Preview
07/31/2020
1 KNIGHT LAW GROUP, LLP
Steve Mikhov (SBN 224676)
2
stevem@knightlaw.com
3 Amy Morse (SBN 290502)
amym@knightlaw.com
4 10250 Constellation Blvd., Suite 2500
Los Angeles, CA 90067
5
Telephone: (310) 552-2250
6 Fax: (310) 552-7973
7 Attorneys for Plaintiffs,
GEORGE L. TAYLOR and
8
VICTORIA P. ENRIQUEZ
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF PLACER
11
12 GEORGE L. TAYLOR and VICTORIA P. Case No.: SCV0042146
ENRIQUEZ, Unlimited Jurisdiction
13
14 Plaintiffs, PLAINTIFFS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
15 OPPOSITION TO DEFENDANT’S
vs. MOTION TO COMPEL PLAINTIFF
16 GEORGE L. TAYLOR’S RESPONSES
17 TO REQUESTS FOR PRODUCTION OF
FORD MOTOR COMPANY, a Delaware DOCUMENTS AND REQUEST FOR
18 Corporation; FUTURE FORD, INC., a SANCTIONS AGAINST GEORGE L.
California Corporation, dba FUTURE TAYLOR IN THE AMOUNT OF
19 FORD LINCOLN, and DOES 1 through 10, $1,260.00
20 inclusive,
Hearing Date: August 13, 2020
21 Defendants. Hearing Time: 8:30 a.m.
Department: 42
22
23 Complaint Filed: November 30, 2018
Trial Date: February 8, 2021
24
25
26
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Through its motion, Defendant seeks responses, without objections, due to Plaintiffs’
4 failure to serve timely responses. Upon review of Defendant’s motion and in preparation for
5 drafting this opposition, Plaintiff’s counsel has realized that Plaintiff George I. Taylor’s responses
6 to Defendant’s requests for production of documents were never served. Plaintiff’s failure to serve
7 these responses was a mistake. Indeed, Plaintiff served responses to Defendant’s form
8 interrogatories, special interrogatories, and requests for admissions. Due to this mistake, Plaintif fs
9 will be serving the responses that were inadvertently not served and filing a motion for relief from
10 waiver of objections. Therefore, this Court should defer ruling on Defendants’ motion to allow
11 Plaintiff’s motion for relief from waiver of objections to be heard first.
12 II. ARGUMENT
A. This Court Has Authority to Grant Relief from Waiver of Objections
13
“Ordinarily, a party who fails to respond to [discovery requests] within the thirty day
14
period, or any extension or enlargement of time, waives the right to interpose objections.”
15
(Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) But courts have authority to grant
16
relief from the waiver of objections if (1) the party seeking relief “has subsequently served a
17
response that isin substantial compliance” with that party’s duty to respond under the Discovery
18
Act and (2) “the party’s failure to serve a timely response was the result of mistake, inadvertence,
19
or excusable neglect.” (See Code Civ. Proc., §§ 2030.290, subd. (a); 2031.300, subd. (a); 2033.280,
20
subd. (a).) Because Plaintiff’s failure to serve timely responses was the result of mistake,
21
inadvertence, or excusable neglect, Plaintiff believes that this motion will be granted.
22
23 B. Plaintiff’s Failure to Provide Timely Responses Was Due to Mistake,
Inadvertence, or Excusable Neglect
24
A party seeking relief from the waiver of objections must demonstrate that his “failure to
25
serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (See Code
26
Civ. Proc., §§ 2030.290, subd. (a); 2031.300, subd. (a); 2033.280, subd. (a).) Although the case
27
law on this issue is sparse, courts have held that misconstruction or misunderstanding of the
28
discovery statutes is not sufficient to show mistake, inadvertence, or excusable neglect. (City of
-1-
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL
1 Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467 [“Counsel's mistake of law on a
2 relatively simple and undebatable matter was not a valid ground for relief.”] Nor is a “tactical
3 choice[] that does not yield the results [counsel] expected.” (Scottsdale Ins. Co. v. Superior Court
4 (1997) 59 Cal.App.4th 263, 275.)
5 As noted by one court, “[t]he Legislature apparently intended to employ the same standard
6 for relief from defaults as used in section 473 for failure to serve a timely response to a discovery
7 demand.” (City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467.) “A party who
8 seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate
9 that such mistake, inadvertence, or general neglect was excusable. . . .” (Zamora v. Clayborn
10 Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) In making this determination, courts consider
11 “whether a reasonably prudent person under the same or similar circumstances might have made
12 the same error.” (Ibid., citing Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d
13 270, 276, 228.) While an “attorney acting within his or her professional capacity . . . may not be
14 excused by section 473 from errors occurring during the discharge of strictly professional duties,”
15 (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 684,) courts routinely grant relief where the
16 mistake “is a clerical or ministerial mistake that could have been made by anyone.” (Zamora,
17 supra, 28 Cal.4th 249 at 259; see Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1237 [attorney
18 mistakenly selected with prejudice box instead of without prejudice]; see Bergloff v.
19 Reynolds (1960) 181 Cal.App.2d 349, 358–359 [associate attorney gave incorrect information at a
20 hearing based on misunderstanding of lead attorney’s instructions]; see Alderman v. Jacobs (1954)
21 128 Cal.App.2d 273, 275–27 [attorney’s secretary lost answer to be filed]; see Benjamin v. Dalmo
22 Mfg. Co. (1948) 31 C.2d 523, 527 [client's secretary misunderstood instructions and filed papers
23 instead of forwarding them to attorney].)
24 In Mannino, deciding the issue on former law applying section 473b, the Court of Appeal
25 held that where “counsel has knowingly allowed the time to respond to interrogatories expire,” he
26 must demonstrate “not only a reasonable excuse for the delay [in serving a response], but also a
27 reasonable explanation for the failure to seek a further extension from counsel or an enlarge me nt
28 of time from the court.” (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 779.) There,
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL
1 counsel for the party seeking relief requested an extension of time to respond but later served
2 responses six days late. (Id. at p. 778.) In opposition to a motion to compel, counsel submitted a
3 declaration stating that the responses were late because his office did not receive an executed
4 verification until five days after the extended deadline due to the Thanksgiving holiday. (Ibid.)
5 The trial court accepted counsel’s excuse and denied the moving party’s motion to compel. (Ibid.)
6 In overturning the trial court’s ruling on appeal, the Court found that, because counsel knew that
7 the deadline to serve responses was approaching and failed to seek an extension from either the
8 opposing counsel or the court, he had failed to show excusable neglect. (Ibid.) Thus, relief was not
9 warranted. (Ibid.)
10 Here, Plaintiffs’ failure to serve timely responses was due to mistake, inadvertence, or
11 excusable neglect. Unlike in Mannino, Plaintiffs did not knowingly allow the time to respond to
12 elapse. Nor was Plaintiffs’ failure to serve timely responses a “tactical choice” or the result of a
13 misunderstanding of the discovery statutes. Rather, because the failure to serve timely responses
14 was simply because Plaintiff’s counsel failed to include these responses when they served all of
15 Plaintiff’s responses, this is the type of mistake, inadvertence, or neglect that is excusable.
16 III. CONCLUSION
17 For the reasons stated herein, Plaintiffs request that this Court defer ruling on Defendant’s
18 motion until Plaintiffs’ motion for relief from waiver of objections can be heard.
19
20 Dated: July 31, 2020 KNIGHT LAW GROUP, LLP
21
22
23
Steve Mikhov (SBN 224676)
24 Amy Morse (SBN 290502)
Attorneys for Plaintiffs,
25 GEORGE L. TAYLOR and
VICTORIA P. ENRIQUEZ
26
27
28
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PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL
PROOF OF SERVICE
1
(Code of Civil Procedure §1013a)
2
I am employed in the County of Los Angeles, State of California. I am over the age of 18
3 years and not a party to the within action. My business address is 10250 Constellation Blvd, Suite
2500, Los Angeles, CA 90067.
4
5 I served the foregoing document described as:
6 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT’S MOTION TO COMPEL PLAINTIFF
7 GEORGE L. TAYLOR’S RESPONSES TO REQUESTS FOR PRODUCTION OF
DOCUMENTS AND REQUEST FOR SANCTIONS AGAINST GEORGE L.
8 TAYLOR IN THE AMOUNT OF $1,260.00
9 Said document was served on the interested parties in this action, by placing true copies
thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows:
10
11
H. Paul Efstratis, Esq. Elizabeth McNulty
12 LEWIS BRISBOIS BISGAARD & EVANS FEARS & SCHUTTERT LLP
SMITH LLP 4440 Von Karman Ave, Suite 250
13
333 Bush Street, Suite 1100 Newport, CA 92660
14 San Francisco, CA 94104 emcnulty@efstriallaw.com
Paul.Efstratis@lewisbrisbois.com Associated Counsel for Defendants,
15 Counsel for Defendants, FORD MOTOR COMPANY, et al.
FORD MOTOR COMPANY, et al.
16
17
18 XX BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused
19
the documents to be sent to the persons at the e-mail addresses listed above. I did not
20 receive, within a reasonable time after the transmission, any electronic message or other
indication that the transmission was unsuccessful.
21
22 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
23
Executed on July 31, 2020 at Los Angeles, California.
24
25
_____________________________
26 BRENDA PORTILLO
27
28
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PROOF OF SERVICE
Preview
07/31/2020 1 KNIGHT LAW GROUP, LLP Steve Mikhov (SBN 224676) 2 stevem@knightlaw.com 3 Amy Morse (SBN 290502) amym@knightlaw.com 4 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 5 Telephone: (310) 552-2250 6 Fax: (310) 552-7973 7 Attorneys for Plaintiffs, GEORGE L. TAYLOR and 8 VICTORIA P. ENRIQUEZ 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF PLACER 11 12 GEORGE L. TAYLOR and VICTORIA P. Case No.: SCV0042146 ENRIQUEZ, Unlimited Jurisdiction 13 14 Plaintiffs, PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN 15 OPPOSITION TO DEFENDANT’S vs. MOTION TO COMPEL PLAINTIFF 16 GEORGE L. TAYLOR’S RESPONSES 17 TO REQUESTS FOR PRODUCTION OF FORD MOTOR COMPANY, a Delaware DOCUMENTS AND REQUEST FOR 18 Corporation; FUTURE FORD, INC., a SANCTIONS AGAINST GEORGE L. California Corporation, dba FUTURE TAYLOR IN THE AMOUNT OF 19 FORD LINCOLN, and DOES 1 through 10, $1,260.00 20 inclusive, Hearing Date: August 13, 2020 21 Defendants. Hearing Time: 8:30 a.m. Department: 42 22 23 Complaint Filed: November 30, 2018 Trial Date: February 8, 2021 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Through its motion, Defendant seeks responses, without objections, due to Plaintiffs’ 4 failure to serve timely responses. Upon review of Defendant’s motion and in preparation for 5 drafting this opposition, Plaintiff’s counsel has realized that Plaintiff George I. Taylor’s responses 6 to Defendant’s requests for production of documents were never served. Plaintiff’s failure to serve 7 these responses was a mistake. Indeed, Plaintiff served responses to Defendant’s form 8 interrogatories, special interrogatories, and requests for admissions. Due to this mistake, Plaintif fs 9 will be serving the responses that were inadvertently not served and filing a motion for relief from 10 waiver of objections. Therefore, this Court should defer ruling on Defendants’ motion to allow 11 Plaintiff’s motion for relief from waiver of objections to be heard first. 12 II. ARGUMENT A. This Court Has Authority to Grant Relief from Waiver of Objections 13 “Ordinarily, a party who fails to respond to [discovery requests] within the thirty day 14 period, or any extension or enlargement of time, waives the right to interpose objections.” 15 (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) But courts have authority to grant 16 relief from the waiver of objections if (1) the party seeking relief “has subsequently served a 17 response that isin substantial compliance” with that party’s duty to respond under the Discovery 18 Act and (2) “the party’s failure to serve a timely response was the result of mistake, inadvertence, 19 or excusable neglect.” (See Code Civ. Proc., §§ 2030.290, subd. (a); 2031.300, subd. (a); 2033.280, 20 subd. (a).) Because Plaintiff’s failure to serve timely responses was the result of mistake, 21 inadvertence, or excusable neglect, Plaintiff believes that this motion will be granted. 22 23 B. Plaintiff’s Failure to Provide Timely Responses Was Due to Mistake, Inadvertence, or Excusable Neglect 24 A party seeking relief from the waiver of objections must demonstrate that his “failure to 25 serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (See Code 26 Civ. Proc., §§ 2030.290, subd. (a); 2031.300, subd. (a); 2033.280, subd. (a).) Although the case 27 law on this issue is sparse, courts have held that misconstruction or misunderstanding of the 28 discovery statutes is not sufficient to show mistake, inadvertence, or excusable neglect. (City of -1- PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL 1 Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467 [“Counsel's mistake of law on a 2 relatively simple and undebatable matter was not a valid ground for relief.”] Nor is a “tactical 3 choice[] that does not yield the results [counsel] expected.” (Scottsdale Ins. Co. v. Superior Court 4 (1997) 59 Cal.App.4th 263, 275.) 5 As noted by one court, “[t]he Legislature apparently intended to employ the same standard 6 for relief from defaults as used in section 473 for failure to serve a timely response to a discovery 7 demand.” (City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467.) “A party who 8 seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate 9 that such mistake, inadvertence, or general neglect was excusable. . . .” (Zamora v. Clayborn 10 Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) In making this determination, courts consider 11 “whether a reasonably prudent person under the same or similar circumstances might have made 12 the same error.” (Ibid., citing Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 13 270, 276, 228.) While an “attorney acting within his or her professional capacity . . . may not be 14 excused by section 473 from errors occurring during the discharge of strictly professional duties,” 15 (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 684,) courts routinely grant relief where the 16 mistake “is a clerical or ministerial mistake that could have been made by anyone.” (Zamora, 17 supra, 28 Cal.4th 249 at 259; see Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1237 [attorney 18 mistakenly selected with prejudice box instead of without prejudice]; see Bergloff v. 19 Reynolds (1960) 181 Cal.App.2d 349, 358–359 [associate attorney gave incorrect information at a 20 hearing based on misunderstanding of lead attorney’s instructions]; see Alderman v. Jacobs (1954) 21 128 Cal.App.2d 273, 275–27 [attorney’s secretary lost answer to be filed]; see Benjamin v. Dalmo 22 Mfg. Co. (1948) 31 C.2d 523, 527 [client's secretary misunderstood instructions and filed papers 23 instead of forwarding them to attorney].) 24 In Mannino, deciding the issue on former law applying section 473b, the Court of Appeal 25 held that where “counsel has knowingly allowed the time to respond to interrogatories expire,” he 26 must demonstrate “not only a reasonable excuse for the delay [in serving a response], but also a 27 reasonable explanation for the failure to seek a further extension from counsel or an enlarge me nt 28 of time from the court.” (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 779.) There, -2- PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL 1 counsel for the party seeking relief requested an extension of time to respond but later served 2 responses six days late. (Id. at p. 778.) In opposition to a motion to compel, counsel submitted a 3 declaration stating that the responses were late because his office did not receive an executed 4 verification until five days after the extended deadline due to the Thanksgiving holiday. (Ibid.) 5 The trial court accepted counsel’s excuse and denied the moving party’s motion to compel. (Ibid.) 6 In overturning the trial court’s ruling on appeal, the Court found that, because counsel knew that 7 the deadline to serve responses was approaching and failed to seek an extension from either the 8 opposing counsel or the court, he had failed to show excusable neglect. (Ibid.) Thus, relief was not 9 warranted. (Ibid.) 10 Here, Plaintiffs’ failure to serve timely responses was due to mistake, inadvertence, or 11 excusable neglect. Unlike in Mannino, Plaintiffs did not knowingly allow the time to respond to 12 elapse. Nor was Plaintiffs’ failure to serve timely responses a “tactical choice” or the result of a 13 misunderstanding of the discovery statutes. Rather, because the failure to serve timely responses 14 was simply because Plaintiff’s counsel failed to include these responses when they served all of 15 Plaintiff’s responses, this is the type of mistake, inadvertence, or neglect that is excusable. 16 III. CONCLUSION 17 For the reasons stated herein, Plaintiffs request that this Court defer ruling on Defendant’s 18 motion until Plaintiffs’ motion for relief from waiver of objections can be heard. 19 20 Dated: July 31, 2020 KNIGHT LAW GROUP, LLP 21 22 23 Steve Mikhov (SBN 224676) 24 Amy Morse (SBN 290502) Attorneys for Plaintiffs, 25 GEORGE L. TAYLOR and VICTORIA P. ENRIQUEZ 26 27 28 -3- PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL PROOF OF SERVICE 1 (Code of Civil Procedure §1013a) 2 I am employed in the County of Los Angeles, State of California. I am over the age of 18 3 years and not a party to the within action. My business address is 10250 Constellation Blvd, Suite 2500, Los Angeles, CA 90067. 4 5 I served the foregoing document described as: 6 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION TO COMPEL PLAINTIFF 7 GEORGE L. TAYLOR’S RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS AGAINST GEORGE L. 8 TAYLOR IN THE AMOUNT OF $1,260.00 9 Said document was served on the interested parties in this action, by placing true copies thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows: 10 11 H. Paul Efstratis, Esq. Elizabeth McNulty 12 LEWIS BRISBOIS BISGAARD & EVANS FEARS & SCHUTTERT LLP SMITH LLP 4440 Von Karman Ave, Suite 250 13 333 Bush Street, Suite 1100 Newport, CA 92660 14 San Francisco, CA 94104 emcnulty@efstriallaw.com Paul.Efstratis@lewisbrisbois.com Associated Counsel for Defendants, 15 Counsel for Defendants, FORD MOTOR COMPANY, et al. FORD MOTOR COMPANY, et al. 16 17 18 XX BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused 19 the documents to be sent to the persons at the e-mail addresses listed above. I did not 20 receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 21 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 23 Executed on July 31, 2020 at Los Angeles, California. 24 25 _____________________________ 26 BRENDA PORTILLO 27 28 -1- PROOF OF SERVICE