Judge: Anne Hwang, Case: 21STCV42899, Date: 2024-08-13 Tentative Ruling

Case Number: 21STCV42899    Hearing Date: August 13, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On May 31, 2022, Plaintiff Shawntrise Rose-Armstead, Alexandria Armstead, and Echsavior Armstead (“Plaintiffs”) filed the operative first amended complaint (“FAC”) against Defendants State of California, Caltrans, and Does 1 to 100 for a wrongful death action. Plaintiffs allege that on November 26, 2020, at approximately 1:00 a.m., Decedent Eric Lamont Armstead (“Decedent”) died after his vehicle collided into a paver machine that was negligently parked on the I-5 freeway. (FAC ¶ 12.)

On September 26, 2022, Plaintiffs filed an amendment to the complaint, substituting Security Paving Company, Inc. as Doe 1.

On June 14, 2024, Defendant Security Paving Company, Inc. (“Defendant”) issued a business records subpoena to Verizon Wireless seeking the telephone records for Decedent, with a July 15, 2024 production date.  

 Plaintiffs now move to quash the subpoena, arguing that it is overbroad, irrelevant, and violates a privacy right. Defendant opposes. No reply has been filed.

LEGAL STANDARD

Code of Civil Procedure § 1987.1(a) states:

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

“The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. [Citation omitted.] In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation omitted.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [citation omitted].” (Williams v. Superior Court (2017) 3 Cal.5th 531, 533 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)

“[Prior] cases correctly recognize that when a discovery request seeks information implicating the constitutional right of privacy, to order discovery simply upon a showing that the Code of Civil Procedure section 2017.010 test for relevance has been met is an abuse of discretion. [Citation omitted.] But they also stand for the proposition that whenever discovery of facially private information is sought, the party seeking discovery must demonstrate a “ ‘compelling state interest’ ” [citation omitted] or “compelling need” [citation omitted]. Although in this they are not alone [citation omitted], they nevertheless are incorrect.” (Williams, supra, 3 Cal.5th at 556.) “To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., [citation omitted], they are disapproved.” (Id. at 557.)

“Only obvious invasions of interest fundamental to personal autonomy must be supported by a compelling interest.” (Williams, supra, 3 Cal.5th at 556.) When lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Id.) “The trial courts in exercising their discretion should keep in mind that the Legislature has suggested that, where possible, the court should impose partial limitations rather than outright denial of discovery.” (Id. at 559 [quotation omitted].)

California Code of Civil Procedure section 1987.2 provides that “the court may in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion to quash], including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc. section 1987.2(a).)

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.)

DISCUSSION

The subject subpoena seeks the following information:

“Any and all telephone records and billing for Subscriber, Eric Armstead; Phone Number (213) 777-0572. Records should include but not be limited to: incoming calls, outgoing calls, data transmission, call detail (e.g. date, time, number called, duration of call).

(Powers Decl., Exh. 1.)

Plaintiffs argue the records are irrelevant and overbroad. The Court observes that on its face, the subpoena is overbroad since it is not limited to any time, such as when the incident in this case took place. Plaintiffs have suggested a limitation to within 10 minutes before the incident. (Motion, 9.)

In opposition, Defendant contends that Decedent was under the influence when the incident took place. It argues that because no witnesses were with Decedent at the time, phone records are needed to determine his activities, mental state, and relationship with Plaintiffs leading up to crash. (Opp., 2-3.) Defendant contends that the parties met and conferred, and it offered to limit the scope of records to November 25, 2020 and November 26, 2020, whereas Plaintiffs agreed to a limit of 15 minutes before the incident. (Haas Decl. ¶ 3.) Based on the information provided by Defendant, limited telephone records are relevant to this action, but Defendant does not provide sufficient explanation for all records the entire day before and entire day of the incident.[1] Nevertheless, because the subpoena on its face is overbroad, the motion to quash is granted.

Next, Plaintiffs contend the subpoena violates a privacy interest. Even if the telephone records are protected by a privacy right, Plaintiffs have not shown there is an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious, as required by Williams v. Superior Court (2017) 3 Cal.5th 531, 533. Additionally, there are no facts supporting that the requested records are “obvious invasions of interest fundamental to personal autonomy.” Therefore, no showing of a compelling interest is required. (Williams, supra, 3 Cal.5th at 556.) As a result, Plaintiffs fail to meet their burden to show that the purported privacy right warrants quashing the subpoena in its entirety.

Next, Plaintiffs argue that the subpoena is invalid since it does not comply with Code of Civil Procedure section 1985.3(f).

Section 1985.3(f) states:

“A subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.”

A “public utility is defined as “every . . . telephone corporation . . . where the service is performed for, or the commodity is delivered to, the public or any portion thereof.” (Pub. Util. Code § 216(a)(1).) Public Utilities Code section 2891 requires written consent before a telephone corporation may provide any of the following information: “The subscriber's personal calling patterns, including any listing of the telephone or other access numbers called by the subscriber, but excluding the identification to the person called of the person calling and the telephone number from which the call was placed”; “The residential subscriber's credit or other personal financial information.” (Pub. Util. Code § 2891(a).)

Here, Plaintiffs contend that Defendant did not obtain a signed consent to these records. Defendant does not address this argument in opposition, or how the consent requirement applies to records from deceased persons, or whether a subpoena (as opposed to a different procedure, such as a court order) is statutorily authorized in these circumstances.

Plaintiffs did not seek monetary sanctions in the Notice of Motion. Therefore, the Court declines to award monetary sanctions.

CONCLUSION AND ORDER

Accordingly, the Court grants Plaintiffs’ motion to Quash Subpoena for Production of Business Records to Verizon Wireless.

Plaintiffs to provide notice and file a proof of service of such.