Tentative Ruling

Re: ???????????????????????????? Crouch v. Federal National Mortgage Association, et al.

Superior Court Case No. 17CECG01662

Hearing Date: ?????????? January 24, 2018 (Dept. 403)

Motion:? ???????????????????? Defendant Federal National Mortgage Association?s motion for relief from waiver

Tentative Ruling: ?????? ?

To grant. (Code Civ. Proc. ?? 2030.290(a), 2031.300(a).)

Explanation:

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).) 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).) 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.)

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.] Moreover, the legislative history?suggests that the Legislature intended?the same meaning…as those?in section 473, subdivision (b).? (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1418?1419.) A motion for relief made pursuant to section 473(b) is directed to the discretion of the trial court, though the trial court must exercise it ?in conformity with the spirit of the law[,]? and with an eye toward serving the ends of substantial justice and disposition of the action on the merits. (Id. at p. 1419.) Any doubts in applying section 473 are to be resolved in favor of the party seeking relief from default. (Waite v. Southern Pac. Co. (1923) 192 Cal. 467, 470; see Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [?It is the policy of the law to favor, whenever possible, a hearing on the merits.?].)

?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.)

In the case at bench, Defendant Federal National Mortgage Association

(?Fannie Mae?) states that it failed to timely respond because of a filing error, and that as soon as the mistake was realized, sought an extension of the response deadline, which Plaintiffs denied. Defendant states that it has served responses that are in compliance with the applicable code sections, objecting to one interrogatory and withholding one document, based on privilege; Defendant states that it objected to other requests, but provided complete responses nonetheless.

Defendant Fannie Mae submits declarations stating that the discovery requests at issue were misfiled, moving party?s counsel did not know moving party had been served, alerted Plaintiffs? counsel as soon as the misfile was discovered, and served code-compliant responses thereafter. The discovery responses appear to be adequate, moving party sufficiently supports its motion, and granting the motion will serve the strong judicial policy of disposition of cases on the merits. Accordingly, Defendant Fannie Mae?s motion for relief from waiver is granted.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued by: ??????????KCK??????????????? on 01/23/18

(Judge?s initials) ?????? (Date)