Judge Gary I. Micon, Case Number: 22CHCV01194, Date: 2024-03-25 Tentative Ruling

Judge: Gary I. Micon, Case: 22CHCV01194, Date: 2024-03-25 Tentative Ruling

Case Number: 22CHCV01194 Hearing Date: March 25, 2024 Dept: F43

Dept. F43

Date: 3-25-24

Case #22CHCV01194, Kai-Lin Chang vs. Brittany A. Doremus, et al.

Trial Date: 8-26-24

MOTION TO COMPEL AT&T TO COMPLY WITH SUBPOENA

MOVING PARTY: Plaintiff Kai-Lin Chang

RESPONDING PARTY: Defendant Brittany A. Doremus

RELIEF REQUESTED

Plaintiff requests that the Court compel AT&T to release the text message records for Defendant; or in the alternative, compel Defendant to consent to the release of the records. Plaintiff also requests sanctions.

RULING: Motion to compel Defendant to consent is granted.

MOTION FOR PROTECTIVE ORDER

MOVING PARTY: Defendant Brittany A. Doremus

RESPONDING PARTY: Plaintiff Kai-Lin Chang

RELIEF REQUESTED

Defendant requests that the Court enter a protective order prohibiting Plaintiff from subpoenaing Defendant’s phone records

RULING: Motion for protective order is denied.

SUMMARY OF ACTION

At around 8:45 a.m. on September 12, 2022, Defendant Brittany A. Doremus (Defendant) was driving her motor vehicle when she struck Plaintiff Kai-Lin Chang’s (Plaintiff) bicycle. Plaintiff alleges that he sustained serious injuries as a result of the accident that required surgery and months of physical therapy. Plaintiff alleges that he had the right of way at the time of the accident and has sued Defendant for negligence. Plaintiff has also sued Defendant’s employer, Kaiser Permanente, on the theory that Plaintiff was acting in the scope of her employment at the time the accident occurred.

Defendant has already produced call records for the time frame of the accident. Plaintiff also seeks text message records in order to determine if Defendant was texting at the time of the accident, which would mean that Defendant was in violation of Vehicle Code 23123, which forbids using a mobile phone while driving.

After months of meeting and conferring, it appeared that the parties had reached an agreement for Plaintiff to consent to AT&T producing Defendant’s Text Detail Report for text longs from 6:00 a.m. to 12:00 p.m. on the date of the accident. The Text Detail Report would only show the sender number, recipient number, and the date and time of the text messages during the relevant time frame. It would not show the content of the text messages. (Motion at p. 7.)

After Defendant told Plaintiff that she could not access the Text Detail Report herself, Plaintiff subpoenaed AT&T directly. AT&T responded on January 2, 2024, that it would not comply with the subpoena without a signed written consent pursuant to Public Utilities Code § 2891 and CCP § 1985.3(f). Throughout the month of January, the parties went back and forth on what the language of the consent would say. Plaintiff believed that Defendant had the intention to sign the consent once the parties agreed on the language. However, on February 5, 2024, Defendant suddenly indicated that she would not sign the consent form and accused Plaintiff of harassing and threatening her.

Thereafter, Plaintiff filed the motion to compel compliance on February 9, 2024. Plaintiff’s motion is to compel AT&T’s compliance with the subpoena, or, alternatively, compel Defendant to consent to the subpoena. In response, Defendant not only filed an opposition, but also her own motion for protective order on February 16, 2024. In her motion, Defendant argues that there is good cause for a protective order because the request for the Text Detail Report raises privacy concerns. Additionally, she argues that Plaintiff already has all the information he needs based on records she’s already produced and her statement that she was not using her phone at the time of the incident.

In her opposition to Plaintiff’s motion to compel compliance, Defendant argues that Plaintiff’s motion is improper and not code-compliant because it does not contain a signed consent form from her to obtain personal records from a public utility. Defendant also argues that there is no good cause for compelling her records, and it would invade her privacy. She also argues that Plaintiff’s request for sanctions should be denied.

Plaintiff argues in his reply that Defendant’s opposition does not comply with the California Rules of Court because she did not include a table of contents and cited to evidence with no basis. Plaintiff also argues that Defendant’s argument regarding the lack of consent makes little sense, as Plaintiff filed this motion precisely because Defendant would not sign the consent. Plaintiff also argues that Defendant has no privacy right in the Text Detail Report, and there is no third party privacy rights to a telephone number. Finally, Plaintiff argues that there is a compelling need for the phone records, and that Defendant should be sanctioned for her conduct.

Plaintiff’s opposition to Defendant’s protective order motion contains similar arguments to his reply, including that the Text Detail Report is relevant and that there is no privacy right in the phone records. He also argues that Defendant’s motion fails to state the elements required to grant a protective order, including good cause and undue burden. Plaintiff also argues that Defendant’s motion was not filed promptly and that Defendant failed to meet and confer on the protective order. Plaintiff also argues for sanctions because of Defendant bringing the motion.

In Defendant’s reply, she argues that her motion was not untimely and that the parties did meet and confer. She also argues that there is good cause for a protective order and that Plaintiff is not entitled to sanctions.

ANALYSIS

Compel Compliance with Subpoena

CCP § 1985.3 and Public Utilities Code § 2891 state that subpoenas of public utilities companies are not enforceable where a party has not given their consent to the release of their records. Defendant argues that because she has not given her consent, then the subpoena on AT&T is not enforceable. The Court agrees. However, the Court may order Defendant to give her consent if the Court finds that the information is discoverable and good cause exists to obtain the text logs.

Discovery rules are applied liberally in favor of discovery. (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Further, all doubts about discovery are resolved in favor of disclosure. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119.) “Discovery may be obtained … of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (CCP § 2017.010.) Any information that “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement” falls within the definition of permissible discovery. (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611.) Parties to litigation are required upon proper demand to produce documents in their possession, custody, or control. (CCP 2031.010(a).)

First, because Defendant’s consent is required to obtain the Text Detail Report, it is in her control for purposes of application of the Discovery Act.

Next, Plaintiff argues that good cause exists to obtain the Text Detail Report because it may show Defendant’s negligence and whether she was in violation of Vehicle Code § 23123 if she was texting and driving. Plaintiff argues it may also show whether she was communicating with her work since she was running late for an 8:30 a.m. meeting at work, which may have implications for Defendant Kaiser’s “coming and going” rule defense. As Plaintiff already obtained Defendant’s call logs, the Court finds that good cause exists for Plaintiff to obtain Defendant’s Text Detail Report, as well.

That leaves the argument of whether Defendant has legitimate privacy concerns. The right to privacy protects against “the unwarranted, compelled disclosure of various private or sensitive information regarding one’s personal life, including his or her financial affairs, political affiliations, medical history, sexual relationships, and confidential personnel information.” (27B Cal. Jur. 3d Discovery and Depositions § 27.) Although discovery of private information requires a balancing test, where “there is no serious invasion of privacy no balance of opposing interests is required.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1256.) “[T]he invasion of privacy must be ‘sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.’” (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1427.)

In this case, Plaintiff already produced her call logs for the relevant time period. It is unclear to the Court why she is refusing to consent to the Text Detail Report when it would contain no information besides phone numbers and time stamps. None of the content of her messages would be in the report. It would simply demonstrate whether she was sending or receiving text messages at the time of the incident. This would not be a serious invasion of privacy.

Because good cause exists to obtain the records and because there would not be a serious invasion of privacy, the Court grants Plaintiff’s motion to compel Defendant to give her consent to release the records. However, the Court agrees with Defendant on one point. If Plaintiff’s goal is simply to see if Defendant was sending or receiving messages during the incident, the six hour timeframe of 6 a.m. to 12 p.m. is much too broad. The Court grants Plaintiff’s motion to compel compliance, but with a shortened timeframe of 8:30 a.m. to 9:30 a.m. on September 12, 2022. That should sufficiently cover the timeframe of the incident without casting too wide of a net.

Protective Order

For the reasons discussed above and given that the Court has granted Plaintiff’s motion to compel Defendant to consent, Defendant’s motion for a protective order is denied. There are no serious privacy concerns implicated by the Text Detail Report. There is also good cause to obtain the Report. Furthermore, the Text Detail Report will confirm whether Plaintiff was using her phone at the time of the incident. A protective order would also be unnecessary given the Court’s adjusted timeframe for the Text Detail Report.

Sanctions

Plaintiff has requested sanctions against Defendant and her attorneys of record for having to bring his motion and for having to oppose Defendant’s motion.

Plaintiff has requested $6,435 for having to bring the motion, and an extra $250 for Defendant’s alleged bad faith discovery tactics to delay production of the records.

CCP § 2023.030 provides: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” “Misuse of the discovery process” includes, but is not limited to failing to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery. (CCP § 2023.010.)

Plaintiff’s request for $6,375 is based on 8.5 hours of attorney time at $750 an hour plus the $60 filing fee. (Yong Decl., ¶ 35.) The additional $250 that Plaintiff is requested is based on CCP § 2023.050(a), which allows for a $250 sanction when a party does not meet and confer in good faith.

Defendant argues that she acted with substantial justification in opposing the subpoena of the text records, and therefore should not be sanctioned. (See CCP §2023.030(a).) The Court does not find that Defendant acted with substantial justification in opposing the subpoena, as she had previously produced call logs for the relevant time period, and there is little difference between those and text logs. The Court will not, however, impose the extra $250 in sanctions.

Sanctions for this motion are granted in the amount of $6,435 for attorney fees and costs against Defendant and her attorneys of record.

Plaintiff also requested $3,000 in sanctions for having to oppose Defendant’s protective order motion (4 hours at $750 an hour). “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2017.020(b).)

As previously noted, the Court does not find that Defendant acted with substantial justification. However, there is substantial overlap between Plaintiff’s arguments in his own motion and reply and the arguments in his opposition to Defendant’s motion for protective order. Because of this overlap, the Court will only impose sanctions for the motion to compel.

Sanctions are granted in the total amount of $6,435.

Conclusion

Plaintiff’s motion to compel Defendant to consent to the release of the records is granted for the timeframe of 8:30 a.m. to 9:30 a.m. on September 12, 2022.

Defendant’s motion for protective order is denied.

Plaintiff’s request for sanctions is granted in the total amount of $6,435 against Defendant and Defendant’s attorneys of record. Defendant and Defendant’s attorneys of record are to pay the sanctions to Plaintiff’s counsel within thirty (30) days.

Moving party to give notice.