Judge Thomas D. Long, Case Number: 24STCP01903, Date: 2025-01-14 Tentative Ruling

On June 27, 2024, Defendant Som Kohanzadeh, M.D. propounded discovery on Plaintiff David A. Pougatsch, D.P.M., consisting of 104 special interrogatories and 96 document demands. (Levin Decl. ¶ 3.) Plaintiff’s then-counsel requested and received several extensions of time to respond due to the July 2024 CloudStrike incident, counsel’s illness, and counsel’s injuries from an accident. (Levin Decl. ¶¶ 4-8 & Exs. C-F; see Friedland Decl. ¶¶ 2-9 & Exs. A-G.) Plaintiff did not serve responses by the September 12, 2024 extended deadline.

On October 9, 2024, Plaintiff substituted counsel. On October 31, 2024, Plaintiff’s current counsel served verified responses to all of the outstanding discovery. (Lapidus Decl. ¶ 3 & Exs. B-C.)

On December 4, 2024, Plaintiff filed a motion for relief from waiver of objections to discovery.

A party who fails to timely respond to discovery waives any objections, including those based on privilege. (Code Civ. Proc., §§ 2030.290 [interrogatories], 2031.300, subd. (a) [production of documents].) The Court may grant relief from waiver if (1) the responding party has subsequently served a response that is in substantial compliance; and (2) the failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., §§ 2030.290 [interrogatories], 2031.300, subd. (a) [production of documents].)

Defendant argues that Plaintiff’s responses to discovery are not substantially compliant. (Opposition at pp. 6-12.) According to Defendant, the responses “are characterized by vagueness, evasiveness, and incompleteness,” contain “a list of ‘General Objections and Preliminary Statements,’” and set forth objections to the requests. (Id. at pp. 7-8, 11.)

The assertion of waived objections does not necessarily prevent “substantial compliance.” (Katayama v. Continental Investment Group (2024) 105 Cal.App.5th 898, 909.) “Compliance analysis should prioritize the nature of the substantive answers in the proposed response.” (Id. at p. 910.) “A tolerant construction of the phrase [“substantial compliance”] also comports with the . . . statutory scheme for graduated enforcement [citation], as well as our prioritization of substance over form (Civ. Code, § 3528) and California’s public policy interest in allowing parties to litigate the merits of their claims [citation].” (Id. at p. 909.)

Plaintiff’s responses, though prefaced with objections, are substantially compliant. For example, Plaintiff responded to Requests for Production with, “Subject to and without waiving these specific objections and the General Objections, Plaintiff responds as follows: Plaintiff produces concurrently herewith all responsive, non-privileged documents in his possession, custody or control. Other responsive documents may exist in the possession, custody or control of Defendant. Discovery and Plaintiff’s investigation are ongoing.” Plaintiff also provided responses to the interrogatories after his objections. These are substantially compliant responses. If Defendant took issue with the “vagueness, evasiveness, and incompleteness” of the responses, it could have filed a motion to compel further responses.

Defendant argues that, “[w]hile Defendant was accommodating to the numerous excuses Plaintiff’s counsel presented as reasons for the delays, this Court should not extend the same level of leniency. There is a limit to professional courtesy; ultimately, excuses can become untenable.” (Opposition at pp. 12-13.)

Plaintiff’s former counsel continuously communicated with Defendant’s counsel about extensions of time to respond. (Levin Decl. ¶¶ 4-6 & Exs. C-E.) On August 30, 2024, Plaintiff’s counsel was injured and suffered multiple injuries, including hitting her head, neck, chest, back, hip, knee, and foot. (Levin Decl. ¶ 7.) She eventually was taken to a hospital emergency room by ambulance on September 5, 2024. (Levin Decl. ¶ 7.) That same day, she emailed Defendant’s counsel to explain the accident and request another extension of time. (Levin Decl. ¶ 8.) Defendant’s counsel granted the extension to September 12, 2024. (Levin Decl. ¶ 8 & Ex. F.) Plaintiff’s counsel likely sustained a concussion, and she “consider[s] the accident and the resulting lingering concussive state to be the cause of [her] failure to properly calendar and/or request another extension in which to respond to the discovery prior to the due date of September 12, 2024, and that [her] failure to properly calendar and/or to request another extension in which to respond to the discovery prior to the due date was due to [her] own mistake, inadvertence, and/or excusable neglect as a result of the accident and the resulting concussive state.” (Levin Decl. ¶ 10.) Plaintiff’s current counsel substituted in on October 9, 2024, less than four weeks after the deadline. (Lapidus Decl. ¶ 2.) Counsel then served responses with over 600 pages of documents on October 31, 2024. (Lapidus Decl. ¶ 3.)

The Court finds that Plaintiff’s failure to provide responses by the agreed-upon deadline of September 12, 2024 was the result of mistake, inadvertence, or excusable neglect, and thereafter Plaintiff’s new counsel acted diligently in serving responses.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court