Judge Ralph C. Hofer, Case Number: 24GDCV00289, Date: 2025-01-24 Tentative Ruling

Plaintiff Matt J. Guerrero alleges that in June of 2023 defendant Vachagan Hovhannisyan negligently operated a motor vehicle, causing injuries and damages to plaintiff. Plaintiff alleges that while plaintiff was driving on Pinewood Avenue in Tujunga, California, defendant was also traveling on Pinewood Avenue, and when plaintiff was making a left turn into his driveway, defendant T-boned plaintiff’s vehicle at a high rate of speed. The complaint alleges that defendant violated various Vehicle Code sections in causing the accident and injuries. The form complaint alleges causes of action for motor vehicle and general negligence.

This matter is set for hearing on this date for a motion to compel inspection of defendant’s vehicle, brought by plaintiff, based on a demand for vehicle inspection served on defendant on August 1, 2024, and based in part on an argument that defendant did not serve timely objection to that notice, so objections have been waived.

Because the outcome of this motion will effect the matters which the court may consider in determining the merits of the motion to compel inspection, the court will first consider this motion for relief from waiver of objections.

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...”

“(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.”

Here, plaintiff served Plaintiff’s Demand for Inspection of Defendant Vachagan Hovhannisyan’s Vehicle on August 1, 2024, by electronic service, demanding inspection of the vehicle to occur on September 4, 2024, at 16000 Ventura Boulevard in Encino, California. [Simonian Decl., para. 4, Ex. A].

Defendant concedes that a response was due on September 4, 2024, but that a formal response to the demand was not prepared and served within the statutory time frame, but was drafted, verified and served electronically on September 6, 2024, two days late. [Simonian Decl., paras. 7, 9-13, Ex. D].

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 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 Demand for Vehicle Inspection on September 6, 2024. [Simonian Decl., para. 13, Ex. D]. The response is verified, and appears to be in substantial compliance with the Code. There has been no timely written opposition to this motion, so there is no specific challenge to the sufficiency of the response. The response appears sufficiently complete for the court to find that the first condition for relief is satisfied.

With respect to the condition that the party’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect, defendant argues that defendant’s counsel was in email contact with plaintiff’s counsel before the due date and noticed inspection date, and was clearly taking the position that defendant lives in Tennessee, and had no plans to return to California, so that the vehicle inspection would not be taking place in California, as noticed. [Simonian Decl., paras. 5-8, Exs. B, C].

Defendant submits a declaration of counsel in which counsel indicates that “a formal response to the inspection demand was not prepared and served within the statutory time for the reasons because there was a mistake in my office over who was responsible for preparing a draft response.” [Simonian Decl., para. 9]. The declaration goes on to explain that due to the volume of work counsel is responsible for, counsel relies on support staff to follow office protocol, and that the office has procedures for handling incoming materials, which are routed through an electronic file system, where they are calendared and tasks are assigned to individuals. [Simonian Decl., paras. 17, 18].

“21. Some incoming mail will require multiple tasks that involve more than one participant in the workflow. For example, a deposition notice requires the secretary to place it on the calendar, but it also requires a response as a form of discovery, which would be drafted by the paralegal with input and final approval from me. This is normally handled without any problem within the workflow, with each person engaging in their respective tasks completing their role and routing it through the workflow until it is completed.

22. The workflow for a demand for a vehicle inspection should be treated like a deposition notice: it should be routed to my secretary to calendar, but then should be routed to the paralegal to prepare a proper response based on my client’s ability to produce the vehicle.

23. In this case, however, plaintiff’s demand to inspect the vehicle was inadvertently handled by an incorrect workflow. It was routed to my secretary, who calendared it and contacted that the client to confirm the availability. But the complimentary task of preparing the discovery response was never created in the workflow by my paralegal because she was under the mistaken belief that the secretary was responsible for handling all aspects of the coordination of the inspection. Because no task for the response was created in the workflow, it was not prepared by my paralegal within the statutory time.

24. Moreover, because of the breakdown of the proper workflow described above, I did not receive any alert in our case file that the deadline was approaching or overdue. Had I received the alert, I would have ensured that the response was drafted and set out on time. While I do my best to meet deadlines without such alerts, even in the exercise of reasonable diligence I cannot by memory recall every piece of discovery and its corresponding response for dozens of ongoing cases. Without reliance on the workflow, which failed in this case, I will sometimes miss service deadlines as I did here.”

This presentation is not a particularly strong showing of excusable neglect, as the attorney is responsible for the actions of staff, and the systems in place to deal with litigation deadlines. Moreover, while counsel indicates that counsel does not by memory recall every piece of discovery, the email chain relied upon suggests that counsel was personally involved in conversations which show awareness that the inspection date was approaching. [See Ex. C].

Nevertheless, there is no timely written opposition to the motion, and it would appear in any case that the explanation of the office workflow breakdown is credible, that plaintiff’s counsel was aware of the nature of the objection well before the time to formally respond had expired, that the delay in serving a formal response was a mere two days, and that it does not appear that plaintiff has been prejudiced by the neglect. There is no suggestion that the neglect was inexcusable because it was due to other than an honest mistake on the part of defendant’s counsel’s staff, or due to some effort to obtain an unfair advantage in this litigation. The court under all of the circumstances finds that the failure to timely serve a response was the result of mistake, inadvertence or excusable neglect, and that the second condition has been met.

The Defendant has established the necessary conditions to obtain such relief. The motion is granted, and defendant is relieved from defendant’s waiver of objections in connection with Plaintiff’s Demand for Inspection of Defendant Vachagan Hovhannisyan’s Vehicle.

As noted above, 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...” CCP § 2031.300(a). Under subdivision (b), “The party making the demand my move for an order compelling response to the demand.”

Plaintiff seeks relief under this section, based on the circumstances described above, and conceded by defendant that plaintiff served Plaintiff’s Demand for Inspection of Defendant Vachagan Hovhannisyan’s Vehicle on August 1, 2024, by electronic service, demanding inspection of the vehicle to occur on September 4, 2024, at 16000 Ventura Boulevard in Encino, California. [Ekmekchyan Decl., paras. 4, 5, Ex. A].

A Response to Demand for Vehicle Inspection was served electronically on September 6, 2024, which was after the inspection date of September 4, 2024, and after the expiration of the 30 day statutory time limit prescribed by statute. [Ekmekchyan Decl., para. 6, Ex. B].

As noted above, the waiver under CCP section 2031.300 applies unless, “The court, on motion,” relieves “that party from this waiver” on its determination that the statutory conditions have been satisfied. CCP section 2031.300(a). The court has made this determination, as discussed above. The conditions which existed at the filing of the motion no longer exist, and enforcement of the demand for inspection should be sought pursuant to CCP section 2031.310, which, understandably, is not mentioned in the moving papers, as at the time the motion was filed, objections unquestionably had been waived.

Nevertheless, the court notes that defendant in the opposition concedes that defendant does not object to the inspection of the vehicle, but only the location the inspection is demanded to take place.

Specifically, defendant submits evidence that both defendant and his vehicle are now located in Tennessee, as defendant moved back to Tennessee in June of 2024, where he still resides, and that the vehicle is kept in Tennessee [Simonian Decl., para. 3, Hovhannisyan Decl., paras. 2-3]. Defendant indicates he has “no immediate plans to return to California with my 2021 Tesla.” [Hovhannisyan Decl., para. 4].

The court accordingly considers any objection on the part of defendant to the notice or the court proceeding to consider the objections on their merits waived by defendant at the concession in the opposition. The court is also mindful that defendant bears some responsibility for the current posture of the dispute by waiving objections, and then seeking relief from such waiver only after the motion to compel was filed.

CCP section 2031.310 provides that a party making a demand for inspection may move for an order compelling further response to the demand if the demanding party deems that:… “(3) An objection to the response is without merit or too general.”

“Objection: Inspection demands must specify a reasonable time and place for making the inspection, copying, testing, or sampling, and performing any related activity. Civ. Proc. Code § 2031.030. In June 2024, defendant moved to Tennessee, with his vehicle. An inspection demand requiring defendant to produce his vehicle from Tennessee at plaintiff’s counsel’s office in Encino is not reasonable under these circumstances. Additionally, defendant objects that requiring defendant to produce his vehicle from Tennessee at plaintiff’s counsel’s office in Encino is unduly burdensome and expensive as it would require Defendant to drive his vehicle from Tennessee to Encino, CA for the purpose of complying with this inspection demand. Without waiving these objections, defendant responds: I will comply with the inspection demand but the inspection will have to take place in Tennessee at a reasonable date, time and place.”

Under CCP section 2031.030(c), governing the form and content of a demand for inspection, each demand shall “(3) Specify a reasonable place for making the inspection, copying, testing, or sampling, and performing any related activity.”

Defendant argues that this is not reasonable under the circumstances, where defendant now resides in Tennessee, and plaintiff, in fact, does not reside in Los Angeles County, but resides in Seattle, Washington. [Simonian Decl., para 3].

“If the court were to order me to produce the 2021 Tesla in California, it would impose an undue burden and expense on me. It would require that I either (1) take a week or more of my work and personal time to drive it to California, placing wear-and-tear on the vehicle, or (2) ship the vehicle, with all the expenses associated with it, arrange for its delivery to plaintiff’s office and also to have it returned, all the while being without the use of my vehicle (requiring a substitute vehicle) and also placing the vehicle at risk of damage in transit.”

Defendant has not described specifically what expenses would be faced here, including what a week of work and personal time would entail, or the expense to ship the vehicle. Defendant cites to Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318, in which uncontradicted declarations showed over 13,000 claims would have to be reviewed, requiring 5 claims adjusters working full time for 6 weeks each.

However, it would appear to make sense with respect to serving the objects of discovery, in this case, to determine the condition of defendant’s vehicle in connection with the alleged collision, would best be served by having the vehicle inspected in a state as near to the state just following the collision as is possible. Obviously, the vehicle has been driven many miles since then to return to Tennessee, but it seems that a return drive to California, and the risk of further wear and tear during this additional transit, would unnecessarily compromise the evidentiary value of the inspection. The court is accordingly inclined to order the inspection to occur, as conceded by defendant in both the response to the demand for inspection and the opposition, to occur according to all terms set forth in the demand for inspection, on a mutually convenient date and time at a mutually convenient location within 50 miles of the current location of the vehicle in Tennessee.

This posture leaves the issue that such an order would require expense not otherwise required to be incurred by plaintiff to have plaintiff’s expert present at the duly noticed inspection. The court will hear argument from the parties concerning whether such expense, in a reasonable sum, be required to be paid by defendant as a condition to the inspection being conducted in Tennessee, rather than in the county where this litigation arose and is currently pending. Specifically, the opposition here, which will owe its success primarily to an argument that objections have not been waived pursuant to a later filed motion for relief from objections, essentially argues that defendant, practically speaking, should be subject to a protective order concerning the location of the inspection, and the conditions of its proceeding.

“(b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:…

Sanctions are requested pursuant to CCP § 2023.010, which provides that misuses of the discovery process include, “(d) Failing to respond or to submit to an authorized method of discovery,” and “(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery.” Where there has been such conduct, under CCP section 2023.030(a), “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP §2023.030(a).

In this case, the plaintiff failed to timely respond to an authorized method of discovery. Although defendant has since obtained relief from the waiver of objections, this motion was necessary under the circumstances which existed at the time it was filed, and before defendant sought relief from waiver of objections.

The opposition argues that sanctions are not appropriately awarded, as defendant will be successful in opposing the motion, in effect, in establishing the merit of defendant’s objections regarding the location of the inspection and the undue burden and cost imposed.

Under the circumstances, the results with respect to the motion to compel are split, and it appears the parties are engaged in a good faith dispute concerning where the inspection should take place, so that defendant was substantially justified in opposing the motion. No sanctions are awarded.

At the concession of defendant in the Response to Demand for Vehicle Inspection and Opposition to this motion, defendant is ordered to permit the inspection of the subject vehicle in accordance with Plaintiff’s Demand for Inspection of Defendant Vachagan Hovhannisyan’s Vehicle. The inspection is to be conducted on a mutually agreeable date within the next thirty days, at a mutually agreeable time, at a location within 50 miles of the place where the subject vehicle is then being kept.

Order conducting the inspection at that location, represented to be in Tennessee, is conditioned on defendant paying the reasonable travel expenses of plaintiff’s expert to travel from Los Angeles County to the inspection.

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