Keith Moore vs BMW North America LLC et al

Case Number

22CV03224

Case Type

Hearing Date / Time

Fri, 05/17/2024 - 10:00

Nature of Proceedings

CMC; Motion Relief

Tentative Ruling

The motion is granted.

Since the responses containing objections which were provided by defendant are only, on the date of this hearing, being found to be appropriate, the Court will deem today’s date as that date on which responses were provided by defendant, for purposes of determining the time within which plaintiff must file any motion(s) to compel further responses to the subject discovery.

Background: On February 26, 2024, the Court granted plaintiff’s motions to compel defendant to provide responses to discovery without objection, no later than May 7, 2024. Defendant had contended that it had served responses untimely, because of a mistaken belief that a second continuance of time to respond had been granted by plaintiff, when it had not. Although defendant had contended that it had served such responses, it had been made aware through multiple contacts from plaintiff’s counsel that no such responses had been received. Further, the proofs of service of the responses—as well as the proof of service of defendant’s late-filed opposition to the motions to compel—were indecipherable, and were insufficient for the court to determine by what manner the responses were allegedly served. Counsel’s declaration provided no further information, merely declaring that the responses had been “served.” Defendant contended that the belated responses rendered the motions entirely moot, even though no motion(s) for relief from defendant’s waiver of objections had been filed.

The Court’s order compelling responses without objections provided that if a motion for relief from the waiver of objections was filed prior to the designated response date, that response date would be deferred pending a ruling on the motion.

On March 6, 2024, defendant filed the current motion for relief from this Court’s ruling on plaintiff’s motions to compel, i.e., ordering responses without objections, upon a finding that objections had been waived. The motion cites Code of Civil Procedure sections 2030.390, 2031.300, and 2033.280, as the basis for seeking relief from the waiver of objections, and contends that defendant’s responses were in substantial compliance with the discovery statutes, and that the failure to timely serve the responses resulted from a miscommunication and inadvertent miscalendaring of the response date, given that counsel erroneously believed that the second extension of time to respond had been granted. In response to plaintiff’s 10/16/23 inquiry regarding the responses, counsel advised that the responses had been served the previous week. Plaintiff’s emailed follow-up inquiry on October 27, 2023 was inadvertently overlooked due to the high volume of electronic communications received by defense counsel. The motion also includes an argument that defendant is entitled to relief under Code of Civil Procedure section 473(b), arguing that the failure to timely respond to the written discovery was due to mistake, inadvertence, and excusable neglect. Finally, while lack of prejudice is not a factor to consider in determining whether relief should be granted from waiver of objections, defendant notes that no prejudice to plaintiff exists.

Plaintiff has opposed the motion, requesting that the court exercise its discretion and deny the motion for relief. Plaintiff criticizes defendant’s reference to Code of Civil Procedure section 473(b), arguing that relief from the waiver of objections can only be sought under Code of Civil Procedure sections 2030.290 or 2031.300. Plaintiff further contends that the conduct which resulted in late responses was unreasonable and therefore not excusable. Plaintiff further contends that because the responses contained what he described as “general, nonspecific, and boilerplate objections,” they were not in substantial compliance, since objections of that nature have been found to frustrate the purpose of the discovery statutes. Plaintiff emphasizes that he did not ultimately receive the responses until February 8, in spite of two inquiries about not having received them, and the filing of the motions to compel in November 2023.

Defendant did not file reply papers.

ANALYSIS:  The Court will grant the motion for relief from the waiver of objections. Since the responses containing objections which were provided by defendant are only, on the date of this hearing, being found to be appropriate, the Court will deem today’s date as that date on which responses were provided by defendant, for purposes of determining the time within which plaintiff must file any motion(s) to compel further responses to the subject discovery.

Pursuant to Code of Civil Procedure sections 2030.290(a), 2031.300(a), and 2033.280(a), a court, on motion, may relieve a party from his or her waiver of objections upon a determination that (1) the party has subsequently served a response that is in substantial compliance with statutory requirements, and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

The Court has broad discretion to grant relief from a waiver of objections, so long as the declarations in support of such a motion show that the failure to serve a timely response resulted from mistake, inadvertence, or excusable neglect. (See Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779.) Because the Discovery Act contains specific provisions for such relief, it cannot be obtained under Code of Civil Procedure section 473(b) [which provides relief from default for “mistake, inadvertence, surprise, or excusable neglect]. (See Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107.)

Defendant has provided verified responses which are sufficient to meet the standard of being “in substantial compliance” with its duty to respond. Defendant has further explained that there was an inadvertent error in calendaring the response date, in that counsel misunderstood that the second request for extension of time to respond had been granted by plaintiff, when in fact it had not. Counsel further explains that when plaintiff’s counsel initially followed up about the failure to respond, he was just advised that the responses had just been served the previous week. When plaintiff’s counsel followed up the second time in late October, 2023, his email was inadvertently overlooked because of the large amount of email received by defense counsel. After the motions were filed, defendant ultimately re-served the responses on plaintiff, and plaintiff acknowledged that they had been received.

While plaintiff contends that the conduct which gave rise to the waiver of objections was unreasonable, and that the Court should decline to relieve defendant from that waiver, the Court finds that defendant’s motion meets the minimum requirements for relief from the waiver, and establishes sufficient excusable neglect to warrant the Court’s exercise of its discretion to grant the motion. While defense counsel has exhibited a level of relative inattention to the case, there was nothing in the information before the Court to suggest any intentional conduct or attempts to delay. Consequently, the Court will grant the motion, and will relieve defendant from its waiver of objections.

The Court cautions defendant, however, that having once been forced to seek relief from waiver of objections, the Court will not look favorably upon any further similar lapses, and defendant should not assume that this Court will be inclined to grant any similar future motions.