Judge Jill Feeney, Case 22STCV03209 2022-12-23 Tentative Ruling

This is an action for negligence and premises liability arising from a slip and fall incident which took place in April 2021. Plaintiff Kenona Tillman filed her Complaint against Defendants Walmart, Inc. and Silvia Doe on January 26, 2022.

Plaintiff seeks an order setting aside the waiver of the deadline to compel a further response to her written discovery requests. Plaintiff argues that she missed the deadline to file motions to compel further because the original handling attorney left the firm and new attorney at the firm did not discover that the responses were deficient until the end of October 2022.

Defendant Walmart, Inc. (“Walmart”) argues that the court lacks jurisdiction to grant relief from waiver, there is no authority to grant Plaintiff’s motion, and Plaintiff’s waiver was not due to excusable neglect. Defendant finally argues that Plaintiff’s counsel failed to meaningfully meet and confer before filing this motion.

If a party missed the deadline to move to compel further, they may move to set aside the resulting waiver of the right to compel a further response under Code of Civil Procedure, Section 473(b). Relief under section 473(b) is unavailable when the Discovery Act provides analogous or more limited relief. (Zellerino v Brown (1991) 235 CA3d 1097, 1107.) Code Civil Procedure Sections 2030.300, 2031.310, and 2033.290 are silent on the subject of relief from waiver for motions to compel further. Thus, relief under section 473(b) is available for motions to compel further. Mandatory relief under section 473(b) is available only if the failure to comply with the deadline was solely due to attorney error. (Lang v Hochman (2000) 77 CA4th 1225, 1228, 1247–1252.)

Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from any proceeding taken against him because of his “mistake, inadvertence, or excusable neglect.” A party must seek relief no more than six months after the proceeding was taken. (Code Civ. Proc., section 473, subd. (b).)

Code of Civil Procedure Sections 2030.300, 2031.310, and 2033.290 also explicitly state that notice of a motion to compel further must be given within 45 days of the service of a “verified” response. It is an open question as to whether the statutes apply to the situation where only unverified objections are served. (Golf & Tennis Pro Shop v. Superior Court (2022) 84 Cal.App.5th 127, 232 and ftn. 5.)

Plaintiff seeks an order setting aside the waiver of her right to compel further answers to her requests for written discovery, specifically form interrogatories, special interrogatories, request for admission and request for production.

Code Civ. Procedure Sections 2030.300, subd. (c), 2031.310, subd. (c), and 2033.290, subd. (c) provide that unless a notice of a motion to compel further is given within 45 days of the service of the verified response (or to a later date agreed to in writing), the demanding party waives any right to compel a further response.

Here, on June 15, 2022, Walmart served unverified responses consisting entirely of objections. (Shapiro Decl., ¶¶2, 3.) The deadline to serve a notice of a motion to compel further was July 30, 2022. The parties extended this deadline by agreement to September 6, 2022. (Belaga Decl., ¶5.) The six-month deadline to file a motion to set aside the waiver is March 6, 2023. Plaintiff filed the instant Motion on November 29, 2022, within the six-month deadline of the Code of Civ. Proc. section 473(b).

Plaintiff’s Counsel states that Counsel did not file a motion to compel further within the 45-day deadline because the original attorney handling the case abruptly left the firm on June 29, 2022. (Shapiro Decl., ¶4.) A number of the original attorney’s cases were transferred to Counsel and Counsel did not realize the discovery responses were deficient until late October. (Id., ¶¶5-6.)

Upon that realization, on November 3, 2022, Plaintiff’s Counsel sent a meet and confer letter on the issue to Defendant’s Counsel. (Belaga Decl. ¶¶ 6,7.) No resolution of the matter was reached. Walmart argues that Plaintiff’s Counsel’s neglect was not excusable because Counsel fails to explain why she did not discover the deficient responses until late October. (Opp., p.4.)

The evidence shows that Plaintiff missed the 45-day deadline because of her current counsel’s excusable neglect. Newly assigned counsel admits that after the handling attorney abruptly left the firm on June 29, 2022, counsel was assigned to a number of the leaving counsel’s cases. It was not until the end of October that new counsel realized the issue with Defendant’s discovery responses.

“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.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal. 3d 270, 276 (1986) (citations omitted).) Under these unique circumstances where newly assigned counsel received a number of cases from a colleague who abruptly left the firm, the Court does find that a reasonably prudent person under the same or similar circumstances might have made the same error.

Defendant argues that the rationale of Zellerino does not apply since the statutes at issue here explicitly state that there is a waiver if the 45 day limitation to file a motion is not met. However, the Court sees it differently. Since these statutory provisions are silent on the subject of relief from waiver, as was the case in the expert discovery issue which was the subject of Zellerino, the Court finds that Section 473 relief applies.

The Court further notes that it is unclear whether if push comes to shove the 45 day limitation even applies in this situation given that the statute clearly references verified responses.