Judge: Frank M. Tavelman, Case: 24NNCV03570, Date: 2024-11-22 Tentative Ruling

Case Number: 24NNCV03570    Hearing Date: November 22, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Darren Frydendall & Shannon Smith (Plaintiffs) bring this action against Doe Defendants 1 through 25 (Doe Defendants). Plaintiffs allege that anonymous persons, identified here as Doe Defendants, have been contacting them through email since 2020. These emails are alleged to include racial epithets and to be of a generally harassing nature. Plaintiffs state a single cause of action for Intentional Infliction of Emotional Distress.

Before the Court is a motion to compel non-party Charter Communications (Charter) to comply with a deposition subpoena. Plaintiffs’ subpoena seeks all billing records in connection with an IP they allege is connected to the Doe Defendants. Plaintiffs state they require this information because they do not know the identity of the Doe Defendants.

Charter refused to comply with this subpoena, citing 47 U.S.C. 551(c)(2)(B) as preventing them from doing so without a court order. Charter has not opposed this motion, though it is uncertain whether notice of this motion was ever served on them.  

ANALYSIS: 

C.C.P. § 2025.210

As a preliminary matter the Court notes that Plaintiffs are not in compliance with C.C.P. § 2025.210. C.C.P. § 2025.210 prohibits a plaintiff from serving a deposition notice any time before 20 days from the date of service. This deposition “hold” applies to all discovery by deposition, including business records subpoenas to nonparties (California Shellfish, Inc. v. United Shellfish Co. (1997) 56 Cap.App.4th 16, 21 [improper to serve business records subpoena before serving any defendant with summons and complaint].) However, a court may authorize a plaintiff to serve a deposition notice before expiration of the "hold" for good cause shown. (C.C.P. § 2025.210(b).) Such relief may be granted via ex parte application. (Id.)   

Regardless, the Court finds this noncompliance is inconsequential given the circumstances. C.C.P. § 2025.210 et seq. As will be discussed below, the statutes governing the production of identifying information by internet service providers contain ample due process protections. These statutes essentially fill the role of properly noticing a party to the existence of an action against them prior to their information being revealed.  In short, the Court finds Plaintiffs failure to seek relief under C.C.P. § 2025.210 is not fatal to the instant motion.

Proof of Service

California Rules of Court, Rule 3.1346 requires a motion to compel compliance with a deposition subpoena to be personally served on the non-party whose compliance is sought. Here, Plaintiffs’ motion is unaccompanied by any proof of service. While Plaintiffs attach the Proof of Service for the subpoena itself, there is no evidence that this motion was personally served on Charter. On these grounds alone Plaintiffs’ motion is DENIED without prejudice.

Regardless, the Court finds further analysis on the merits to be prudent given Plaintiffs seem likely to renew this motion.

Motion to Compel Subpoena Compliance

Plaintiffs’ motion undoubtedly requests an order of this Court directing a non-party, Charter, to comply with a deposition subpoena. In California, such motions are governed by C.C.P. § 1987.1(a) which provides that, “…the Court, upon motion... may make an order... directing compliance with it upon those terms or conditions as the court shall declare.”

Plaintiffs’ Notice of Motion states this motion is brought pursuant to 47 U.S.C. 551(c)(2)(B). This is incorrect. 47 U.S.C. 551(c)(2)(B) states in relevant part, “A cable operator may disclose such information if the disclosure is…subject to subsection (h), made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.” 47 U.S.C. 551(c)(2)(B) does not, in and of itself, authorize this Court to order compliance with a non-party deposition subpoena. 47 U.S.C. 551(c)(2)(B) merely permits a cable provider to disclose personal identifying information pursuant to a court order, it does not independently authorize State courts (or any other courts) to make those orders.

As previously stated, whether an order should issue in regard to this motion is governed by C.C.P. § 1987.1(a). Although the statute does not require it, courts have made clear that the moving party must demonstrate good cause to compel a non-party’s compliance with a deposition subpoena. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-24 [holding that orders compelling non-party subpoena compliance require the same showing of good cause as orders compelling subpoena compliance of a party].)

However, because this motion requests the identification of Doe Defendants in connection with anonymous speech, the Court’s determination is not so simple. In Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, the California Court of Appeal established that a party seeking identifying information of an anonymous defendant must satisfy three requirements to overcome that defendant’s Constitutional right to anonymity.

First, the plaintiff must try to notify the anonymous speaker that they are the subject of a subpoena, if notice has not already been given. (Krinsky supra, 159 Cal.App.4^th at 1171.) What efforts suffice under this requirement are variable, as the Krinsky court recognized the fleeting nature of online forums and chat rooms. (Id.) The Krinsky court further observed that this requirement can be fulfilled by cable providers themselves, as they often provide notice to their subscribers when receiving a subpoena. (Id.)

Second, the plaintiff must specify the actionable statements made by the defendant and their alleged meanings. (See Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 635 [establishing this requirement and explaining that it was not discussed in Krinsky because the facts there did not require it].) In essence, the plaintiff must identify what defendant said and how those words create a cause of action. In Glassdoor, which concerned vague allegations of breach of contract, this meant the plaintiff had to identify what defendant’s statements were and how they gave rise to a cause of action for breach of contract. (Id.)

Third, the plaintiff must make a prima facie showing that their cause of action has merit. (Krinsky supra at 1173.) While Krinsky discussed this requirement only in the context of libel, the Glassdoor court made clear that a prima facie showing is mandatory in “any action predicated on anonymous speech.” (Glassdoor supra, 9 Cal.App.5th at 634-635.)

Any briefing in support of a renewed motion should appropriately address the Krinsky factors and their applicability to this motion. 

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Darren Frydendall & Shannon Smith’s Motion to Compel Compliance with Deposition Subpoena came on regularly for hearing on November 22, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL COMPLIANCE IS DENIED WITHOUT PREJUDICE.

PLAINTIFF TO GIVE NOTICE TO CHARTER COMMUNICATIONS.   

IT IS SO ORDERED. 

DATE:  November 22, 2024                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles