Judge: Robert B. Broadbelt, Case: 18STCV00849, Date: 2022-08-24 Tentative Ruling

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Case Number: 18STCV00849    Hearing Date: August 24, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Par Engineering, Inc. dba Commercial Cooling

RESPONDING PARTIES:    Plaintiffs Karine Aladzhanzian, Vardevar Aladzadzhian, and Vahe Aladzhanzian, individually and as successors-in-interest to Ara Aladzhanzian (deceased)

Motion to Compel Compliance with Subpoena for production of Business Records  

The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiffs Karine Aladzhanzian, individually and as successor-in-interest to Ara Aladzadzhian (deceased), Vardevar Aladzhanzian, individually and as successor-in-interest to Ara Aladzhanzian (deceased), and Vahe Aladzhanzian, individually and as successor-in-interest to Ara Aladzhanzian (deceased) (collectively, “Plaintiffs”) filed this action on October 15, 2018. 

Plaintiffs filed their operative First Amended Complaint on August 4, 2021, asserting two causes of action for (1) strict products liability and (2) negligence against, inter alia, defendant Par Engineering, Inc. dba Commercial Cooling (“Defendant”).

DISCUSSION

Defendant moves the court for an order directing nonparty T-Mobile USA, Inc. (“T-Mobile”) to comply with its deposition subpoena for production of business records, issued on December 29, 2021.  (Kahn Decl., Ex. A.)

            The court grants Defendant’s motion to compel T-Mobile’s compliance with its deposition subpoena.  (Code Civ. Proc., § 1987.1, subd. (a).)

            First, the court finds that section 1985.3, subdivision (f) is inapplicable to the circumstances presented.  Defendant seeks the production of records pertaining to the cellphone number owned by Ara Aladzhanzian, who is deceased.  (Khan Decl., Ex. A, Attachment 3.) Although a subpoena duces tecum for personal records maintained by a telephone corporation is ordinarily not valid or effective “unless it includes a consent to release, signed by the consumer whose records are requested,” it would be impossible to obtain the signature of the consumer whose records are requested (i.e., Ara Aladzhanzian), since he is deceased.  (Code Civ. Proc., § 1985.3, subd. (f).)  “The law never requires impossibilities.”  (Civ. Code, § 3531.)  The court therefore finds that section 1985.3, subdivision (f) does not require denial of Defendant’s motion.

            Second, the court finds that the records are relevant to the subject matter involved in this action and appear reasonably calculated to lead to the discovery of admissible evidence because the records may establish whether the decedent used his cellphone prior to or during the subject incident, which may prove or disprove any liability that can be attributed to the decedent, and whether the decedent’s cellphone received any calls after the accident as claimed by Plaintiffs.

            Third, the court recognizes that Plaintiffs have already produced redacted phone records to Defendant.  (Yenikomshuyan Decl., ¶ 4.)  However, Defendant is not required to rely solely on the records produced by Plaintiffs, and is entitled to obtain these records from a person or entity who is not a party to the action.  (Code Civ. Proc., § 2020.010.)   

            As to the asserted privacy concerns, the decedent no longer has a privacy interest in his phone records.  (Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, 62 [the right to privacy “dies with the person”].)  The court also recognizes that Plaintiffs are concerned that these records will reveal usage for other numbers.  The court, however, finds that this concern can be addressed by (1) ordering that T-Mobile produce records only pertaining to the phone number owned by decedent Ara Aladzhanzian, and (2) issuing a protective order.

ORDER

The court grants defendant Par Engineering, Inc. dba Commercial Cooling’s motion for order directing T-Mobile USA, Inc. to comply with deposition subpoena for production of business records.  (Code Civ. Proc., § 1987.1, subd. (a).)

            Pursuant to Code of Civil Procedure section 1987.1, the court orders T-Mobile USA, Inc. to comply with defendant Par Engineering, Inc. dba Commercial Cooling’s Deposition Subpoena for Production of Business Records, issued on December 29, 2021, by producing documents which are responsive to the deposition subpoena, but only as to the records relating to the cellphone number owned by decedent Ara Aladzhanzian (818-416-3291).  The court orders that T-Mobile USA, Inc. shall not produce records pertaining to any other cellphone numbers that may be associated with decedent Ara Aladzhanzian’s account.

The court issues a protective order that the parties and their attorneys shall not disclose any of the documents or information which they may obtain by this order to anyone who is not a party, an attorney for a party, or an expert or expert consultant retained by a party to this action, and those records shall not be used by the parties or their attorneys for any purpose other than to prosecute of defend this lawsuit, without the written agreement of the parties or further order of the court.¿¿ The parties and their counsel may prepare a more detailed proposed stipulation for protective order and lodge it with the court, if they believe one is necessary or appropriate.  

The court orders defendant Par Engineering, Inc. dba Commercial Cooling to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 24, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court