Judge: Audra Mori, Case: 21STCV00370, Date: 2023-01-09 Tentative Ruling

Case Number: 21STCV00370    Hearing Date: January 9, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Robert Morehead (“Plaintiff”) filed this action against defendants City of Los Angeles (the “City”), County of Los Angeles, House Ear Institute, House Ear Clinic, a Medical Group, Inc., HTA-3rd Street Medical Center, LLC, and Healthcare Trust of America Holdings, LP for damages relating to Plaintiff’s trip and fall on a sidewalk.  The operative first Amended Complaint (“FAC”) alleges causes of action for (1) premises liability/violation of government code and (2) negligence/violation of government code. 

Plaintiff served the City with Plaintiff’s form interrogatories, special interrogatories, request for admissions (“RFAs”), and request for production of documents (“RPDs”), all set one, on October 27, 2021.  The City asserts that after becoming aware of the discovery on August 2, 2022, it promptly provided responses on August 3, 2022, in substantial compliance with discovery statutes. 

The City now moves for relief from its waiver of its objections to the relevant discovery by serving untimely responses.  Plaintiff opposes the motion.    

The City asserts that the email messages with the subject discovery requests were not received by any of the four individuals working on this case.  The City argues it was thus unaware of Plaintiff’s discovery requests served in October 2021 until August 2, 2022, when the City’s counsel received an email from Plaintiff’s counsel concerning the discovery.  The City avers it has now provided substantially compliant responses to all discovery requests, and that the untimely responses were due to mistake, inadvertence, or excusable neglect. 

In opposition, Plaintiff contends that the City fails to demonstrate good cause for its failure to ignore Plaintiff discovery requests and motions to compel concerning the subject discovery.  Plaintiff asserts that he communicated with the City regarding the discovery multiple times, but the City failed to serve responses. 

2. Motion for Relief from Waiver of Objections

The motion is governed by CCP §§ 2030.290(a), 2031.300(a), and 2033.280(a), all of which provide 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”].)

First, the City provides copies of the discovery responses it served on Plaintiff.  (Mot. Exh. B.)  The Court has reviewed the City’s responses and finds they are in substantial compliance with the Code.  Plaintiff does not dispute that the responses are in substantial compliance. 

Second, as to whether the City’s failure to serve timely responses constitute mistake, inadvertence, or excusable neglect, the City avers that the City did not receive Plaintiff’s propounded discovery due to issues related with the City’s email system.  The City’s counsel attests that on previous occasions email messages have been improperly sent to her spam folder, and that due to meet and confer efforts, she has been able to recover these email messages before the spam folder automictically deleted them.  The City’s counsel avers that the subject discovery requests, which were served electronically, were most likely sent to the spam folder and were automatically deleted.  Further, the City provides that its counsel was receiving email messages from Plaintiff in group email messages for this action, so the City’s counsel had no reason to believe that email messages were being directed to the spam folder.  Immediately upon learning of the discovery on August 2, 2022, the City served responses on August 3, 2022.  The City’s submits declarations from its counsel, legal secretary, and legal assistant each stating they did not locate an email from Plaintiff with the subject discovery. 

Accordingly, the City’s evidence shows the failure to serve timely responses was the result of defense counsel’s inadvertence or excusable neglect.  (See New Albertsons, 168 Cal.App.4th at 1418-19; accord. 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.”].)  Moreover, Plaintiff does not identify any prejudice if responses are permitted with objections and justice is served by hearing cases on their merits.  It is also noted that Plaintiff received sanctions on an earlier motion concerning the City’s overdue responses.

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

The City is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 9^th day of January 2023