Judge Audra Mori, Case 20STCV15673 2023-02-06 Tentative Ruling

Plaintiff Lymbhya Tavera Garcia (“Plaintiff”) filed this action against Defendant Target Brands, Inc. (“Defendant”) for injuries Plaintiff sustained when she slipped on a pool of liquid in Defendant’s store and fell.

Plaintiff served Defendant with Plaintiff’s request for production of documents (“RPDs”), set two, on October 27, 2022, with responses being due on November 30, 2022. Defendant asserts that because of a calendaring error, it did not serve responses until December 6, 2022.

Defendant now moves for relief from its waiver of its objections to the RPDs. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant asserts that the failure to serve timely responses was caused by defense counsel’s staff, who inadvertently calendared December 6, 2022, as the due date for the responses. Defense counsel did not realize the error until it was served with Plaintiff’s motion to compel responses on December 5, 2022, and then Defendant promptly served its responses on December 6, 2022. Defendant contends that Plaintiff will not be prejudiced if the motion is granted because Plaintiff received Defendant’s response less than one week after they were due, and because Plaintiff has sufficient time to conduct any additional discovery that is necessary.

In opposition, Plaintiff argues that Defendant fails to provide a sufficient foundation for its claims that defense counsel served late responses because of mistake, inadvertence, or excusable neglect. Further, Plaintiff argues that Defendant has not served substantially Code-compliant responses because the verification attached to Defendant’s responses is invalid and Defendant asserts bad-faith objections. Additionally, Plaintiff contends that Defendant failed to file a separate statement with its motion, and Plaintiff objects to and moves to strike defense counsel’s declaration and Exhibit A submitted with the motion.

In reply, Defendant argues that Plaintiff does not provide any authority to support her position that the motion should be denied. Defendant avers that it complied with the necessary requirements for relief under CCP § 2031.300, and Defendant contends that the responses are Code-compliant. Defendant asserts that no separate statement was required with the motion, and that defense counsel’s declaration is valid and admissible.

The motion is governed by CCP § 2031.300(a), which provides that a party who fails to serve timely responses to discovery requests waives any objections, but the court may relieve the party from the waiver if its determined both that (1) the party has subsequently serve responses that are in substantial compliance, and (2) the party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

The words “mistake, inadvertence, or excusable neglect” have the same meaning in the discovery statutes as those terms have in CCP § 473(b). (New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 1418-19; see also Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099 [in the context of deemed admissions § 473 should be applied liberally “so cases can be tried on the merits”].)

As a preliminary matter, Plaintiff’s request to strike defense counsel’s declaration and Exhibit A submitted with the motion is denied. To the extent that Plaintiff complains the declaration is unsigned, the declaration filed with the Court contains defense counsel’s electronic signature. California Rules of Court, Rule 2.257(b)(1) allows for electronic signatures on declarations submitted under penalty of perjury.[1] As to Plaintiff’s hearsay and lack of foundation objections, defense counsel’s declaration sufficiently provides a foundation and personal knowledge for the statements asserted therein. Plaintiff’s objections are overruled.

As to Plaintiff's argument that the motion should be denied because a separate statement was not filed with the motion, California Rules of Court, Rule 3.1345, which Plaintiff cites, does not require a separate statement in connection with a motion for relief from waiver of objections to written discovery.

Defendant provides copies of the discovery responses to the RPDs it served on Plaintiff. (Mot. Exh. D.) The Court has reviewed Defendant’s responses and finds they are in substantial compliance with the Code. Plaintiff argues the responses are not in substantial compliance because the objections asserted are improper. However, whether the objections asserted in the responses are improper depends on whether the instant motion is denied or granted. Furthermore, Plaintiff fails to establish that the verification provided with the responses is void merely because the verification is dated November 30, 2022, but the responses were not served until December 6, 2022. Defense counsel attests that draft responses were provided to Defendant on November 30, 2022, and that Defendant returned the signed verifications that same day. (Mot. Pedone Decl. ¶ 8, Exh. B.) Because defense counsel mistakenly believed responses were not due until December 6, 2022, they were not served until after November 30, 2022. (Id. at ¶¶ 9-11, 13.) There is no showing that the verifications were pre-signed or back-dated as alluded to by Plaintiff.

Moreover, as to whether Defendant’s failure to serve timely responses constitutes mistake, inadvertence, or excusable neglect, Defendant avers that after Plaintiff served the RPDs, defense counsel instructed its staff to calendar the due date, which the staff calendared for December 6, 2022. As a result of the calendaring error, Defense counsel believed that responses were not due until after November 30, 2022. Promptly upon learning of the error on December 5, 2022, defense counsel served responses to the RPDs on Plaintiff the next day.

Accordingly, Defendant’s evidence sufficiently establishes that the failure to serve timely responses was the result of defense counsel’s inadvertence, mistake or excusable neglect. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234 [“Where an attorney states that he was unaware of his duty to appear or answer because his employees misplaced papers or misinformed him as to the relevant date, relief is routinely granted.”].) Plaintiff contends that she will be prejudiced because Defendant will be enabled to continue resisting discovery before the trial date; however, as Plaintiff acknowledges, trial in this matter is currently set for July 12, 2023, which is more than five months after the hearing on this matter. Plaintiff, therefore, will have sufficient time to conduct any additional required discovery before the trial date.

There is otherwise no showing of prejudice to Plaintiff. The discovery responses were served less than one week after they were due.[2] There would, however, be prejudice to Defendant if relief from waiver were not granted.

Based on the foregoing, Defendant’s motion for relief from waiver of objections is granted.

Hon. Audra Mori

Judge of the Superior Court

[1] California Rules of Court, Rule 2.257(b)(1) states in part, “When a document to be filed electronically provides for a signature under penalty of perjury of any person, the document is deemed to have been signed by that person if filed electronically provided that […] The declarant has signed the document using an electronic signature and declares under penalty of perjury under the laws of the state of California that the information submitted is true and correct…”

[2] It does not appear that Plaintiff attempted to meet and confer with Defendant about the failure to serve the responses, choosing instead to file a motion to compel immediately. While Plaintiff may not have had a legal obligation to meet and confer under these circumstances, a conversation may have resolved the discovery dispute between the parties.