A A A 

Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


McCoy Electric Corporation v. Annette Rubin, et al.

Case No: 16CV03591
Hearing Date: Mon Jan 13, 2020 9:30

Nature of Proceedings: Motion: Discovery




McCoy Electric Corporation v. A. Stuart Rubin and Annette Rubin (Judge Sterne)

Case No. 16CV03591


Hearing Date: January 13, 2020                                                      


HEARING:              Motion of Cross-Defendant Construction Plumbing for Order Establishing Sequence of Discovery



For Plaintiff McCoy Electric Corporation: Barton C. Merrill

 For Defendants, Cross-Complainants, and Cross-Defendants A. Stuart Rubin and Annette Rubin: Patrick C. McGarrigle, Michael J. Kenney, McGarrigle, Kenney & Zampiello

 For Cross-Defendant The Las Canoas Co. dba Construction Plumbing: Daniel E. Engel                      




The motion of cross-defendant The Las Canoas Co. dba Construction Plumbing for an order establishing the sequence of discovery is denied.





This action arises from construction work performed by plaintiff McCoy Electric Corporation (McCoy) at property owned by defendants Annette and Stuart Rubin (collectively, the Rubins). McCoy filed suit against the Rubins in August 2016 seeking unpaid fees for the work. On October 17, 2016, the Rubins answered and cross-complained against plaintiff and its principal, including claims involving defective construction, overcharging, and conversion of materials. They filed a First Amended Cross-Complaint on January 23, 2017. On February 10, 2017, McCoy Electric then filed a cross-complaint for indemnity, contribution and declaratory relief solely against fictitiously named defendants.


After various substitutions of counsel and discovery disputes, on August 26, 2019 (followed by written order entered September 16, 2019), the court granted the Rubins leave to file a cross-complaint against multiple contractors involved in the construction at issue. This second, third-party cross-complaint was filed on September 19, 2019. Among the claims in this cross-complaint are the third cause of action for negligence and the seventh cause of action breach of contract asserted against cross-defendant The Las Canoas Co. dba Construction Plumbing (Construction Plumbing).


On October 25, 2019, Construction Plumbing filed its answer to the Rubins’ cross-complaint, generally denying the allegations of thereof and asserting what appears to be 12 affirmative defenses. (Note: The affirmative defenses are not separately labelled in violation of California Rules of Court, rule 2.112, and the paragraph numbering is not consecutive.) Construction Plumbing concurrently filed a cross-complaint against the Rubins asserting what appears to be one cause of action for breach of contract of settlement.


On December 13, 2019, Construction Plumbing filed this motion for an order establishing a sequence of discovery. Construction Plumbing asserts that it “literally has no clue” about what the Rubins base their claims against it because the cross-complaint is stated in the “vaguest and most conclusory terms.” (Motion, pp. 3-4.) Construction Plumbing seeks an order requiring the Rubins to disclose the facts relative to its claims, and relative to Construction Plumbing’s asserted contractual defenses, before Construction Plumbing is required to respond to discovery from the Rubins.


According to Construction Plumbing, rather than demur, Construction Plumbing propounded written discovery to the Rubins that was served together with its cross-complaint. (Motion, p. 6.) On November 8, 2019, the Rubins served form interrogatories on Construction Plumbing. (Engel decl., ¶ 4 & exhibit A.) On December 11, 2019, Construction Plumbing withdrew this discovery and re-propounded revised sets that are “less prone to silly, time wasting objections” as well as some additional interrogatories. (Motion, p. 6.) (Ibid.) On December 12, 2019, Construction Plumbing served additional interrogatories and inspection demands. (Ibid.) None of this discovery is provided with the motion.


On December 17, 2019, the Rubins produced thousands of pages of responsive documents to discovery which were not yet due and served objection-only responses to Construction Plumbing’s propounded discovery. (Kenney decl., ¶ 5.) The Rubins’ counsel concurrently advised that substantive responses would be forthcoming within a couple of weeks. (Ibid.)


On December 30, 2019, the Rubins filed their opposition to this motion.


On January 3, 2020, Construction Plumbing filed a motion to compel further responses to its requests for admission and form interrogatory No. 17.1, scheduled to be heard on January 27.

On January 6, 2020, Construction Plumbing filed its reply to the Rubins’ opposition. The reply is slightly over 13 pages long using 14 point font.


On January 8, 2020, the Rubins objected to the reply as exceeding the 10 pages page limit for reply memoranda. (See Rules of Court, rule 3.1113(d).) Later on January 8, counsel for Construction Plumbing filed a declaration with an attachment reducing the font size of the reply and effectively reducing the size of the reply to 10 pages. The court will consider the reply. Appreciating all counsels’ efforts to make their papers easier to read, counsel are reminded to follow all of the Rules of Court, including those for formatting. In any case, wherever reasonably possible, brevity is preferred.




“Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” (Code Civ. Proc., § 2019.020, subd. (a).) “Notwithstanding subdivision (a), on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” (Code Civ. Proc., § 2019.020, subd. (b).)


Construction Plumbing asserts that there is a high likelihood that the case against it will be disposed of on statute of limitations grounds, on the basis of the waiver and release from a prior lawsuit, or on other grounds. (Motion, p. 7.) Construction Plumbing argues that it would be a waste of resources for Construction Plumbing to have to respond to discovery at least until the Rubins have fully complied with Construction Plumbing’s own discovery. The Rubins oppose the motion arguing that there is no good cause shown to alter the ordinary schedule of discovery.


“California law has long made clear that to require a party to supply proof of any claims or defenses as a condition of discovery in support of those claims or defenses is to place the cart before the horse. The Legislature was aware that establishing a broad right to discovery might permit parties lacking any valid cause of action to engage in ‘fishing expedition[s],’ to a defendant’s inevitable annoyance. [Citation.] It granted such a right anyway, comfortable in the conclusion that ‘[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.’ [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 551 (Williams).)


As the Williams court also noted, the trial court nevertheless may under section 2019.020 establish the sequence and timing of discovery for good cause. (Williams, supra, 3 Cal.5th at pp. 550-551.) By this motion, Construction Plumbing argues its good cause is that the Rubins’ claims are without merit. This motion thus essentially seeks to impose a merits requirement to the Rubins’ discovery. It is always true that a defendant will avoid unnecessary discovery if it can defeat a meritless claim prior to engaging in any discovery. However, that is not the statutory scheme. Good cause requires a showing beyond a mere claim that the plaintiff’s causes of action have no merit.


Here there is no such showing of good cause. Specifically, there is no showing of undue burden to respond to this discovery. Indeed, the motion is presented in a manner that makes discerning the factual basis for this motion unreasonably difficult. Rather than providing a declaration setting forth the underlying facts directly, the declaration of counsel for Construction Plumbing states: “Each statement of fact set forth in the Memorandum of Points and Authorities, which I wrote, is true and correct.” (Engel decl., ¶ 3.) Conflating evidentiary facts and legal argument “is a sloppy practice which should stop.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.) “Even at its most benign, it is a practice that forces the trial and appellate courts, and opposing counsel, to sort out the facts that are actually supported by oath from material that is nothing more than the statement of an opinion ostensibly under oath.” (Ibid.)


Apart from this inappropriate incorporation of facts from the memorandum, the declaration of counsel supporting the motion also includes the form interrogatories received from the Rubins’ counsel and the meet and confer correspondence between counsel. (Engel decl., ¶¶ 4-8 & exhibits A-E.) These documents merely show traditional discovery. Construction Plumbing presents no evidence that responding to these form interrogatories presents any burden not otherwise present in an ordinary case. There is thus an insufficient showing that the court should alter the discovery sequence otherwise permitted under the Code of Civil Procedure.


Moreover, if the motion to sequence discovery is viewed as a motion for a protective order as to the specific discovery used to justify the motion, the motion similarly fails to show how the particular discovery at issue is unduly burdensome or how sequencing of particular discovery would be appropriate. Part of the premise of Construction Plumbing’s motion is that the Rubins must be required to provide their discovery first because Construction Plumbing does not understand the Rubins’ claims. Construction Plumbing is free to move to compel further responses to its discovery (as it apparently already has) to the extent that it views the discovery responses from the Rubins as insufficient to provide that understanding. The existence of that dispute may affect how Construction Plumbing is able to make its own responses (which should be the subject of a meet and confer process before resorting to court), but it provides no inherent good cause to change the order of discovery provided in the Code of Civil Procedure.


Accordingly, the motion of Construction Plumbing for a sequencing order for discovery will be denied. In so ruling, the court recognizes that, notwithstanding the failure to make a sufficient showing here, the issues and number of parties in this action may later demonstrate that discovery should be managed according to a discovery plan relating to the whole of the litigation and not merely specific to discovery as between particular litigants.


© Superior Court of the County of Santa Barbara
Locations & Contact Info | Court Security | Human Resources | Privacy Policy | ADA