Judge: Deborah C. Servino, Case: 30-2022-01242166, Date: 2022-07-29 Tentative Ruling

Plaintiff/Cross-Defendant Tennis Villas at Monarch Beach Homeowners Association’s motion for relief from waiver as to special interrogatories, set one, and requests for production of documents, set one, propounded by Cross-Complainants Ernesto Martin Ure and Jani Hall as co-Trustees, is denied.




On March 23, 2022, Plaintiff’s counsel received special interrogatories, set one, and requests for production of documents, set one, via email from defense counsel. (Roberts Decl., at ¶ 2.) Plaintiff’s counsel inadvertently failed to forward it to his paralegal to calendar. At that time, he was preparing for trial (starting April 7, 2022) and his own wedding (which took place on March 27, 2022). (Roberts Decl., at ¶ 3.) Co-counsel at Plaintiff’s counsel’s firm avers that he did not forward the discovery requests to the paralegal because Mr. Roberts was assigned the case and Mr. Perry assumed Mr. Roberts had it handled. (Perry Decl., at ¶¶ 4-5.)


Plaintiff’s counsel was notified of his mistake on April 27, 2022, two days after the due date. (Garofalo Decl., at ¶¶ 8, 9, Exh. 2.)  Plaintiff’s counsel stated that that the responses were served June 1, 2022.  (Hoo Decl., at ¶ 3; Exh. 1; see 6/24/2022 Minute Order.)  Verification and discovery responses appear to have been signed on May 24, 2022. (Garofalo Decl., at ¶¶ 11-13, Exhs. 4 and 5.)  Defense counsel claimed that he did not receive any responses until June 28, 2022, which Plaintiff’s counsel served in response to defense counsel’s claim at the June 24, 2022 hearing on discovery motions. (Garofalo Decl., at ¶¶ 11-13, Exh. 3; see also ROA 94; see 6/24/2022 Minute Order; see Hoo Decl., at ¶ 4, Exh. 2.)


Legal Standard


By failing to timely respond to the special interrogatories and the request for production of documents, all objections, including those based on the attorney-client privilege or protected by attorney work product, are waived. The court has statutory power to grant relief from waiver of objections. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [request for production of documents].]


The party seeking belatedly to assert some objection must show that he or she has belatedly served responses “in substantial compliance” with that party's duty to respond under Code of Civil Procedure section 2030.210, subdivision (a). (Code Civ. Proc., §§ 2030.290, subd. (a)(1) [interrogatories], 2031.300, subd. (a) [request for production of documents].] The declarations must establish that the party's failure to serve a timely response resulted from “mistake, inadvertence or excusable neglect.” (Code Civ. Proc., § 2030.290, subd. (a)(2).)




Plaintiff has not shown excusable neglect. Whether Plaintiff’s failure to serve timely responses was originally due to an attorney error or a paralegal error, Plaintiff cannot show that the failure to serve a timely response resulted from mistake, inadvertence, or excusable neglect, in light of defense counsel’s email.  Once notified on April 27, 2022, Plaintiff did not diligently remedy the mistake by serving substantially compliant responses until June 1, 2022, at the earliest.  Plaintiff fails to offer any reasonable explanation for the delay in serving responses or seeking relief from default, even if its original reason for not responding on time may have been excusable.  (See Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778 [directing trial court to grant motion to compel further answers without objection where defendant offered no excuse for delay in serving responses, or failure to seek an extension, and presented no good cause for relief from default]; Ambrose v Michelin N. Am., Inc. (2005) 134 Cal.App.4th 1350, 1354–1355 [attorney's failure to meet filing deadline due to “stresses of a busy law practice,” “hurry to meet the deadline,” and “several concurrent obligations due to other pending litigation” did not constitute excusable neglect warranting relief from summary judgment].)  Accordingly, the motion is denied. 


Defendants are entitled to sanctions pursuant to Code of Civil Procedure sections 2030.290, subdivision (c), and 2031.300, subdivision (c).  Within 30 days, Plaintiff is ordered to pay $850 in sanctions to Law Offices of Patrick L. Garofalo.


Defendants shall give notice of the ruling.