Judge: Audra Mori, Case: 22STCV02029, Date: 2022-08-30 Tentative Ruling

Case Number: 22STCV02029    Hearing Date: August 30, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Siddharth Saravat (“Plaintiff”) filed this action against defendants Lily Sellers (“Lily”), Dylan Sellers (“Dylan”), and the City of Santa Monica (the “City”) for damages arising from a motor vehicle vs. pedestrian accident.  Plaintiff alleges that on July 23, 2021, Lily was operating a motor vehicle owned by Dylan, with Dylan’s permission, and struck Plaintiff while Plaintiff was crossing the street in a marked crosswalk.  Plaintiff alleges the City failed to maintain the crosswalk and created a dangerous condition of public property.  The City has filed a cross-complaint against Lily and Dylan Sellers for the accident.  The City’s operative First Amended Cross-Complaint alleges claims for implied equitable indemnity, comparative contribution, declaratory relief, and negligent entrustment. 

At this time, Lily moves for an order quashing a deposition subpoena issued by the City to AT&T c/o CT Corporation System (“AT&T”) requesting Lily’s cell phone records for 30 days prior to and including July 23, 2021.  The City opposes the motion. 

2. Motion Quash Subpoena for Cell Phone Records

            A court “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.” (CCP § 1987.1.) The court, upon motion reasonably made by the party, may rule upon motions for quashing, modifying or compelling compliance with subpoenas. (See, e.g., Lee v. Swansboro County Property Owners Ass’n (2007) 151 Cal.App.4th 575, 582-583.) The parties’ discussion of their meet and confer efforts, or lack thereof, is irrelevant as there is no meet and confer requirement in bringing a motion to quash. (See CCP § 1987.1.)

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....”  (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.)  “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.”  (Id. at 1013.)  “Moreover, even were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.”  (Id. at 1014.) 

When compelled disclosure intrudes on constitutionally protected areas, and even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed.  (See Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.)  Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery.  The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown.  (Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35.) 

“In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.”  (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)  “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.”  (Williams, supra, 3 Cal.5th at 552.)  “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.”  (Ibid.)  “A court must then balance these competing considerations.”  (Ibid.)

The California Supreme Court has rejected the “de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information.”  (Id. at 557.)  It has directed courts to “instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.”  (Ibid.)  A compelling need for the discovery is not always required.  (Ibid.)  “What suffices to justify an invasion will…vary according to the context.” (Ibid.)

In this case, the City’s subpoena issued to AT&T demands:

Any and all of cell phone records related to subscriber Lily Seller's account for the 30 days prior to and including July 23, 2021 , to/from phone number 310-908-3239, including but not limited to billing records, and all documents which reflect all incoming and outgoing text messages and data and call records, including the corresponding date, time and length of each call and/or text and/or data usage and every such record, including those existing in electronic or magnetic form, in the possession, custody or control of the said witness, and every such record to which the witness may have access.

(Mot. Exh. C.) 

Lily contends that the subpoena invades her right to privacy, is irrelevant to the issues of the case, and is overbroad as to time and scope.  Further, Lily argues the contents of her text messages are further protected from disclosure under the Stored Communications Act, 18 U.S.C. § 2701, et seq.[1]  Lily asserts the subject accident occurred at approximately 8:30 p.m., and so information regarding her cell phone activity for 30 days has no tendency to prove or disprove any disputed fact of consequence in this matter.  Lily avers the only relevant time period regarding her cell phone usage would be in the minutes leading up to and at the time of the accident. 

The City, in opposition, argues the documents the subpoena seeks are relevant to the claims in this matter because the City is entitled to know whether Lily was talking or texting at the time of the incident and relevant as to Lily’s state of mind at the time of the accident.  Additionally, the City argues there are no alternative means for obtaining the requested documents, and that the subpoena is not oppressive or burdensome. 

The City does not dispute that Lily has a reasonable expectation of privacy in her cell phone records demanded by the subpoena.  It is unclear how every document and record sought by the subpoena is relevant to the claims in this action or likely to lead to the discovery of admissible evidence.  For example, the subpoena demands billing records related to Lily’s account, and the City does not articulate why such would be relevant to determining whether she was talking or texting at the time of the accident.[2]  Furthermore, although the City contends it is entitled to know whether Lily was talking or texting at the time of the accident, and whether any earlier conversations in the day affected her concentration at the time, the City offers no explanation for why Lily’s cell phone records for 30 days up to the accident are needed to investigate these matters.  The City offers no reason for why it has a legitimate interest in cell phone records predating the accident by about one month.  (Williams, 3 Cal.5th at 552.)

Nonetheless, some of the requested records would be relevant to determining whether Lily was talking or texting when the accident occurred.  Lily and the City both proposed the Court issue a protective order as an alternative to quashing the subpoena.  Lily, however, does not offer any proposed language by which to limit the subpoena.  On the other hand, the City proposes to limit the requested records to subscriber, date, time, and duration information, and not the content of any text communications to two hours before and after the accident.  Lily did not file a reply or otherwise object to this proposal, and in her moving papers, Lily states she is “willing to release her cell phone records for the two hours before and after this accident.”  (Mot. p. 6:12-14.)  Given that there are no alternative means for the City to obtain this information that is directly relevant to the claims against Lily, the Court finds disclosure of limited records should be ordered under an appropriate protective order.  (See United States v. Reed (9th Cir. 2009) 575 F.3d 900, 914-15 [No Fourth Amendment expectation of privacy in telephone data about the “‘call origination, length, and time of call.’”]; see also Mintz v. Mark Bartelstein & Assocs. Inc. (C.D. Cal. Aug. 14, 2012) 885 F. Supp. 2d 987, 993, 999-1000 [Under California law, “disclosure of telephone numbers and cell site information, as well as the date, time, and duration of calls does not represent a significant intrusion of Plaintiff's privacy, particularly because the Court can issue an appropriate protective order.”].) 

Therefore, the motion is granted as follows: The subpoena served on AT&T is limited to Lily’s cell phone records for approximately two hours before and after the accident- 8:30 p.m. on July 23, 2021.  AT&T is to produce records showing the telephone numbers, date, time, duration of calls, and time of any text messages sent and received.  AT&T is not to produce any records showing the content of any text messages or phone calls. 

            Moving Defendant Lily Seller is ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 30^th day of August 2022