NANCY CHALKER vs JOHN L DU MOULIN, II

2025CUPO048026: NANCY CHALKER vs JOHN L DU MOULIN, II 09/10/2026 in Department 42 Motion FOR RELIEF FROM ORDER REQUIRING DISCOVERY RESPONSES WITHOUT OBJECTIONS AND DEEMING REQUESTS FOR ADMISSION ADMITTED (CCP 473(b), 2033.300)

Motion: Plaintiff Nancy Chalker’s Motion for Relief From Order Requiring Discovery Responses Without Objections and Deeming Request for Admissions Admitted (opposed)

Tentative Ruling: Plaintiff Nancy Chalker’s Motion for Relief From Order Requiring Discovery Responses Without Objections and Deeming Request for Admissions Admitted is DENIED. Notice to be provided by the Court Clerk. Background: Nancy Chalker (“Plaintiff”) filed a complaint alleging causes of action for premises liability, assault, and negligence against John L Du Moulin II (“Defendant”) on July 28, 2025 (“Complaint”). The Complaint alleges that Defendant was involved in an incident with Plaintiff and her dog and that Plaintiff was injured when her dog broke loose and she moved past Defendant and was pushed.

On March 19, 2026, Plaintiff filed a substitution of attorney. She consented to her former counsel’s withdrawal and opted to proceed in pro per. Defendant John L. Du Moulin II filed four discovery motions on April 6, 2026. Service on Plaintiff was proper. No oppositions were filed. On May 11, 2026, the Court granted the motions, including deeming the requests for admission, set one, admitted.

Plaintiff now moves for an order vacating the Court’s May 11, 2026 order compelling Plaintiff to provide further responses without objections to written discovery propounded (Form Interrogatories, Special Interrogatories and Requests for Production of Documents) and deeming the Requests for Admissions admitted. Plaintiff fails to include copies of any discovery responses she has served or purports to serve if relief is granted.

The Motion is made pursuant to California Code of Civil Procedure Section 473(b) and Section 2033.300, on the grounds that Plaintiff’s failure to respond to Defendant’s discovery requests was the result of inadvertence, mistake and/or excusable neglect and will not substantially prejudice Defendant in maintaining his right to defend the case on the merits. Plaintiff asserts that she did not understand the nature of the motions and thought she had responded to discovery through her former attorney.

Defendant opposes. He claims there is no excuse for Plaintiff’s failure to respond to his discovery requests or oppose the motion. Plaintiff was served with Defendant’s four discovery

2025CUPO048026: NANCY CHALKER vs JOHN L DU MOULIN, II

motions by both mail and email and was placed on notice of the remedy sought. She contends she thought she had responded to this discovery, yet failed to oppose or make that argument to the court. Plaintiff fails to show mistake, surprise, inadvertence or excusable neglect. Defendant also argues that to the extent that this is a motion for reconsideration, the motion is untimely under Code of Civil Procedure section 1008. Discussion: Plaintiff’s motion seeks relief from the order requiring her to serve responses without objections to these discovery requests pursuant to Code of Civil Procedure section 473, subdivision (b). “’The discovery act was the product of the State Bar–Judicial Council Joint Commission on Discovery.

In the reporter's notes on the joint commission's efforts, the following was written with regard to the relief provision: “The subdivision then brings over from CCP § 473 the court's power to relieve one from that waiver under the circumstances set forth in the proposed subdivision. It is the intent of the Commission that henceforth this subdivision, and not CCP § 473, will apply to this form of discovery default.” ’ [Citation].” (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107.) Thus, “[r]elief under section 473 is unavailable when the discovery act provides analogous, if more limited relief.” (Ibid.)

Relief for the waiver of objections with respect to the interrogatories and requests for production is available under Code of Civil Procedure sections 2030.290, subdivision (a) and 2031.300, subdivision (a), not Code of Civil Procedure section 473, subdivision (b). The motion for relief as to this written discovery was not brought pursuant to the correct code section is denied. Even if Plaintiff had proceeded under the correct section, the Court would not grant relief. Plaintiff had ample notice and an opportunity to respond to the motions.

The motions make clear the relief requested from the Court such that it was clear what would happen if the motions were granted. The motions also make clear that no responses to a second set of discovery were received. Plaintiff could have addressed this with the Court, or at a minimum, through a phone call to defense counsel. Instead, Plaintiff did nothing. Plaintiff, though pro per, is held to the same standard as attorneys who are familiar with the law. There is no excuse for Plaintiff’s failure to oppose the motions or respond to the discovery.

That she did not fully appreciate the nature of the potential penalty is not the type of mistake or surprise from which relief follows. To the extent she seeks to blame her attorney, there is no attorney declaration or other corroboration for her assertions, and the Court has concerns about the credibility of her statements. Plaintiff’s motion also seeks relief with respect to the admitted requests for admissions under Code of Civil Procedure section 2033.300, which states: (a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. (b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.

2025CUPO048026: NANCY CHALKER vs JOHN L DU MOULIN, II

(c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission. Because the Court finds that Plaintiff did not fail to respond to discovery or oppose the motions as a result of inadvertence, mistake or excusable neglect, no relief is warranted under this code section. The motion is denied.

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