Case Number: BC599158 Hearing Date: October 16, 2018 Dept: 31

Plaintiff’s Motion to Compel Michael K. Allen to Answer Questions and Produce Documents at Deposition; Request for Monetary Sanctions against Defendant and its Counsel in the Sum of $6,360.00 is ordered OFF CALENDAR due to improper service.

Plaintiff moves the court to compel non-party witness Michael K. Allen to respond to deposition questions and produce un-redacted emails requested in the deposition notice. As argued by Defendant in Opposition, Plaintiff’s motion must be placed off calendar due to his failure to properly serve non-party deponent Michael K. Allen, who is not an employee of Defendant. “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (CRC 3.1346.) Plaintiff did not personally serve Allen and did not provide any evidence that he agreed to another method of service.

Plaintiff should note that there are two additional procedural defects that also warrant placing the motion off calendar.

Pursuant to Code of Civil Procedure section 2025.480(a), “[i]f a deponent fails to answer any question . . . , the party seeking discovery may move the court for an order compelling that answer.” The motion “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2025.480(b).) A reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel. . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.’” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016.) The only meet and confer effort made by Plaintiff made no reference to the specific documents at issue or the specific testimony sought. Plaintiff’s counsel did not provide any legal authority or argument in the only meet and confer letter. (Jardini Decl. Ex. M.) The Discovery Act expressly requires a party to attempt to meet and confer regarding “each issue presented by the motion.” (CCP § 2016.040.)

Additionally, as argued by Defendant in Opposition, Plaintiff’s separate statement fails to comply with California Rules of Court Rule 3.1345(c), which requires a separate statement to include the text and objections to every document request at issue.

Defendant is ordered to give notice.