Judge: Holly J. Fujie, Case: 20STCV17723, Date: 2022-08-10 Tentative Ruling

Case Number: 20STCV17723    Hearing Date: August 10, 2022    Dept: 56














      CASE NO.: 20STCV17723




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.



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”).



            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





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.