Judge: Deborah C. Servino, Case: "Gamble,etal.v.1440SouthEuclidStreet,LLC,etal.", Date: 2023-05-19 Tentative Ruling

The motion by Plaintiffs Florence Gamble, by and through her successor-in-interest, Lynda Poulter, and by Lynda Poulter for relief from waiver and deemed admissions, is granted in part and denied in part. The motion for relief from waiver of objections is denied.  The motion for relief from deemed admissions is granted.

Relief From Waiver of Objections

The court has statutory power to grant relief from waiver of objections caused by untimely responses to interrogatories, requests for production of documents and requests for admission. To obtain relief, the party that waived objections must make a motion and the court must find “both of the following conditions are satisfied”: (1) subsequent service of a substantially compliant response; and (2) that the “failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [inspection demands], 2033.280, subd. (a) [requests for admission].)

While the trial court has “broad discretion” to grant relief, not every “excuse” is excusable. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶   8:1037, citation omitted.) “The burden is on the defaulting party to seek and justify relief.” (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778 [directing trial court to vacate order denying motion to compel further answers without objection and to enter a new order granting motion where defendant offered “nothing to excuse the failure to seek an extension” and had “no good cause” for relief from default].)

Plaintiffs’ counsel attests that “fully verified, substantive, code-compliant responses” were served “before close of business on the same day as the motion to compel hearing of February 10, 2023.” (Shojai Decl., at ¶ 6.) Defendants do not dispute that the substantially compliant responses have been received, and admit that responses were served on February 9 and 10, 2023. (Opp., at pp. 7-8.) Thus, the first condition has been satisfied.

However, as to the second condition, Plaintiff Gamble’s failure to serve a timely response was not the result of “mistake, inadvertence or excusable neglect.” The discovery was served on April 28, 2022 and June 2, 2022, on Plaintiffs’ counsel at the time, David Medby. Mr. Medby requested multiple extensions, all of which were granted. Responses were ultimately due by August 5, 2022, but no responses were served by that deadline. (Opp. at p. 2, Exh. 13-15.) Even then, Defendants did not file the discovery motions until September 9, 2022. (ROA 112-117.)

Plaintiffs argue that Plaintiff Gamble’s “reason for delay” is inadvertence or excusable neglect, in that “the non-response was a direct result of Plaintiff’s prior counsel’s failure to perform (and even communicate with Plaintiff) in regard to the subject Discovery Request.” After she substituted in current counsel on or around September 21, 2022, her next counsel then “inadvertently failed to calendar the February 11, 2023 law and motion hearing and attendant deadlines.” (Mot., at pp. 6-7.)

Even if Plaintiffs’ current counsel acted with inadvertence by the time they were retained, the discovery responses were already overdue and objections had already been waived. Thus, it was not current counsel’s inadvertence that resulted in a waiver of objections. Rather, the blame lies with Plaintiffs’ former counsel, who was aware of the discovery, requested multiple extensions and still failed to serve responses. The general rule is that the negligence of the attorney “is imputed to his client and may not be offered by the latter as a basis for relief.” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898, citation omitted.) There is a narrow exception “where the attorney's neglect is of that extreme degree amounting to positive misconduct, . . . premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship, and for this reason his negligence should not be imputed to the client.” (Ibid.) The record, here, does not show that this narrow exception applies.

Lastly, Plaintiffs argue again that even if objections are waived, the court should find that the attorney-client privilege had not been waived. (Mot., at p. 9.) Plaintiffs’ reliance on Blue Ridge is misplaced. Unlike in Blue Ridge, Plaintiffs' waiver of objections is found under the current version of the Discovery Act, which expressly provides for the waiver of any objection, “including one based on privilege or on the protection for work product.” (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a), 2033.280, subd. (a).) Unlike in Blue Ridge, Plaintiff did not serve timely but unverified responses. Thus, any waiver includes waiver of the attorney-client privilege objection in responding to the discovery.

Relief From Deemed Admissions

Plaintiffs’ request for relief from deemed admissions is granted.

In the February 10, 2023 Minute Order, the court stated
“Defendants’ motions to deem admitted their first sets of requests for admission will be granted, unless Plaintiff demonstrates that before the hearing, she served responses that substantially comply with the Code.” Plaintiff Gamble’s responses to the requests for admission were served on February 9, 2023.  (Opp. at pp. 7-8, Exh. R.)  Accordingly, the matters in the requests for admission have not been deemed admitted. (Code Civ. Proc., § 2033.280, subd. (c).)  To the extent the February 10, 2023 Minute Order can be construed as having deemed the matters in those requests admitted, Plaintiffs are entitled to relief.

Defendants shall give notice of the ruling.