Judge: Anne Richardson, Case: 21STCV23004, Date: 2023-03-06 Tentative Ruling

Case Number: 21STCV23004    Hearing Date: March 6, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Plaintiff Consumer Advocacy Group, Inc. brings this action against Defendant Eden Foods, Inc. pursuant to an operative First Amended Complaint seeking an injunction requiring a California Proposition 65 warning, penalties under Health & Safety Code section 25249, subdivision (b), costs of suit, reasonable attorney’s fees and costs, and any other relief the Court may deem appropriate against Defendant Eden Foods based on four claims alleging that various products manufactured, distributed, promoted, or retailed by Eden Foods—Sushi Nori, Dried Arame Seaweed, Shiso Leaves, and Nori Seaweed—expose consumers to lead in violation of California Proposition 65.

Now before the Court is Defendant Eden Food’s opposed Motion for Relief from Waiver of Discovery Objections related various discovery requests made by Plaintiff Consumer Advocacy Group on July 29, 2022, comprised of a Form Interrogatories – General, Set One, Special Interrogatories, Set One, Requests for Production of Documents, Set One, and Requests for Admissions, Set One.

Motion for Relief from Waiver of Discovery Objections: GRANTED.

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).)

Defendant Eden Foods’ Motion requests waiver of discovery objections related to discovery propounded by Plaintiff Consumer Advocacy Group on July 29, 2022: Form Interrogatories – General, Set One, Special Interrogatories, Set One, Requests for Production of Documents, Set One, and Requests for Admissions, Set One. (Mot., 4:21-7:22.)

Eden Foods requests relief from waiver on the grounds that: (1) Eden Foods served substantially code compliant discovery responses to all four of Consumer Advocacy’s discovery requests on November 7, 2022 (Mot., 4:20-5:9, Jones Decl., ¶ 8, Ex. D [discovery responses]); (2) Eden Foods’ failure to serve timely responses was the result of mistake, inadvertence, and excusable neglect insofar as Eden Foods’ counsel received the discovery requests via email and overlooked the same (Mot., 5:10-6:23, Jones Decl., ¶¶ 2-3, Ex. A [discovery requests made via email]); (3) the discovery requests underlying waiver were ineffectively served given that they were served on Eden Foods via email where no agreement for such electronic service existed between the parties (Mot., 6:24-7:13, Jones Decl., ¶ 3); and (4) Plaintiff Consumer Advocacy Group was not prejudiced by the delayed responses produced by Eden Foods on November 7, 2022 given that the discovery requests were served more than a year before trial in this action and because Eden Foods would have made timely responses had the discovery been properly served (not via email) (Mot., 7:14-22).

Plaintiff Consumer Advocacy Group opposes the Motion, arguing that: (1) service via email was proper pursuant to Emergency Rule (12)(b)(1) because the California Rules of Court allow for electronic transmission of discovery requests and because Defendant Eden Foods acquiesced to electronic service by implication through routine acceptance of documents via email without objection (Opp’n, 3:25-4:13, Yeroushalmi Decl. ¶ 3); (2) any nonresponse by Eden Foods was not the result of mistake, inadvertence, or excusable neglect because simply overlooking an email containing discovery requests is not the kind of “mistake, inadvertence, or excusable neglect” contemplated by the Discovery Act (Opp’n, 4:14-5:17); and (3) the responses provided by Eden Foods are not substantially compliant with the Discovery Act because the responses are replete with boilerplate objections and responses and because the responses limited themselves to discovery related to the Universal Product Codes (“UPC”; bar code) referenced in the First Amended Complaint rather than the entire product categories implicated therein (Opp’n, 5:23-7:17).

On Reply, Eden Foods argues that: (1) overlooking an email does constitute “mistake, inadvertence, or excusable neglect” under the Discovery Act (Reply, 1:11-2:2), comparing this lapse to a failure to respond to discovery by Consumer Advocacy Group (Reply, 2:3-18); and (2) the discovery responses made by Eden Foods are substantially compliant because, in addition to proper objections, Eden Goods has “served substantive responses and provided detailed information in response to the vast majority of these discovery requests” (Reply, 2:19:3-16).

The Court first concludes that the discovery responses made by Eden Foods on November 7, 2022 are substantially code compliant. “‘“Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute.”’ [Citation.]” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779.) “‘Where there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance. [Citation.] Substance prevails over form.’ [Citations.]” (Ibid.) “‘This formulation is unobjectionable so long as it is understood to mean that each objective or purpose of a statute must be achieved in order to satisfy the substantial compliance standard, but this language cannot properly be understood to require ‘actual compliance’ with every specific statutory requirement.’ [Citation.]” (Ibid.)

The responses to the Form Interrogatories served by Consumer Advocacy Group contain not only objections, but also substantive responses going to the subject matter of the interrogatories’ questions. Though many of these responses are “No” or “Not Applicable,” such responses are valid in form and substance because they go to the heart of whether something did or did not occur in the context of the question posed by the interrogatory. (See, e.g., Mot., Jones Decl., Ex. D, Responses to Form Interrogatories, FROG No. 14.2 [Answering “No” to whether any person was cited or charged with violations of law as a result of an “INCIDENT”].) Other responses are more elaborate. (See Mot., Jones Decl., Ex. D, Responses to Form Interrogatories, FROG No. 15.1 [providing information regarding affirmative and special defenses in the pleadings].)

The responses to the Requests for Admissions largely admit or deny the questions posed (see, e.g., Mot., Jones Decl., Ex. D, RFA Responses, RFA No. 9 [“Defendant admits …”], No . 74 [“Admitted”]), making them more than sufficient because a party’s responses to RFAs are “unquestionably code compliant” when they consist of one-word “Admit” or “Deny” responses. (St. Mary v. Superior Court, supra, 223 Cal.App.4th at p. 780.)

The responses to Special Interrogatories, Set One, are somewhat less responsive to the substance of the interrogatories posed but sufficiently compliant for the Discovery Act. (See, e.g., Mot., Jones Decl., Ex. D, SROG Responses, SROG No. 109 [identifying person with knowledge as to products not requiring warning for lead during Relevant Period 2].) These include objections based on proprietary and commercially sensitive information grounds (Mot., Jones Decl., Ex. D, SROG Responses, SROG No. 16) or relevance to lead content allegations (Mot., Jones Decl., Ex. D, SROG No. 21).

The responses to Requests for Production, Set One, though similarly raising many objections, sufficiently explain, for example, why no documents can be produced (see, e.g., Mot., Jones Decl., Ex. D, RPD Responses, RPD No. 8 [commercial sensitive information]), or object to production but produce available documents as part of discovery (see, e.g., Mot., Jones Decl., Ex. D, RPD Responses, RPD No. 47 [objection followed by statement of intent to produce test reports related to arsenic in “PRODUCT 1”]).

To the extent that Consumer Advocacy Group argues that these responses are too narrowly tailored to the UPC numbers provided in the First Amended Complaint and fail to provide information related to entire product categories (Opp’n, 6:13-7:17), the Court finds that a motion to compel further responses is the proper vehicle to raise such objections because the current responses by Eden Foods provide sufficient responsive information to the interrogatory, document, and admissions requests.

The Court also finds that counsel for Eden Foods made an inadvertent mistake when failing to review the propounded discovery. Counsel Merrit Jones explains in his Declaration that he and another attorney at their law firm (Robert Boone) were served but were unaware of the propounded discovery because Boone had recently left the firm and because Jones had not previously exchanged emails with the Law Clerk who propounded the discovery on behalf of Plaintiff’s counsel, leading Jones to overlook the email containing the requested discovery. (Mot., Jones Decl., ¶¶ 2.) Such lack of personal knowledge as to the existence of the discovery can constitute a form of mistake, inadvertence (“overlooking”), or excusable neglect. (See Elston v. City of Turlock (1985) 38 Cal.3d 714, 735, superseded by statute as stated in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) This conclusion is reinforced by Jones explaining in his Declaration that he only became aware of the discovery requests on September 6, 2022, at which time he diligently communicated with Consumer Advocacy Group’s counsel to remedy the non-response, accomplishing this task on November 7, 2022. (Mot., Jones Decl., ¶¶ 4-8.)

The Court thus GRANTS Eden Foods’ Motion for Relief from Waiver of Discovery Objections.

Conclusion

Defendant Eden Foods, Inc.’s Motion for Relief from Waiver of Discovery Objections is GRANTED because, following non-response to four discovery requests, Eden Foods provided substantially code compliant responses to the propounded discovery and established that the non-response was based on mistake, inadvertence, or excusable neglect.