Judge Jill Feeney, Case 22STCV05740 2023-04-12 Tentative Ruling

This is an action for negligence and premises liability arising from an altercation which took place in February 2020. Plaintiff Rogelio Godinez filed his Complaint against Metro PCS on February 15, 2022.

Plaintiff moves for relief from waiver of objections. Plaintiff’s counsel testifies that he failed to serve timely responses to Defendant’s requests for written discovery and has since served code-compliant responses.

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.)

The courts have ruled that substantial compliance is dependent on the meaning and purpose of the statute. (Freeman v. Vista de Santa Barbara Associates LP (2012) 207 Cal.App.4th 791, 793.) For example, a proposed response to requests for admission are substantially compliant where the responses are verified, contained responses to a majority of responses, and are served before the hearing on a motion to compel. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 782.) Such responses may not comply with all statutory requirements, but constitute a facially good-faith effort to respond to the requests for admissions that is substantially code compliant. (Id.)

Plaintiff’s counsel testifies that he failed to serve timely responses to Defendant’s requests for written discovery because his office inadvertently failed to calendar the requests. (Kim Decl., ¶¶4-5.) Counsel did not discover the responses were late until Defendant’s counsel wrote to inquire after the late responses on November 14, 2022 and December 1, 2022. (Id., ¶6.) Plaintiff’s counsel served responses on December 13, 2022 because he was busy with other litigation and understaffed. (Id., ¶¶7-8.) After receiving meet and confer correspondence from Defendant’s counsel, who raised issues about Plaintiff’s responses, Plaintiff’s counsel served supplemental responses to Defendant’s FROGs and RPDs on January 16, 2023. (Id., ¶10.) Although Plaintiff’s counsel’s declaration references exhibits, none are attached to the motion.

Plaintiff’s evidence shows that his failure to serve timely responses was due to his counsel’s mistake and that he has since served code-compliant responses. Although Plaintiff failed to attach his discovery responses to his motion, Plaintiff’s counsel testifies that he served code-compliant responses in December 2022. Defendant does not oppose this motion or dispute that Plaintiff filed code-compliant responses. Plaintiff’s motion was served electronically, and the parties have been communicating via email. Having met the requirements of Code Civ. Proc., Section 2030.290, Plaintiff’s motion is granted.