Judge: Cherol J. Nellon, Case: 21STCV28830, Date: 2023-05-10 Tentative Ruling
Case Number: 21STCV28830 Hearing Date: May 10, 2023 Dept: 28
Background
This is an automobile accident case. On August
5, 2021, Plaintiff Song Hong (“Plaintiff”) sued Defendants Leonardo Del Rosario
and Fortune Commercial Corporation (“Defendants”) under negligence theories.
As part of discovery, on June 28, 2022, Defendants issued a subpoena to
Verizon Wireless Services, LLC (“Verizon”) for Plaintiff’s cell phone records,
requesting all documents reflecting any incoming and outgoing calls and
communications from Plaintiff’s cell phone number on August 16, 2019, the day
of the incident. (Decl. Yoshida, ¶ 10, Ex. D.) On July 14, 2022, Plaintiff
served an objection to Defendants’ subpoena of Plaintiff’s cell phone records. (Decl.
Yoshida, ¶ 11, Ex. E.) On July 18, 2022, Defendants’ counsel sent Plaintiff’s
counsel a meet and confer letter outlining the need for the subpoenaed
documents. (Decl. Yoshida, ¶ 12, Ex. F.) Defendants’ counsel agreed to amend
the subpoena to narrow the scope of the records. (Decl. Yoshida, ¶ 12, Ex. F.)
The parties ultimately agreed to a four-hour window for phone and text logs. (Decl.
Yoshida, ¶ 13, Ex. G.)
On August
2, 2022, Defendants served an amended subpoena incorporating the agreed to
narrowed scope of requests. (Decl. Yoshida, ¶ 14, Ex. H.) In the amended
subpoena, Defendants requested the following:
1. Any and all DOCUMENTS reflecting
any incoming calls on HONG’s cell phone number (240) 470-2264 on August 16,
2019 between 5:10 a.m. to 9:10 a.m.;
2. Any and all DOCUMENTS reflecting
any outgoing calls on HONG’s cell phone number (240) 470-2264 on August 16,
2019 between 5:10 a.m. to 9:10 a.m.;
3. Any and all DOCUMENTS reflecting
any logs reflecting incoming COMMUNICATIONS, including text messages (but not
the contents of the COMMUNICATIONS themselves), on HONG’s cell phone number
(240) 470- 2264 on August 16, 2019, between 5:10 a.m. to 9:10 a.m.; and
4. Any and all DOCUMENTS reflecting
any logs reflecting outgoing COMMUNICATIONS, including text messages (but not
the contents of the COMMUNICATIONS themselves), on HONG’s cell phone number
(240) 470- 2264 on August 16, 2019 between 5:10 a.m. to 9:10 a.m. (Decl. Yoshida,
¶ 14, Ex. H.)
Following
the service of the amended subpoena, Plaintiff did not file any objections or
bring a Motion to Quash. (Decl. Yoshida, ¶ 15.) On September 12, 2022, Verizon responded,
stating it would not release the records without the account holder’s consent or
a Court order notwithstanding California Public Utilities Code Section 2891. (Decl.
Yoshida, ¶ 16, Ex. I.) On September 19, 2022, Defendants’ counsel sent
Plaintiff’s counsel a meet and confer letter requesting Plaintiff execute an
authorization for release of his Verizon records. (Decl. Yoshida, ¶ 17, Ex. J.)
After not receiving a response, Defendants’ counsel called Plaintiff’s counsel
on September 27, 2022, and Plaintiff’s counsel informed them Plaintiff would
not provide authorization for such records. (Decl. Yoshida, ¶ 18.)
On October
13, 2022, Defendants timely moved to compel compliance with the deposition
subpoena and requested sanctions in the amount of $1,500.00. The court heard
the motion on January 30, 2023, and finding service defective, denied the
motion and advised the Defendants to file a new motion. On February 16, 2023,
Defendants filed the instant motion. On April 25, 2023, Plaintiff opposed. On May
1, 2023, Defendants replied.
Legal Standards
1.
Motion to Compel Compliance
“A deposition subpoena for business records
directs a nonparty's ‘custodian of records’ to deliver a copy of the requested
documents to a ‘deposition officer’ or to make the original documents available
to the subpoenaing party for inspection and copying. ([C.C.P. §§ 2020.410(c),
2020.430(a)-(e)].) The Act refers to the custodian of records as the
‘deponent.’ ([C.C.P. §§2025.280(b), 2020.230(b)]). [¶] If a deponent fails to
produce a requested document under his or her control, the subpoenaing party
may bring a motion to compel production ‘no later than 60 days after the
completion of the record of the deposition.’ ([C.C.P. §2025.480(b)].)” (Unzipped
Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.) The objections or
other responses to a business records subpoena are the “deposition record” for
purposes of measuring the 60-day period for a motion to compel. (Id. at
132-133.)
Code
of Civil Procedure section 1987.1(a) states: “If a subpoena requires … the
production of … documents, [or] electronically stored information …, the court,
upon motion reasonably made by any person [including a party] … 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.”
Good cause must be shown to require a non-party to produce
documents. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53
Cal.App.4th 216, 224.)
2. Sanctions
Pursuant to Section 2025.480, subdivision (j),
“[t]he court shall impose a monetary sanction under Chapter 7…against any
party, person, or attorney who unsuccessfully makes or opposes a motion
to compel an answer or production, unless it finds the one subject to the
sanction acted with substantial justification or that other circumstances make
the imposition of the sanction unjust.” (Emphasis added.) Section 2025.480
applies to nonparties. (See Board of Registered Nursing v. Superior Court of
Orange County (2021) 59 Cal.App.5th 1011, 1031.)
Preliminarily, Defendants met service requirements according
to California Rule of Court, rule 3.1346. (2/16/23 Proof of Service.)
Defendants argue that the cell phone records are relevant
because they will assist them in evaluating and preparing their defense against
Plaintiff’s claims. (Notice of Motion and Motion, pg. 6, lines 27-28.)
Defendants also argue that Public Utility Code section 2894(a) does not apply. (Notice
of Motion and Motion, pg. 7, lines 10-18.)
In opposition, Plaintiff argues that the court
cannot permit a method of discovery not expressly allowed by statute, i.e.,
require a party to sign an authorization. (Opposition, pgs. 5-7.) Plaintiff
also argues that the cell phone records are protected by state and federal constitutional
rights. (Opposition, pgs. 10-11.) In addition, Plaintiff argues that Defendants
did not request a signed authorization by the discovery process. (Opposition, pgs.
9-10.)
In reply, Defendants argue that the requests do not
invade Plaintiffs’ privacy because they only
demand production of phone logs and text logs, not the contents of the
information, and there is no alternative or less intrusive means for obtaining
the requested information, which could be relevant in determining whether
Plaintiff was at fault for causing the accident. (Reply, pg. 4, lines 13-19.)
The Court finds that good cause
exists for Verizon to produce the cell phone and text logs of Plaintiff because
they are reasonably calculated to lead to the discovery of admissible evidence,
including on the issue of comparative fault. (Code Civ.
Pro., § 2017.010.) In this instance, the right of privacy is not outweighed by
the litigant’s need to discovery relevant facts. (Shaffer v. Superior Court (1995)
33 Cal.App.4th 993, 999.) In addition, the Court is within its authority
to require a party to sign an authorization requested by a non-party for
discovery purposes. (See Miranda v. 21st Century Ins. Co.
(2004) 117 Cal.App.4th 913.)
In addition, the Court rewards sanctions in
the amount of $1500.00 to Defendants. During the parties’ meet and confer, Plaintiff
had agreed to the narrowed scope of discovery, and without apparent justification,
seemed to have changed his mind and thus, hindered Defendants’ efforts to
obtain the requested documents from Verizon. (Decl.
Yoshida, ¶ 13; Ex.G.)
Conclusion
The parties are directed to the header of this tentative ruling for further instructions.