douglas E. Barnhart, Inc. (Barnhart), SGPA Architecture and Planning (SGPA) and others for professional negligence and related causes of action based on alleged defects in the construction of a new terminal at the San Diego International Airport (Lindbergh Field), including defects in the design and construction of the terminal's natural stone floor. Barnhart and SGPA separately appeal an order requiring them to contribute to the cost of destructive testing to be performed on the floor.¹ They contend the order was an abuse of the court's discretion because they did not request the testing and the court did not order other similarly situated defendants to contribute to the cost of the testing. We conclude the court lacked authority to order defendants to pay for the testing.

FACTUAL AND PROCEDURAL BACKGROUND

SGPA was the primary designer of the new terminal (the project) and Barnhart was the prime contractor for the project. SGPA subcontracted with the design firm of Gensler & Associates (Gensler) to assist in the project's design, which included a natural stone floor. Gensler specified certain stone tiles to be used in the construction of the floor. Barnhart subcontracted with Cleveland Marble Mosaic Company (Cleveland) to install the floor and Cleveland contracted with Walker Zanger West Coast, Ltd. (Zanger) to supply some of the stone tiles for the floor. Barnhart, SGPA, Gensler, Cleveland and Zanger are all named as defendants in the District's complaint.

The trial court deemed the instant action complex and issued a case management order "to reduce the cost of litigation, to assist the parties in resolving their disputes if possible, and if not, to reduce the costs and difficulties of discovery and trial." The order appointed a special master under Code of Civil Procedure² sections 638 and 639 to "coordinate and manage the discovery process (including document discovery and destructive testing), to hear and determine any and all discovery motions and disputes [in the action], to report findings and make recommendations thereon . . . and to manage, organize and mediate the Action. . . ." The case management order directed any parties interested in conducting destructive testing on the stone floor to disclose their interests in writing to the special master and to meet and confer about the specifics of the testing, after which the special master would convene an "all hands" meeting and issue an order concerning the timing, manner, costs and protocol of the testing.

Cleveland, Gensler and Zanger requested testing on the stone floor and submitted outlines of proposed testing to the special master. On August 4, 1992, counsel for the District, Barnhart, SGPA, Cleveland, Gensler and Zanger attended a meeting with the special master to work out the details of a joint testing protocol. The next day counsel for the District circulated a letter outlining the testing protocol and stating that all six parties at the August 4 meeting had agreed to contribute $8,500 to pay for the testing. Barnhart and SGPA immediately responded that they had not agreed to share in the cost of the testing and did not want to perform the testing. Following a telephone conference call between the special master and counsel, the special master concluded Barnhart, SGPA and the other four parties who attended the August 4 meeting were all involved in the stone tile issues and therefore should share equally in the cost of the destructive testing. The special master sent the court a written recommendation and proposed order to that effect.

On October 6, 1999, Barnhart and SGPA filed written objections to the special master's recommended order. The court signed the order on October 8, but set a hearing on Barnhart and SGPA's objections for October 29. On October 29, the court denied "SGPA and Barnhart's motions challenging the order requiring them to pay a share of the cost of destructive testing[.]" The court stated: "SGPA and Barnhart are involved sufficiently enough in the flooring issue to potentially benefit from the testing. However, the special master is directed to consider when any additional parties appear whether they too should be required to pay a share of the testing cost. Once the special master identifies those parties, the court will modify the order accordingly."

DISCUSSION

Barnhart and SGPA and the District are in agreement that whether the court had authority to order Barnhart and SGPA to contribute to the cost of destructive testing is a question of law involving undisputed facts and therefore is subject to our de novo review. The parties also essentially agree that to the extent the court had authority to order Barnhart and SGPA to contribute to the cost of the testing, the order is subject to review for abuse of discretion.

We agree with the parties' analysis of the standard of review. An appellate court reviews a trial court's exercise of discretion as a question of law where, as here, the relevant facts are undisputed. {People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144, 86 Cal.Rptr.2d 816, 980 P.2d 371.) Although a trial court's discretion in discovery matters is broad, if there is no legal basis for an exercise of that discretion it must be held that an abuse of discretion occurred. (Lehman v. Superior Court (1986) 179 Cal.App.3d 558, 562, 224 Cal.Rptr. 572.)

We conclude the court abused its discretion by ordering Barnhart and SGPA to share in the cost of destructive testing because we find no legal basis for that exercise of discretion. No California statute authorizes a trial court to order litigants before trial to pay for destructive testing or any other discovery they do not wish to pursue, and we have found no case authority from California or any other jurisdiction expressly addressing the issue. In defense of the court's order, the District relies principally on Asbestos Claims Facility v. Berry & Berry, supra, 219 Cal. App.3d at p. 19, 267 Cal.Rptr. 896, for the general proposition that trial courts have inherent power "to exercise reasonable control over all proceedings connected with...