Wendy Schenken vs. Dr. Dennis W Mckibben

2012-00133206-CU-OE

Wendy Schenken vs. Dr. Dennis W Mckibben

Nature of Proceeding:   Motion for Relief for Leave to File Motion to Compel Discovery

Filed By:  Winter, Alison W.

Plaintiffs’ motion for relief pursuant to CCP 473(b) for leave to file motion to compel
further responses to discovery is GRANTED.

Plaintiffs seeks leave to file a motion to compel further responses to Wendy
Schenken’s Form Interrogatories – General (set one), Form Interrogatories,
Employment Law (set one), Requests for Production of Documents (set one), and
Special Interrogatories (set one), as well as Robert Lorigan’s Form Interrogatories –
General (set one).

Relief under CCP 473(b) is available where the provision of the discovery act does not
provide for relief.  (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107 [“As nothing
in the section governing expert witness disclosure provides for relief from failure to file
a timely demand for exchange of expert trial witness information, relief is available
under section 473.”].)  Here, CCP section 2030.300(c) provides that a propounding
party waives any right to compel further responses if the notice of motion is not given
within 45 days of the service of the response.  This section does not provide a grounds
for relief for failure to timely file the motion, thus, the Court agrees that Section 473(b)
applies.

The case relied upon by Defendant is inapposite to the instant case.  In Sexton v.
Superior Court (1997) 58 cal.App.4th 1403, 1410, the court stated that the 45-day
limitation was “jurisdictional” in the sense that “it renders the court without authority to
rule on motions to compel other than to deny them.”  The court did not deal with the
circumstances, here, in which the propounding party is seeking relief from the waiver
of the right to compel.  It is axiomatic that cases are not authority for propositions not
considered.” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 127.)

Plaintiffs’ counsel, Alison Winter, states the following in her declaration.  On May 1,
2013, Plaintiffs propounded the discovery at issue.  After extensions to respond were
granted, Defendant served verified responses on June 26, 2013. Ms. Winter sent a
meet and confer letter on July 17, 2013.  After extensions to respond to the letter were
granted, Defendant served responses to Wendy Schenken’s Special interrogatories on
August 9, 2013.  On August 12, 2013, Defendant’s counsel sent correspondence

indicating that he would not produce documents in response to RFP Nos. 6-7, and that
he would respond to the remainder of the meet and confer letter in a few days.
Verifications to all the discovery responses were received on August 26, 2013 and
September 23, 2013.  Thus, the motion to compel deadlines were October 10, 2013
and November 5, 2013.  Plaintiffs filed the instant motion on November 19, 2013.

Although Plaintiffs’ counsels’ office calendared the motion to compel deadline from the
service of the discovery responses, it did not calendar the new motion to compel
deadline triggered by the service of the verifications.  The new date was not
calendared into Abacus by the receptionist of onto Ms. Winter’s Outlook calendar by
her secretary.  According to Ms. Winter, given the number of extensions and discovery
served with verifications to follow, the appropriate dates were not calendared.  Ms.
Winter assumed that the receptionist and her secretary had calendared the last day to
file the motion and she did not double-check the dates.

In opposition, Defendant argues that Plaintiffs cannot establish “mistake, inadvertence
or excusable neglect” because they had received all discovery responses by August
2013 and verifications by September 2013.  Moreover, with respect to the RFPs,
Defendant notified Plaintiffs in the August 12th letter that he would not produce
documents in response to the RFPs.  Thus, Defendant argues that Plaintiffs delayed
filing the instant motion for relief.

Given the above, the Court finds that Plaintiffs’ counsel has demonstrated that the
failure to timely file the motion to compel was the result of her “mistake, inadvertance,
surprise, or excusable neglect.”

Accordingly, the motion is GRANTED.  Plaintiffs shall file the motion to compel by no
later than December 20, 2013.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

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