Judge: Steven A. Ellis, Case: 21STCV33010, Date: 2023-11-22 Tentative Ruling
Case Number: 21STCV33010 Hearing Date: November 22, 2023 Dept: 29
TENTATIVE
Defendants’
Motion is GRANTED as to phone number
562-513-0895.
Defendants’ Motion is DENIED without prejudice as to
phone number 323-571-5121.
Background
This cases arises from an alleged slip and fall on September 13, 2019.
Plaintiff Azucena Ortega Barraza (“Plaintiff”) filed the Complaint on September
7, 2021. Defendants Macerich Stonewood, LLC and Macerich Property Management
Company, LLC (“Defendants”) filed the Answer on November 3, 2021.
The dispute currently before the Court relates to Plaintiff’s cell phone
records. At an Informal Discovery Conference on March 17, 2023, Plaintiff
agreed to produce her cell phone records for the period of 4:00 pm to 5:00 pm
on the day of the accident. (Kennedy Decl., ¶ 7.) Subsequently, Plaintiff
served discovery responses that stated, among other things, that her cell phone
number was 323-571-5121; that her carrier was T-Mobile; and that she did not
have the records within her possession, custody, or control. (Id., ¶ 8.)
Other information produced in discovery, however, indicated that Plaintiff’s
cell phone number on the day of the accident was 562-513-0895. (Id., ¶
9.)
Defendants asked Plaintiff to provide an authorization for T-Mobile to
provide the records, but Plaintiff did not respond. (Id., ¶ 12.)
On or about June 7, 2023, Defendants served T-Mobile with a subpoena for
the production of records. The subpoena seeks records regarding the
562-513-0895 for the period of 4:00 pm to 5:00 pm on the day of the accident. (Id.,
¶ 13 & Exh. M.) T-Mobile objected to the subpoena. (Id., 14 ¶ &
Exh. N.)
On September 11, 2023, Defendants brought this motion. Plaintiff and
T-Mobile were duly served.
On November 8,
2023, Plaintiff filed her opposition. Counsel states in his declaration that 323-571-5121
is the phone number of Plaintiff’s son and that 562-513-0895 in the number that
belongs to Plaintiff. (Moreno Decl., ¶ 11.) Confusingly, however, counsel also
states that the 562-513-0895 phone number “belongs to Plaintiff’s son.” (Id.,
¶ 16; see also Opp. at 5:14-15.)
On November 15,
2023, Defendants filed their reply. They also filed objections to the certain
portions of the declaration of Plaintiff’s counsel.
Objections
Defendants’ objections are SUSTAINED as to the portions of the
Declaration of Gerardo Moreno Jr. (Plaintiff’s attorney) in which the declarant
states which phone number belongs to Plaintiff and which phone number belongs
to Plaintiff’s son. The objections are sustained based upon lack of foundation/lack
of personal knowledge.
Defendants’ objections are otherwise OVERRULED.
Discussion
Although there is some confusion here, largely in Plaintiff’s
submissions, it appears to the Court that there is no dispute that the Court
should issue an order compelling T-Mobile to comply with the subpoena. The
subpoena seeks records regarding the 562-513-0895 (only) for the period of 4:00
pm to 5:00 pm on the day of the accident. (Kennedy Decl., Exh. M.)
Defendants seek to compel T-Mobile to produce additional records relating
to a different phone number, 323-571-5121. The Court DENIES this request
without prejudice. The subpoena issued to T-Mobile did not ask for these
records, and the Court cannot, on a motion to compel compliance with a
subpoena, expand the subpoena or order a third party to produce records that
are not requested by the subpoena.
The Court states no views as to whether Defendants may properly subpoena
T-Mobile for records relating to the 323-571-5121 phone number or as to how it
would rule if asked to compel compliance with such a subpoena.
Conclusion
The
Court GRANTS Defendants’ Motion as it relates to phone number 562-513-0895.
The Court ORDERS third party T-Mobile to comply with
the subpoena issued on June 7, 2023, and to produce the records requested in
that subpoena.
The Court DENIES Defendants’ Motion without
prejudice as it relates to phone number 323-571-5121.
Moving party is ordered to give notice.