Judge: Yolanda Orozco, Case: 21STCV44305, Date: 2023-01-09 Tentative Ruling
Case Number: 21STCV44305 Hearing Date: January 9, 2023 Dept: 31
MOTION FOR RELIEF FROM WAIVER OF OBJECTIONS
TENTATIVE RULING
General Motor LLC’s (“GM”) Motion is GRANTED IN PART.
1) GM’s request for relief from waiver of objection to Plaintiff’s Notice of Deposition of General Motors LLC’s Person(s) Most Qualified and Custodian(s) of Records is DENIED.
2) GM’s request for relief from waiver of objection to Plaintiff’s Request for Documents at Deposition is GRANTED.
Background
On December 06, 2021, Plaintiff Ramon Corona Ortiz filed a Complaint against Defendant General Motors, LLC (“GM”) and Does 1 to 10 for:
1) Violation of the Song-Beverly Act – Breach of Express Warranty
2) Violation of the Song-Beverly Act – Breach of Implied Warranty
On December 13, 2022, Plaintiff’s Motion to Compel Deposition of GM’s Person(s) Most Qualified (PMQ) and Custodian of Records was GRANTED.
On December 1, 2022, GM moved for Relief from Waiver of Objection to Plaintiff’s Notice of Deposition of GM’s PMQ and Custodian(s) of Records and Request for Production of Documents at Deposition.
On December 23, 2022, Plaintiff filed opposing papers.
GM filed a reply on December 29, 2022.
Legal Standard
Regarding Requests for Production of Documents, Code of Civil Procedure section 2031.300 provides, in pertinent part, as follows:
“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:
(a)¿The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, 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 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.
(2)¿The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.”
The same standard for relief from defaults used in section 473 of the Code of Civil Procedure 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.)
Discussion
Neither party disputes that General Motors, LLC (“GM”) failed to serve timely objections to Plaintiff’s Deposition Notice of GM’s PMK and Request for Production of Documents at Deposition (RPD).
On July 21, 2022, Plaintiff served Defendant with a Notice of Deposition for PMQ and Custodian(s) of Record. (Bissman Decl. ¶ 2, Ex A.) Objections were due on August 6, 2022. (Id.) Plaintiff further tried to meet and confer with Defendant regarding the deposition, but no deposition took place.
On September 29, 2022, Plaintiff moved to Compel the Deposition of GM’s PMK. The motion was granted on December 13, 2022. (See Min. Or. 12/13/22.)
On December 1, 2022, Defendant GM for the first time served objections to Plaintiff’s August 09, 2022, Deposition Notice of GM’s PMQ and RPD and filed this Motion seeking to be relieved from waiver to its objections to the Deposition Notice and RPD.
Waiver of Objection to Plaintiff’s Notice of Deposition
GM seeks relief under Code of Civil Procedure section 2031.300 which allows for relief from waiver of objection to inspection demand. Section 2031.300 does not provide relief from waiver of deposition notice and Code Civil Procedure section 2025.410 specifies that any objections to a deposition notice must be based on error or irregularity to the deposition notice. Plaintiff is also correct that any objections based on the discovery of privileged information are to be made during the deposition. (See Code of Civ. Proc., § 2025.460 subd. (a).)
Moreover, section 2025.410 does not contain a provision for relief from waiver of objections. (Code of Civ. Proc., § 2025.410.) The only relief permitted by section 2025.410 is for the party to move for an order staying the taking of deposition or quashing the deposition notice. (Id. subd. (c).) The party may also move for a protective order. (Code Civ. Proc. § 2031.060.)
Therefore, there is no relief from the waiver of objections to Plaintiff’s Deposition Notice.
Waiver of Objection to Request for Production of Documents at Deposition
i. Responses Must be in Substantial Compliance
Section 2031.300 sets out the two requirements a party must meet for relief from a waiver to its objections. The first requirement is that GM serve responses which are “in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.” (Id. subd. (a).)
An examination of GM’s proposed responses to the Demand for Inspection reveals that GM substantially complied with sections 2031.210 through 2031.240, and 2031.280 of the Code of Civil Procedure. GM’s responses demonstrate “substantial compliance” and the doctrine of substantial compliance favors substance over form where there is compliance with the reasonable objectives of the statute. (See Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 72 [“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. Where there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance. Substance prevails over form. When the plaintiff embarks on a course of substantial compliance, every reasonable objective of the statute at issue has been satisfied.” [italics original] [internal citations and quotation marks omitted].)
GM is also correct that objections to the Demand for Inspection are permissible provided that the objection complies with section 2031.210 and section 2031.240. (Major Decl. Ex. A.) Plaintiff’s objections to the Motion are centered on the fact that GM cannot rely on objections based on attorney-client privilege to avoid the Deposition of GM’s PMQ from taking place. The Court addressed this concern when it denied GM’s relief from waiver of objections to the deposition notice. Moreover, Plaintiff did not raise the argument that GM’s belated responses to the RPD at Deposition did not substantially comply with sections 2031.210 through 2031.240, and 2031.280. Lastly, if Plaintiff is unsatisfied with GM’s response to the RPD, Plaintiff can file a Motion to Compel Further.
Therefore, GM has demonstrated “substantial compliance” under section 2031.300.
ii. Failure to Timely Respond Must be the Result of Mistake, Inadvertence, or Excusable Neglect
The same standard for relief from defaults used in section 473 of the Code of Civil Procedure is used for failure to serve a timely response to a discovery demand. (City of Fresno, supra, 205 Cal.App.3d at 1467.) “Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. (Citations.)” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921; see also Shearman v. Jorgensen (1895) 106 Cal. 483, 485 [requiring that the reasons or cause for the inadvertence be stated in order for default to be set aside.].) Excusable neglect under section 473 “is that neglect which might have been the act of a reasonably prudent person under the same circumstances. (Citation.)” (Barati, supra, 109 Cal.App.2d at 921.) “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.)
Counsel for GM filed a declaration asserting that due to a clerical error, GM’s deadline for objection to Plaintiff’s PMK Notice was not calendared and GM failed to timely object to Plaintiff’s PMK Notice. (Major Decl. ¶ 3.) Counsel for GM did not notice that no objections had been filed until Plaintiff filed his Motion to Compel. (Id. ¶ 4.) Accordingly, GM acted promptly in serving its objections to Plaintiff’s PMK Notice and filing this instant Motion of December 1, 2022. (Id. Ex. A.) GM elaborated that due to an internal clerical error, Plaintiff’s discovery request email may have been inadvertently misrouted causing the objection deadline to not be calendared. (Mot. at 5-2-5.)
“In deciding whether counsel’s error is excusable, courts look to (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65, citing Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)
Having considered the facts that led to the calendar error, the Court is satisfied that the delay in filing objections was due to excusable neglect. (See Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980–981 [finding that “calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable.]; see also Soda v. Marriott (1933) 130 Cal.App. 589, 595 [attorney mistakenly entered the wrong trial date on his calendar and missed trial].) Upon learning of the error, GM’s counsel acted promptly in serving objections and filing this instant motion requesting relief from waiver of objections.
Based on the foregoing, the Court GRANTS GM’s request for relief from waiver of Objections to Plaintiff’s RPD at Deposition.
Conclusion
General Motor LLC’s (“GM”) Motion is GRANTED and DENIED IN PART.
1) GM’s request for relief from waiver of objection to Plaintiff’s Notice of Deposition of General Motors LLC’s Person(s) Mots Qualified and Custodian(s) of Records is DENIED.
2) GM’s request for relief from waiver of objection to Plaintiff’s Request for Documents at Deposition is GRANTED.
Moving party to give notice.