Judge: Anne Richardson, Case: 23STCV24476, Date: 2024-05-08 Tentative Ruling

Case Number: 23STCV24476    Hearing Date: May 8, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Jose L. Hernandez sues Defendants Koos Manufacturing, Inc. (KMI) and Does 1 through 100 pursuant to an October 9, 2023, Complaint alleging claims of (1) Discrimination, Including Discriminatory Discrimination, Based on Plaintiff’s Actual or Perceived Disabilities, (2) Failure to Engage in a Timely Good Faith Interactive Process, (3) Failure to Accommodate, (4) Discrimination, Including Discriminatory Termination, Based on Plaintiff’s Age, (5) Retaliation, Including Retaliatory Termination Based on Plaintiff’s Actual or Perceived Participation in Protected Activities, (6) Failure to Prevent, and (7) Unfair Business Practices Dictating Injunctive Relief.

B. Relevant Procedural History

On January 5, 2024—not January 9, 2024 (see Proof of Service)—Plaintiff Hernandez served his first set of written discovery on KMI, which involved a Set One for form interrogatories (FROGs), special interrogatories (SROGs), requests for admission (RFAs), and requests for production (RPDs) (collectively, the Set One discovery).

That same day, Plaintiff Hernandez served several deposition notices on KMI for the deposition of KMI’s person most qualified and the deposition of two individuals, with depositions to take place in August and September 2024 and document production to precede the three depositions.

On February 15, 2024, Plaintiff’s counsel informed KMI’s counsel that responses to this discovery were overdue and requested responses from KMI no later than March 8, 2024.

On March 8, 2024, KMI’s counsel requested an additional week to provide discovery responses, to which Plaintiff’s counsel assented while noting that objections to the Set One discovery had been waived.

On March 15, 2024, KMI served responses to the Set One discovery.

B. Motion Before the Court

On March 15, 2024, KMI filed a motion for relief from waiver of objections to FROGs, SROGs, RPDs, and RFAs, Set One.

On April 24, 2024, Plaintiff Hernandez filed an opposition to KMI’s opposition.

On May 1, 2024, KMI filed a reply to Plaintiff Hernandez’s opposition.

KMI’s motion is now before the Court.

II. Evidentiary Objections

Reply Objection Nos. 1-8: SUSTAINED.

The declaration must be limited to evidentiary facts and should not contain legal arguments or conclusions or ultimate facts, and must advance admissible and unobjectionable evidence. (Lydig Constr., Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944 [declarations must contains relevant facts, not ultimate facts commonly found in pleadings; evidence must be admissible and not objectionable]; Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529 [declarations must be limited to evidentiary facts and should not contain legal arguments or conclusions or ultimate facts], quoting Hayman v. Block (1986) 176 Cal.App.3d 629, 638-639; In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3 [“The proper place for argument is in points and authorities, not declarations”].)

III. Motion for Relief from Waiver of Objections: GRANTED.

A. 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 [interrogatories], subd. (a), 2031.300, subd. (a) [production], 2033.280, subd. (a) [admission requests].)

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) [interrogatories], 2031.300, subds. (a)(1)-(2) [production], 2033.280, subds. (a)(1)-(2) [admission requests].)

B. Analysis

1. Parties’ Arguments

In its motion, KMI argues that it should be relieved of its objections to the Set One discovery for various reasons. KMI argues that Plaintiff served voluminous discovery on KMI, and that KMI’s counsel simply overlooked the Set One discovery in favor of the three deposition notices. KMI also argues that it has provided Code-compliant responses to the Set One discovery. Next, KMI argues that the delay in responding to the Set One discovery was a result of mistake, inadvertence, or excusable neglect on the part of counsel. Specifically, KMI argues that “[KMI]’[s] counsel inadvertently and mistakenly did not see that Plaintiff’s First Set of Written Discovery followed the five notices of depositions in the pdf attachment,” where “[KMI]’[s] counsel did not realize their mistake until they received an email from Plaintiff’s counsel on February 15, 2024 advising that [KMI]’[s] responses to Plaintiff’s First Set of Written Discovery were past due.” KMI also adds that “[KMI]’[s] counsel immediately went to work preparing the responses and, in fact, served responses to all discovery within 29 days of becoming aware of the mistake, on or before the extended due dates.” Last, KMI argues that Plaintiff would suffer no prejudice from relief of waiver, citing Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483-485 (Flores) and other cases in support of prejudice as a relevant factor. (Mot., pp. 7-9, citing Mot., Aman Decl., ¶¶ 3, 5, 7-9, Exs. 5-6.)

In opposition, Plaintiff argues that KMI should have served responses without objections, where the March 15, 2024, responses included objections expressly in contravention of the parties’ agreements regarding extending KMI’s time to serve responses to the Set One discovery. Plaintiff argues that KMI’s responses are not Code-compliant because they contain objections and because the responses themselves are not Code-compliant in their substance, as shown in the meet and confer declarations attached to the opposition, which show KMI agreed to supplement its responses to certain of the discovery requests. (The Court notes that despite a reference to Exhibit 19 to the Anglin declaration, there is no such Exhibit 19 attached to the Anglin declaration.)  Plaintiff adds that the failure to respond to the Set One discovery cannot have arisen from mistake, inadvertence, or excusable neglect (the applicable standard) where three counsel were served with the Set One discovery, Plaintiff served the discovery well after being statutorily entitled to do so, and KMI served an Answer and met and conferred relating to deposition dates, thus showing that it is not credible for counsel and their staff to have completely missed the Set One discovery. Next, Plaintiff argues that the moving papers improperly rely on Flores and various other cases because those authorities discussed relief pursuant to Code of Civil Procedure section 473, not relief pursuant to Code of Civil Procedure sections 2030, 2031, and 2033, and because those cases involve instances where counsel’s staff failed to calendar or otherwise recognize pending discovery, whereas here counsel were served and failed to respond. Moreover, Plaintiff argues that it is Plaintiff, not KMI, who has been prejudiced by the instant circumstances.

In reply, KMI reiterates its argument that it has met the mistake, inadvertence, or excusable neglect standard here because the conduct that led to KMI’s nonresponse amounts to a mistake from counsel, where Plaintiff has no knowledge of the discussions KMI’s counsel have had regarding KMI’s discovery obligations, and where KMI promptly provided discovery responses after it became aware of its nonresponse to the Set One discovery. KMI next cites California case law for the position that California legislature intended to employ the same standard for relief from defaults as used in section 473 in relation to failure to serve a timely response to a discovery demand, for which reason KMI’s cites to section 473 relief cases are appropriate. KMI also notes that the opposition fails to directly reference any deficient discovery response, that no motions to compel further responses were on file as of the date of the reply, and that KMI’s counsel has attempted to meet and confer with Plaintiff’s counsel on various occasions regarding setting an informal discovery conference on outstanding discovery issues to no avail. Next, KMI argues that Plaintiff fails to cite authority preventing KMI from stating objections in its discovery responses despite waiver, citing California case law in support, and arguing that had KMI not included those objections, Plaintiff would instead be arguing waiver of said objections. KMI also argues that its discovery responses to the Set One discovery meet the applicable standard, which is not actual compliance, but substantial compliance showing a facially good-faith effort to respond to the discovery at issue. KMI adds that any agreement to supplement its discovery responses is the result of compromises in the discovery process, not an admission of deficient discovery responses. Last, KMI argues that Plaintiff has not been prejudiced for various reasons, including that KMI acted with due diligence after discovering its mistake and that trial is scheduled for 2025, giving the parties ample time to complete discovery and prepare for trial.

3. Court’s Determination

a. Preliminary Notes

The Court notes that despite the representations in Plaintiff Hernandez’s opposition, the record fails to reflect Plaintiff Hernandez has filed any motion to compel further discovery in relation to the Set One discovery. There is, however, a reservation that appears in the court’s CRS system, set for hearing on June 12, 2024.

b. Substantial Compliance with Code

The Court finds in favor of Defendant KMI.

First, the Court addresses whether objections were properly raised in the late-served responses to the Set One discovery.

The authority cited by KMI does not quite stand for the proposition that “the Discovery Act does not state that objections cannot be included in a tardy response.” (Reply, p. 8.) The issue addressed by the Court in the cited portion of Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407 (Sinaiko) involved whether “section 2030.290 … preclude[s] the trial court from granting a motion to compel [initial] responses under subdivision (b)[] … [where] the responding party serves untimely interrogatory responses after the propounding party has served the motion,” answering in the negative. (Ibid.) Sinaiko’s reference to relief from waiver, as quoted in the reply, merely contextualizes the reasons why a trial court may grant a motion to compel initial responses to interrogatory requests, not whether objections that have been waived may be stated in a late-served response.

To be sure, there is a lack of direct authority relating to this issue. The Court could not locate authority discussing whether objections may be stated in late-served discovery responses or whether such objections render a late-filed response not substantially Code-compliant. Nonetheless, presumably, the intent of the Legislature was to allow for a responding party to assert an objection when simultaneously moving for relief from waiver. Otherwise, there would be no point to seeking waiver, if the interrogatories already had to be answered without objections.

The Court determines that KMI’s objections were properly stated for the purposes of this motion. Defendant is seeking relief from waiver of objections. Thus, absent clear authority to the contrary, the Court looks to the discovery responses and asks whether they would have substantially complied with KMI’s discovery obligations had the responses been served prior to discovery deadline for responses. This analysis does not, as argued by the reply, require perfect or actual compliance, but rather, merely substantial compliance. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779 (St. Mary) [“substantial compliance” cannot properly be understood to require actual compliance with every specific statutory requirement].)

Looking at the responses themselves, as well as the Opposition (at pp. 15-16) and the specific responses claimed to be deficient in the Anglin Declaration (at ¶ 20), the Court determines that the discovery responses served by KMI substantially comply with the Code.

First, the Opposition does not set forth the reasons why the responses are deficient, other than to cite to unspecified pages of unspecified meet and confer letters. (Opp’n at p. 15.) The Court is not required to guess at which pages of which letters demonstrate the deficient responses, nor is it helpful to fail to summarize the reasons in the Opposition. Nor does the Anglin Declaration summarize any deficiencies, instead enumerating the allegedly deficient responses by number. (Anglin Decl.,¶ 20.)

Looking at the actual responses nonetheless, it is true that some of them are objections only. For example, KMI’s responses to RPDs, Set One, Nos. 19-23 contain objection-only responses to these production requests, as does response to FROGs, Set One, No. 209.2. However, as noted above, the Court does not find asserting some objections to necessarily be non-compliant. Such responses properly entitle Plaintiff Hernandez to file a motion to compel further responses. The Court’s review satisfies it that the vast majority of the responses were reasonably answered, providing a great deal of information in some responses. (Mot., Aman Decl., at Ex. 6; see, for example, response to Employment FROG No. 204.7.

c. Mistake, Inadvertence, or Excusable Neglect

The Court also determines that Defendants have shown mistake, inadvertence, or excusable neglect within the meaning of the discovery statutes. While Plaintiff spends a great deal of time arguing that there is simply no excuse for a failure to see the written discovery that was located in the same PDF as certain deposition notices, the Court disagrees. In the Court’s experience, no attorney is perfect, and the surest sign that something was inadvertent is an immediate effort to correct the oversight. KMI responded within less than 30 days to four sets of written discovery (including 100 RFPs), providing reasonable factual responses as well as reasonable objections. Perfection in the practice of law is not required, and it would be a very stressful profession indeed if no mistake could ever be forgiven. The Court also agrees that Plaintiff has not shown prejudice, assuming that is a factor to be considered, in that trial is about 11 months away.

Finally, while this Court no longer has express statutory authority to require informal discovery conferences, the Court does encourage IDCs in order to reduce the expenses and time associated with motions to compel, should the parties continue to have discovery issues that need to be resolved.

d. Disposition

KMI’s motion is GRANTED. 

IV. Conclusion

Defendant Koos Manufacturing, Inc.’s Motion for Relief from Waiver of Objections to Plaintiff Jose Hernandez’s First Set of Written Discovery is GRANTED.