Judge: Audra Mori, Case: 21STCV20219, Date: 2022-12-16 Tentative Ruling

Case Number: 21STCV20219    Hearing Date: December 16, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Blanca Berlanga and Helmont Berlanga Plata filed this action against defendants Joyce Chua Sarmiento, et. al. for damages arising from a motor vehicle accident.    

Plaintiff Blanca Berlanga (“Plaintiff”) served Defendant the Estate of Norman Weiss, Deceased (“Defendant”) with Plaintiff’s form interrogatories, set one, on July 27, 2021.  Defendant provides that after an extension was granted, responses were due on October 4, 2021, but Defendant did not serve responses until November 7, 2022, due to defense counsel’s mistake, inadvertence, or excusable neglect.

Defendant (“Defendant”) now moves for relief from its waiver of objections to the form interrogatories.  Plaintiff opposes the motion, and Defendant filed a reply. 

2. Motion for Relief from Waiver of Objections

The motion is governed by CCP § 2030.290(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 served 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”].)

In this case, Defendant asserts that when Plaintiff served the discovery requests, Defendant’s counsel, Jack M. Liebhaber (“Liebhaber”), was scheduled and sat first chair for three jury trials from September 2021 to December 2021.  Liebhaber states that it is his custom and practice to assign cases to association or support attorneys, and on September 2, 2021, Liebhaber emailed a supporting attorney directing him to respond to the subject discovery.  Liebhaber provides that unbeknownst to him, the supporting attorney never responded to the discovery.  Liebhaber attests that the supporting attorney’s employment with defense counsel then ended on February 11, 2022, and Liebhaber was unable to find replacement support attorneys until September 2022.  Defendant asserts that she has now served substantially compliant responses on Plaintiff. 

In opposition, Plaintiff contends that Defendant’s responses are not substantially compliant because the responses contain general objections and objections throughout, but Defendant has waived any and all objections to Plaintiff’s discovery requests.  Further, Plaintiff argues that Defendant provides no evidence that the failure to timely respond was the result of mistake, inadvertence, or excusable neglect, as Defendant’s counsel was aware of the subject discovery issues. 

            In reply, Defendant argues that her responses are in substantial compliance, and again asserts that Defendant’s failure to serve timely responses was the result of mistake, inadvertence, or excusable neglect. 

First, Defendant provides copies of the discovery responses served on Plaintiff.  (Mot. Hovsepian Decl. ¶ 1 Exhs. 3.)  The Court has reviewed Defendant’s responses and finds that while imperfect they are in substantial compliance with the Code.  Plaintiff argues the responses are not in substantial compliance because the objections asserted are invalid and improper.  However, whether the objections asserted in the responses are improper depends on whether the instant motion is denied or granted. 

Second, as to whether Defendant’s failure to serve timely responses constitute mistake, inadvertence, or excusable neglect, Defendant avers that the lead counsel on this matter, Liebhaber, was engaged in trials from September 2021 to December 2021, and that Liebhaber assigned a support attorney to handle the discovery issues in this matter on September 2, 2021.  (Mot. Liebhaber Decl. ¶¶ 1-6.)  Liebhaber attests that he was unaware that the supporting attorney never responded to the discovery or bought the issue to Liebhaber’s attention before the support attorney’s employment ended with defense counsel.  (Id. at ¶¶ 7-9.)    

While Plaintiff contends that Defendant submits no evidence showing the failure to timely respond was the result of mistake, inadvertence, or excusable neglect, Defendant’s counsel has explained that after assigning the discovery issues to a supporting attorney, defense counsel was unaware that the supporting attorney, who was given responsibility for the case while Liebhaber was in trial, did not respond to the discovery.  Consequently, Defendant’s evidence shows the failure to serve timely responses was the result of defense counsel’s mistake, inadvertence or excusable neglect.  (See 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.”].)  While counsel might have acted more diligently to remedy the situation by serving responses earlier, and the Court can understand Plaintiff’s frustration with having to wait so long for responses, the initial lack of response resulting in waiver of objections was caused by mistake, inadvertence, or excusable neglect, and Defendant has now served responses that are in substantial compliance.  Furthermore, Plaintiff does not identify any prejudice if responses are permitted with objections, and Plaintiff requests sanctions in connection with separately filed motions to compel the responses.

Based on the foregoing, Defendant’s motion for relief from waiver of objections as to Plaintiff’s form interrogatories, set one, is granted.

Defendant 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 16^th day of December 2022