Judge: Lisa K. Sepe-Wiesenfeld, Case: 21SMCV00205, Date: 2023-09-08 Tentative Ruling

Case Number: 21SMCV00205    Hearing Date: September 8, 2023    Dept: N

TENTATIVE RULING

Defendant JPMorgan Chase Bank’s Motion for Order Compelling the Deposition of Third-Party Witness Edwin Alonzo is DENIED.

Defendant JPMorgan Chase Bank to give notice.

REASONING

Defendant JPMorgan Chase Bank (“Defendant”) moves the Court for an order compelling third-party witness Edwin Alonzo to attend and testify at deposition and produce documents described in the deposition notice. Defendant represents that Alonzo has refused to appear for or provide availability for his deposition, and Alonzo allegedly witnessed an employee of Defendant make racially discriminatory remarks against Plaintiff La Shawnte Hickman (“Plaintiff”). (Mot., Roberts Decl. ¶¶ 3-7, Exs. A-C.) Alonzo was served with a subpoena to appear on May 15, 2023, but he failed to appear on that despite failing to object or moving to quash the subpoena. (Mot., Roberts Decl. ¶¶ 10-11.) Defendant contacted Alonzo after taking a certificate of nonappearance, and Defendant agreed to reset Alonzo’s deposition, but Alonzo has informed Defendant he will not sit for deposition. (Mot., Roberts Decl. ¶¶ 11-15.) Plaintiff has not filed an opposition to the motion.

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc., § 2020.010, subd. (a).) If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Code Civ. Proc., § 2025.480, subds. (a)-(b).) Where the deposition subpoena requires a witness to appear for the taking of a deposition, the Court may make an order directing compliance with the subpoena. (Code Civ. Proc., § 1987.1, subd. (a).)

Alonzo was properly served a deposition subpoena and failed to appear for his noticed deposition date, the notice of nonappearance was taken the same day on May 15, 2023, and the record of the deposition was completed by the reporter the next day on May 16, 2023. (Mot., Roberts Decl. ¶¶ 10-11, Ex. F-G.) Defendant did not make the present motion until August 14, 2023, more than 60 days after the deposition record was closed. Notably, the 60-day deadline set forth in Code of Civil Procedure section 2025.480, subdivision (b), is mandatory. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321.) Defendant has provided no basis for the Court to conclude that the present motion is timely. Accordingly, Defendant JPMorgan Chase Bank’s Motion for Order Compelling the Deposition of Third-Party Witness Edwin Alonzo is DENIED.