KNM Outdoor Tribe LLC vs Roulette William Smith

Case Number

23CV02416

Case Type

Hearing Date / Time

Mon, 11/24/2025 - 10:00

Nature of Proceedings

Motion: Compel re COMPLIANCE WITH PLAINTIFF'S DEMAND FOR INSPECTION

Tentative Ruling

KNM Outdoor Tribe, LLC v. Roulette William Smith 

Case No. 23CV02416

           

Hearing Date:      November 24, 2025                       

HEARING:              Plaintiff KNM Outdoor Tribe, LLC and Cross-Defendant Wilkinson’s Motion to Compel Compliance with Plaintiff’s Inspection Demand or, Alternatively, for an Order Allowing a Second Inspection Demand, and for Protective Order

ATTORNEYS:        For Plaintiff and Cross-Defendant KNM Outdoor Tribe, LLC and Cross-Defendant Scott Wilkinson: Randall Fox, Reetz, Fox & Bartlett LLP; Jill L. Friedman, Myers, Widders, Gibson, Jones & Feingold, LLP

                                    For Defendant and Cross-Complainant Roulette William Smith: Mark T. Coffin, Mark T. Coffin, PC

                                   

TENTATIVE RULING:

The motion of plaintiff KNM Outdoor Tribe, LLC and cross-defendant Wilkinson to compel compliance with plaintiff’s inspection demand or, alternatively, for an order allowing a second inspection demand, and for protective order, is denied. The court declines to award monetary sanctions in favor of either the moving or opposing parties.

Background:

On June 6, 2023, plaintiff KNM Outdoor Tribe, LLC (KNM) filed its complaint against Roulette William Smith (Smith) asserting causes of action for specific performance and breach of contract.

As alleged in the complaint:

“The Property which is the subject of this action is an improved 2.6-acre parcel of land located at 2600 Foothill Road, Santa Barbara, in Santa Barbara County, California (APN 023-180-007) (the ‘Property’).” (Complaint, ¶ 2.) “On or about May 1, 2023, a written Property Sale and Purchase Agreement was entered into between Plaintiff and Defendant (the ‘Purchase Agreement’) committing to sell and transfer the Property from Defendant to Plaintiff.” (Complaint, ¶ 4.)

“Plaintiff has requested performance of the Purchase Agreement and has performed or is ready, willing, and able to perform, all conditions, covenants, and promises required by it on its part to be performed in accordance with the terms and conditions of the Purchase Agreement. This action constitutes further request for performance of the Purchase Agreement.” (Complaint, ¶ 7.) “Defendant has failed and refused, and continues to fail and refuse, to perform the conditions of the Purchase Agreement on his part in that he refuses to execute a conveyance of the

Property as provided in the Purchase Agreement.” (Complaint, ¶ 8.) “Plaintiff has requested mediation in accordance with paragraph XVIII(a) of the Purchase Agreement. Defendant has refused to participate.” (Complaint, ¶ 9.)

On July 25, 2023, Smith filed his answer to the complaint admitting some of the allegations, denying some of the allegations, and setting forth 20 affirmative defenses.

Also on July 25, 2023, Smith filed a cross-complaint against KNM and Scott Wilkinson (Wilkinson) asserting causes of action for: (1) civil assault and battery; (2) fraud; (3) negligent misrepresentation; (4) elder abuse; and (5) declaratory relief.

As alleged in the cross-complaint:

“On or about April 30, 2023, Defendant SCOTT WILKINSON initiated a Zoom call with Cross-Complainant. Participants included Cross-Complainant ROULETTE SMITH, Nicole Smith, Todd Smith, SCOTT WILLKINSON, Mr. WILKINSON’s fiancé Melody, and some of WILKINSON’S adult children.” (Cross-Complaint, ¶ 9.) “During the April 30, 2023 Zoom call, Mr. WILKINSON discussed his proposed ideas for purchasing the PROPERTY. Cross-Complainant did not agree to Mr. WILKINSON’s proposals. Ms. WILKINSON invited Mr. SMITH to dinner the following evening, at a Japanese restaurant in Santa Barbara (which upon information and belief is named ‘Oku’).” (Cross-Complaint, ¶ 10.)

“On May 1, 2023, Cross-Complainant attended a dinner with Cross-Defendant and others. A large amount of Japanese beer was consumed by all parties. At the end of the dinner, Cross-Defendant WILKINSON insisted that Cross-Complainant sign a written ‘sales contract’ to sell his interest in the PROPERTY.” (Cross-Complaint, ¶ 11.) “Prior to the dinner, Cross-Complainant SMITH had never seen a ‘sales agreement’ of any kind from Mr. WILKINSON, nor did he review the sales contract that Cross-Defendant had prepared that evening. Mr. SMITH told Mr. WILKINSON at the dinner that Cross- Complainant was not prepared to sign a contract at that time, because the parties had not reached agreement on several necessary terms, and because Cross-Complainant required any contracts to be reviewed and approved by legal counsel and by his adult children.” (Cross-Complaint, ¶ 12.) “At the May 1, 2023 dinner, Mr. WILKINSON physically grabbed Cross-Complainant’s hand while Mr. SMITH was holding a pen. While holding SMITH’s hand, WILKINSON attempted to forge Cross-Complainant’s signature on the last page of the agreement, above the blank line for his signature. Mr. SMITH once again told Cross-Defendant in definitive terms that he would not sign the purported agreement.” (Cross-Complaint, ¶ 13.)

“Upon learning that Cross-Complainant would not execute the purported contract, Mr. WILKINSON wrote the words ‘I Intend to Sale to Scott’ at the bottom of the page . . .. Cross-Defendant WILKINSON also wrote the phrase ‘* This precedes Mr. Smith + Todd + Nicole reviewing to ensure legal entity [sic],’ along with several arrows and a circle.” (Cross-Complaint, ¶ 14.) “Cross-Complainant signed his actual

signature inside the circle, next to the statement ‘I Intend to Sale to Scott . . .’ as a letter of intent. In so doing, Cross-Complainant memorialized his willingness to sell the PROPERTY, but only after the remaining terms had been agreed upon by the parties, and after the entire contract had been reviewed and approved by Cross-Complainant’s legal counsel, and by his adult children Todd and Nicole.” (Cross-Complaint, ¶ 15.)

On May 15, 2025, the parties participated in a mediation. (Friedman Decl., ¶ 3; Coffin Decl, ¶ 4.) The parties agreed at the May 15 mediation to allow cross-defendant Wilkinson to inspect the subject property. (Friedman Decl., ¶ 3; Coffin Decl, ¶ 4.) According to defendant Smith, this agreement was verbal and subject to the mediation privilege under Evidence Code section 1119. (Coffin Decl., ¶¶ 4-5.) The moving parties (KNM and Wilkinson) do not indicate whether the May 15 agreement for inspection was written or oral but agree it was reached at the May 15 mediation. (Friedman Decl., ¶ 3.)

On May, 20, 2025, the parties exchanged emails confirming the date and time of the anticipated inspection, and other details. (Friedman Decl., ¶ 7, Ex. B.)

On May 22, 2025, counsel for defendant Smith sent an email to counsel for moving parties KNM and Wilkinson, which stated in pertinent part: “At the inspection, all of your attendees will be expected to sign in and execute an express waiver of liability …  Although we are waiving the CCP § 2031.010 required notice period, we will be treating this as a property inspection pursuant to code.” (Friedman Decl., ¶ 6, Ex. A; Coffin Decl., ¶ 13, Ex. F.)

On May 27, 2025, the inspection occurred, at least in part, and the parties dispute whether the inspection was effectuated as agreed. (Friedman Decl., ¶¶ 10-14; Coffin Decl, ¶¶ 16-17; Wilkinson Decl., ¶¶ 3-9.) The parties met and conferred, and had discussions with the mediator, but were unable to resolve the issues pertaining to the inspection. (Friedman Decl., ¶¶ 12-19; Coffin Decl, ¶¶ 16-21.)

On August 20, 2025, plaintiff KNM and cross-defendant Wilkinson filed this motion to compel defendant Smith to permit inspection of the subject real property, or, alternatively, for an order permitting plaintiff to conduct a second inspection, and for a protective order. This motion was made pursuant to Code of Civil Procedure section 2031.010 et seq. on the grounds that the parties stipulated that an inspection of the property would occur on May 27, 2025. According to the moving parties, they would be permitted to inspect the premises to confirm its condition before finalizing a settlement.

The moving parties argue that the inspection of the property was thwarted by a combination of tenant interference and a demand by defense counsel that the inspector sign a liability waiver. The moving parties request a protective order against defendant Smith to require him to keep his tenants off the subject property during the inspection. The moving parties also request an award of monetary sanctions in the amount of $3,472.50.

Defendant Smith opposes the motion and argues that the moving parties had notice that the liability waiver would be required, that the inspection nonetheless occurred without substantial interference, and the motion is procedurally defective. Defendant argues that the agreement at the May 15, 2025, mediation was oral and subject to the mediation privilege, and defendant complied with the terms of the oral agreement. Defendant argues that no settlement occurred as part of the mediation and defendant never agreed to waive the mediation privilege. Defendant requested monetary sanctions in the amount of $2,700.

Analysis:

The burden of proof in civil actions is generally a preponderance of the evidence standard on the moving party. (Buss v. Superior Court (1997) 16 Cal.4th 35, 53.) “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.)

“A defendant may make a demand for inspection, copying, testing, or sampling without leave of court at any time.” (Code Civ. Proc., § 2031.020, subd. (a).)

“A plaintiff may make a demand for inspection, copying, testing, or sampling without leave of court at any time that is 10 days after the service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first.” (Code Civ. Proc., § 2031.020, subd. (b).)

“Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response.” (Code Civ. Proc., § 2031.260, subd. (a).)

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

“(1) A statement of compliance with the demand is incomplete.

“(2) A representation of inability to comply is inadequate, incomplete, or evasive.

“(3) An objection in the response is without merit or too general.”

(Code Civ. Proc., § 2031.310, subd. (a).)

“A motion under subdivision (a) shall comply with each of the following:

“(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

“(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.”

(Code Civ. Proc., § 2031.310, subd. (b).)

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320, subd. (a).)

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.060, subd. (a).)

“Unless the court orders otherwise, the parties may by written stipulation modify the procedures provided by this title for any method of discovery permitted under Section 2019.010.” (Code Civ. Proc., § 2016.030.)

Plaintiff KNM and cross-defendant Wilkinson’s notice of motion cites Code of Civil Procedure section 2031.010 et seq. as authority for the requested relief. (Motion, p. 2, ll. 9-14.) It does not appear from the moving, opposition, and reply papers that an inspection demand or a response was ever served by the parties pertaining to the inspection. (Friedman Decl., ¶¶ 3-9.) The moving parties did not submit an inspection demand pursuant to Code of Civil Procedure section 2031.020 in support of the motion. The moving parties did not submit a response to inspection demand pursuant to Code of Civil Procedure section 2031.260 in support of the motion.

Without an inspection demand or response, there is no basis on which the court can compel: (1) a response pursuant to Code of Civil Procedure section 2031.300; (2) a further response pursuant to Code of Civil Procedure section 2031.310; (3) compliance with response pursuant to Code of Civil Procedure section 2031.320; or (4) a protective order pursuant to Code of Civil Procedure section 2031.060. These code sections require a demand for inspection or response to be served before a motion to compel or motion for protective order can be filed or granted.

While “the parties may by written stipulation” modify the discovery procedures, the moving parties did not carry their burden to demonstrate a written stipulation wherein the parties agreed to conduct a property inspection by a modified procedure pursuant to the Discovery Act. (See Code Civ. Proc., § 2016.030.) The agreement for the inspection was reached at mediation on May 15, 2025. (Friedman Decl., ¶ 3; Motion, p. 3, ll. 7-12; Coffin Decl, ¶¶ 4-5.). Defendant Smith indicates that the May 15 agreement was oral and subject to the mediation privilege. (Coffin Decl, ¶¶ 4-5.) In reply, the moving parties did not dispute defendant Smith’s characterization of the May 15 agreement. The moving parties state in reply, “[d]efense counsel agreed to an inspection of the Property during mediation discussions.” (Reply, p.3, ll. 2-3.) An oral agreement does not satisfy Code of Civil Procedure section 2016.030.

As to the emails circulated on May 20, 2025, the moving parties state in reply that these emails were exchanged “pursuant to” the agreement at mediation, “specifying the date and time for the inspection of the Property.” (Reply, p. 3, ll. 3-7.) The emails confirming the date and time, and other details pertaining to the prior oral agreement do not satisfy Code of Civil Procedure section 2016.030 under these circumstances.

The moving parties submitted an email dated May 22, 2015, indicating that defendant Smith would be “treating this as a property inspection pursuant to code.” (Friedman Decl., ¶ 6, Ex. A.) This May 22 email does not prove a written stipulation to carry out the inspection demand by a modified procedure under the Discovery Act. Notably, the moving parties did not provide a reply to this email indicating their agreement. Moreover, the moving parties did not agree to all terms of this May 22 email which included the execution of a liability waiver. (Friedman Decl., Ex. A.) The moving parties assert they never agreed to the liability waiver as a condition of inspection.

Because there was no written stipulation pursuant to Code of Civil Procedure section 2016.030, the default provisions under the Discovery Act apply. If the moving parties wish to compel an inspection, they must first serve an inspection demand or execute a written stipulation pursuant to Code of Civil Procedure section 2016.030 that modifies the default procedures under the Discovery Act.

Plaintiff also cites Code of Civil Procedure section 128 as a basis to permit a second inspection. (Motion, p. 9, ll. 26.) However, this authority was not referenced in the moving parties’ notice of motion. (Motion, p. 2.) The court declines to exercise its discretion pursuant to this code section under these circumstances.

The court makes no ruling on whether a second inspection of the subject property is warranted or whether the mediation privilege applies to any of the parties’ discussions amongst each other or with the mediator.

For all these reasons, plaintiff KNM and cross-defendant Wilkinson’s motion is denied. The court declines to award monetary sanctions to either the moving or opposing parties.