Judge: Serena R. Murillo, Case: 21STCV13652, Date: 2023-05-08 Tentative Ruling

Case Number: 21STCV13652    Hearing Date: May 8, 2023    Dept: 31

TENTATIVE

Plaintiff’s Motion to Set Aside Discovery Sanction in the amount of $810.00 is DENIED.

Legal Standard

California Code of Civil Procedure section 473 subdivision (b) provides for both discretionary and mandatory relief. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary relief provision of section 437 states:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

(Code Civ. Proc., § 437 subd. (b).)

Mandatory relief from default, default judgment, or dismissal is available based on an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26.) Discretionary relief is available based on the party’s own declaration or other evidence showing mistake, inadvertence, surprise, or excusable neglect. (Id.)¿¿However, mandatory relief is limited to relief from default, default judgment, or dismissal based on an attorney’s affidavit of fault. (See Noceti v. Whorton (2014) 224 Cal.App.4th 1062, 1065.) “In all other cases, relief is discretionary.” (Minick, supra, 3 Cal.App.5th at 26.)

Discussion

Plaintiff moves to set aside the discovery sanctions imposed on November 01, 2022, on the basis that Plaintiff’s counsel was unaware of the November 1, 2022 hearing.

Plaintiff’s counsel asserts that on October 04, 2022, Defense counsel’s legal assistant, Ms. Catron emailed to Plaintiff’s counsel and the Court clerk to cancel the Informal Discovery Conference (IDC) because the parties had met and conferred and no longer required the IDC. (Behzadi Decl. ¶ 2, Ex. C.) Plaintiff’s counsel asserts that Ms. Catron represented to him by telephone that there were no more discovery issues pending from Defendant. (Id. ¶ 4.) Plaintiff’s counsel assumed that any motions to compel would be taken off calendar and hence moot.

Plaintiff’s counsel asserts that in early September 2022, he informed Defense Counsel and Ms. Catron, that there was a possibility that Defendant’s emails may end up in Plaintiff’s counsel spam folder and if the email was not responded to in the appropriate time frame, it would be appreciated if there was a follow-up phone call to the office or Plaintiff’s counsel cell phone number. (Mot. at 1:27-2:1-5.) Therefore, Plaintiff’s counsel was unaware of Defendant’s Notice of Non-Opposition to its Motions to Compel because the emails ended up in Plaintiff’s counsel’s spam folder and there was no courtesy telephone call despite an agreement with Defendant’s former counsel and Ms. Catron. (Behzadi Decl. ¶ 5.)

Plaintiff’s counsel adds that he never received a request from Defense Counsel to accept and provide electronic service documents nor did he accept to receive only electronic service of documents. (Behzadi Decl. ¶ 6.) Therefore, there was no agreement to serve documents by email. (Id.)

Defendant opposes the Motion on the basis that no relief is warranted because Plaintiff’s counsel’s conduct did not constitute “mistake, inadvertence, surprise, or excusable neglect.” Plaintiff was well aware that his work email may end up in his spam folder and made no attempts to rectify the situation himself or institute a procedure to regularly check his spam folders.

Defense Counsel also asserts that Plaintiff routinely served discovery and motion papers solely by electronic service and Plaintiff’s counsel also received discovery and motion papers by Defense counsel solely by electronic means, without objection. (Cochran Decl. ¶¶ 6,7 Ex. 1-4) Yet, despite Plaintiff’s counsel’s work emails going to his spam folder, Plaintiff’s Counsel did not request that papers be served by other means. (Id. ¶ 8.) Instead, Plaintiff’s Counsel shifted the responsibility to Defense counsel to follow-up with a courtesy call. 

Defense counsel also asserts that the version of Code of Civil Procedure section 1010.6 subdivision (e)(1) that existed between September 18, 2020, and December 31, 2022, provided in the relevant part:

“A party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission”, subject only to confirmation as to the correct email address.”

(Former Code Civ. Proc. §1010.6(e)(1) eff. January 1, 2022 and repealed December 31, 2022.)

More importantly, Plaintiff’s counsel does not deny that he was aware Plaintiff was served with Defendant’s discovery request on May 26, 2022, and that Plaintiff had failed to timely serve responses, despite Defendant’s meet and confer efforts. (See Exhibits to Motions to Compel filed by Defendant on 08/05/22.) Moreover, Plaintiff was aware that the IDC related to a different discovery request that sought further responses and not Defendant’s request for initial discovery, which was the basis of the November 01, 2022 hearing. (Cf. Mot. to Set Aside p. 2:18-22 with Min. Or. 11//01/22.)

Plaintiff’s counsel also fails to specify whether his failure to attend the November 01, 2023 hearing was due to a mistake, inadvertence surprise, or excusable neglect. (Code Civ. Proc., § 437 subd. (b).) Furthermore, even if the Court excused his failure to attend the hearing, Plaintiff’s counsel fails to show that his failure to respond to Defendant’s initial discovery request was due to a mistake, inadvertence surprise, or excusable neglect such that sanctions were not warranted.

On motions to compel, sanctions are mandatory unless the Court finds that the one subject to sanction acted with substantial justification or other circumstances make the imposition of the sanction unjust. (See Code Civ. Proc., §§ 2030.010, 2030.290, 2031.300, 2033.28.) Here, Plaintiff and Plaintiff’s counsel fail to show there was substantial justification in failing to respond to Defendant’s discovery request or the circumstances exist that make the imposition of sanctions unjust. Therefore, the Court does not find that discretionary relief from discovery sanctions is warranted.

Based on the foregoing, Plaintiff’s Motion is Denied.

Conclusion

Plaintiff’s Motion to Set Aside Discovery Sanction in the amount of $810.00 is DENIED.

Moving party is ordered to give notice.