Judge Holly J. Fujie, Case 21STCV37542 2022-08-29 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Defendants/Cross-Complainants Shelley Cheung and Nelson Cheung (collectively, “Moving Defendants”)

This action arises out of a landlord/tenant relationship. On May 3, 2022, the Court ruled on three motions to compel and one motion to deem requests for admissions admitted (collectively, the “Motions to Compel") filed by Plaintiff. The Court found that because Moving Defendants had served their overdue discovery responses before the time of the hearing, the Discovery Motions were moot to the extent that they sought to compel responses or deem matters admitted.

On May 19, 2022, Moving Defendants filed a motion for relief from waiver of objections (the “Motion”).

Under California Code of Civil Procedure (“CCP”) section 2033.280, where a party is served with requests for admission but fails to serve a timely response, the party to whom the requests for admission were directed waives an objection to the requests, including one based on privilege or on the protection for work product. (CCP § 2033.280, subd. (a).) To obtain a waiver to objections to requests for admission, the party seeking the waiver must show that: (1) the party served a response that is in substantial compliance with CCP sections 2033.210, 2033.220, and 2033.230; and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (CCP § 2033.280, subd. (a)(1)-(2).)[1] A trial court has broad discretion to regulate discovery. (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.)

The Civil Discovery Act does not include a definition of “substantial compliance,” and few cases have addressed the circumstances under which a response will be deemed not in substantial compliance. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.) Substantial compliance means actual compliance with respect to the substance essential to every reasonable objective of the statute. (Id. at 790.) Substantial compliance should not be understood as requiring actual compliance with every specific statutory requirement. (Id.)

The Court finds that the responses Moving Defendants provided are in substantial compliance—their responses are verified, and while containing objections, the objections are articulated, and answers are provided where available.

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 law favors granting relief, and any doubts should be resolved in favor of granting such relief. (New Albertons v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)

Moving Defendants’ counsel declares that the failure to serve timely responses was due to an oversight and miscommunication. (See Declaration of Areg A. Sarkissian (“Sarkissian Decl.”).) Moving Defendants were served with discovery on December 10, 2021. (Sarkissian Decl. ¶ 4.) Plaintiff’s counsel indicated that Moving Defendants’ counsel could seek extensions for responding as needed. (See id., Exhibit A.) Plaintiff thereafter filed the currently operative first amended complaint (the “FAC”), causing Moving Defendants’ counsel to believe that updated discovery would be propounded. (Sarkissian Decl. ¶ 5.) On February 7, 2022, Moving Defendants submitted a Case Management Conference (“CMC”) statement indicating that they had not provided discovery responses due to the filing of the FAC. (Sarkissian Decl. ¶ 6, Exhibit B.) Although the week of February 14, 2022, Plaintiff’s counsel sent a letter to demand responses to the outstanding discovery, Moving Defendants’ counsel never received the letter and was unaware that Plaintiff intended to seek responses until Plaintiff filed the Motions to Compel on March 23, 2022. (Sarkissian Decl. ¶¶ 7-8.) Moving Defendants provided responses on April 8, 2022. (Sarkissian Decl. ¶ 9, Exhibits C-E.)

Resolving all doubts in favor of granting relief, the Court finds that Moving Defendants have adequately demonstrated that their failure to serve timely responses was due to mistake, inadvertence, or excusable neglect. (New Albertons v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)

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.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] This standard for evaluating mistake, inadvertence or excusable neglect also applies when considering whether a party is entitled to relief from waiver to objections with respect to requests for production and interrogatories. (See CCP §§ 2031.300, subd. (a)(1)-(2), 2030.290, subd. (a)(1)-(2).)