2017-00220058-CU-NP

Gloria Single vs. Congregational Church Retirement Community

Nature of Proceeding: Motion for Relief from Discovery Waiver

Filed By: Schroeder, Matthew M.

** If any party requests oral argument, then the hearing will take place at 9:00 AM in this department on Wednesday, March 14, 2018 . If this date is inconvenient for the parties, they shall meet and confer regarding a mutually convenient date and call the clerk in Department 54 by no later than 4:00 p.m on Monday, March 12, 2018 to notify the clerk of the new date. Any request for oral argument must still be made Monday, March 12, 2018, 4:00 p.m. (See Local Rule 1.06.) **

Defendant RHF Foundation’s (“RHF”) Motion for Relief from Waiver of Objections is

ruled upon as follows.

RHF moves for relief from waiver of objections for failure to timely respond to Plaintiff’s request for production of documents (set one). RHF served its response one day late. The responses did not include any actual response, but instead raised a number of objections.

“[T]he court ‘may’ relieve a party who provides untimely responses from its waiver of objections under section [2031.300], subdivision (a), if that party demonstrates that three conditions are satisfied: (1) the party has subsequently served a response; (2) the response is ‘in substantial compliance’ with the statutory provisions governing the form and content of [responses to document demands]; and (3) the failure to respond in a timely fashion ‘was the result of mistake, inadvertence, or excusable neglect.’ ” ( Sinaiko Healthcare Consulting Inc. V. Pac. Healthcare Consultants (2007)148 Cal. App. 4th 390, 407 (citing §2030.290, subd. (a)).

Substantial Compliance

“Any form of response . . . is permissible-i.e., answer, objection or election to allow inspection of records. But it must be in ‘substantial compliance’ with the duty to respond. I.e., there must be a full and fair response to each [discovery request]; so that the questions are answered other than those to which the belated objections
relate.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 8:1304, p. 8F-36.) A response to a request for production may include “[a]n objection to the particular demand for inspection, copying, testing, or sampling.” (CCP §2031.210.) Here, RHF served objection only responses one day after the due date. RHF’s responses are in substantial compliance with CCP §2031.210.

Mistake, Inadvertence, or Excusable Neglect

The terms “mistake, inadvertence or excusable neglect” are intended to have the same meaning as those terms are used in CCP § 473. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419.) RHF proffer the declaration of Jennifer Franzino (“Franzino”) the assistant to attorney Michele Westhoff (“Westhoff”).

On January 31, 2018, Franzino received from Westhoff, Defendants Cathedral Pioneer Church Homes II (hereinafter “Pioneer House”), Congregational Church Retirement Community, Bixby Knolls Towers, Inc., Gold Country Health Center, Mayflower Gardens Health Facilities, Inc., Stockton Congregational Homes, Inc., Foundation Property Management, Inc., RHF Management, Inc., and RHF Foundation’s individual responses to Plaintiffs’ Requests for Production of Documents, Set One, and began preparing proofs of service for each. (Franzino Decl. ¶ 3.) In doing so, Franzino erroneously assumed Defendants “RHF” and “RHF Management” were the same entity and, therefore, removed RHF’s responses from the documents Westhoff had

instructed her to serve by mail on January 31st. (Id. ¶ 4.) On January 31, 2018, Franzino served by mail to Plaintiffs the responses to the discovery. However, because she mistakenly believed the RHF responses were duplicates of RHF Management’s responses, she did not serve RHF’s responses concurrently with the other Defendants’ responses. (Id. ¶ 5.)

The Court concludes that RHF has shown mistake, inadvertence or excusable neglect.

The motion for relief from waiver of objections is GRANTED. To the extent RHF has withheld documents based on attorney-client privilege, work product or privacy, RHF shall produce a privilege log by no later than March 29, 2018.

To the extent Plaintiffs find RHF’s responses deficient, they may file a motion to compel further responses. For the purposes of the 45 day deadline to file a motion for further responses, RHF’s responses are deemed personally served on today’s date, March 13, 2018.