Superior Court of California

County of Los Angeles

Department 26

donald
iwuchuku,

Plaintiff,

simon
choe, et al.,

Defendants.

Case No.: 22STCV26884

Hearing Date: May 9, 2023

[TENTATIVE]
order RE:

Defendant’s motion to compel Plaintiff’s response to requst for
production of documents, set one

Background

On August 18, 2022, Plaintiff Donald
Iwuchuku (“Plaintiff”) filed the instant defamation action against Defendant
Simon Choe (“Defendant”) asserting a single cause of action for
defamation.

On March 30, 2023, Defendant filed the
instant motion to compel Plaintiff’s response to Request for Production of
Documents, Set One (“RPDs”). On April
26, 2023, Plaintiff filed an opposition.
On May 2, 2023, Defendant filed a supplemental declaration. On May 3, 2023, Defendant filed a further
supplemental declaration.

Evidentiary
Objections

In opposition, Plaintiff objects to
the declaration of Julie C. Lim.
However, these objections are unnecessary because the Court, when
reviewing the evidence is presumed to ignore material it knows is incompetent,
irrelevant, or inadmissible. (In re Marriage of Davenport (2011)
194 Cal. App. 4th 1507, 1526.) Courts are presumed to know and apply the
correct statutory and case law and to be able to distinguish admissible from
inadmissible evidence, relevant from irrelevant facts, and to recognize those
facts which properly may be considered in the judicial decision-making
process. (People v. Coddington (2000) 23 Cal.4th 529, 644.)

Time
to Respond

Under Code of Civil Procedure section
2031.260 subdivision (a), a party must respond to requests for production of
documents within 30 days of service.
However, this time limit is extended if served by mail, overnight
delivery, fax, or electronically. (See
CCP §§ 1010.6(a)(4), 1013.) Failure to
timely respond waives all objections including privilege or on the protection of
work product. (See CCP §
2031.300(a).)

Here, Defense Counsel states that on
December 19, 2022, she served Defendant’s Form Interrogatories, Set One;
Special Interrogatories, Set One; Requests for Admissions, Set One, and the RPDs
at issue electronically. (Lim Decl. ¶ 3,
Exh. B.) Defense Counsel states that on January
23, 2023 -- after not receiving any response to the discovery requests – Defense
Counsel requested a response and extended the time to respond to January 30,
2023. (Lim Decl. ¶ 4, Exh. C.) On February 4, 2023, Defense Counsel states
that she sent an email to Plaintiff inviting him to meet and confer by February
10, 2023. (Lim Decl. ¶ 5, Exh. D.) However, Defense Counsel states that as of
filing of the instant motion, Plaintiff has not responded to Defendant’s
discovery. (Lim Decl. ¶ 6.)

In opposition, Plaintiff objects claiming
that he did not receive any email from Defense Counsel containing the
Defendant’s Form Interrogatories, Set One; Special Interrogatories, Set One;
Requests for Admissions, Set One, and the RPDs at issue. (Iwuchuku Decl. ¶ 2.) Plaintiff further claims to have not received
any copy of the discovery requests including the RPDs at issue. (Iwuchuku Decl. ¶ 2.)

In supplemental declaration, Defense
Counsel restates that she electronically emailed Defendant’s written discovery
requests and includes a proof of service of the discovery requests indicating
electronic service. (Supp. Lim Decl. ¶¶
3, 5 Exh. 1.) In further supplemental
declaration, Defense Counsel states that through inadvertence she failed to attach
a copy of the RPDs at issue and provides a copy of the RPDs at issue. (Further Supp. Lim Decl. ¶ 2, Exh. 2.) Defense Counsel states that she
electronically served Plaintiff with the case management statement on December
19, 2022, and Plaintiff has not claimed that he did not receive that
email. (Further Supp. Lim Decl. ¶ 3,
Exh. 3.)

Regardless, Defendant fails to demonstrate
proper service of the discovery requests on Plaintiff. Pursuant to the California Rules of Court, service
on self-represented parties must be effected via non-electronic methods unless they affirmatively
consent to electronic service. (Cal.
Rules of Court, Rule 2.251(c)(3)(B).) Plaintiff
is self-represented, and thus, only non-electronic service methods are
effective unless Plaintiff has affirmatively consented to electronic service. Though Plaintiff is an attorney, the
California Rules of Court do not carve out an exception for in pro per
attorneys to be exempt from the general requirement of express consent of
self-represented litigants for electronic service to be valid. The record is devoid of any express consent
of Plaintiff to accept electronic service.
Nor has Defendant provided such proof.
Thus, the discovery requests that were served exclusively electronically
as noted in Defendant’s moving papers and in the supplemental declaration, (Lim
Decl. ¶ 3, Exh. B; Supp. Lim Decl. ¶ 5, Exh. 1), were not properly served. As Defendant failed to properly serve the RPDs
at issue, the 30 days in which Plaintiff must timely respond has not begun to
run. (CCP § 2031.260(a).) The instant
motion must be denied for lack of proper service of the RPDs at issue.

CONCLUSIONS AND
ORDER

Based on the foregoing, Defendant Simon
Choe’s motion to compel Plaintiff’s response to the Request for Production of
Documents, Set One is DENIED.

Defendant has filed a motion to
compel Plaintiff’s responses to Defendant’s special interrogatories, Set One
(set to be heard on September 8, 2023), a motion to compel Plaintiff’s
responses to Defendant’s form interrogatories, Set One (set to be heard on
September 11, 2023), and a motion to deem requests for admissions admitted, Set
One (set to be heard on September 14, 2023).
In the interest of judicial economy, the Court hereby advances all three
motions to be heard on June 8, 2023 at 8:30 am; all opposition and reply briefs
must be timely filed and served per CCP section 1005(b). Alternatively, the parties may stipulate in
writing for Plaintiff to accept electronic service of the special
interrogatories, Set One, form interrogatories, Set One, requests for
production, Set One, and requests for admissions, Set One; for Plaintiff to
timely respond; and to take the three remaining motions off calendar.

Moving Parties are to give notice of
this order to all parties and file proof of service of such.

DATED:
May 9, 2023 ___________________________

Elaine
Lu

Judge
of the Superior Court