TENTATIVE RULING

Defendant University of Southern California’s Motion for Relief from Waiver of Objections to Plaintiffs’ Form Interrogatories and Requests for Admission (Set Two) is GRANTED. 

Defendant University of Southern California to give notice.

REASONING

Defendant University of Southern California (“Defendant”) moves for an order granting it relief from waiver of its objections to the second set of Plaintiff Sentinel Insurance Company, Ltd.’s (“Plaintiff”) Form Interrogatories and Requests for Admission (the “Subject Discovery”). Defendant argues its failure to timely respond to the Subject Discovery was a result of the mistake, inadvertence, or excusable neglect of USC’s counsel, and that USC has since served verified, code-compliant responses to the Subject Discovery. 

Generally, if a party fails to serve a timely response to interrogatories and a demand for inspection, copying, testing, or sampling, the party waives objections including one based on privilege or on the protection of work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) However, the Court may relieve that party from this waiver of objections upon determination that: (1) the party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, 2030.240, 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Id.)

Specifically, “[a] mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts… [i]nadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence…[and] ‘excusable neglect’ referred to in the section is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921 [emphasis added].) “To obtain relief a defendant must have acted within a reasonable time.” (Id.) 

“The Legislature apparently intended to employ the same standard for relief from defaults as used in section 473 for failure to serve a timely response to a discovery demand.” (City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467 (City of Fresno).) In City of Ontario v. Superior Court (1970) 2 Cal.3d 335, 345, the court concluded “[i]t is settled that an honest and reasonable mistake of law on such an [complex and debatable] issue is excusable and constitutes good cause for relief from default under Code of Civil Procedure, section 473.” (Id.) As such, “[c]ounsel's mistake of law on a relatively simple and undebatable matter was not a valid ground for relief.” (City of Fresno, supra, 205 Cal.App.3d at 1467.) 

Here, Defendant USC served responses to the Subject Discovery that are in substantial compliance with Civil Discovery Act. (Dixon Decl., ¶6, Exs. A-B.) In fact, Plaintiff does not dispute the responses are in substantial compliance with the Civil Discovery Act. Thus, the issue for determination by the Court is whether Defendant USC’s former counsel Sanders Roberts LLP and Robert K. Dixon’s failure to timely serve the responses were due to mistake, inadvertence, or excusable neglect. Although Plaintiff contends that it served the Subject Discovery on Mr. Dixon, Kelsey O’Brien (another attorney with Sanders Roberts LLP), Cat Griffin (paralegal), and Wanda Simmons (legal secretary), Mr. Dixon was the lead attorney responsible for handling this case for Defendant USC. (Dixon Decl., ¶¶3-5.) As set forth in his declaration, Mr. Dixon attests to dealing with the unexpected death of his parent and staff-related issues at the firm, which led to him inadvertently missing the service of the Subject Discovery. (Id.) A reasonably prudent lawyer under similar circumstances would have acted in the same manner as Mr. Dixon. Furthermore, upon notice of the excusable neglect Mr. Dixon on behalf of Defendant USC served code-complaint responses such that Plaintiff’s Motion to Deem Request for Admission Admitted was denied in part. Finally, Plaintiff’s assertion that Defendant USC’s act of retaining new counsel shows that it does not believe Mr. Dixon’s conduct was due to excusable neglect is mere conjecture, thus insufficient to find a lack of excusable neglect. 

Based on the foregoing, Defendant University of Southern California’s Motion for Relief from Waiver of Objections to Plaintiffs’ Form Interrogatories and Requests for Admission (Set Two) is GRANTED.