Kendall And Davis, LLC, et al. vs Le-Nguyen Dental Corporation, et al.

22CV-03431 Kendall And Davis, LLC, et al. vs Le-Nguyen Dental Corporation, et al.

Motion to Withdraw and Amend Deemed Admissions; to Vacate Orders Compelling Discovery Responses and all Monetary Sanctions; and to Reset Discovery Deadlines

The motion to withdraw and amend deemed admissions, to vacate orders compelling discovery responses and monetary sanctions, and reset discovery deadlines is DENIED.

The Court finds that the failure to timely serve responses to requests for admission and the other discovery at issue was not a result of mistake, inadvertence, or excusable neglect. The record and evidence support the finding that there was sufficient time for Relators to respond, which they failed to do without adequate explanation. Relators knew the discovery had been served, met and conferred with Defendant’s counsel regarding extensions to that discovery, obtained extensions to respond, failed to provide timely responses, and further failed to object to the method of service or request a stay of discovery to allow Relators to obtain new counsel.

As an initial matter, objections to the method of service are deemed waived. Relators had 30 days to object based on improper service or to file a motion to quash. By not objecting, any alleged defect was waived.

Relators’ reply asserts that Relators have responded to discovery. This assertion is unpersuasive and not supported by the reply itself or by way of attorney declaration with attached evidence. For example, the reply asserts, “Relators have served responses to the Requests for Admission, Requests for Production, and Special Interrogatories concurrently with this Reply. [footnote 1]” (Reply 2:17-18), but then in the accompanying footnote state that “verifications are expected to be served within 24 hours of this writing.” (Reply, p. 2, footnote 1.) Unverified responses are tantamount to no responses at all.

As to the assertion that Relators are not seeking to undo the consequences of delay wholesale, Relators’ initial motion specifically requests this Court vacate all prior orders and reset discovery. (Motion, 29:8-30:14.) It is only upon reply that Relators now appear to change the relief requested.

The reply also argues that “Relators do not contend that self-representation excused them from complying with California discovery law.” (Reply, 20-21.) However, that is precisely what Relators argue in their motion: “During the entire period in which the discovery was pending, Relators were without California counsel and were selfrepresented. While Relator Kendall is identified in Defendant's papers as a licensed attorney, he is not admitted to the California bar, and neither Relator had experience with California's specific discovery statutes, including the automatic-admission consequences under Code of Civil Procedure section 2033.280. Relators' pro se status and lack of California-specific legal knowledge constitute the type of "mistake" and- "inadvertence" contemplated by the statute.” (Motion, 12:17-23.)

The argument is incorrect and unpersuasive, with zero authority to support it. Under California law, pro per litigants must follow the same rules of court, abide by and comply with the same statutes, including the Code of Civil Procedure and Evidence Code, and are just as precluded from asserting ignorance of the law as licensed attorneys. (See Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290 (holding a litigant may represent herself but is “restricted to the same rules of evidence and procedure” as licensed attorneys, lest “ignorance [be] unjustly rewarded”); see also, Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31 (appellant “was not entitled to disregard the rules for timely responding to discovery and she was not immune from the consequences of a failure to do so”).)