Marco Antonio Gutierrez v. Barton Tanenbaum

 

MOTION FOR RELIEF FROM WAIVER OF DISCOVERY OBJECTIONS

 

MOVING PARTY: Defendant Barton Tanenbaum

RESPONDING PARTY(S): Plaintiff Marco Antonio Gutierrez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Marco Antonio Gutierrez alleges Defendant Barton Tanenbaum, M.D., a urologist, sexually battered him during a medical examination.  Plaintiff brings causes of action for (1) Sexual Battery, (2) IIED, (3) Assault, and (4) Professional Negligence. 

Defendant Tanenbaum moves for relief from waiver of discovery objections.  Plaintiff opposed.

TENTATIVE RULING:

Defendant Tanenbaum’s motion for relief from waiver of discovery objections is GRANTED. 

DISCUSSION:

Motion for Relief from Waiver of Discovery Objections

Analysis

Defendant seeks relief from waiver of discovery objections as to a special interrogatory on the ground that its failure to respond was due to mistake, inadvertence, or excusable neglect of its counsel. 

Regarding interrogatories, CCP § 2030.290(a) provides:

If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply:

 (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, 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 2030.210, 2030.220, 2030.230, and 2030.240.

   (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(CCP § 2030.290(a), bold emphasis added.)

On April 25, 2022, Plaintiff served on Defendant his second set of special interrogatories.  Defendant determined that all of the interrogatories were objectionable, and prepared “shells” of the responses.  Defendant served his responses, consisting of all objections, on May 23, 2022.  However, Defendant erroneously failed to respond to Plaintiff’s Special Interrogatory No. 72.  Defendant contends this was due to “mistake, inadvertence, or excusable neglect.” Once learning of the error, Defendant served responses to interrogatory No. 72, mirroring the same objections made to the other interrogatories.  

First, Defendant contends it has subsequently served objections to the missing interrogatory, and thus has “substantially complied” with section 2030.210. In opposition, Plaintiff says Defendant’s response “consisted only of improper, boilerplate objections, and no substantive response to the Special Interrogatory.”  (Opp. 2: 23-24.) Because a party may respond to an interrogatory with “[a]n objection to the particular interrogatory,” this court finds Defendant has substantially complied.  (CCP § 2030.210.)

As to the second factor, it appears Defendant is relying on “excusable neglect.” 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. [Citations.]” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) 

Counsel states that his assistant prepared a “shell” pleading of the discovery requests so that Counsel himself could fill in the responses.  (Robinson Decl. 5.) However, this shell apparently omitted interrogatory no. 72.  Counsel says he “reviewed the discovery requests when they came in, evaluated the responses that were to be provided, and utilizing the pleading that was created in his office, responded to interrogatories nos. 73 to 79 as served by plaintiff while, unfortunately, failing to appreciate that the first interrogatory in the set, no. 72, was not included.”  (Mtn. 5:21-24.) Counsel explains that “this is not a situation where counsel failed to review the discovery or provided responses at the last minute. To the contrary, the responses to the set including all but the first one, number 72, were served prior to their due date.”  (Mtn. 5:25-27.)  

Neither party has cited authority reflecting a situation similar to this one.  As a comparison, calendaring errors by office staff have been found to constitute excusable neglect.  (See, e.g., Hu v. Fang (2002) 104 Cal.App.4th 61, 64-65.) In contrast, however, the “press of an attorney’s practice” does not warrant relief. (City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467 [affirming the trial court’s decision denying petitioner’s motion for relief and noting the trial court’s observation that “if we are going to simply find that being busy, or not fully understanding the provisions of a code section, or whatever it is, constitutes excusable neglect, why, you know, we just don’t have any rules”].)

For present purposes, this situation most resembles a calendaring error by an attorney or office staff.  While preparing responses to interrogatories, a reasonably prudent attorney could fail to appreciate that one was missing, especially when relying on another staff member to prepare a “shell” of the pleading. In addition, Defendant did serve timely responses to the other interrogatories.  Finally, once learning of the error, Defendant promptly served a code-compliant response to the interrogatory.  Thus, under the circumstances, this court concludes that Defendant has adequately demonstrated mistake, inadvertence, or excusable neglect.

Accordingly, Defendant’s motion for relief from waiver of objections is GRANTED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   August 11, 2022 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.