HIMLEY vs SAMAAN

23CV009868: HIMLEY vs SAMAAN 06/11/2024 Hearing on Motion to Compel motion to compel Plaintiff in pro per Dirk Himley (“Plaintiff”) to serve responses to Form Interrogatories, Set One and Special Interrogatories, Set One in Department 54

Tentative Ruling

Defendant Nabil Samaan’s (“Defendant”) motion to compel Plaintiff in pro per Dirk Himley (“Plaintiff”) to serve responses to Defendant’s Request for Production of Documents, Set One is ruled upon as follows.

The Notice of Motion provides the incorrect address for the Court. The correct address for Department 54 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814.

Defendant served the subject discovery on Plaintiff via mail on January 28, 2024. (Obregon Decl., ¶ 2. Exh. A.) Plaintiff failed to timely serve responses. (Obregon Decl., ¶ 3.) On March 10, 2024, Defendant’s counsel sent Plaintiff an email notifying him that the deadline to serve responses had passed. Defendant’s counsel further stated, “Please provide responses without objections to all of Defendant’s Request for Production of Documents, Set One by end of day Friday 3/15/2024. Your failure to do so will force me to file a motion to compel and request sanctions for my time to draft and file said motion.” (Obregon Decl., Exh. B, p. 1.) Defendant’s counsel sent a second email on March 11, 2024 that again requested Plaintiff to serve responses without objections by March 15, 2024. (Obregon Decl., Exh. B, p. 2.)

On March 14, 2024, Plaintiff served responses to Defendant’s Request for Production of Documents. The responses included objections. (Obregon Decl., Exh. C.)

The exact nature of Defendant’s motion is difficult to decipher. Defendant’s notice of motion indicates that he is seeking “an order compelling Plaintiff Dirk Himley, to serve on a response to the Defendant’s Request for Production of Documents, Set One which he served on Defendant on January 28, 2024, and will further move this court for an order requiring Plaintiff to pay a monetary sanction to Defendant.” (Notice of Motion, pp. 1:26-2:1.) The notice of motion does not identify the statute under which Defendant brings this motion. Defendant’s memorandum refers Code of Civil Procedure sections 2031.300 (motion to compel initial responses) and 2031.310 (motion to compel further responses). These are two distinct types of motions and cannot be combined in the manner Defendant seemingly attempts to do.

The Court construes this motion as solely a motion to compel initial responses under Code of Civil Procedure section 2031.300. While Defendant at times argues that Plaintiff’s responses are substantively deficient, Defendant has failed to comply with at least two requirements related to a motion to compel further responses. First, such motions require a meet and confer declaration. (Code Civ. Proc. § 2031.310(b)(2).)

23CV009868: HIMLEY vs SAMAAN 06/11/2024 Hearing on Motion to Compel motion to compel Plaintiff in pro per Dirk Himley (“Plaintiff”) to serve responses to Form Interrogatories, Set One and Special Interrogatories, Set One in Department 54

Defendant’s counsel has not shown any meet and confer efforts related to the substance of Plaintiff’s responses, since any correspondence Defendant’s counsel sent to Plaintiff was sent before Plaintiff served his responses. Second, a motion to compel further responses must include a separate statement. (Cal. Rules of Court, rule 3.1345(a).) Defendant has submitted an exhibit described as “an exhaustive list of deficiencies with Plaintiff’s responses to Defendant’s Request for Document Production, Set One.” (Obregon Decl., ¶ 9, Exh.

D.) This document is not a separate statement as it does not comply with California Rules of Court rule 3.1345(c). Further, the Court has not granted Defendant leave to file “a concise outline of the discovery request and each response in dispute” in lieu of a separate statement, and it does not appear Exhibit D would qualify as a concise outline. (Code Civ. Proc. § 2031.310(b)(3).)

Accordingly, to the extent Defendant moves to compel further responses, the motion is DENIED. However, Defendant has established that Plaintiff failed to timely serve responses. Plaintiff’s belated responses include objections which have been waived due to Plaintiff’s failure to serve timely responses. (See Code Civ. Proc. § 2031.300(a).) Plaintiff’s contention that Defendant extended the deadline to respond to March 15, 2024 is rejected, as it is not supported by the email from Defendant’s counsel in which he requests Plaintiff serve responses without objections by March 15, 2024. Therefore, Defendant’s motion to compel Plaintiff’s initial responses is GRANTED.

Defendant’s request for monetary sanctions is DENIED. The Court finds that the imposition of sanctions against Plaintiff would be unjust under the circumstances.

Plaintiff shall serve responses to Defendant’s Request for Production of Documents, Set One, without objections, by no later than June 20, 2024.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)