Judge: Frank M. Tavelman, Case: 20BBCV00479, Date: 2024-01-12 Tentative Ruling

Case Number: 20BBCV00479    Hearing Date: April 12, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR RELIEF FROM WAIVER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Procedure Prior to Motion

Erma L. Miller (Miller), TR a minor through her guardian ad litem L.B. Stites (TR), and L.B. Stites (Stites) (collectively Plaintiffs) bring this action against Matt Flynn, Bill Gomez, Jerry Paredes, John Grubaugh, and State Farm General Insurance Company (State Farm) (collectively Defendants). Plaintiffs claim Defendants refused to issue assistance pursuant to an alleged homeowners insurance policy issued by State Farm. Glen Murphy, Esq. (Murphy) serves as counsel for Miller and TR in this action. Stites was in pro per prior to his death.

On April 27, 2023, the Court granted Miller’s application for appointment of a guardian ad litem. Miller’s counsel represented that Miller has been hospitalized for an extended period of time and her mental faculties have deteriorated to where she can no longer understand these proceedings. Miller’s daughter, Tina Lee (Lee) now serves as her guardian ad litem.

On July 7, 2023, the Court granted six motions brought by State Farm to compel discovery responses. The Court entered an order which required subsequent production and issued monetary sanctions against Plaintiffs for failure to respond.

On January 12, 2024, the Court granted Miller’s motion to substitute herself as plaintiff for Stites. The Court found it was appropriate for Miller to substitute for the late Stites.

Thereafter, Miller, TR, and Stites filed a motion asking the Court to relieve them from the July 7, 2023 order. State Farm opposed the motion and Plaintiffs replied.

Initial Hearing

The Court read and considered the papers submitted by both parties and issued a tentative ruling. On March 29, 2024, this motion came on for hearing and Plaintiffs’ counsel requested oral argument. Plaintiffs’ counsel submitted on the Court’s tentative ruling in most respects but asked that the Court reconsider its ruling regarding Miller and TR’s waiver of objections. Plaintiffs argued that the subsequent service of responses to the RFPD meant that they should be relieved from the waiver of objections based on attorney client privilege and attorney work product privilege. Counsel for State Farm argued that the responses received were not substantially code compliant in that they contained general objections which had been waived when Plaintiffs failed to timely respond.

Having heard the arguments of both parties, the Court proposed that the motion be continued for a brief time. In the interim, Plaintiffs’ counsel was to file a declaration retracting the general objections in the RFA responses and attesting to any documents which were withheld on the basis of privilege.

The Court, having reviewed the subsequent submissions from Plaintiffs, now issues this final ruling. For purposes of clarity, the following ruling incorporates the Court’s tentative ruling except with respect to waiver of objections. Changes to the tentative based on the declaration of Plaintiffs’ counsel will be explicitly stated.  

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 473

The court notes that Plaintiffs first state their motion is brought pursuant to C.C.P. § 473. C.C.P. § 473(b) governs both mandatory relief from an order of the Court upon a showing of mistake, inadvertence, surprise, or excusable neglect by a party. The statute also governs discretionary relief from an order of the Court upon a showing of mistake, inadvertence, surprise, or excusable neglect by a party’s counsel.

Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P. § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

Here, Plaintiff seeks relief from an order which was entered over six months from the date this motion was filed (March 6, 2024). Plaintiffs’ motion on these grounds is untimely and C.C.P. § 473 is not a means through which Plaintiffs may obtain relief.

C.C.P. §§ 2033.280 & 2031.300

Plaintiffs also move pursuant to C.C.P. §§ 2033.280 & 2031.300, which govern Requests for Production (RFPD) and Requests for Admissions (RFA) respectively. Each statute provides that a failure to respond to an RFPD or RFA will result in the waiver of any objections by the party to whom the requests are directed.   Both statutes provide that the Court, on motion, may relieve that party from this waiver upon a finding both that:

(1) The party has subsequently served a response that is in substantial compliance with the relevant code sections; and

(2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(C.C.P. §§ 2033.280(a)(1)-(2) & 2031.300(a)(1)-(2).)

Unlike C.C.P. § 473, there is no time limit in which a party must seek this relief.

II.                 MERITS

Discovery Timeline

For clarity, the Court will reproduce the brief timeline of discovery in this action prior to the July 7, 2023 order.  

On October 21, 2022, State Farm propounded its RFPD (Set One) on Plaintiffs via mail and email to Murphy and Stites. Responses to these RFPD were due on November 28, 2022, however State Farm granted all Plaintiffs an extension to December 2, 2022. On November 7, 2022, State Farm propounded its RFPD (Set Two) on Plaintiffs via mail and email to Plaintiffs’ counsel.

On December 12, 2022, Miller, TR, and Stites all served untimely responses to RFPD (Set One), agreeing to produce the documents. Plaintiffs TR and Stites also served untimely responses to the RFPD (Set Two) along the same lines. Miller did not serve responses to RFPD (Set Two).

On December 21, 2022, State Farm requested production from Plaintiffs pursuant to their agreement. On February 28, 2023, Murphy informed State Farm that Plaintiffs would not be providing the documents because they could only be provided by Miller who was currently incapacitated. State Farm also states Murphy threatened to file a protective order to prevent production.

State Farm states it agreed to provide additional time to compile the documents based on Murphy’s representations. State Farm met and conferred with Murphy in March of 2023 but did not receive the documents. On April 24, 2023, State Farm provided Murphy with an extended deadline of June 5, 2023. In response, Murphy reiterated the inability to comply because of Miller’s incapacity.

July 7, 2023 Order

As previously stated, the Court granted State Farm’s six discovery motions on July 7, 2023. The effect of the Court’s order was as follows:

·         State Farm’s motions to compel compliance with agreement to produce documents as to Miller, TR, and Stites were GRANTED.

·         State Farm’s motion to compel Miller’s responses to RFPD (Set Two) was GRANTED.

·         State Farm’s unopposed motion to deem RFA matters admitted was GRANTED.

·         Sanctions were imposed in the amount of $2,280 as follows: $760 respectively as to each Plaintiff.

Subsequent Production

Plaintiffs represent that they have now served responses to all outstanding discovery. A summary of the subsequent production relevant to this motion is as follows:

·         On January 3, 2024, Miller served supplemental responses to RFPD (Set One) and RFPD (Set Two). (Murphy Decl., Exhs. 4, 5.)

·         On January 15, 2024, Stites served supplemental responses to RFPD (Set One) and RFPD (Set Two). (Murphy Decl., Exhs. 6, 7.)

·         On January 18, 2024, Stites served responses to RFA (Set One). (Murphy Decl., Exh. 9.)

·         On January 18, 2024, Stites served responses to the Form Interrogatories (Set One). (Murphy Decl., Exh. 10.)

·         On January 23, 2024, TR served supplemental responses to RFPD (Set One). (Murphy Decl., Exh. 11.)

Excusable Neglect as to Miller/TR

In order to prevail on their motion, Miller and TR must show that they have rendered responses in substantial compliance and that their failure to respond was the result of mistake, inadvertence, or excusable neglect. (C.C.P. §§ 2033.280(a)(1)-(2).) The Court will address the arguments with respect to excusable neglect first.

Plaintiff’s counsel, Glen Murphy (Murphy), attests that he was on vacation in Costa Rica when State Farm’s motions were served. (Murphy Decl. ¶ 5.) Murphy states he was surprised by the motions because there was no call or letter from State Farm informing them of the motions. (Id.) The Court finds this argument unpersuasive.

Murphy neglects to mention that these motions followed a series of months long meet and confer efforts by State Farm to confirm the availability of Miller and the status of her document production. State Farm originally propounded these requests in December of 2022 and granted several extensions as the result of Miller’s health concerns. (Meno Decl. ¶¶ 2-10.) That State Farm would file motions to compel responses after no response were made after several extensions is not surprising. Nor is State Farm required to meet and confer prior to filing a motion to compel. (See C.C.P. § 2031.320(a) and § 2031.300.)

Murphy also states that the failure of Miller and Stites to produce responses was due to a “calendaring error”. (Murphy Decl. ¶ 5.) Murphy does not aver what this calendar error was, nor how it caused Miller and TR to miss several extended discovery deadlines. Nor was this calendaring error mentioned in the papers opposing State Farm’s motions to compel.

Murphy’s explanation also does not account for Miller’s primary argument made in opposition to State Farm’s motions. Murphy represented to State Farm’s counsel for months that Miller was the only person who could compile responsive documents, but that she was unable to because she was hospitalized. (See Meno Decl. ¶ 8, Exh. 1.) In her opposition, Miller argued the responsive documents were located at her place of employment in Disneyland and she was the only person authorized to retrieve them. Miller also argued that her guardian ad litem could not retrieve them because she is not authorized to enter the employee only areas of Disneyland. The Court found this explanation unpersuasive, as Miller had the discovery requests well before her hospitalization. The Court also noted that Miller provided no explanation of any effort to obtain the documents by her guardian ad litem or with Court assistance.

Murphy also generally avers that he was suffering from a debilitating health condition from August through October 2023 which required multiple hospitalizations and surgery. (Murphy Decl. ¶ 10.) The Court finds this argument has no bearing on whether the failure to reply to discovery was the result of excusable neglect. Murphy’s condition occurred after the Court had issued the order for production.

Outside of the calendaring error, Murphy offers no explanation speaking to TR’s failure to comply with the discovery demands. 

In short, the Court does not find that Miller or TR’s failure to respond to discovery was the result of excusable neglect on their behalf.  

Despite the above conclusion, the Court finds that the failure to comply was at the very least attributable to inadvertence or excusable neglect of Murphy. Having heard argument from Murphy and having reviewed the supplemental declaration, the Court finds relief is warranted despite its tentative ruling indicating otherwise.

“Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. [Citations.]” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921; see also Shearman v. Jorgensen (1895) 106 Cal. 483, 485 [requiring that the reasons or cause for the inadvertence be stated in order for default to be set aside.].) Excusable neglect under “is that neglect which might have been the act of a reasonably prudent person under the same circumstances. [Citation.]” (Barati supra, 109 Cal.App.2d at 921.)

“In deciding whether counsel's error is excusable, courts look to (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.)

It is clear to the Court that the failure to comply with the agreement to produce documents resulted, at least in some part, from the mismanagement by Murphy. As legal counsel for Plaintiffs, Murphy was the one who received the discovery demands and was responsible for sending responses. Although Plaintiffs bore the burden of producing the documents, it is clear that Murphy was less than diligent in ensuring they did so within a timely manner. Murphy oversaw the appointment of a guardian ad litem for Miller on April 27, 2023, ostensibly to allow the litigation to move forward despite Miller’s health concerns. Yet Murphy allowed the requests to remain outstanding for several months thereafter.

In his supplemental Declaration, Murphy retracts the general objections that accompanied the supplemental discovery responses. (Supp. Murphy Decl. ¶ 5) Murphy states that Plaintiffs did not withhold any documents in their supplemental production. (Supp. Murphy Decl. ¶ 6.) Murphy further states that the only documents withheld from production were his notes, which are the only documents subject to attorney-client privilege. (Id.)  Given the supplemental declaration of Murphy and the showings accompanying the moving papers, the Court is satisfied that Miller and TR are entitled to relief from waiver in their supplemental responses.

Accordingly, Miller and TR’s motion for relief from waiver of objections pursuant to C.C.P. 2033.280 is GRANTED. The Court notes that relief from waiver does not relieve Plaintiffs from sanctions granted as part of the Court’s July 7 order. Plaintiffs remain responsible for the sanctions granted against them.

Excusable Neglect as to Stites

Stites initially represented himself in this action. On January 12, 2024 the Court granted Miller’s motion to substitute in for Stites after his unfortunate passing.

As to Stites’ failure to respond to discovery, Murphy states this was due to Stites’ ailing health. Murphy states that Stites’ health began to decline in April of 2023 and that he was hospitalized in June 2023. (Murphy Decl. ¶ 6.) Indeed, Sites was hospitalized at the time the July 7 order was made and thus did not oppose the motion or appear at the hearing. (Murphy Decl. ¶ 9.)

In opposition, State Farm states that Stites was in communication with them regarding the RFA responses on April 19, 2023. (Meno Decl. ¶ 25, Exh. 6.) It appears Stites emailed State Farm’s counsel to ask for an extension as he had come down with the flu. (Id.) State Farm appears to have granted the extension. (Id.)

Given that Stites represented himself throughout the discovery period, the Court finds his incapacity constitutes a showing of excusable neglect. Although it is true that the RFA were propounded on Stites months prior, it is also clear that State Farm was regularly granting Stites extensions to reply. That Stites thereafter failed to reply is explained by his subsequent hospitalization. Unlike Miller and TR, Stites was not represented by counsel and any notice of his incapacity would need to be self-provided. Also unlike Miller, Stites had no guardian ad litem which could have addressed the discovery in his stead.

As concerns Stites subsequent production, the Court finds the responses to be in substantial compliance. While it is true the responses are non-compliant in that they contain objections, Stites has still rendered responses to each request. (See Murphy Decl. Exh. 9.)

The Court notes that Plaintiffs’ request that Stites be relieved from his waiver of objections under C.C.P. § 2031.300 does not also function to relieve Stites from the Court’s order deeming RFA matter admitted. Such relief is instead governed by C.C.P. § 2033.300, which states:

(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.

(b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.

(c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following:

(1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.

(2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.

Although Plaintiffs do not reference C.C.P. § 2033.300 as grounds for their motion, the Court finds it applicable here. The Court finds Stites has shown excusable neglect in satisfaction of C.C.P. § 2033.300(b).

Lastly, relief from waiver under C.C.P. §§ 2031.300 does not negate the mandatory nature of sanctions for failure to timely respond to RFA imposed by C.C.P. § 2033.280(c). As such, while Stites is relieved from his waiver of objections, he is not relieved from the order granting sanctions.

Accordingly, the motion for relief is GRANTED in part as to Plaintiff Stites. Stites has leave of the Court to withdraw his admissions and is relieved from his waiver of objections. Sanctions issued in connection with State Farm’s motion to deem RFA matters admitted remain.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Erma L. Miller, TR, and L.B. Stites’s Motion from Relief came on regularly for hearing on April 12, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR RELIEF FROM WAIVER OF OBJECTIONS AS TO MILLER AND TR IS GRANTED.

THE MOTION IS GRANTED IN PART AS TO PLAINTIFF STITES.

STITES HAS LEAVE OF THE COURT TO WITHDRAW HIS ADMISSIONS AND IS RELIEVED FROM HIS WAIVER OF OBJECTIONS.

SANCTIONS ISSUED AGAINST MILLER, TR, AND STITES REMAIN.

IT IS SO ORDERED. 

DATE:  April 12, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles