Judge: Armen Tamzarian, Case: 22STCV33878, Date: 2023-10-02 Tentative Ruling

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Case Number: 22STCV33878    Hearing Date: February 7, 2024    Dept: 52

(1) Plaintiff Joshua Canady’s Motion for Relief from Waiver of Discovery Objections; (2) Defendant Equinox Holdings, Inc.’s Motion to Enforce Court’s October 2, 2023 Discovery Order and for Sanctions or Motion to Compel Further Responses in the Alternative

Background

            On August 7, 2023, defendant Equinox Holdings, Inc. moved to compel plaintiff Joshua Canady to respond without objections to requests for production Nos. 41-73.  On October 2, 2023, the court granted defendant’s motion and ordered plaintiff to respond without objections.  Plaintiff then served responses to the requests, but served only objections to request Nos. 45, 46, and 49.  On January 8, 2024, plaintiff moved for relief from waiver of his objections.  On January 16, defendant moved to enforce the court’s order dated October 2, 2023.

(1) Plaintiff’s Motion for Relief from Waiver of Discovery Objections

            Plaintiff Joshua Canady moves for relief from waiver of his objections to defendant’s requests for production.  If a party “fails to serve a timely response to” requests for production, he “waives any objection to the demand.”  (CCP § 2031.300(a).)  “The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 [and] (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.”  (Ibid.)  As the court ruled on October 2, 2023, plaintiff failed to serve a timely response to defendant’s requests for production.  

            Plaintiff’s failure to serve a timely response was not the result of mistake, inadvertence, or excusable neglect.  Plaintiff initially served responses to requests for production Nos. 1-40, but not Nos. 41-73.  (Iarusso Decl., ¶ 6, Ex. A; Tran Decl., ¶ 6, Ex. D.)  Defendant met and conferred with plaintiff and agreed to allow extra time to respond to Nos. 41-73.  (Tran Decl., ¶¶ 7-9.)  On August 1, 2023, plaintiff served additional responses to other discovery—but not to requests for production Nos. 41-73.  (Id., ¶ 10, Ex. H.) 

Defendant moved to compel responses without objections.  Plaintiff did not file an opposition to that motion until September 29, 2023, the final court day before the hearing on October 2.  Assuming plaintiff’s initial failure to respond to Nos. 41-73 was excusable, plaintiff had months to correct that problem.  Plaintiff’s failure to do so resulted either from recalcitrance or inexcusable neglect.

            Then, despite the court’s order compelling responses without objections, plaintiff served responses with objections in October 2023.  Not until about three months later, on January 8, 2024, did plaintiff move for relief from waiver of the objections the court already ruled were waived.  A motion for relief from waiver of objections should be made before the court issues an order compelling responses without objections.  (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408 [“Unless that party obtains relief from its waiver, the propounding party is entitled to move under subdivision (b) for an order compelling the response to which the propounding party is entitled—that is, a response without objection”].)    

In substance, plaintiff seeks untimely and unwarranted reconsideration of the court’s October 2, 2023, order.  Granting plaintiff’s motion now would result in retroactively undoing the court’s order and permitting plaintiff to repeatedly delay compliance with discovery obligations in violation of a court order.       

(2) Defendant’s Motion to Enforce Discovery Order or to Compel Further Responses

            Defendant Equinox Holdings, Inc. moves for an order compelling plaintiff to comply with the court’s discovery order dated October 2, 2023, or, in the alternative, an order compelling further responses to its requests for production.  Defendant also seeks monetary sanctions.

            The court does not reach the merits of defendant’s motion because defendant did not timely and serve and file it.  “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”  (CCP § 1005(b).)  Serving papers electronically extends the required period of notice by two court days.  (CCP § 1010.6(a)(3)(B).)

            Defendant reserved the hearing for this motion on February 2.  Defendant filed the motion on January 16, only 13 court days before the hearing.  The court later continued this hearing to February 7, which is 16 court days after January 16.  Even based on the present hearing date, defendant’s electronic service on January 16 was untimely.  The papers had to be electronically served two court days earlier, on January 11. 

The court notes the parties’ papers refer to electronic service on January 12, but the proofs of service attached to defendant’s moving papers state they were served by email on January 16.  The moving papers themselves are also dated January 16 and were filed that day.

Disposition

Plaintiff Joshua Canady’s motion for relief from waiver of discovery objections is denied.  The court’s October 2, 2023, order requiring plaintiff to, among other things, serve responses to Request Nos. 45, 46, and 49 without objections, is not vacated and is still binding on plaintiff. 

Defendant Equinox Holdings, Inc.’s motion to enforce the court’s discovery order or to compel further responses to requests for production is denied.