Judge Lee S. Arian, Case Number: 21STCV14872, Date: 2023-12-19 Tentative Ruling

RESPONDING PARTY: Plaintiffs Desiderio Sandoval and Herlinda Sandoval (“Plaintiffs”)

This action arises from a motor vehicle accident that occurred on February 13, 2020. On April 20, 2021, Plaintiffs Desiderio Sandoval and Herlinda Sandoval (“Plaintiffs”) filed a complaint against Defendants Maria Guerrero (“Defendant”) and Does 1 to 50, alleging causes of action for Motor Vehicle Injury and General Negligence.

On November 3, 2021, Plaintiffs propounded the first set of discovery on Defendant, including, Form Interrogatories, Special Interrogatories, Request for Production of Documents, and Request for Admissions. (10/02/23 Minute Order.) On March 8, 2023, Plaintiffs filed motions to compel Defendant’s responses to the Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, and to deem the Requests for Admissions as Admitted against Defendant (collectively, the “Motions”). (Id.) Plaintiffs also sought sanctions against Defendant and her counsel of record pursuant to the Motions. (Id.)

On October 2, 2023, after hearing and oral argument, the Court deemed the Motions moot because “Defendant served Plaintiffs with verified responses to the foregoing discovery on September 15, 2023,” and the responses substantially complied “with the Code of Civil Procedure.” (10/02/23 Minute Order.) The Court stated that “Defendant’s responses are verified and did not contain any objections to Plaintiffs’ discovery requests. As such, the [M]otions are moot.” (Id.) In essence, Defendant served late responses to Plaintiffs’ discovery requests (Id.) The Court held the imposition of sanctions against Defendant subject to any further violation. (Id.)

On November 21, 2023, Defendant filed and served the instant Motion for Relief from Waiver of Objections (the “Motion”). Defendant requests an order from the Court: (1) granting Defendant relief from any waiver of objections as to attorney-client privilege and work product; and (2) allowing Defendant fourteen calendar days from the date of the order to serve further responses and assert objections to Set One of Plaintiffs’ Form Interrogatories and Request for Production of Documents based on the attorney-client privilege and the work product doctrine.

The Motion is made on the grounds that Defendant previously served substantially compliant responses to Set One of Plaintiffs’ Form Interrogatories and Request for Production of Documents, and the failure to timely serve a response to such discovery was a result of attorney mistake, inadvertence, or excusable neglect.

On December 6, 2023, Plaintiffs filed and served an opposition to the Motion. On December 12, 2023, Defendant filed and served a reply brief.

Where a party fails to serve a timely response to interrogatories, “[t]he party to whom the interrogatories are directed waives . . . any objection to the interrogatories, including one based on privilege or on the protection for work product.” (Code Civ. Proc., § 2030.290, subd. (a).) On motion, a party may be relieved from its waiver if: (1) the party subsequently served a response that is in substantial compliance “with Sections 2030.210, 2030.220, 2030.230, and 2030.240” and (2) “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2030.290, subd. (a)(1)-(2).)

Where a party fails to serve a timely response to a request for production of documents, “[t]he party to whom the [request for production] is directed waives any objection to the demand, including one based on privilege or on the protection for work product.” (Code Civ. Proc., § 2031.300, subd. (a).) On motion, a party may be relieved from its waiver if: (1) the party subsequently served a response that is in substantial compliance “with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280” and (2) “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2031.300, subd. (a)(1)-(2).)

Defendant contends that she should be relieved from any waiver of objections to attorney-client privilege and work product for Set One of Plaintiffs’ Form Interrogatories and Request for Production of Documents. Plaintiffs assert that Defendant has failed to show facts sufficient to constitute mistake, inadvertence, or excusable neglect. Moreover, Plaintiffs contend that the Motion should be denied because Defendant’s discovery responses to Plaintiffs’ Form Interrogatories and Requests for Production of Documents were not substantially complaint.

“[J]udicial notice may be taken of the records of any court of record of the United States or of any state of the United States.” (People v. Harbolt (1997) 61 Cal.App.4th 123, 126.) A trial court is permitted to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached.” (Id. at p. 126-27 [emphasis in original].) A “court may take judicial notice on its own volition.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752.)

On its own volition, the Court takes judicial notice of its October 2, 2023 Minute Order. Such order indicates that the Court reviewed Defendant’s Responses to Plaintiffs’ discovery—including Set One of Plaintiffs’ Form Interrogatories and Request for Production of Documents—and found that such responses substantially complied with the Code of Civil Procedure. (10/02/23 Minute Order at p.2; Gardner Decl., Exhibit J.)

“[T]he Legislature intended to incorporate the principles of section 473 into those provisions of the discovery act which employ similar language.” (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107.) “[I]n several sections of the discovery act the Legislature provided for relief by using language similar to section 473.” (Id. at p. 1106.) “[T]he sole remedy for relief from waiver in the context of discovery is contained within the provisions of the [Discovery] Act and [a party] cannot rely upon the provisions of section 473.” (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274-75.) An assessment of whether mistake, inadvertence, or general neglect was excusable requires a court to ascertain “whether a reasonably prudent person under the same or similar circumstances might have made the same error.” (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146 [emphasis in original, internal quotations omitted].)

Counsel for Defendant, Robert J. Gardner (“Gardner”), declares that Plaintiffs propounded Set One of Form Interrogatories and Request for Production of Documents on Defendant on November 3, 2021. (Gardner Decl., ¶ 3 and Exhibits A-B.) The discovery at issue was served on Defendant’s original counsel, Chavez Legal Group, who he believes is no longer active or defunct. (Id., ¶ 4.) Counsel attests that his office associated in as counsel for Defendant on or around October 14, 2022, and he was not advised by prior counsel that Defendant had outstanding discovery responses. (Id., ¶ 5.) Counsel states that he was not advised of the meet and confer correspondence in August 2022 between Plaintiffs’ counsel and the prior handling law firm. (Id., ¶ 5 and Exhibit C.) Plaintiffs’ counsel did not request any privileged documents or otherwise state that objections had been waived in the meet and confer correspondence. (Id., ¶ 6.) Defendant ultimately served verified responses to Plaintiffs’ discovery. (Id., ¶ 7 and Exhibits D-E and F-I.)

Gardner further attests that the failure to timely respond to discovery was the result of mistake, inadvertence, and excusable neglect. (Id., ¶ 13.) The discovery at issue fell through the cracks given the ongoing issues with attorney, secretary, and paralegal turnover at prior counsel’s office. (Id.) The failure of Defendant to timely respond to discovery was the result of mistake, inadvertence, and excusable neglect by the Chavez Legal Group. (Id.)

In his reply declaration, Gardner states that he was first advised that outstanding discovery responses were due on January 17, 2023. (Gardner Reply Decl., ¶ 4 and Exhibit L.)

Counsel for Plaintiff declares that Chavez Legal Group did not disassociate from this matter until May 16, 2023. (Allton Decl., ¶ 3 and Exhibit A.) Gardner served Plaintiffs with notices for an Independent Medical Examination on December 14, 2023. (Id., ¶ 4 and Exhibit B.) Plaintiff’s counsel inquired about the outstanding discovery prior to Defendant finally serving verified responses on September 15, 2023. (Id., ¶¶ 6-9 and Exhibits D-E.)

Even if Defendant were able to make a showing of mistake, inadvertence, and excusable neglect and that her discovery responses are in substantial compliance with the Code of Civil Procedure, the Court cannot grant the Motion.

Defendant failed to raise the attorney-client privilege or work product doctrine as objections in her discovery responses. This issue was not raised by the parties in their respective papers in support of or in opposition to the Motion; however, such issue is pertinent to the Court’s analysis and dispositive of the Motion.

The failure to assert an objection of privilege in an initial discovery response is deemed a waiver of such privilege. (Scottsdale Ins. Co. v. Superior Court, supra, 59 Cal.App.4th 263, 272.) Where a party seeks to invoke and preserve an objection, such objection must be set forth “in the original response or waiver results.” (Id. at p. 273 [emphasis in original].) “It is clear from the [Discovery] Act that the Legislature intended any and all objections . . . to be made at the earliest timely response.” (Ibid.) In the context of interrogatories, “the Legislature requires objections in the initial response to written interrogatories to avoid waiver of privilege.” (Ibid.) Where a party fails to include an express objection in its initial discovery response, such party is deemed to have waived such objection. (Id. at p. 274.) Boilerplate objections to discovery have been deemed to preserve objections. (Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516.)

The Court cannot grant the Motion as Defendant failed to raise any express objection to Set One of Plaintiffs’ Form Interrogatories or Request for Production of Documents on the grounds of attorney-client privilege or work product. (Gardner Decl., Exhibits F-I.) In fact, Defendant failed to raise any objections to Plaintiffs’ discovery. The Court noted this in its October 2, 2023 Minute Order where it stated that “Defendant’s responses . . . did not contain any objections to Plaintiffs’ discovery requests.” (10/02/23 Minute Order.) By not raising any objections in her discovery responses, Defendant has waived objections on the grounds of work product and attorney-client privilege under Scottsdale Ins. Co. v. Superior Court, supra, 59 Cal.App.4th 263, 272. Defendant cannot now seek relief from waiver of objections based on work product and attorney-client privilege when no objections at all were raised in Defendant’s initial discovery responses.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court