Case Number: BC634523    Hearing Date: July 25, 2017    Dept: 46

Case Number:  BC634523
KENYA TORRES VS UPPER SAN GABRIEL VALLEY MUNICIPAL WATER DIS

Filing Date:  09/20/2016
Case Type:  Wrongful Termination (General Jurisdiction)

7/25/2017
Motion to Compel Further Responses + Joinder

 

Future Hearings:

8/08/2017Motion to Compel Compliance with Subpoena

1/12/2018 Conference-Post Mediation Status/FurtherSC

3/27/2018 Final Status Conference

4/11/2018 Jury Trial

 

NOTICE OF TENTATIVE RULING AND PROCEDURE

FOR SUBMISSION WITHOUT HEARING

 

The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived.  The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court  directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court  that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered.  ALL PARTIES must appear in Court.  Needless to say, if parties do not submit, there is NO NEED to contact the Court.  The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.

 

TENTATIVE RULING

 

Defendant’s Motion for Order Compelling Cellco Partnership dba Verizon Wireless (hereinafter “Verizon”)’s Compliance with Business Records Subpoena pursuant to CCP §2025.480(b) is DENIED.  The motion is untimely pursuant to CCP § 1985.3(g). The subject subpoena was void ab initio pursuant to CCP §1985.3(f). The parties should adopt Plaintiff’s suggested resolution of the issue by allowing Verizon to produce the records to Plaintiff only, and then Plaintiff can screen out privileged phone records and produce those to/from Trejo along with a declaration of completeness/compliance. Sanctions are denied as there was substantial justification for the motion. See discussion.

 

DISCUSSION

 

The subject discovery was served on 11/18/16. (Declaration of Naomi C. Pontious [hereinafter “Pontious Dec.”] Exhibit 5).

 

On 12/6/16, Verizon objected on the grounds that it was statutorily prevented from releasing the records without customer consent or a court order. (Id. Exhibit 6).

 

On meeting and conference, Plaintiff expressed concern that Verizon would produce more than was requested, and therefore refused to sign an authorization form unless she could review the production first to ensure that no records of contacts other than those between herself and Trejo were produced. (Id. Exhibit 7).

 

Plaintiff served her objections to the business records subpoena on 2/17/17, after the instant motion was filed on 2/6/17. (Declaration of Sherri Nazarian [hereinafter “Nazarian Dec.”] Exhibit A).

 

Both parties request sanctions.

 

CCP § 1987.1 provides:

 

“(a) 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), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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.

(b) The following persons may make a motion pursuant to subdivision (a):

(1) A party…”

 

CCP § 1985.3 provides, in relevant part:

 

(f) 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.

(g)… No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion has been brought by a consumer, or after receipt of a written objection from a nonparty consumer, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected. The party requesting a consumer’s personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection. The motion shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer’s attorney.”

 

“Unlike privilege, the protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery (see ¶8:323). Disclosure may be ordered if a “compelling public interest” would be served thereby. [Britt v. Sup.Ct. (San Diego Unified Port Dist.), supra, 20 C3d at 855-856, 143 CR at 702; John B. v. Sup.Ct.(Bridget B.) (2006) 38 C4th 1177, 1199, 45 CR3d 316, 332].” Weil & Brown, et al., Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2016), ¶ 8:294.

 

“The party seeking discovery must show a particularized need for the confidential information sought. The broad ‘relevancy to the subject matter’ standard is not enough here. The court must be convinced that the information is directly relevant to a cause of action or defense … i.e., that it is essential to determining the truth of the matters in dispute. [Britt v. Sup.Ct. (San Diego Unified Port Dist.)[, supra,] 20 C.3d [at] 859-862; Harris v. Sup.Ct. (Smets) (1992) 3 C.A.4th 661, 665 (citing text)].” Id. at ¶ 8:320 (emphasis theirs). “Discovery will not be ordered if the information sought is available from other sources or through less intrusive means. [Allen v. Sup.Ct. (Sierra) (1984) 151 C.A.3d 447, 449; and see Britt v. Sup.Ct. (San Diego Unified Port Dist.)[, supra,] 20 C.3d [at] 856—discovery ‘cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved’].” Id. at ¶ 8:321.

 

“The court must then ‘carefully balance’ the interests involved: i.e., the claimed right of privacy versus the public interest in obtaining just results in litigation. [Valley Bank of Nevada v. Sup.Ct. (Barkett) (1975) 15 C.3d 652, 657; Alch v. Sup. Ct. (Time Warner Entertainment Co.) (2008) 165 C.A.4th 1412, 1422; Life Technologies Corp. v. Suo.Ct. (Joyce) (2011) 197 C.A.4th 640, 653]. Considerations should include: • the purpose of the information sought; • the effect that disclosure will have on the parties and the trial; • the nature of the objections urged by the party resisting disclosure; and • the ‘ability of the court to make analternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information undertakes certain specified burdens which appear just under the circumstances.’ [Valley Bank of Nevada v. Sup.Ct. (Barkett), supra, 15 C.3d at 658 (emphasis added; internal quotes omitted); see Pioneer Electronics (USA), Inc. v. Sup.Ct. (Olmstead) (2007) 40 C.4th 360, 371].”  Id. at ¶ 8:323.

 

The more “sensitive” the information (e.g., personal financial information, customers’ lists, trade secrets, etc.), the greater the need for discovery must be shown. [Hoffman Corp. v. Sup.Ct. (Smaystrla) (1985) 172 CA3d 357, 362, 218 CR 355, 357; Tien v. Sup.Ct. (Tenet Healthcare Corp.) (2006) 139 CA4th 528, 540, 43 CR3d 121, 129] Id. at ¶ 8:324.

 

As a preliminary matter, the motion is not untimely. By the plain statutory language, the 20-day limit for a motion to compel begins to run on the filing of an objection by a consumer or non-party whose personal records are sought, not the witness. CCP § 1985.3(g).

 

However, the subpoena is improper ab initio, and therefore may not be enforced. Subsection 1985.3(f) is clear, no subpoena for records from a telephone company is valid or effective without the consent signed by consumer whose records are requested. The court cannot order compliance with an invalid subpoena. District’s argument that, because Plaintiff is permitted to bring a motion to quash (CCP § 1985.3(g)), this is Plaintiff’s only avenue of resistance to the subpoena, is unpersuasive. Permission to file a motion to quash does not equate to a requirement to do so.

 

The parties should avoid further motion practice by adopting Plaintiff’s suggestion of letting Plaintiff review the production first, to weed out any communications not between her and Defendant Trejo.

 

Sanctions are denied. District’s argument that Plaintiff needed to bring a motion to quash rather than simply refuse consent to the subpoena, while erroneous, was not frivolous. The discovery sought is clearly relevant, and District is substantially justified in seeking it, even if the procedural vehicle proved ultimately inappropriate.

image_pdfimage_print