Judge Peter A. Hernandez, Case Number: 22PSCV00733, Date: 2023-12-18 Tentative Ruling

Judge: Peter A. Hernandez, Case: 22PSCV00733, Date: 2023-12-18 Tentative Ruling

Case Number: 22PSCV00733 Hearing Date: December 18, 2023 Dept: K

Plaintiff Yolanda Jauregui’s unopposed Motion for an Order to Release Phone Records from Verizon is GRANTED.

Background

Plaintiffs Yolanda Jauregui (“Yolanda”) and Francisco C. Barba (“Francisco”) (together, “Plaintiffs”) allege as follows:

Yolanda and Francisco Barba (“Franky”) are siblings; Francisco Sr. is their father. Diana Barba (“Diana”) is Franky’s wife. Franky’s and Yolanda’s mother and Francisco’s wife, Maria C. Barba (“Maria”), died in October 2009. Maria promised Yolanda that once Francisco died, the property located at 4253-4261 Maxson Rd. in El Monte (“Maxson Properties”), which Maria and Francisco owned as joint tenants, would be split between Franky and Yolanda. Francisco agreed with Maria’s wishes. After Maria died, Francisco went into a depression and exhibited strange mental behaviors. During the pandemic, Franky began to isolate Francisco from some of his family. On or around January 8, 2021, Franky had Francisco sign a grant deed transferring the Maxson Properties to Franky. Franky also took the money in Francisco’s bank account. Francisco died in February 2022. Franky subsequently filed a Revocable Transfer on Death Deed naming Diana as his beneficiary.

On July 18, 2022, Plaintiffs filed a complaint, asserting a cause of action against Franky, Diana and Does 1-10 for:

1. Financial Elder Abuse

The Final Status Conference is set for April 23, 2023. Trial is set for May 7, 2024.

Legal Standard

A motion to compel compliance with a deposition subpoena may be sought under either Code of Civil Procedure §§ 1987.1 or 2025.480. “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), . . . 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 order 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).) “The following persons may make a motion pursuant to subdivision (a): (1) A party. . .” (Code Civ. Proc., § 1987.1, subd. (b).)

Additionally, “if a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).)

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (California Rules of Court [“CRC”] Rule 3.1346).

Discussion

Yolanda moves the court for an order compelling nonparty Verizon to comply with Yolanda’s subpoena for production of business records.

Plaintiff’s counsel Matthew Alden (“Alden”) represents as follows:

On or about August 22, 2023, the subject subpoena was served. (Alden Decl., ¶ 3, Exh. 1.) The subject subpoena seeks Francisco’s phone records from the February 1, 2020 to February 1, 2021 time frame. (Id.) Verizon provided a letter to Alden dated August 25, 2023, advising therein that it would not produce any responsive records absent a signed consent from the account holder or a court order. (Id., ¶ 5, Exh. 1). On August 30, 2023, Alden spoke with Verizon’s agent, Andrea, and advised her that the owner of the phone number was dead and that no parties had objected to the subpoena. (Id., ¶ 6). Alden was told that a court order would be needed. (Id.)

Plaintiff represents that the records from this time frame are relevant because they were made shortly before and around the time Francisco transferred his house to Franky.

At the outset, the court determines that Yolanda has sufficiently complied with CRC Rule 3.1346, inasmuch as Alden attests that he was given a fax number of (888) 667-0028 where Verizon wished to be served with the instant motion. (Alden Decl., ¶ 6). The accompanying proof of service reflects that service was made to Verizon via facsimile with the aforesaid number listed.

Code of Civil Procedure § 1985.3, subdivision (f) provides that “[a] subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.” Here, however, no consent can be obtained, as Francisco is deceased.

The unopposed motion, then, is granted.