Judge: Holly J. Fujie, Case: 20STCV17723, Date: 2022-08-10 Tentative Ruling
Case Number: 20STCV17723 Hearing Date: August 10, 2022 Dept: 56
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR
THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
Plaintiff, vs. OFFICER HUYNH, et al., Defendants. |
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[TENTATIVE] ORDER RE: MOTION FOR RELIEF
FROM WAIVER Date:
August 10, 2022 Time: 8:30 a.m. Dept. 56 |
MOVING
PARTY: Defendant City of West Covina (“Moving Defendant”)
RESPONDING PARTY: Plaintiff
The
Court has considered the moving, opposition and reply papers.
BACKGROUND
This
action arises out of alleged wrongdoing that occurred during a police traffic
stop conducted by Defendant Officer Huynh (“Officer Huynh”). Moving Defendant filed a motion for relief
from objections to waiver (the “Motion”).
DISCUSSION
Where a party
who is served interrogatories fails to serve a timely response, the party to
whom the interrogatories are directed waives any objection to the
interrogatories, including one based on privilege or on the protection for work
product. (CCP 2030.290, subd. (a).) A party may be relieved from waiver
with respect to interrogatories where the party has served a subsequent
response that is in substantial compliance and the failure to serve a timely
response was due to mistake, inadvertence, or excusable neglect. (CCP §
2030.290, subd. (a)(1)-(2).) Where a party is served a demand for
inspection, copying, testing, or sampling and fails to serve a timely response
to that demand, the party to whom the demand is directed waives any objection
to the demand, including one based on privilege or on the protection for work
product. (CCP § 2031.300, subd. (a).) To relieve a party from a
waiver to objections with respect to requests for production the party must:
(1) subsequently serve a response that is in substantial compliance; and (2)
the party’s failure to serve a timely response was the result of mistake,
inadvertence, or excusable neglect. (CCP § 2031.300, subd. (a)(1)-(2).)
A trial court has broad discretion to regulate discovery. (Mannino v.
Superior Court (1983) 142 Cal.App.3d 776, 778.)
The standard used to analyze mistake, inadvertence, or
excusable neglect for relief from default set forth in CCP section 473 also
applies to failure to serve a timely response to a discovery demand. (City
of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467.) In determining whether the attorney’s mistake
or inadvertence was excusable, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same
error. (Comunidad en Accion v. Los Angeles City Council (2013) 219
Cal.App.4th 1116, 1132.) The failure of
counsel to meet a procedural deadline is a proper subject for section 473
relief. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) Relevant factors in assessing counsel’s error
include: (1) the nature of the mistake or neglect; and (2) whether counsel was
otherwise diligent in investigating and pursuing the claim. (Id.
at 1423.) Press of business alone
generally does not constitute grounds for relief. (Id.) The Court assesses credibility in determining
whether a failure to timely respond to discovery was due to the attorney’s
mistake, inadvertence, surprise, or neglect.
(Darab Cody N. v. Olivera (2019)
31 Cal.App.5th 1134, 1140-41.)
Procedural Mechanism for Discovery
of Police Officer Personnel Records
Under Evidence Code section 143, in any case in
which discovery or disclosure is sought of peace or custodial officer personnel
records or records maintained pursuant to Section 832.5 of the Penal Code or
information from those records, the party seeking the discovery or disclosure
shall file a written motion with the appropriate court or administrative body
upon written notice to the governmental agency that has custody and
control of the record. (Evid. Code §
1043, subd. (a).) The
statutory scheme governing discovery of peace officer records provides the exclusive means of
discovery of such records in both criminal and civil proceedings and take precedence over the
general CCP discovery rules. (County of Los Angeles
v. Superior Court (1990) 219 Cal.App.3d 1605, 1608, 1611.) A party may not excuse his noncompliance with
the Evidence Code provisions governing such discovery by resorting to a waiver
provision in the inapplicable and more generalized procedure which he chose to
use. (Id. at 1611.)
In support
of the Motion, Moving Defendant presents evidence that its previous counsel,
Harold Potter (“Potter”) was diagnosed with pancreatic cancer in early February
2022 and unexpectedly passed away while undergoing chemotherapy on March 21,
2022. (Declaration of Melissa M. Ballard
(“Ballard Decl.) ¶¶ 3-4.) Upon assuming
responsibility for this case, Moving Defendant’s current attorney took
immediate steps to respond to the overdue discovery responses. (See Ballard Decl. ¶¶ 8-9, Exhibits
A-B.) Moving Defendant’s responses
include objections, including objections related to Officer Huyhn’s police
personnel file pursuant to Penal Code section 832.7 and Evidence Code section
1043. (Ballard Decl. ¶ 9.) Moving Defendant’s responses were served on
July 7, 2022. (Ballard Decl. ¶¶ 11-12.)
In the
opposition (the “Opposition”), Plaintiff provides evidence that the discovery
at issue was initially propounded upon Moving Defendant on September 18, 2020,
with responses due on October 21, 2020. (Declaration of John Habashy (“Habashy Decl.”)
¶¶ 8, 11.) After missing the initial
deadline to serve responses, Moving Defendant requested several extensions,
although no responses were served. (See
Habashy Decl. ¶¶ 12-23.)
As a
preliminary matter, Moving Defendant has not demonstrated that its failure to
timely respond to Plaintiff’s discovery requests was due to mistake,
inadvertence, or excusable neglect. While
sympathetic to the circumstances under which Moving Defendant’s case was
reassigned to new counsel, the Court notes that the Motion provides no evidence
of Potter’s mistake, inadvertence or excusable neglect for the initial failure
to respond to the discovery.[1]
Nonetheless,
Moving Defendant’s arguments regarding the inapplicability of the CCP waiver
provisions to discovery requests concerning Officer Huyhn’s records are
well-taken. Plaintiff may not rely on
CCP discovery rules to excuse noncompliance with the procedural mechanisms for
seeking discovery related to such information.
Though Plaintiff argues that Moving Defendant is required to identify
the categories of documents which are encompassed by Penal Code section 832.5, the Opposition cites no caselaw to support
this proposition. Where a point is
merely asserted without argument of or authority for the proposition, it is
deemed to be without foundation and requires no discussion. (Central Valley Gas Storage LLC v. Southam
(2017) 11 Cal.App.5th 686, 695.)
The Court therefore GRANTS the Motion in
part. Moving Defendant has not waived
any objections pursuant to Evidence Code section 1043. The Motion is DENIED as to objections which
are outside the scope of the procedural requirements of Evidence Code section
1043. To the extent that Moving
Defendant has not produced responses regarding non-personnel information,
Plaintiff may schedule an Informal Discovery Conference with the Court, at
which time such dispute may be resolved.
Moving party is
ordered to give notice of this ruling.
In consideration of the current COVID-19
pandemic situation, the Court¿strongly¿encourages that appearances on
all proceedings, including this one, be made by LACourtConnect if the
parties do not submit on the tentative.¿¿If you instead intend to make an
appearance in person at Court on this matter, you must send an email by 2 p.m.
on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then
inform you by close of business that day of the time your hearing will be held.
The time set for the hearing may be at any time during that scheduled hearing
day, or it may be necessary to schedule the hearing for another date if the
Court is unable to accommodate all personal appearances set on that date.¿ This
rule is necessary to ensure that adequate precautions can be taken for proper
social distancing.
Parties
who intend to submit on this tentative must send an email to the Court at
SMC_DEPT56@lacourt.org as directed by the instructions provided on the court
website at www.lacourt.org. If the
department does not receive an email and there are no appearances at the
hearing, the motion will be placed off calendar.
Dated this 10th day of August 2022
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Hon. Holly J.
Fujie Judge of the
Superior Court |
[1] The Court additionally notes that
Moving Defendant is currently represented by an attorney employed by the same
law firm as Potter.