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(A version of this article appears in the California
Construction Law Reporter, published by the West Group.)
By James E. Acret
San
Diego Unified Port District filed an action to recover damages
for defective tile flooring installed in an airport terminal
at Lindbergh Field, naming the architect, a consultant to
the architect, the flooring contractor, the tile supplier
and the prime contractor as defendants. The trial court
issued a case management order appointing a special master
under Code of Civil Procedure §§638 and 639 to
manage the discovery process and to manage, organize and
mediate the action.
The
design consultant, the floor installer and the tile supplier
requested destructive testing on the floor. The architect
and the prime contractor refused to share the cost of the
destructive testing and announced that they did not want
testing performed. The special master forwarded a recommendation
and proposed order that would have required all five parties
to contribute to the cost of the testing ($8,500). The architect
and the contractor objected. The trial court ordered all
parties to contribute to the testing. Reversed. San Diego
Unified Port District v. Douglas E. Barnhart, Inc.,
___ Cal.App.4th ___, ___ Cal.Rptr.2d ___, 2002 DJDAR 1593
The
trial court abused its discretion. There is no legal basis
for a court to order litigants to pay for destructive testing
or any other discovery they do not wish to pursue. Each
party to litigation normally bears the burden of financing
its own suit. That principle is violated when a party is
ordered to pay for discovery sought by another party.
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