Judge Jill Feeney, Case 22STCV16439 2023-03-17 Tentative Ruling

Defendant’s Motion for Relief from Waiver of Objections with Respect to Form Interrogatories (Set One), Special Interrogatories (Set One), Request for Production (Set One) and Request for Admission (Set One)

Defendant is ordered to serve the original response to requests for admission on Plaintiff pursuant to Code of Civil Procedure Section 2033.050 within 10 days after the date of this order.

This is an action for negligence arising from a vehicle collision which took place in August 2020. Plaintiff George Salman filed his Complaint against Defendant Maria Rosario Delgadillo on May 17, 2022.

Defendant moves for relief from waiver of objections on the grounds that her counsel did not file timely discovery responses due to a calendaring error and she has since served compliant responses.

Plaintiff argues that the motion should be denied because Defendant’s responses are not substantially code compliant. Plaintiff also requests sanctions and requests that the Court reconsider its January 25, 2023 order on the issue of the metadata in Defendant’s RFA 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 party’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 he failed to serve timely responses to Plaintiff’s requests for written discovery due to a calendaring error. (Capell Decl., ¶¶16-21.) After discovering the error, Defendant requested an extension which Plaintiff’s counsel denied. (Id., ¶22-23.) Defendant then served responses to the discovery requests on December 29, 2022. (Id., ¶25.)

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, responses to requests for admission were deemed substantially compliant where the responses were verified, contained responses to a majority of responses, and were 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 have complied with all statutory requirements, but constituted facially good-faith efforts to respond to the requests for admissions and are therefore substantially code compliant. (Id.)

Here, Plaintiff argues that the RFA responses were not substantially code compliant because Defendant did not serve originals as required under Code Civ. Proc., section 2033.270. Although the RFA response Plaintiff served was not an original document, that does not mean that the responses were not substantially compliant. Defendant mailed hard copies of verifications with wet signatures to her counsel and Defendant electronically served the responses after receiving scanned versions of the verifications. (Opp., Exh. C.) The evidence from the parties’ communications shows that Defendant electronically served the documents in a good faith effort to serve responses after realizing the calendar error. Although Defendant’s response does not meet all of the statutory requirements of Code Civ. Proc., section 2033.270, the Court finds that the responses are substantially code compliant for the purposes of this motion.

2. FROGs 7.2 and 12.4, and SROGs 5 and 26 improperly state information is unknown in violation of Code Civ. Proc., section 2030.220. “A responding party generally may not respond to interrogatories just by asserting its ‘inability to respond.’” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.)

3. RPDs 1-9, 13-14, 15-21, 24-30, and 36 state Defendant is unable to comply and fail to state whether a diligent inquiry was made as to the documents that are within Defendant’s control and whether documents exist or who may have possession of them. These responses fail to comply with Code Civ. Proc., section 2031.230.

An examination of Defendant’s responses to FROGs, SROGs, and RPDs show that the responses Plaintiff notes fail to comply with procedural requirements. Nonetheless, substantial compliance under Code Civ. Proc., sections 2033.280 and 2031.300 does not require perfect compliance with procedural requirements. The evidence shows that Defendant answered the majority of FROGs, SROGs, and RPDs completely. To the extent that Plaintiff finds the responses deficient, Plaintiff must file a motion to compel further to resolve these issues. For the purposes of this motion, the Court finds Defendant’s responses are substantially compliant.

Plaintiff also moves for the Court to reconsider January 25, 2023 order on the issue of the metadata in Defendant’s RFA responses. The Court declines to reconsider this issue. The Court also declines to award sanctions.