Judge Elaine W. Mandel, Case Number: 23SMCV03130, Date: 2024-01-17 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV03130, Date: 2024-01-17 Tentative Ruling

Case Number: 23SMCV03130 Hearing Date: January 17, 2024 Dept: P

Tentative Ruling

Ryder v. Karakashian, Case No. 23SMCV03130

Hearing date January 17, 2024

Defendant Karakashian’s Motion for Relief from Waiver of Objections

Plaintiff sued defendant for injuries sustained in a motor vehicle accident. Plaintiff substitute served defendant on July 28, 2023. Plaintiff substitute served defendant with form interrogatories, special interrogatories and requests for production on August 17, 2023, prior to defendant being represented by counsel and served a courtesy copy of the discovery on defendant’s insurance carrier.

On September 5, 2023 defendant answered. On October 4, 2023 plaintiff’s counsel told defense counsel that the responses were untimely and must be responded to without objection. On October 20, 2023, defendant responded, with objections. Defendant moves for relief from waiver of objections, based on mistake or inadvertence.

A party has 30 days from service of interrogatories, demands for production and requests for admission to respond. Code Civ. Proc., § 2030.260(a), 2031.260(a), 2033.250(a). Where a party fails to serve a timely response to interrogatories, objections are waived. Code Civ. Proc., § 2030.290(a), 2031.300(a), 2033.280(a). On motion, a party may be relieved from its waiver if: (1) the party subsequently served a response that is in substantial compliance and (2) failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. Code Civ. Proc., § 2030.290(a)(1)-(2), 2031.280, subd. (a)(1)-(2).

On August 17, 2023 plaintiff substitute served discovery on defendant. Kandarian-Stein Decl., ¶ 5. On September 5, 2023 defendant was assigned defense counsel and answered. Id., ¶ 5. On October 4, 2023 defense counsel was informed of outstanding written discovery obligations from defendant, and defendant provided verified written discovery responses on October 20, 2023. Id., ¶¶6-10; Exhibits A-D. On December 3, 2023 defendant served further responses, with objections. Id., ¶¶ 11-16. The responses substantially comply with the Code of Civil Procedure.

Defendant argues the failure to timely respond was the result of mistake, inadvertence, and/or excusable neglect. Plaintiff contends defendant’s inaction and oversight amounts to an unreasonable response to receipt of written discovery.

“[T]he Legislature intended to incorporate the principles of section 473 into those provisions of the discovery act which employ similar language.” Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107. “[I]n several sections of the discovery act the Legislature provided for relief by using language similar to section 473.” Id. at p. 1106. “[T]he sole remedy for relief from waiver in the context of discovery is contained within the provisions of the [Discovery] Act and [a party] cannot rely upon the provisions of section 473.” Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274-75.

An assessment of whether mistake, inadvertence, or general neglect was excusable requires a court to ascertain “whether a reasonably prudent person under the same or similar circumstances might have made the same error.” Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146 [emphasis in original, internal quotations omitted]. “[A] mistake of fact is when a person understands the facts to be other than what they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.” Baratti v. Baratti, supra, 109 Cal.App.2d 917, 921 [citation omitted]. “Inadvertence is defined as lack of heedfulness or attentiveness, inattention, [and] fault from negligence.” Ibid [citations omitted]. Excusable neglect is defined as “neglect which might have been the act of a reasonably prudent person under the same circumstances.” Ibid [citations omitted].

The complaint was substitute served July 28, 2023. Kandarian-Stein Decl., ¶ 3. When defendant received the discovery on August 17, 2023, she thought the documents were duplicates of the summons and complaint received a few weeks prior. Id., ¶ 17. Karakashian Decl., ¶ 2, 4. Defendant is not a lawyer and is not familiar with the legal process. Counsel attests that had defendant and counsel known there was outstanding discovery, counsel would have promptly provided timely responses. Kandarian-Stein Decl., ¶ 18. Counsel indicates failure to provide timely discovery responses was due to mistake, inadvertence, and/or excusable neglect as counsel was unaware of any outstanding discovery requests. Id., ¶ 21.

Defendant was not yet represented when the discovery was substitute served. Plaintiff did send a courtesy copy to the carrier, which should have ensured that it was responded to timely. However, the discovery was properly responded to within a month of defendant’s answer. The court finds inadvertence due to the fact that the discovery was substitute served on defendant, who did not understand its import, prior to defendant being represented by counsel. There is no prejudice to plaintiff. The motion is GRANTED.