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).
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).
See also Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 779 [trial court could entertain relief from waiver based on declaration provided in response to motion to compel, but where no reasonable excuse was provided, court should have granted relief].) Under these circumstances, there is good cause to relieve defendants from the waiver of objections. It seems apparent that there was a slip-up of some sort in the transfer of the case from one counsel to another.
Jul 30, 2020
Contra Costa County, CA
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) Defendant served responses on the day that the emergency court holiday expired. Although a technical analysis of the emergency orders would not act to extend the date to respond, the novel and unprecedented nature of the extended court holiday favors relief from a waiver.
Jul 02, 2020
San Joaquin County, CA
Rules of Court, Rule 3.1702, subd. (d).) “Rule 3.1702(d) is ‘remedial’ and is to be given a liberal, rather than strict interpretation. … Accordingly, for good cause the trial court had the power to extend the time for filing Association's motion for attorney fees. The good cause would have been counsel's mistake of law in believing that the bankruptcy stay tolled the statutory 60-day period.” (Lewow v. Surfside III Condominium Owners’ Assn., Inc. (2012) 203 Cal.App.4th 128, 135 (emphasis added).)
Jun 24, 2020
Los Angeles County, CA
“Some time ago, this court recognized the potential for such abuse in Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 191 Cal.Rptr. 163, when we noted ‘We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious cause or defense....’ (Id. at p. 778, 191 Cal.Rptr. 163.) Our observations of the day to day practice of law lead us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses.
Jan 10, 2020
El Dorado County, CA
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 779, citations omitted.) Here, it is undisputed that responses to FI1/CC were not timely served. Stephenson lodges no separate motion, nor makes any request for relief from the default in response or separate statement. His counsel argues confusion upon receipt of further “FI set one” and a mistaken belief that the original FI, set one were being resubmitted, as there was an ongoing dispute about those.
Oct 24, 2019
Presiding
Santa Clara County, CA
Mannino v. Superior Court (Mannino) (1983) 142 Cal.App.3rd 776, 779, states, “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.” (Italics in Mannino.) New Albertson’s, Inc. v.
Oct 15, 2019
Orange County, CA
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 779.) 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.” (Darab Cody N. v. Olivera (2019) 31 Cal.App.5th 1134, 1140-1141.)
Jul 30, 2019
Insurance
Intellectual Property
Los Angeles County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. Code of Civil Procedure section 2031.300(a) is a similar provision regarding relief from waiver of objections to a document demand, including one based on privilege and work product protection. Code of Civil Procedure section 2033.280(a) is a provision regarding relief from waiver of objections to requests for admission, including one based on privilege and work product protection, before a deemed admission order.
Jan 09, 2019
Employment
Other Employment
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. Code of Civil Procedure section 2031.300(a) is a similar provision regarding relief from waiver of objections to a document demand, including one based on privilege and work product protection. Code of Civil Procedure section 2033.280(a) is a provision regarding relief from waiver of objections to requests for admission, including one based on privilege and work product protection, before a deemed admission order.
Jan 09, 2019
Employment
Other Employment
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. Code of Civil Procedure section 2031.300(a) is a similar provision regarding relief from waiver of objections to a document demand, including one based on privilege and work product protection. Code of Civil Procedure section 2033.280(a) is a provision regarding relief from waiver of objections to requests for admission, including one based on privilege and work product protection, before a deemed admission order.
Jan 09, 2019
Employment
Other Employment
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. Code of Civil Procedure section 2031.300(a) is a similar provision regarding relief from waiver of objections to a document demand, including one based on privilege and work product protection. Code of Civil Procedure section 2033.280(a) is a provision regarding relief from waiver of objections to requests for admission, including one based on privilege and work product protection, before a deemed admission order.
Jan 09, 2019
Employment
Other Employment
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. 3. Request for Judicial Notice. Included with the motion for relief from waiver of objections (ROA 149) is a request for judicial notice of documents in this matter including an attorney substitution. Judicial notice is sought under Evidence Code section 452(d). In People v.
Jan 04, 2019
Personal Injury/ Tort
other
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. 3. Request for Judicial Notice. Included with the motion for relief from waiver of objections (ROA 149) is a request for judicial notice of documents in this matter including an attorney substitution. Judicial notice is sought under Evidence Code section 452(d). In People v.
Jan 04, 2019
Personal Injury/ Tort
other
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. 3. Request for Judicial Notice. Included with the motion for relief from waiver of objections (ROA 149) is a request for judicial notice of documents in this matter including an attorney substitution. Judicial notice is sought under Evidence Code section 452(d). In People v.
Jan 04, 2019
Personal Injury/ Tort
other
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. 3. Request for Judicial Notice. Included with the motion for relief from waiver of objections (ROA 149) is a request for judicial notice of documents in this matter including an attorney substitution. Judicial notice is sought under Evidence Code section 452(d). In People v.
Jan 04, 2019
Personal Injury/ Tort
other
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. 3. Request for Judicial Notice. Included with the motion for relief from waiver of objections (ROA 149) is a request for judicial notice of documents in this matter including an attorney substitution. Judicial notice is sought under Evidence Code section 452(d). In People v.
Jan 04, 2019
Personal Injury/ Tort
other
San Diego County, CA
Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778-779. 3. Request for Judicial Notice. Included with the motion for relief from waiver of objections (ROA 149) is a request for judicial notice of documents in this matter including an attorney substitution. Judicial notice is sought under Evidence Code section 452(d). In People v.
Jan 04, 2019
Personal Injury/ Tort
other
San Diego County, CA
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778 (internal citation omitted).) “The Legislature apparently intended to employ the same standard for relief from defaults as used in section 473 for failure to serve a timely response to a discovery demand.” (City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467.) Calendaring errors by an attorney’s staff are routinely grounds for justifying relief for mistake, inadvertence, or excusable neglect. (See e.g. Renteria v.
Aug 20, 2018
Los Angeles County, CA
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778 (Mannino) [reversing a trial court’s grant of relief where the responding party did not seek relief from default but merely submitted a declaration in opposition to the motion stating that his office had not timely received a verification from his client until after the deadline]; see also Code Civ. Proc., § 2030.290, subd. (a) [stating the court may grant relief “on motion”].)
Jun 08, 2018
Employment
Wrongful Term
Los Angeles County, CA
Rules of Court, rule 3.1702, subd. (d).) The court clerk served the file-endorsed copy of the Judgment on October 19, 2017. The time for filing an appeal of that judgment had to be filed no later than December 18, 2017. Consequently, pursuant to rule 3.1702(b)(1), any motion seeking a finding of an entitlement to fees incurred up to and including entry of judgment, had to be filed no later than December 18, 2017.
Mar 01, 2018
Santa Barbara County, CA
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) The statutory language “mistake, inadvertence, or excusable neglect” regarding a party’s failure to respond to discovery, is identical to the language used in section 473(b); “[t]he use of identical terms in two different statutes serving similar purposes suggests that the Legislature intended those terms to have the same meaning in both statutes. [Citation.]
Jan 23, 2018
Personal Injury/ Tort
other
Fresno County, CA
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) “‘Excusable neglect”’ is generally defined as an error ‘“‘a reasonably prudent person under the same or similar circumstances might have made.’”’ [Citation.] [Citation.] Thus . . . ‘[c]onduct falling below the professional standard of care, such as failure to timely object to or properly advance an argument, is not therefore excusable.’ [Citation.]
Sep 27, 2017
Los Angeles County, CA
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) “‘Excusable neglect”’ is generally defined as an error ‘“‘a reasonably prudent person under the same or similar circumstances might have made.’”’ [Citation.] [Citation.] Thus . . . ‘[c]onduct falling below the professional standard of care, such as failure to timely object to or properly advance an argument, is not therefore excusable.’ [Citation.]
Aug 30, 2017
Personal Injury/ Tort
Fraud
Los Angeles County, CA
“Some time ago, this court recognized the potential for such abuse in Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 191 Cal.Rptr. 163, when we noted ‘We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious cause or defense....’ (Id. at p. 778, 191 Cal.Rptr. 163.) Our observations of the day to day practice of law lead us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses.
Aug 17, 2017
El Dorado County, CA
“Some time ago, this court recognized the potential for such abuse in Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 191 Cal.Rptr. 163, when we noted ‘We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious cause or defense....’ (Id. at p. 778, 191 Cal.Rptr. 163.) Our observations of the day to day practice of law lead us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses.
Jul 20, 2017
El Dorado County, CA
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