Judge Jill Feeney, Case 21STCV01230 2023-02-27 Tentative Ruling

The motion for terminating sanctions remains on calendar for 2/27/2023. However, the moving party filed a notice that it had moved the hearing to 3/27/2023. The Court notes that no hearing has been scheduled for 3/27/2023. If the moving party does not schedule the hearing date prior to the hearing on 2/27/2023, the motion will be taken off calendar.

Plaintiff, in its opposition, moves to relieve Plaintiff of any waiver of objections to the interrogatories and request for production under Code Civ. Proc., section 2030.010. Plaintiff cites to the wrong code section. Nevertheless, the Court will consider Plaintiff’s motion for relief under Code Civ. Proc., sections 2030.290 and 2031.300.

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.)

Here, Plaintiff has served responses to Lyft’s discovery requests. The responses appear to be substantially compliant, and Lyft has not filed a reply. Plaintiff argues in opposition that Plaintiff substituted his prior counsel because his prior counsel had health issues which he failed to disclose, and which prevented him from representing Plaintiff. Because Plaintiff’s failure to serve timely responses was caused by his former counsel’s neglect, Plaintiff’s motion for relief from waiver of objections with respect to the interrogatories and request for production is granted.

The Court does note that ordinarily it would not consider a motion to seek relief from waiver of objections made in an opposition paper. However, in the unique circumstances presented here with the inadequate and essentially nonexistent representation provided by Plaintiff’s previous counsel, it seems that such a waiver should be granted and there is no need to require the filing of additional motions. That said, if Defendant Lyft disagrees with this approach under this unique set of facts, it should make that known during the hearing on this matter.

The Court exercises its discretion not to impose sanctions here, except in connection with the motion to deem requests for admission admitted. Sanctions are mandatory in connection with motions to deem requests for admissions admitted if a party to whom the requests for admissions have been directed failed to serve a timely response to the request for admission. (Code Civ. Proc., §2033.280(c).)

Here, the Court will impose the requested sanctions in the amount of $597.50 on Plaintiff. Those sanctions are payable within 20 days after the date of this order.