Judge: Armen Tamzarian, Case: 21STCV33200, Date: 2023-08-30 Tentative Ruling

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Case Number: 21STCV33200    Hearing Date: March 21, 2024    Dept: 52

Plaintiff Ugo O. Asobie’s Motion to Compel the Deposition of Kevin Dancer and the Production of Documents

Plaintiff Ugo O. Asobie moves to compel the deposition of non-party Kevin Dancer and to compel the production of documents requested in the notice of Dancer’s deposition.  One may move to compel a deposition and the production of documents when the deponent fails to appear at deposition and fails to produce requested documents “without having served a valid objection under Section 2025.410.”  (CCP § 2025.450(a).) 

Plaintiff does not meet his burden of showing he made “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” (CCP § 2016.040) as required when moving to compel a deposition (CCP § 2025.450(b)(2)).  On January 18, 2024, Universal’s counsel wrote to plaintiff, “Mr. Dancer is no longer with UPS.  I will find out if we will still be representing him.  If so, I will propose some dates.”  (Asobie Decl., Ex. D, p. 3.)  Defendant’s counsel also attests to these facts in the declaration in support of Universal’s opposition: “A hurdle arose with respect to the deposition of Dancer.  In the process of coordinating that deposition, I learned Dancer was no longer employed by UPS.  I informed plaintiff of this fact and told plaintiff I would determine if I was still representing Dancer and would provide some alternative dates.”  (Sharaby Decl., ¶ 7.) 

On January 19, plaintiff responded, “Please note that the depositions of Hedgeman, Dancer, and Agamegwa … shall remain set, as noticed, until you provide dates that work for their depositions.”  (Asobie Decl., Ex. D, p. 2.)  Later that day, plaintiff wrote, “The deposition of Kevin Dancer shall remain set as noticed on the 30th of January, 2024.”  (Id., p. 1.)  His response did not acknowledge Universal’s statement that Dancer no longer works for the company. 

On January 28, plaintiff emailed defendant’s counsel an invitation to Dancer’s remote deposition.  (Id., Ex. F, p. 2.)  Defendant’s counsel replied, “I already told you Mr. Dancer is no longer with UPS.  I’m willing to work in good faith to determine if we will represent him at deposition.  If we don’t, you will have to subpoena him to deposition.”  (Id., p. 1.)  Plaintiff replied, “I need Mr. Dancer’s deposition to oppose your client’s motion for summary judgment.  I have been asking for dates for Kevin Dancer’s deposition since for over 60 days.  Please see attached.  But you have neither provided dates that work for his deposition.  Nor stated, one way or the other, if you will be representing him at his deposition.”  (Ibid.) 

That defendant’s counsel did not definitively state whether he would represent Dancer at the deposition does not justify plaintiff’s conduct.  Unless defendant’s counsel specifically confirmed he would represent Dancer at the deposition, the notice of deposition would be ineffective without a subpoena.  “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action … or employee of a party to attend and to testify.”  (CCP § 2025.280(a).)  But if Dancer is not an employee of defendant Universal, deposing him “requires the service on the deponent of a deposition subpoena.”  (Id., subd. (b).)   

Moreover, plaintiff does not show he tried to resolve “each issue presented by the motion” (CCP § 2016.040) because he shows no effort to resolve the disputes over the document requests.  The notice of Dancer’s deposition includes requests for three categories of documents.  (Asobie Decl., Ex. B.)  Universal served objections to each request.  (Id., Ex. E.)  Plaintiff’s evidence shows only an effort to meet and confer about scheduling the date of the deposition.  The attached emails do not mention the document requests at all.

Plaintiff Ugo O. Asobie’s motion to compel the deposition of Kevin Dancer and to compel production of documents is denied.