Motion for Relief from Waiver of Discovery Objections
Melvin Simoes, et al. v. The Heights at Visa Del Mar Homeowners Association, 25CV-0455
Hearing: Motion for Relief from Waiver of Discovery Objections
Date: August 13, 2026
Glynette and Melvin Simoes filed this action against The Heights at Vista Del Mar Homeowners Association on July 10, 2025.
After a motion and hearing, on April 9, 2026, this Court, the Hon. Linda D. Hurst presiding, entered an order compelling responses, without objections, to Form Interrogatories, Special Interrogatories, and Requests for Production, awarding monetary sanctions, and allowing Defendant to file a motion for reconsideration.
Defendant filed a motion for reconsideration. In the alternative, Defendant sought mandatory relief from waiver of objections under Code of Civil Procedure section 473, subdivision (b).
The Court, the Hon. Linda D. Hurst presiding, denied the request for reconsideration, and the request for relief under the mandatory provisions of Code of Civil Procedure section 473, subdivision (b).1
Defendant now moves pursuant to Code of Civil Procedure sections 2030.290(a), 2031.300(a) and 2033.280(a) for relief from waiver of its discovery objections in its Form Interrogatories, Special Interrogatories, and Requests for Production of Documents (the Discovery). These sections allow relief from waiver where the party has subsequently served a response in substantial compliance with the Discovery Act and the party’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect. Plaintiffs oppose the motion.
Defendant moves on the ground that: (1) Defendant’s failure to serve timely responses and objections, if any, resulted from mistake, inadvertence, surprise, and excusable neglect; (2) the written discovery allegedly served by mail on November 12, 2025 was not actually received at counsel’s office, and counsel did not learn of the discovery until a January 4, 2026 email from Plaintiff’s counsel; (3) counsel and staff work remotely and relied on the office administrator to receive, scan, and transmit any physical mail, but no such discovery was ever received, scanned,
1 As to the request for relief, the Court found that because the Discovery Act contains specific procedure and conditions for relief from waiver, relief cannot be obtained under Code of Civil Procedure section 473, subdivision (b). (See Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107
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or sent; (4) Defendant has now acted diligently to seek relief once the true facts were discovered; (5) Defendant will serve or has served substantially compliant responses, thereby satisfying the statutory prerequisites for relief from waiver. (See Declaration of Neil C. Evans; Declaration of Amber Solario.)
Plaintiffs oppose the motion, contending that Defendant has failed to show mistake, inadvertence, or excusable neglect. (See Declaration of Lisa Toke.) Plaintiffs refer to the declarations filed in opposition to the motions to compel and in support of the motion for reconsideration.
Defendant’s counsel admits he first learned of the discovery requests on January 4, 2026, in an email from Plaintiffs’ counsel. However, Defendant’s counsel raised the argument that he never received the requests for the first time at the hearing on the motions to compel; defendant’s opposition contended the requests should have been served on client itself, not counsel, but did not contend that counsel never received the responses.
Thereafter, for the motion for reconsideration, Defendant’s counsel declared that he did not receive the responses via U.S. mail because he worked remotely and did not realize the discovery requests were not received until April 5, 2026, four days prior to the hearing on the motions to compel and after the oppositions were filed, when he first inquired with his office administrator whether they had received responses. Plaintiffs contend the failure to determine if requests were received until four months after counsel learned they were served is not mistake, inadvertence or excusable neglect.
Defendant contends it is not attempting to relitigate the prior rulings and contends that it has met the standard to show relief from waiver under Code of Civil Procedure sections 2030.290(a), 2031.300(a) and 2033.280(a).
There appears to be no dispute that Defendant has now served responses, and Defendant’s counsel contends his declaration shows mistake, inadvertence or excusable neglect. Defendant contends that at most, Plaintiffs argue that counsel should have investigated sooner after receiving the January 4 email, but that does not eliminate mistake or excusable neglect. Defendant acknowledges that counsel mistakenly assumed the documents had previously arrived and had somehow been overlooked. That assumption was incorrect. Upon learning the actual facts, Defendant sought relief.
Reviewing the facts here, and with an eye towards resolving doubts in favor of granting the relief (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420), the Court finds that Defendant has shown inadvertence and excusable neglect in failing to respond to the discovery in a timely manner.
ORDER (PROPOSED)
Defendant’s motion is granted.
2