Judge: Daniel S. Murphy, Case: 23STCV28393, Date: 2024-11-04 Tentative Ruling

Case Number: 23STCV28393    Hearing Date: November 4, 2024    Dept: 32

BACKGROUND

            On November 20, 2023, Plaintiff Los Angeles SMSA Limited Partnership (Verizon) filed this action against Defendants Jesus Garcia, Marlene Garcia, Spectrum Cellular Management LLC, and Michael Flores. Verizon filed the operative First Amended Complaint on January 23, 2024, adding Defendants Doe 1 (as the personal representative of the Estate of Jesus Garcia), Majestic Enterprises LP, and Jesmar Properties Inc. The FAC asserts causes of action for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) forcible detainer, (4) specific performance, and (5) declaratory relief.

            The dispute arises from a lease entered into in September 1989 between Verizon (lessee) and the predecessor of Jesus Garcia and Marlene Garcia (lessor) for the operation of a wireless communications facility (the Facility). Jesus Garcia and Marlene Garcia later became the lessors through amendments to the lease. In 2010, Jesus Garcia and Marlene Garcia quitclaimed their interest to Majestic Enterprises LP, which became the landlord, although Jesus Garcia (and now his estate) and Marlene Garcia remained liable for breaches of the agreement. Verizon alleges that in 2021, Majestic began improperly restricting Verizon’s access to the premises and prevented Verizon from fully operating the Facility. In particular, Verizon’s contractors were prevented from entering the premises to perform necessary maintenance and modifications.

            Majestic allegedly acted through its representative, Michael Flores of Spectrum Cellular Management LLC. Flores allegedly restricted Verizon’s access to the premises by imposing improper conditions, among them that Verizon must provide a Radio Frequency (RF) report and install RF shielding.    

            During discovery, Spectrum served on Verizon a request for production seeking all RF reports on the subject property. Verizon responded to the request with objections only.

            On October 4, 2024, Spectrum filed the instant motion to compel Verizon’s further response to RFP No.1. Verizon filed its opposition on October 21, 2024. Spectrum filed its reply on October 25, 2024.

LEGAL STANDARD

Upon receiving responses to its discovery requests, the propounding party may move for an order compelling further responses if the responses are incomplete or evasive, or objections are without merit or too general. (Code Civ. Proc., §§ 2030.300(a), 2031.310(a), 2033.290(a).) The party seeking production of documents bears the initial burden of showing good cause through a fact-specific showing of relevance. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Once this showing is made, the burden shifts to the responding party to justify any objections. (Ibid.)

MEET AND CONFER

            A motion to compel further must be accompanied by a meet and confer declaration demonstrating an attempt to resolve the matter informally. (Code Civ. Proc., §§ 2030.300(b)(1), 2031.310(b), 2033.290(b).) The Court finds that Defendant has satisfied the meet and confer requirement. (See Dolan Decl.)

DISCUSSION

I. Good Cause

            Under the third cause of action (the only one asserted against Spectrum), Verizon alleges that Spectrum committed forcible detainer by, inter alia, “demanding an RF/EME report with no contractual basis.” (FAC ¶ 51.) Verizon alleges that “Mr. Flores outright denied Verizon’s contractor access to the Premises, declaring he would need to speak with Landlord first, and that an RF/EME report would need to be provided as a precondition to access, all of which are in direct contravention of the Lease.” (Id., ¶ 30.)

            Based on these allegations, Verizon has directly placed the RF reports at issue. In other words, RFP No. 1 seeks information that is relevant to the subject matter of the litigation or reasonably calculated to lead to the discovery of admissible evidence. (See Code Civ. Proc., § 2017.010.) Verizon cannot assert a claim based on Spectrum’s demand for the RF reports and then claim that the reports are irrelevant to Spectrum’s defense. Thus, Spectrum has established good cause for the discovery.

II. Preemption

            “[T]he telecommunications industry generally, and RF emissions from cell phones specifically, have long been regulated by Congress and the Federal Communications Commission.” (Bennett v. T-Mobile United States, Inc. (C.D.Cal. 2008) 597 F.Supp.2d 1050, 1052.) “By delegating the task of setting RF-emissions levels to the FCC, Congress authorized the federal government—and not local governments—to strike the proper balance between protecting the public from RF-emissions exposure and promoting a robust telecommunications infrastructure.” (Robbins v. New Cingular Wireless PCS, LLC (6th Cir. 2017) 854 F.3d 315, 319-320.) “Allowing RF-emissions-based tort suits would upset that balance and impair the federal government's ability to promote the [Telecommunications Act]’s goals.” (Id. at p. 320.)

            Verizon’s caselaw shows that a tort suit based on RF emissions is preempted if it seeks to impose an emissions standard in conflict with FCC regulations. None of the authority cited by Verizon suggests that discovery is preempted just because the information sought may relate to compliance with federal regulations. Spectrum has not asserted a claim against Verizon based on RF emissions, much less a claim that conflicts with FCC guidelines. Rather, Spectrum is seeking information to defend itself against Verizon’s allegation that Spectrum’s demand for RF reports was wrongful under California law. This does not “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (See Arizona v. United States (2012) 567 U.S. 387, 406.) Therefore, federal preemption does not preclude Spectrum’s discovery of the RF reports. 

            Because the permissible scope of discovery and the preemption of a tort suit are distinct issues, Verizon’s pending motion to strike Majestic’s cross-complaint on preemption grounds has no bearing on this motion. Thus, this motion is not premature, and the Court can rule on this motion regardless of the outcome of Verizon’s motion to strike.

III. 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.” (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552.) If the court finds a privacy interest, the court must balance the privacy concerns against the need for the information. (Id. at p. 552.) Discovery of private information is governed by the more stringent standard of direct relevance in order to prevent a fishing expedition of “tangentially pertinent sensitive information.” (Boler v. Sup. Ct. (1987) 201 Cal.App.3d 467, 472.) “The burden is on the party seeking the constitutionally protected information to establish direct relevance.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)

A company’s “trade secret or other confidential research, development, or commercial information” is subject to protection. (See Code Civ. Proc., § 2031.060(b)(5).) Verizon avers that its RF reports “contain commercially sensitive and trade secret protected information regarding the design of Verizon's various facilities.” (Kimpang Decl. ¶ 19.) However, as discussed above, the information sought by RFP No. 1 is directly relevant to the issues that Verizon raised in its own complaint. Therefore, Spectrum’s interest in disclosure outweighs Verizon’s interest in privacy.

Furthermore, a protective order limiting usage of the material would adequately address any privacy concerns. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 38.) Verizon concludes without basis that Spectrum intends on using the information for “anticompetitive” purposes and that a protective order would be insufficient. (See Kimpang Decl. ¶ 21.) This speculation does not justify withholding directly relevant information put at issue by Verizon’s itself. There is no indication that a protective order would be insufficient.

IV. Timeliness

            Notice of a motion to compel further responses must be given either within 45 days of service of the responses, or by any later date agreed upon by the parties. (Code Civ. Proc., § 2031.310(c).)

            Here, the parties agreed to extend the motion to compel deadline to October 4, 2024, which is when Spectrum filed this motion and electronically served it. Verizon argues that the motion is untimely because electronic service extends the deadline by two court days. (See Code Civ. Proc., § 1010.6(a)(3)(B).) However, that refers to the deadline to complete any act after the electronic service is made. The service itself is effective on the date it is sent. (Id., § 1010.6(a)(4).) The electronic service occurred on October 4, 2024 as agreed. Thus, the motion is timely.

CONCLUSION

            Spectrum’s motion to compel further responses is GRANTED. Verizon shall provide a further response to RFP No. 1 within 20 days of this order. Production shall be subject to a protective order. Sanctions are denied as the parties acted with substantial justification.