Judge: Ralph C. Hofer, Case: 21GDCV00845, Date: 2022-08-12 Tentative Ruling

Case Number: 21GDCV00845    Hearing Date: August 12, 2022    Dept: D

Calendar:    1
Date:          8/12/2022 
Case No: 21 GDCV00845 Trial Date: None Set 
Case Name: CAC Motors dba ZR Investments v. X3 AST Consulting, Inc., et al.


Moving Party:            Defendant Sleiman A. Timani      
Responding Party: Plaintiff CAC Motors dba ZR Investment      

Relief of waiver of objections related to plaintiff’s Demand for Production of Documents, Set One, served on January 28, 2022.  

Plaintiff CAC Motors dba ZR Investment brings this action against defendants X3 AST Consulting, Inc. (“X3 AST Consulting”), Sleiman A. Timani, and Marques Johnson, alleging that plaintiff is engaged in the automobile export business, and entered into a business relationship with defendant X3 AST Consulting pursuant to which plaintiff would request specific vehicles and X3 AST Consulting would locate, purchase and deliver those vehicles to plaintiff. Plaintiff alleges that defendant Timani, who is associated with X3 AST Consulting, contacted plaintiff and induced it to transfer money to defendants to secure a 2020 Mercedes Benz GL450, which was not in defendants’ possession.  The complaint alleges that after plaintiff transferred the funds for the vehicle, defendants failed to satisfy the security interest associated with the vehicle in order to authorize the release of the lienholder, so that the vehicle was repossessed by Mercedes Benz Financial Services.

Defendant Timani seeks an order for relief from waiver of objections with respect to its responses to requests to produce documents, indicating that counsel for defendant conducted a calculation of the due date for the responses and concluded that they were due on March 2, 2022, and served code-compliant responses on that date, but that counsel for plaintiff has taken the position that the due date was March 1, 2022, so that objections have been waived. 

Defendant indicates that plaintiff filed motions to compel further responses with respect to defendant’s responses to plaintiff’s form interrogatories and requests for admissions, and this court on July 1, 2022 adopted plaintiff’s counsel’s calculation that the deadline was March 1, 2022, and held that objections had been waived.   Plaintiff did not seek further responses to the Requests for Production on this ground, and defendant now seeks relief from the waiver of objections as to that set of discovery.      

Under CCP § 2031.300, “if a party to whom a demand for inspection, copying, testing or sampling is directed fails to serve a timely response to it,” that party “waives any objection to the demand, including one based on privilege or on the protection for work product...”
Under CCP § 2031.260(a):
“(a) Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response.”

Relief is sought under CCP § 2031.300, governing relief from waiver, which requires a motion and a determination by the court “that both of the following conditions are satisfied:
(1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240 and 2031.280. 
(2) The party’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect.”
Case law holds that belated objections are not valid unless the defaulting party demonstrates good cause to grant relief from default, and that the burden is on the defaulting party to seek and justify relief.   Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778. 
Mistake, inadvertence, surprise or excusable neglect is defined as some condition or situation in which a party is unexpectedly placed to his injury without any default or negligence of his own, which ordinary prudence could not have guarded against.   Credit Managers Association v. National Industrial Business Alliance (1984 2nd Dist.) 162 Cal.App.3d 1166.    The burden is on the party seeking relief to show why he is entitled to the relief on these grounds.  Bruskey v. Bruskey (1935)  4 Cal.App.2d. 472.   

The test of whether neglect was excusable is “whether a reasonably prudent person under the same or similar circumstances might have made the same error.”  Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276. 

The motion here submits evidence that defendant served its Response to Request for Production of Documents, Set One on March 2, 2022.  [Boniadi Decl., para. 3, Ex. B].  The responses are verified and appear to be in substantial compliance with the Code. The responses are sufficient for the court to find that the first condition for relief is satisfied. 

The motion also submits evidence that support a finding that the party’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect.   Specifically, counsel for defendant submits a declaration explaining that counsel made the due date calculation by interpreting the statutory sections governing service by electronic service to apply to provide an extension of the response deadline from Sunday, February 27, to Monday, February 28, and then applying the two court day extension set forth in CCP § 1010.6, governing electronic service of documents: 
“(4) Electronic service of a document is complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent. However, any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days…”
CCP § 1010.6(a)(4).
[Boniadi Decl., paras. 4-6].

The court has agreed with plaintiff concerning the appropriate reading of the statutes and the due date for the responses.   However, it does not appear unreasonable for counsel to have made this error, and counsel’s declaration indicates that during meet and confer exchanges and in connection with the previous hearing, neither party was able to cite any case law offering guidance with respect to the interplay of the statutes governing the due date.   [Boniadi Decl., para.  7].  Counsel also indicates that the legal management software defendant’s counsel used in performing calculations permitted the extra day.   [Boniadi Decl., para. 7]. 

This showing is  sufficient to support a finding that defendant’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect, and that the second condition has been met. 

Plaintiff in opposition argues that this motion is an improper motion for reconsideration of the court’s July 1, 2022 order finding that objections had been waived because the responses were untimely.  This motion is directed to a set of discovery which was not the subject of the July 1, 2022 order, plaintiff’s Request for Production of Documents, Set One.  The prior hearing concerned Form Interrogatories and Requests for Admissions.   This motion does not seek to establish that the court’s previous order was incorrect, but necessarily assumes that objections have been waived based on the court’s prior ruling and seeks relief from such a waiver as to this set of discovery based on mistake, inadvertence or excusable neglect.  The court is not being asked in this motion to reconsider the merits of its prior ruling, but to consider whether defendant’s position with respect to the due date constituted mistake, inadvertence or excusable neglect.  

Plaintiff also argues that defendant has failed to show that defendant has served responses which comply with the Code, as defendant has failed to produce any documents.  The response as served indicated with respect to some of the Requests that defendant would produce responsive documents.  However, this circumstance does not appear to establish a lack of “substantial” compliance in connection with the written responses, and if plaintiff has specific issues with the responses, plaintiff may seek further responses or an order compelling defendant to comply with its statement of compliance under CCP sections 2031.310 (further responses) or 2031.320, (“If a party filing a response to a demand for inspection, copying…thereafter fails to permit the inspection, copying…in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”)
Plaintiff also argues that defendant fails to sufficiently show neglect, as defendant indicates that both firms for defendant calculated the date for response as March 2, 2022, when there was only one firm representing defendant at any given time, calling into question the credibility of the explanation.  This action does not call into question the credibility of counsel’s declaration concerning the issues before the court.  Plaintiff also argues that defendant’s mistake was on a relatively simple and undebatable matter, but, as discussed above, defendant has pointed out that there is no case authority cited by either side on the timing issue, and the court cannot find that defendant’s position was on an issue that was clearly not subject to debate.  

Plaintiff also seems to seek an order that the court compel a further response to the requests for production, evidently based on subsequently served responses to Form Interrogatories, Set Two, upon which the Requests to Produce depend.  This relief must be sought in a noticed motion, and not in opposition to a motion for relief from waiver of objections. 

Plaintiff also argues that defendant’s request may be considered a motion for a protective order and denied for failure to establish grounds for a protective order and for failure to file a separate statement.  The motion is not a motion for a protective order, but a motion brought under the specific statute under which a party may seek relief from a waiver of objections.    

Defendant has established the necessary conditions to obtain such relief.  The motion is granted, and defendant is relieved from its waiver of objections in connection with Request for Production of Documents, Set One. 

Plaintiff in the opposition seeks sanctions, arguing that defendant failed to sufficiently meet and confer prior to filing this motion, and improperly seeks reconsideration of the court’s prior order.    A meet and confer letter is submitted with the moving papers, which specifically addresses the subject of this motion.  [Boniadi Decl., para. 12, Ex. D]. As discussed above, the court does not view this motion as a motion for reconsideration.  No sanctions are awarded. 

Defendant Sleiman A. Timani’s Motion for Relief from Waiver of Objections to Plaintiff CAC Motors’ Request for Production of Documents, Set One is GRANTED. 

The Court finds that both of the following conditions are satisfied:
1) Defendant has subsequently served a response in substantial compliance with the applicable discovery act sections. 
2) Defendant’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect.
Accordingly, defendant is relieved from the waiver of objections as to Plaintiff CAC Motors’ Request for Production of Documents, Set One, pursuant to CCP §§ 2031.300. 

Monetary sanctions sought in the opposition are DENIED.  


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