## Facts

- Lincoln Pullin sued The Vons Companies, Inc. for negligence after slipping and falling at a Vons supermarket in Inglewood on a rainy day in February 1998.
- Pullin retained Ralph Engdahl, a forensic safety engineer, to opine on liability, including that the wet floor’s coefficient of friction fell below acceptable safety standards and caused the fall.
- Vons noticed Engdahl’s deposition.
- Before the deposition, Pullin sought permission from Vons’s counsel for Engdahl to test the store floor; Vons refused, citing Pullin’s failure to serve a statutory inspection demand.
- While the store was open to the public, Engdahl entered during business hours, performed a slip-resistance test with a small machine in the area of the incident, bought an item, and left after about 15 minutes.
- The test caused no damage and did not disrupt operations; no Vons personnel objected or asked him to leave.
- After learning of the test at Engdahl’s deposition, Vons moved in limine to exclude the test results and related expert testimony as an abuse of the discovery process.
- The trial court granted the motion, reasoning that Vons had a right to be present and characterizing the test as an improper “secret” investigation.
- Pullin sought writ relief directing the superior court to vacate the exclusion order; the Court of Appeal stayed trial and heard the petition.

## Issues

1. Whether the California Civil Discovery Act bars a party from conducting a lawful, unilateral investigation of premises open to the public without using statutory discovery procedures.
2. Whether a trial court may exclude expert test results and testimony as a discovery abuse solely because the evidence was gathered through a non-statutory, unilateral site test.

## Decision

- The Court of Appeal granted writ relief.
- The court held the Civil Discovery Act does not prevent a party from conducting a unilateral investigation without using statutory discovery devices, provided the investigation is lawful.
- The court concluded Engdahl’s test was lawful and unobtrusive on premises open to the public and did not constitute discovery misconduct.
- The court issued a peremptory writ of mandate directing the superior court to vacate its order granting Vons’s motion in limine and to enter a new order denying the motion.

## Legal Principles

- The Civil Discovery Act provides optional procedures for obtaining information; it is not an exclusive scheme that prohibits other lawful methods of investigation.
- A lawful, unilateral inspection or test conducted on premises open to the public is not transformed into discovery abuse merely because a statutory inspection demand could have been used.
- The Act does not give an opposing party a categorical right to attend or control every investigative step taken by the other side outside formal discovery.
- Exclusion of relevant expert evidence as a discovery sanction requires a legally cognizable violation or misconduct; lawful informal investigation, by itself, is insufficient.

## Conclusion

The court held that lawful, unilateral testing in a business open to the public is permitted outside formal discovery procedures, and the trial court erred by excluding the expert’s test results and testimony as a discovery abuse.


Pullin v. Superior Court, 81 Cal. App. 4th 1161 (Ct. App. 2000)