Judge: Cherol J. Nellon, Case: 20STCV36312, Date: 2023-04-13 Tentative Ruling

Case Number: 20STCV36312    Hearing Date: April 13, 2023    Dept: 28

Plaintiff Amy Melissa Mata's Motion to Quash Subpoena for Records and PMK Deposition

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On September 23, 2020, Plaintiff Amy Melissa Mata (“Plaintiff”) filed this action against Defendants Admiral Pest Control, Inc (“APC”) and Anthony Lee Bearden (“Bearden”) for negligence and negligence per se.

On October 23, 2020, Defendants filed an answer.

On March 17, 2023, Plaintiff filed a Motion to Quash Subpoena for Personal Appearance and Production of Records to be heard on April 13, 2023. On April 5, 2023, Defendants filed an opposition.

Trial is currently scheduled for May 2, 2023.

PARTY’S REQUESTS

Plaintiff requests the Court quash the subpoena for records and to produce a PMK served on T-Mobile (“Deponent”) and impose $2,460.00 in sanctions on Defendants.

Defendants request the Court deny the motion.

LEGAL STANDARD

Code of Civil Procedure §1987.1: (a) If a subpoena requires the attendance of a witness or the production of books, documents, 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. (b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.

Code of Civil Procedure § 1985.3(b) outlines that a subpoena for production of personal records must be served on the consumer whose records are sought; it must be served at least five days prior to service upon the custodian of records. This subpoena must be accompanied by a notice indicating records sought, how to object, and that an attorney should be consulted, although this may be included in the Notice of Deposition served on consumer. CCP § 1985.3(e). Section (g) further clarifies: “No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion [to quash] has been brought by a consumer, or after receipt of a written objection from a nonparty consumer, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected.”

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court. (1993) 5 Cal.4th 704, 711.) When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the

case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Code of Civil Procedure § 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.”

DISCUSSION

Motion to Quash

Defendants filed a subpoena for records and for PMK deposition on Deponent, Plaintiff’s cell-phone carrier. The requested documents relate to Plaintiff’s cellphone usage and text messaging on the date of the incident in this case.

Under California law, a cellphone provider cannot provide a consumer’s public records with obtaining a release from the consumer. Plaintiff has not provided said consent, and thus Deponent is unable to fulfill the subpoena.

Similarly, the Court finds the deposition subpoena on Deponent’s PMK should also be quashed as an improper attempt to obtain information about said records. Effectively all questions relate to records, policies, calls, texts, cell-tower data, mobile apps, wireless plans, SIM cards, GPS data and billing data from Plaintiff’s phone number from the day of the incident to present. No meaningful testimony can be given without said records, as there is no context for any of the information without the records. The PMK subpoena is merely an attempt to avoid the limitations of CCP § 1985.3(f), by not technically serving a subpoena duces tecum for personal records.

Defendants argue that they should be permitted to obtain the deposition testimony and records as Plaintiff has made a causal connection between the subject incident and her ability to use her cellphone as she did prior to the subject incident and has consented to production of her cellphone records from T-Mobile on prior occasion in this case.

First, the Court notes it will not evaluate the merit of any argument as to why Defendants should be entitled to obtain this information without Plaintiff’s consent. Given that subpoenaing said records is barred by CCP without Plaintiff’s consent, the proper place to make such an

argument is not in the opposition to a motion to quash an already served subpoena. Defendants need to make a separate motion requesting leave with proper legal support prior to filing a subpoena, should they not have Plaintiff’s approval.

Defendants claim that Plaintiff has consented to production previously, noting that they served a previous subpoena on Deponent. Plaintiff allegedly never objected to said subpoena, never filed a motion to quash and never sought a protective order to prevent or limit the disclosure of the requested records. If true, Defendants obtained these records in violation of Code of Civil Procedure § 1985.3(f), which states the subpoena must “include a consent to release, signed by the consumer whose records are requested.” It does not allow for production in the absence of objection. Plaintiff’s failure to object previously does not constitute an ever-present consent to her telephone records. In fact, it did not constitute consent to obtain the initially produced records. The Court finds there is no indication of consent and grants the motion to quash in full.

Sanctions

The Court awards sanctions against Defendants under CCP § 1987.2, as Defendants opposed the motion to quash without substantial justification. Plaintiff requests sanctions totaling $2,460.00. Plaintiff provided no information regarding calculation of this amount. Therefore, the Court grants sanctions based on a reasonable total of $1,060.00, based on 4 hours of attorney’s work at a reasonable rate of $250.00 per hour and one $60.00 filling fee.

CONCLUSION

Plaintiff Amy Melissa Mata's Motion to Quash Subpoena for Records and PMK Deposition is GRANTED. The subpoena for records and for PMK appearance are deemed quashed.

Plaintiff Amy Melissa Mata's Request for Sanctions is GRANTED. Defendants are ordered to pay Plaintiff and Plaintiff’s counsel $1,060.00 in sanctions within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.