Judge: Mark A. Young, Case: 21SMCV00944, Date: 2022-10-28 Tentative Ruling

Case Number: 21SMCV00944    Hearing Date: October 28, 2022    Dept: M

CASE NAME:           Kabilka, et al., v. Shores Barrington LLC, et al.

CASE NO.:                21SMCV00944

MOTION:                  Motion for Relief from Waiver of Discovery Objections

HEARING DATE:   10/28/2022

Legal Standard

If a waiver has occurred, the court may relieve that party from this waiver on its determination that both of the following conditions are satisfied:¿“(1)¿The party has subsequently served a response that is in substantial compliance with¿Sections 2033.210,¿2033.220, and¿2033.230. [¶] (2)¿The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” The same standard for relief from defaults used in Code of Civil Procedure section 473 is used for relief from waiver of objections due to failure to serve a timely response to a discovery demand. (City of Fresno v. Superior Court¿(1988) 205 Cal.App.3d 1459, 1467.)¿ 

“Inadvertence is defined as lack of¿heedfulness or attentiveness, inattention, fault from negligence.” (Baratti v. Baratti¿(1952) 109 Cal.App.2d 917, 921.)¿¿“The¿‘excusable neglect’¿referred to in¿[CCP section 473(b)]¿is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Id.)¿¿A mistake may be of law or of fact. “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. [Citation]” (Id.)¿“[A] mistake of law may be excusable when made by a layman but not when made by an attorney.”¿ (Tammen v. County of San Diego¿(1967) 66 Cal.2d 468,¿479.)¿¿ 

Analysis

In their reply brief, Defendants argue that their instant motion for relief from waiver has been mooted by the September 30, 2022, ruling on the motion to compel Defendant’s Person Most Knowledgeable (PMK) deposition. At that hearing, the parties stipulated that Plaintiffs would not proceed with the portion of their pending motion seeking to compel Douglas Emmett’s PMK deposition, given that all parties had not yet appeared in the action.  Defendants rely on Code of Civil Procedure section 2025.410(a), which states in relevant part:

Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

As the parties have reset the time for the deposition, Defendants will be able to object to the re-noticed deposition and attached request for production. The Court agrees that the motion is moot.  Thus, the motion is taken OFF-CALENDAR.