Judge: Serena R. Murillo, Case: 20STCV31300, Date: 2023-01-10 Tentative Ruling
Case Number: 20STCV31300 Hearing Date: January 10, 2023 Dept: 29
TENTATIVE
Defendants Clare Olson, and C.L. Olson & Associates, Inc.’s Motion for Relief from Waiver of Objections is GRANTED.
Defendants’ request for sanctions is DENIED.
Legal
Standard
C.C.P. §2030.290(a) provides, in pertinent part, as
follows:
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.
C.C.P. §2033.280 provides, in pertinent part, as
follows:
If a party to whom requests for admission are directed fails
to serve a timely response, the following rules apply:
(a)¿The party to whom the requests for admission are directed
waives any objection to the requests, 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 2033.210, 2033.220, and 2033.230.
(2)¿The party’s failure to serve a timely response was the
result of mistake, inadvertence, or excusable neglect.
The court, on motion, may relieve that party from its waiver
on the court’s determination that: (1) the party has subsequently served a
response that is in substantial compliance with the Discovery Act, and (2) the
party’s failure to serve a timely response was the result of mistake,
inadvertence, or excusable neglect.¿¿(Code Civ. Proc., §§ 2030.290, subd. (a);
2031.300, subd. (a).)¿
Request
for Judicial Notice
Defendants request judicial notice of
the following items:
(1) Defendant
Clare Olson’s Opposition to Plaintiff Julie Bebek’s Motion for an order Compelling
Responses to form Interrogatories, Set No. two and an Order Imposing Sanctions
filed on November 10, 2022 in Los Angeles Superior Court Case Name: Julie
Bebek v. Clare Olson et al.; Case No.: 20STCV31300.
(2) Declaration
of Hedy Ghavidel in Support of Defendant Clare Olson’s Opposition to Plaintiff
Julie Bebek’s Motion for an order Compelling Responses to form Interrogatories,
Set No. two and an Order Imposing Sanctions filed on November 10, 2022 in Los
Angeles Superior Court Case Name: Julie Bebek v. Clare Olson et al.;
Case No.: 20STCV31300.
(3) County
of Los Angeles’ Guidelines for Civility in Litigation, Chapter Three Civil
Division Appendix 3.A.
As to items 1 and
2, the Court takes judicial notice of the filing of
this document pursuant to Evidence Code section 452(d). However, the
Court does not take judicial notice of the truth of the matters asserted within
this document. (See C.R. Tenet Healthcare Corp. (2009) 169
Cal.App.4th 1094, 1103.)
As to item 3, the request is granted.
Discussion
Defendants move for relief from waiver of
objections, arguing they served substantially compliant responses and the
failure to timely serve a response was a result of mistake, inadvertence, or
excusable neglect.
Defense counsel
Jack Liebhaber was down two support attorneys. (Liebhaber Decl., ¶¶ 9-10.)
Liebhaber was unable to find replacement associates. (Id., ¶ 11.)
Liebhaber was in back-to-back trial and/or trial preparation for most of the
first half of 2022. (Id., ¶¶ 12-13.) Liebhaber usually handles high
exposure catastrophic injury cases, including but not limited to wrongful
death, TBI, numerous surgeries, etc. and sometimes cases such as this one.
(Id., ¶¶ 5-7.) Liebhaber supervises two to three
support attorneys at each given time. (Id., ¶ 8.) While
he was preoccupied in the preparation of three back- to-back trials, he was
unable to interview and/or hire support attorneys. (Id., ¶¶
12-13.) Liebhaber has now hired support attorneys and he is in the process of
rectifying any discovery issues caused by his previous support attorneys and
those caused by lack of support attorneys during this period. (Id., ¶¶
5 and 11.)
In opposition, Plaintiff argues that Defendant failed
“‘Substantial compliance, as the phrase is used in the
decisions, means actual compliance in respect to the substance essential to
every reasonable objective of the statute.’ (Stasher v. Harger–Haldeman
(1962) 58 Cal.2d 23, 29.) Where 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.” (Southern Pac.
Transportation Co. v. State Bd. of Equalization (1985) 175 Cal.App.3d 438,
442; see also Western States Petroleum Assn. v. Board of Equalization
(2013) 57 Cal.4th 401, 426.) Our high court has more recently explained with
respect to the above-quoted passage from Stasher: “This formulation is
unobjectionable so long as it is understood to mean that each objective or
purpose of a statute must be achieved in order to satisfy the substantial
compliance standard, but this language cannot properly be understood to require
‘actual compliance’ with every specific statutory requirement.” (Costa v.
Superior Court (2006) 37 Cal.4th 986, 1017, fn. 24.)
Here, Defendant has provided responses and objections to
Plaintiff’s discovery requests in the format statutorily required. (Request for
Judicial Notice 2 (Ghavidel
Decl., ¶¶ 19-34, Exhibits M to AA).) Defendant, in total,
provided responses that are sufficient under the Discovery Act.
Defendant has also shown that failure to provide Plaintiff
with timely responses was due to a mistake, inadvertence, or excusable neglect.
The same standard for relief from defaults used in C.C.P. §473 is used for
failure to serve a timely response to a discovery demand. (City of Fresno v.
Superior Court (1988) 205 Cal.App.3d 1459, 1467.) “Inadvertence
is defined as lack of heedfulness or attentiveness, inattention, fault from
negligence. [Citations] Inadvertence in the abstract is no plea on which to
vacate a default. [Citation]” (Baratti v. Baratti (1952) 109 Cal.App.2d
917, 921.) “The ‘excusable neglect’ referred to in [C.C.P. §473(b)] is
that neglect which might have been the act of a reasonably prudent person under
the same circumstances. [Citation]” (Id.) “A mistake of fact is when a
person understands the facts to be other than they are; a mistake of law is
when a person knows the facts as they really are but has a mistaken belief as
to the legal consequences of those facts. [Citation]” (Id.) “[A] mistake of law
may be excusable when made by a layman but not when made by an attorney.”
(Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479.)
Liebhaber’s
declaration explaining that he was short staffed and busy with trials is
sufficient to establish Defendant’s excusable neglect. As such, the motion is
granted.
However,
Defendants’ request for sanctions pursuant to CCP sections 2023.010 and 2023.030 is denied. In a recent case, City of Los Angeles v.
PricewaterhouseCoopers, LLC (October 20, 2022, No. B310118) ___ Cal.App.___
_____,_____ (2022 WL 12010415), the Court of appeal concluded that: "sections 2023.010 and 2023.030 do
not independently authorize the trial court to impose monetary sanctions for
misuse of discovery.” (Id.)
Conclusion
Accordingly, Defendants’ Motion for Relief from Waiver of Objections is
GRANTED. Defendants’ request for sanctions is DENIED.
Moving party is
ordered to give notice.