Judge: Martha K. Gooding, Case: 2021-01196645, Date: 2022-08-22 Tentative Ruling

Motion for Relief of Waiver of Objections

Plaintiff Irma Wilkins’ Motion for Relief from Waiver of objections is GRANTED.

By failing to timely respond to interrogatories and requests for production of documents, all objections, including those based on the attorney-client privilege or protected by attorney work product, are waived. The court has statutory power to grant relief from waiver of objections. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [request for production of documents].]

The party seeking belatedly to assert some objection must show that he or she has belatedly served responses “in substantial compliance” with that party's duty to respond under Code of Civil Procedure section 2030.210, subdivision (a). (Code Civ. Proc., §§ 2030.290, subd. (a)(1) [interrogatories], 2031.300, subd. (a) [request for production of documents].] The declarations must establish that the party's failure to serve a timely response resulted from “mistake, inadvertence or excusable neglect.” (Code Civ. Proc., § 2030.290, subd. (a)(2).)

On 4/29/22, Defendants served five sets of discovery on Plaintiff: Requests for Production of Documents (Set Two), Form Interrogatories (Set One), Special Interrogatories (Set Two) Form Interrogatories (Set Two) and Requests For Admissions (Set One). (Plaintiff’s Ex. 1.) 

Defendants granted Plaintiff an extension to June 15, 2022 to serve her responses.  Plaintiff states that due to a clerical error, the enormous amount of discovery in this matter, and Plaintiff’s attorney’s inadvertence, Plaintiff did not make timely responses to the discovery.  Immediately upon counsel noticing that their legal assistant did not serve the discovery on time, Plaintiff served code-compliant responses to the discovery June 16, 2022, one day late. (Crippen Decl., ¶¶ 3, 4; Plaintiff’s Ex. 2.)

In the motion, Plaintiff only cites to Code Civ. Proc., § 2031.300(a) which applies to requests for production of documents.  Defendants therefore argue that because Plaintiff fails to cite proper legal authority in the motion (i.e., the corresponding statutes that apply to requests for admission and interrogatories), it should be largely denied. The Court rejects the argument.

The Court finds that in this instance, Plaintiff’s failure to cite to the exact statutes on which her motion is based is harmless error.  The relevant statutes are nearly identical to Code Civ. Proc., § 2031.300(a).  There is no due process concern, as it is quite clear from reading the moving papers what Plaintiff is requesting and what authority her request is based on. 

Plaintiff’s responses to the discovery, served just one day late, are in substantial compliance with the relevant statutes.  Plaintiff provided substantive responses.  For example, she unequivocally admits or denies most of the requests for admission. In response to most of the requests for production of documents, Plaintiff states “A diligent search and a reasonable inquiry have been made in an effort to comply with the demand and all responsive documents in Responding Party’s possession, custody and control will be produced. Discovery is ongoing.”  (Emphasis added.)

In St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779, the court stated that “[w]here there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance. [Citation.] Substance prevails over form.” 

While this was in the context of analyzing late responses to requests for admission, it can be applied here.  The court ultimately held that “[a]lthough St. Mary's proposed response may not have actually complied with all statutory requirements, such actual compliance is not required where the proposed response is facially a good-faith effort to respond to RFAs in a manner that is substantially code-compliant.” (Id. at 782.)

The Court finds that here, Plaintiff’s responses were in substantial compliance with the law and made in good faith.

In addition, the Court finds that Plaintiff’s counsel has shown mistake and/or inadvertence in serving the responses one day late. (See Crippen Decl., ¶¶ 3, 4.) 

Plaintiff shall give notice.