Judge Jill Feeney, Case 20STCV28572 2022-12-06 Tentative Ruling

This is an action for negligence and wrongful death arising from a vehicle collision which took place in July 2020 which resulted in the death of Ashley Wells. Plaintiffs Lanora and Duane Alan Wells filed their Complaint against Defendant Daniel Auner on July 29, 2020.

Defendant seeks relief from waiver of objections to Plaintiffs’ Request for Admissions, Request for Production, and Interrogatories pursuant to Code Civ. Proc., Sections 2030.290, 2031.300, and 2033.280. Defendant alleges that Plaintiffs served the discovery requests on Defendant by mail directly without sending copies to Defendant’s counsel despite knowing Defendant was represented by counsel.

Plaintiffs argue that Defendant waived his right to object to their written discovery requests because he failed to timely respond and that they are not entitled to a do-over. Plaintiffs allege that relief is not warranted under Code Civ. Proc., Section 473. Plaintiffs also request sanctions.

A party to whom interrogatories are propounded waives his right to object to the requests if he failed to serve a timely response. However, a party may be relieved of that waiver if “(1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240. (2) The plaintiff’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., section 2030.290.) There are substantially similar sections pertaining to relief from waiver of objections for requests for admission and requests for production. (Code Civ. Proc., Sections 2033.280, 2031.300.)

The statutory language “mistake, inadvertence, or excusable neglect” in the discovery statute should be interpreted using the same general principles developed in application of the identical language in section 473, subdivision (b). (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275.) Although the party moving for relief under section 473 has the burden to show that the mistake, inadvertence, or neglect was excusable, any doubts as to that showing must be resolved in favor of the moving party. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)

Defendant’s counsel testifies that in late 2020, all parties were advised that his office represented Defendant in this matter. (Hurwitz Decl., ¶3.) On June 10, 2021, counsel’s office wrote all parties’ counsel, including the Wells’ counsel, informing them of Defendant’s representation. (Id.) On July 11, 2022, Plaintiffs’ counsel served written discovery on Defendant at his own address without sending copies to Defendant’s counsel. (Id., ¶¶5, 11; Exh. B) Defendant did not forward the requests to his counsel. (Id., ¶11.) On September 29, 2022, Plaintiffs’ counsel wrote a letter to Defendant’s counsel informing him that the discovery responses were late and requested responses. (Id., ¶8.) Defendant’s counsel explained their office never received any discovery requests. (Id.) On October 2, 2022, Defendant’s counsel served responses to Plaintiffs’ discovery requests. (Id., ¶9.)

It appears Defendant’s failed to serve timely responses to Plaintiffs’ discovery requests because Defendant neglected to forward the requests to his counsel. Plaintiffs in opposition do not dispute that the discovery requests were only served on Defendant at his own address and that no copies were served on Defendant’s counsel. Plaintiffs’ counsel does not dispute that they were aware Defendant was represented by counsel at the time they served discovery requests. Plaintiff argues that Defendant is not entitled to a “do-over” and relief is not permitted under Code Civ. Proc., section 473. Defendant makes his motion under Code Civ. Proc., Sections 2030.290, 2033.310, and 2033.280, which expressly permit relief from waiver of objections for untimely discovery responses. Because Plaintiff’s counsel failed to serve copies of the requests on Defendant’s counsel, the Court finds that Defendant’s neglect is excusable.

Plaintiff argues that Defendant’s responses are not code compliant on the grounds that they consist completely of objections. Responses containing objections are permitted by Code Civ. Proc., Sections 2030.210, 2031.210, and 2033.210. Thus, the responses are code compliant.