Judge: Anne Richardson, Case: 21STCV13188, Date: 2023-04-20 Tentative Ruling

Case Number: 21STCV13188    Hearing Date: April 20, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

On April 7, 2021, Plaintiff Maricruz Santiago brought this action against Defendants Subaru of America, Inc., Universal Auto Group, Inc. (dba Subaru of Glendale), and Does 1 through 10 pursuant to (1)-(5) five Song-Beverly Consumer Warranty Act claims and (6) one Fraud claim, based on allegations that, in December 2014, Plaintiff purchased a 2015 Subaru Forester from Subaru of Glendale, pursuant to express and implied warranties from Subaru of America, only for the vehicle to develop defects related to, among other things, the continuously variable transmission, the transmission, a performance recall, the illumination of the ABS light, and the VDC light, and/or hill assist light.

On August 20, 2021, Plaintiff Santiago served on Subaru of America (1) Form and Special Interrogatories (Set One), (2) Requests for Production (Set One), and (3) Request for Admissions (Set One).

On August 19, 2022, due to a complete nonresponse to these requests from Subaru of America, Plaintiff Maricruz Santiago made Motions to (1) Compel Responses to Form and Special Interrogatories (Set One), (2) Compel Responses to Requests for Production (Set One), and (3) Deem Requests for Admission (Set One) Admitted.

On December 20, 2022, Subaru of America provided Plaintiff Santiago what it represented as substantially code compliant responses to the August 20, 2021 discovery requests.

The record fails to reflect that Plaintiff Santiago requested further discovery as to Subaru of America’s late discovery responses.

On December 20, 2022, Subaru of America also made motions for relief from waiver related to its nonresponse to Plaintiff Santiago’s Form and Special Interrogatories (Set One) and Requests for Admission (Set One).

In January, 2023, the hearings on the three above motions were continued to March 22, 2023.

On March 9, 2023, Subaru of America made a motion for relief from waiver related to its nonresponse to Plaintiff Santiago’s Requests for Production (Set One).

On March 22, 2023, the Court denied Plaintiffs’ motions to compel as moot on the grounds that the responses were substantially compliant and that Mazda presented evidence, unrebutted by Plaintiff, that the discovery requests had been sent to an incorrect email address that was different from the one the parties had consented to use for service of discovery.

On April 7, 2023, Plaintiff opposed the March 9th motion for relief from waiver.

On April 13, 2023, Subaru of America replied to the April 7th opposition.

The March 9th motion is now before the Court.

Motion for Relief from Waiver: GRANTED.

Legal Standard

A party that fails to timely respond to interrogatories, requests for production, or requests for admission waives all objections to these discovery requests. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a), 2033.290, subd. (a).) The court, on motion, may relieve that party from its waiver on the court’s determination that: (1) the party has subsequently served a response that is in substantial compliance with the Discovery Act, and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., §§ 2030.290, subds. (a)(1)-(2), 2031.300, subds. (a)(1)-(2), 2033.290, subds. (a)(1)-(2).)

Analysis

In its motion, Subaru of America argues that it should be relieved of any waiver of objections and privileges related to the Requests for Production, Set One, served by Plaintiff on Subaru of America on August 20, 2021 because (1) Subaru of America’s nonresponse was a result of mistake, inadvertence, or excusable neglect insofar as it failed to properly calendar the date for responses to the requests for production within the statutory time period as a result Plaintiff serving the production requests on the wrong email address—i.e., failure to serve the production requests on case administrator Debbie Dahlen—and (2) Subaru of America has provided substantially code-compliant responses to the production requests. (Mot., pp. 1-3.) A copy of the responses to the production requests are attached as Exhibit B to the Bell declaration accompanying the motion for relief and show a date of service of December 20, 2022, as effected by email. (See Mot., Bell Decl., Ex. B.) The Bell declaration in turn provides that on March 12, 2020, in light of the COVID-19 pandemic, the parties agreed to service by email, with service on Subaru of America to include service on ddahlen@lerhmanlawgroup.com. (Mot., Bell, Decl., ¶ 4, Ex. A [emails showing service agreement].)

I. Mistake, Inadvertence, Excusable Neglect

In opposition, Plaintiff argues that Subaru of America shows no mistake, inadvertence, or excusable neglect in failing to respond to the August 20, 2021 requests for production for various reasons. Plaintiff first argues that service of the production requests was made on three email addresses belonging to attorneys working for defense counsel’s law firm. (Opp’n, p. 5, Ex. 1 [May, June, and August 2021 email exchanges between Plaintiff’s counsel and, in relevant part, defense counsel Kate Lehrman and Dan Villegas], Ex. 2 [copy of August 20, 2021 production requests showing service on Kate Lehrman, Robert Phillipson, and Dan Villegas].) Plaintiff next argues that no proof is presented in Subaru of America’s motion showing that Ms. Lehrman or Mr. Villegas did not receive service. (Opp’n, p. 5.) As a result, argues Plaintiff, the sixteen-month delay in providing responses to the production requests is not excusable because defense co-counsels were in fact served with the production requests. (Opp’n, p. 6.)

In reply and in relevant part, Subaru of America argues that service of the production requests should have been effected on Debbie Dahlen as the appropriate service addressee, that Ms. Lehrman, Mr. Villegas, and Mr. Phillipson are senior partners who receive hundreds of emails per day and reasonably expected service on Ms. Dahlen, and that any neglect in reviewing the August 20, 2021 email by these senior partners constitutes neglect that is excusable. (Reply, pp. 3-4.)

The Court finds that mistake or excusable neglect exists for the purpose of relief from waiver. Specifically, Subaru of America argues that defense counsel failed to calendar the date on which responses to the August 2021 production requests were due, causing the nonresponse. The evidentiary facts provided in support are that service of discovery should have been but was not effected on Debbie Dahlen, and that any service of the production requests on three senior partners was excusable because the partners’ inboxes are inundated by daily emails or because the partners simply failed to review the August 20, 2021 email at issue or to calendar responses for the production requests therein. These explanations provide the Court sufficient grounds to find that the senior partners who did receive email service of the production requests either made a mistake in not reviewing the August 20, 2021 email or were excusably neglectful in failing to calendar the response date for the production requests, either themselves or through Debbie Dahlen.

Subaru of America has therefore established one of the two requirements for relief from waiver.

II. Substantial Compliance

In opposition, Plaintiff next argues that the December 20, 2022 responses to the August 20, 2021 production requests are not substantially code compliant because the responses consist of the same generic set of boilerplate objections to each and every discovery request propounded, without any specificity to the case at hand, where 67 of the 106 requests received objections with no substantive response whatsoever. (Opp’n, pp. 6-7.)

In reply, Subaru of America argues that “Plaintiff provides no legal support for the proposition that a defendant is obligated to substantively respond to each and every discovery Request made by an opposing party, regardless of whether the Requests seek irrelevant, privileged or confidential information, or are themselves Code-compliant” and that “no defendant could ever obtain relief under Section 2031.300, subdivision (a) by asserting proper objections to discovery Requests although untimely.” (Reply, pp. 3-4.)

The Court finds that the December 20, 2022 discovery responses to the August 20, 2021 production requests are substantially code compliant.

“Substantial compliance” as used in section 2030.290, means actual compliance in respect to the substance essential to every reasonable objective of the statute. (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29.) Where there is compliance as to all matters of substance, technical deviations are not to be given the stature of noncompliance; substance prevails over form. (Southern Pac. Transportation Co. v. State Bd. Of Equalization (2013) 57 Cal.4th 401, 426.)

A review of the December 20, 2022 discovery responses shows that, among other things, Subaru of America (1) objected to parts of the August 20, 2021 production requests, (2) agreed to produce or in fact produced relevant documents to the extent that no objection was made to the documents to be produced, (3) indicated that it was not able to produce certain requested documents because, after a diligent search and reasonable inquiry, Subaru of America was unable to locate responsive documents, or (4) directed Plaintiff to information existing in the public domain. (See Mot., Ex. B, RPD Nos. 6, [objections and promise of limited production], 26, 44 [objections and failure to locate responsive documents], 46 [objections and direction to public domain], 56 [objections and actual limited production], 64, 75, 97 [objections only].)

To the extent that Plaintiff found these responses to be deficient, Plaintiff was entitled to compel further discovery. The record fails to reflect that Plaintiff did so. Nevertheless, Subaru of America’s discovery responses adequately responded to Plaintiff’s production requests by presenting various, if repeated, grounds for objection, agreeing to limited production, indicating that no discovery was available, or directing Plaintiff to the public domain. The Court finds such responses were substantially code compliant because they answered the substance of the production requests by Plaintiff, either by objection or substantive response. (Southern Pac. Transportation Co. v. State Bd. Of Equalization, supra, 57 Cal.4th at p. 426.)

Subaru of America has therefore established the second requirement for relief from waiver.

Accordingly, Subaru of America’s motion is GRANTED.

Conclusion

Defendants Subaru of America, Inc.’s Motion for Order Relieving Responding Party from Waiver of Objections to Requests for Production of Documents is GRANTED because the Court finds that Subaru of America has adequately shown that (1) its nonresponse to the August 20, 2021 production requests was the result of a mistake or excusable neglect in not calendaring the response date for the production requests and (2) its December 20, 2022 responses to the production requests are substantially code compliant.