Failure to Serve a Timely Response and Overcoming Waiving Rights to Object

Where a party to whom discovery is directed fails to serve a timely response, that party waives any right to object, including objections based on privilege or work product. (Code Civ. Proc. §§ 2030.290(a), 2031.300)(a), 2033.280(a)).

Where counsel has knowingly allowed the time to respond to discovery to expire, a party must show “not only a reasonable explanation for the delay but also a reasonable explanation for the failure to seek further extension from counsel or an enlargement of time from the court.” (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 779.)

The court, on motion, may relieve that party from this waiver where the court determines that: (1) the party has subsequently served a response that is in substantial compliance with the applicable code section(s); 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(a), 2031.300)(a), 2033.280(a); see also (Darab Cody N. v. Olivera (2019) 31 Cal.App.5th 1134, 1140-1141 (The Court assesses credibility in determining whether a failure to timely respond to discovery was due to “the attorney’s mistake, inadvertence, surprise, or neglect.”).)

Belated objections may be found valid where the defaulting party demonstrates good cause to grant relief from default; the burden is on the defaulting party to seek and justify relief. (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778). “A showing of excusable neglect after counsel has knowingly allowed the time to respond to interrogatories to expire must include not only a reasonable excuse for the delay but also a reasonable explanation for the failure to seek a further extension from counsel or an enlargement of time from the court.” (Mannino, supra, 142 Cal.App.3d at p. 779, italics in original; internal citations omitted).

Attorney’s Fees

Pursuant to California Rules of Court, Rule 3.1702, when a court must determine a party’s entitlement to statutory attorneys’ fees for services provided up to and including the rendition of judgment, the motion seeking such fees must be served and filed within the time for filing a notice of appeal under Rules 8.104 and 8.108 in an unlimited civil case. (Cal. Rules of Court, rule 3.1702, subd. (b)(1)). Pursuant to rule 8.104(a), the time for filing a notice of appeal expires, among other times, 60 days after the superior court clerk serves a Notice of Entry of the judgment, or a file-endorsed copy of the judgment, showing the date either was served. The parties may, prior to the expiration of the time, stipulate to extend that time up to 60 days. (Cal. Rules of Court, rule 3.1702, subd. (b)(2)). Additionally, the trial court may, for good cause shown, extend that time for a longer period than allowed by stipulation. (Cal. Rules of Court, rule 3.1702, subd. (d)).

This provision is considered remedial in nature, and must be given a liberal rather than strict interpretation. (Lewow v. Surfside III Condominium Owners’ Association, Inc. (2012) 203 Cal.App.4th 128, 134, 135). Additionally, the court has jurisdiction under Code of Civil Procedure § 473(b), upon a showing of mistake, inadvertence, surprise or excusable neglect. (Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1727-1728).