Judge: David A. Hoffer, Case: 30-2022-01278450, Date: 2023-07-17 Tentative Ruling
The Motion to Compel brought by Plaintiff Corey Orlando Atonal Jovel pursuant to Code of Civil Procedure section 2031.310 is GRANTED. Defendant Sandford Needle is ordered to provide a further response to Plaintiff’s Request for Production, Set One, No. 19, within 20 days-notice of this order. The Court notes, however, that any production should be limited to cell phone usage records for 30 minutes before and after the incident, with all private information other than the date, time, and length of calls made and received, redacted.
This motion concerns Plaintiff’s Request for Production No. 19, which seeks: “All bills and usage statements for the date of the INCIDENT (i.e., the 24-hour time period) for any mobile communications device (such as a cellular telephone) in YOUR possession, custody and/or control on the date of the INCIDENT.” (¶8 of Nikarjam Declaration and Exhibit B thereto.)
As noted by Counsel for Plaintiff, “[t]his case involves an automobile vs. bike crash that occurred on April 7, 2021, at the intersection of Edinger Ave and Ballantine Lane in the City of Huntington Beach, County of Orange.” (¶2 of Nikarjam Declaration.) “Defendant, Sanford M. Needle, driving a 2004 Toyota 4runnerSUV, was driving north on Ballantine Lane and attempting to make a right turn when he crashed into Plaintiff Corey Orlando Atonal Jovel, on a bicycle, driving west on Edinger Ave.” (Ibid.) As noted by Counsel, “Defendant admits that he did not see Mr. Jovel at any time before the crash.” (¶3 of Nikfarjam Declaration and Exhibit A thereto at 30:9-18.)
The Court finds the above sufficient to establish “good cause” for the subject request, as the above demonstrates that Defendant’s activities and attention, at the time of the accident are relevant to this action. (Code Civ. Proc., §2031.310, subd. (b)(1).)
Defendant asserts this request is a speculative fishing expedition, as there is no evidence he was using his cell phone at the time of the accident. (Opposition: 5:3-27.) Defendant cites the Traffic Collision Report from the incident, wherein the responding officer checked boxes which indicate “CELL PHONE NOT IN USE.” (¶2 of Dao Declaration and Exhibit A thereto.) Defendant also cites his deposition testimony, wherein he testified that he was not using his cell phone. (¶4 of Dao Declaration and Exhibit B thereto, at 56:16-20.)
Defendant, however, overstates the burden for obtaining discovery. Plaintiff is not required to establish that Defendant was, in fact, on his phone, prior to obtaining evidence of phone use. Pursuant to Code of Civil Procedure section 2017.010, “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.)
Here, regardless of whether Defendant’s phone records establish Defendant was or was not using his phone, the records would provide relevant information. Stated more simply, to the extent the phone records confirm Defendant’s testimony, the records will remain relevant to the issue of fault.
Consequently, as the requested information is relevant to the subject matter of this litigation, sufficient “good cause” to support the request exists. (Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 588; See also Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
In response to Request for Production No. 19, Defendant objected, asserting the request invaded his privacy and was overly broad, burdensome, oppressive and irrelevant. (¶9 of Nikfarjam Declaration and Exhibit C thereto; See also ¶13 of Nikfarjam Declaration and Exhibit E thereto.) Without waiving these objections, Defendant responded: “After a diligent search and reasonable inquiry, defendant is unable to comply with this request as no such documents are in responding party’s possession, custody or control.” (Ibid.)
Initially, the statement of inability to comply does not meet the requirements of Code of Civil Procedure section 2031.230, as the statement does not “specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (Code Civ. Proc., §2031.230.) Additionally, the statement does not “set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., §2031.230.)
Additionally, As explained by the Court in Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, “a party has a general duty to conduct a reasonable investigation to obtain responsive information [citation removed] and must furnish information from all sources under his or her control.” (Id. at 1504.) “If only partial answers can be supplied, the answers should reveal all information then available to the party. If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)
Here, while Defendant asserts he is unable to obtain the information requested, he has not indicated the efforts engaged in to do so and it is unclear whether the information is held by a source under his control.
While Counsel for Defendant offers an excerpt from the website of Verizon Wireless, which indicates users can download “[t]alk, text and messaging activity details and spreadsheets for the last 90 days” and “18 months of past bill statements,” from their Verizon online account (¶7 of Dao Declaration and Exhibit E thereto), Defendant provides a limited portion of the relevant webpage which does not address whether older information is available to users, through some means other than their online account. For example, it remains possible that older records are retrievable, via a call to customer service.
Based on all of the above, the statement of inability to comply is insufficient and Defendant should “set forth the efforts made to secure the information” requested. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)
Next, Defendant asserts the motion should be denied, as the request invades the privacy of Defendant and third-parties. Additionally, Defendant asserts the request is overbroad, as it seeks 24-hours of information.
As explained by the California Supreme Court in Williams v. Superior Court (2017) 3 Cal.5th 531, “[t]he 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.” (Id. 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. A court must then balance these competing considerations.” (Id.)
As noted by Defendant, authority indicates cell phone records are subject to the right to privacy. The Court in Saunders v. Superior Court (2017) 12 Cal.App.5th Supp.1, for example, noted that individuals have “considerable and constitutional privacy interest[s] in [their] personal cell-phone records…” (Id. at 22.)
The Court finds, however, that the privacy interests of Defendant and any implicated third party, may be adequately protected through a narrowing of Plaintiff’s request and appropriate redactions.
A review of the meet and confer communications between counsel, demonstrates that Plaintiff offered to limit the relevant time-frame to two hours before and after the crash. (¶14 of Nikfarjam Declaration and Exhibit F thereto.) Additionally, Plaintiff advised that Defendant could redact the last four (4) digits of any phone numbers. (Ibid.) The Reply further proposes a narrowing to 30 minutes before and after the collision. (Reply: 2:12-13.) Similarly, the Reply proposes further redactions, such as “any private information, such as account information, account number, other users on the records, monthly charges on the account, phone numbers, and anything else Defendant’s chooses (sic) to redact.” (Reply: 2: 15-19.) Per the Reply, “Plaintiff is only looking for the date, time, and length of calls made and received.” (Ibid.)
Consistent with the above, to the extent records exist, the Court orders the production of cell phone usage records for 30-minutes prior to the incident and 30-mintues after the incident, with all private information other than the “date, time, and length of calls made and received” redacted.
No privacy interest in the “date, time and length of calls made and received” has been identified by Defendant and, similarly, no such interest is apparent. Moreover, even assuming a right to privacy exists, as to the timing and duration of calls, this information is directly relevant to this action, for the reasons stated above: Whether Defendant was distracted by his cell phone at the time of the incident, will be relevant to establishing fault.
While Defendant asserts that only a 5-minute period should be permitted, both before and after 1:05 p.m., given evidence which indicates Defendant was only driving for 2 minutes prior to the accident (Opposition: 7:3-6 and ¶4-¶5 of Dao Declaration), the request for a 30-minute period is not unreasonable. While the applicable Traffic Collision Report identifies the timing of the accident as 1:05 p.m., this appears to be an estimate provided after police responded to the incident. (¶2 of Dao Declaration and Exhibit A thereto.) Given the precision of this timing is unclear, it is not unreasonable to permit a 30-minute period, both before and after 1:05 p.m.
Based on all of the above, Plaintiff’s motion is granted, with the above stated limitations. Additionally, given the order partially granting Plaintiff’s motion, Defendant’s request for sanctions is denied. The Court finds that Plaintiff was substantially justified, in seeking a further response. (Code Civ. Proc., §2031.310, subd. (h) and Code Civ. Proc. §2023.030, subd. (a).)
Similarly, given the above order, the Court finds it unnecessary to rule on Plaintiff’s requests for an alternative order, compelling Defendant to execute an authorization pursuant to Public Utilities Code section 2891.
Plaintiff is ordered to give notice of this ruling.