Judge: Michelle C. Kim, Case: 22STCV27222, Date: 2023-05-17 Tentative Ruling

Case Number: 22STCV27222    Hearing Date: May 17, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Reina Marilu Barba Cabuto (“Plaintiff”) filed this action against Defendants Akari Mary Nakahara (“Akari”) and Hiroshi Nakahara (“Hiroshi”) for damages arising from a motor vehicle accident. 

On October 24, 2022, Plaintiff e-served request for admissions, set one; special interrogatories, set one; form interrogatories, set one; and request for production of documents, set one. Based on the date of eservice, the deadline to respond was November 29, 2022. On the same day, defense trial counsel assigned the discovery to an associate to prepare responses. However, the associate subsequently left defense counsel’s firm on November 23, 2022, without preparing responses, or informing defense trial counsel that he had not completed responses.

On December 5, 2022, Plaintiff’s counsel inquired into the status of responses, and advised that objections had been waived. Once defense trial counsel learned that responses were overdue, she reassigned the responses to another associate, Petra Radusic. Ms. Radusic served responses as soon as reasonably practicable. Plaintiff’s counsel met and conferred, and Ms. Radusic served further responses. Ms. Radusic explained that the responses were overdue because another associate had left the firm and attempted to avoid seeking Court relief.  

            Defendants now move for an order relieving them from waiver of objections. Plaintiff opposes the motion arguing that Defendants have not shown the untimely responses were the result of excusable neglect, inadvertence, or mistake and that relief from waiver would prejudice Plaintiff because the waiver of objections is the main subject of its pending motion to compel further.  Defendants reply rebutting these contentions.

2. Motion for Relief from Waiver of Objections

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 plaintiff’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.)¿¿ 

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, a proposed response to requests for admission are 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 that is substantially code compliant. (Ibid.) 

            Based on counsel’s representations discussed above, Defendants have shown attorney excusable neglect or mistake in failing to timely respond to the subject discovery. Specifically, defense counsel promptly asked an associate, Tanner London, to prepare responses to the subject discovery. He then sent an email accepting the assignment and asking “Vivian” who was copied on the email to calendar it. However, he left the firm without preparing responses or advising the assignment needed to be transferred to another associate. (Declaration of Rachel E. Boden ¶¶ 3, 7-10, Exh. E.)

            In opposition, Plaintiff argues that granting relief from waiver prior to the hearing on Plaintiff’s motion to compel further responses, where Defendants’ waived objections are at issue, would prejudice Plaintiff. The Court does not agree. Relief from waiver is an available avenue for Defendants which cannot be circumvented simply by Plaintiff filing a motion to compel further responses, even if it will moot the Plaintiff’s motion.

Based on the foregoing, Defendants’ motion for relief from waiver of objections is GRANTED. 

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 17^th day of May 2023