Judge Kerry Bensinger, Case Number: 19STCV18324, Date: 2023-08-11 Tentative Ruling

CASE: Jose Valenzuela, et al. v. A & E Appliance Repair Service, Inc., et al.

MOVING PARTY: Defendants Artur Hovsepyan and A & E Appliance Repair Service, Inc.

On May 24, 2019, Plaintiffs, Jose Valenzuela, Arlene Olivan, Robert Ramirez, and Railene Ramirez, filed this action against Defendants, A & E Appliance Repair Service, Inc. (“A&E”), and Artur Hovsepyan (“Hovsepyan”), for injuries arising from a motor vehicle collision. Plaintiffs allege that, on July 17, 2018, Plaintiffs were in their vehicle at a complete standstill when Hovsepyan rear-ended their vehicle. Hovspeyan is the employee-owner of A&E. Defendants represent that the incident occurred around 3:00 p.m.

On March 28, 2021, Hovsepyan signed a declaration stating that he has a vivid memory of the day of the incident and is certain he was driving his vehicle purely for personal use at the time of the incident, and not in the course and scope of any job and/or employment for A&E.

On June 8, 2023, Plaintiffs issued a deposition subpoena to Hovsepyan’s cell phone provider, H20 Wireless C/O Locus Telecommunications, Inc. (“H20 Wireless”), seeking records, of all calls, text messages, and data/cellphone usage activity made to and received by Hovsepyan’s phone for the entire day off July 17, 2018.

On July 6, 2023, Defendants filed this motion to quash the deposition subpoena. Defendants do not seek sanctions.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “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. In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . . .” (Code Civ. Proc., § 2020.410, subd. (a).)

1. Any and all DOCUMENTS and writings from H2O Wireless related to all calls made to and received by the phone number (818) 530-6163 on July 17, 2018, including the duration of calls, who initiated the call, and who received the call.

2. Any and all DOCUMENTS and writings from H2O Wireless related to all text messages made to and received by the phone (818) 530-6163 on July 17, 2018.

3. Any and all DOCUMENTS and writings from H2O Wireless related to the phone number (818) 530-6163 on July 17, 2018 for all data usage and/or cellphone usage activity.

Defendants argue that the subpoena should be quashed in its entirety because no evidence supports its issuance. As such, the subpoena seeks irrelevant information and violates Hovsepyan’s privacy rights. Defendants additionally argue the subpoena is overbroad.

Contrary to Defendants’ position, the subpoena is supported by evidence. Plaintiffs point to Hovsepyan’s declaration and discovery response to show (1) that Hovsepyan vividly remembers finishing work for the day by 12:00 p.m. and thus disputes being in the course and scope of his employment at the time of the incident (Karpov Decl., Ex. A, Hovsepyan Decl., ¶¶ 5-88) and (2) that Hovsepyan denies using his cellphone at the time of the incident (Karpov Decl., Ex. B, Response to Request for Admission No. 12).

The Court finds the subpoena seeks relevant evidence. Hovsepyan’s declaration makes the issue of whether he was working in the course and scope of his employment with A&E relevant. Hovsepyan’s discovery responses also raise the issue whether he was using his cell phone at the time of the incident relevant. Privacy interests here give way to relevance.[1] However, the Court agrees that the subpoena is overbroad. The Court will hear from counsel regarding the need for the substance of the text messages. Redaction and/or a protective order may be appropriate. It is undisputed the alleged incident occurred around 3:00 p.m. Accordingly, the Court limits the request to 10:00 a.m. to 5:00 p.m. of July 17, 2018.

The motion to quash the subpoenas is denied in part. The H20 Wireless subpoena is modified to the time period between 10:00 a.m. and 5:00 p.m. of July 17, 2018. The Court will hear from counsel regarding redactions and/or a protective order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] The relevant information appears to be related to the time of the calls and the length of the calls, if the actual numbers called and received are of concern, the Court will hear from counsel regarding whether the numbers can be redacted.