Simoes v. The Heights at Visa Del Mar Homeowners Association

Now, Defendant’s counsel declares that at the time he filed the opposition to the motion, he was under the belief that the discovery was served by mail on his physical office, per

1 “An order denying a motion for reconsideration is interpreted as a determination that the application does not meet the requirements of section 1008. If the requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling. [Citation.]” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) 1

the proof of service, but learned shortly before the hearing that the requests had never been received. He declares that he first learned of the discovery via a January 4, 2026 email, which stated that all objections were waived. Counsel declares he and all but one person on staff work remotely. Counsel questions why the requests were served solely by mail, despite extensive email correspondence. (See Declaration of Neil C. Evans (Evans Decl.).)

Counsel admits he knew that by January 4, 2026, discovery responses were served. (Evans Decl., ¶ 8.) He declares that he assumed his staff had just missed the discovery and only learned that the discovery was not ever received on or about April 5, 2026, when he contacted Ambar Solario at the Costa Mesa Office to confirm that there was no record of any documents in this case received by U.S. Mail at any time. (Evans Decl., ¶ 8.) Counsel declares takes responsibility for failing to serve objections when he first discovered that requests had been served on January 4, 2026. 2 (Evans Decl., ¶ 9.) He declares that the waiver should be excused.

However, there is no reason that counsel should or could not have discovered that the discovery was not received until four days before the hearing. Just because counsel waited to call the office to confirm whether the discovery was received until days before the hearing, does not mean he could not have discovered that fact earlier.

The Court denies Defendant’s request that it reconsider its April 9, 2026, order.

Relief under Code of Civil Procedure Section 473(b).

In the alternative, Defendant seeks relief from waiver of the objections under the mandatory attorney-fault provisions of Code of Civil Procedure section 473, subdivision (b). Counsel takes responsibility for the failure to timely respond to the discovery. (Evans Decl., ¶ 9.)

However, the Discovery Act provides specific procedures to seek relief from waiver of objections, which do not include a provision for mandatory relief pursuant to an attorney affidavit of fault. (See Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a), 2033.280, subd. (a).)

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 [relief under section 473 unavailable where discovery act provides procedures to seek relief]; Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274 [sole remedy for relief from waiver in the context of discovery is contained within the provisions of the Act and it cannot rely upon the provisions of section 473]; see also Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2025) §§ 8:1038.1, 8:1465.3.)

2 The Court notes that counsel also did not file a motion seeking relief from waiver, as is allowed under the Discovery Act, at that time. 2

Defendant’s request for relief from waiver pursuant to section 473, subdivision (b) is therefore denied.

Sanctions.

Plaintiffs motion to compel and motion to deem requested monetary sanctions against Defendant. Plaintiffs did not seek sanctions against counsel. (See Notices of Motion and Points and Authorities.)

In its April 9, 2026, order, the Court stated that the amount of sanctions to be awarded would be determined at this hearing. The Court’s tentative ruling on the motions to compel indicated that it planned to award Plaintiffs $3,823 in sanctions connection with the motion to compel responses to the form interrogatories, special interrogatories and requests for production, and $4,348 in sanctions in connection with the motion to deem RFAs admitted, the amount requests in the motion. (See Declarations of Lisa Toke in support of motion to compel and motion to deer RFAs admitted.)

Counsel for Plaintiffs declares that they have incurred an additional $2,600 in monetary sanctions in connection with this motion for reconsideration and anticipate incurring another $1,095 to review the reply and prepare for the hearing. (Declaration of Michaela Cotton, ¶¶ 6-7.)

The Court denies an award of additional sanctions, as sanctions are not authorized by Code of Civil Procedure sections 1008 or 473.

As to sanctions for the motions to compel, as noted above, Plaintiffs’ notices of motion seek sanctions solely against the Defendant, not its counsel. However, the evidence now shows that the failure to respond is entirely the fault of counsel, and not his client.

The Court therefore awards a reduced amount of sanctions to Plaintiff, representing the amount incurred in filing the two discovery motions as well as the $60 filing fee; the additional time incurred cannot justly be imposed against Defendant itself.

The Court therefore awards Plaintiffs monetary sanctions against Defendant in the amount of $1,543 in connection with the motion to compel responses to form interrogatories, special interrogatories, and requests for production.

The Court awards Plaintiffs monetary sanctions against Defendant in the amount of $2,068 in connection with the motion to deem RFAs admitted.

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