Motion to Compel Response to Subpoena and Motion to Sever (Judge John J. Kralik)

Case Number: BC643161    Hearing Date: July 10, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

1. Allegations of the Complaint and Cross-Complaints

Plaintiff Daniel Garcia (“Garcia” or “Plaintiff”) commenced this action against Defendant Brunton Enterprises, Inc. dba Plas-Tal Manufacturing Co. (“Plas-Tal”).  Garcia alleges that he was on a building construction site at Universal Studios in his role as a carpenter for his employer, Matt Construction Company.  Plaintiff alleges he was using hand signals to communicate instructions with the crane operator, Plas-Tal, to lift and lower beams.  He alleges that he gave a hand signal to lower a beam, but Plas-Tal’s crane operator lifted the beam, causing the beam to come into contact with another wood beam that became dislodged and fell on Garcia’s head.  His complaint, filed December 7, 2016, alleges a single claim for personal injury damages.

On February 9, 2017, Garcia substituted Bigge Crane and Rigging Co. as Doe 1 and Scott Palmer as Doe 6.  On April 20, 2017, Garcia voluntarily dismissed without prejudice the complaint as to Defendant Scott Palmer (Doe 6) only.  On December 7, 2018, Garcia voluntarily dismissed with prejudice the complaint as to Plas-Tal regarding the waiver of costs only.

On January 11, 2017, Plas-Tal filed a cross-complaint against Cross-Defendant Bigge Crane and Rigging Co. (“Bigge”) for: (1) implied indemnity; (2) express indemnity; (3) equitable contribution; and (4) declaratory relief.

On April 19, 2017, Bigge filed a cross-complaint against Plas-Tal for: (1) contractual indemnity; (2) equitable indemnity; (3) contribution; and (4) declaratory relief.

On June 6, 2017, this action was consolidated with Arch Insurance Company v. Brunton Enterprises Inc. (Case No. BC651073).  The BC643161 action and the BC651073 action will hereinafter be referred to as the “Garcia action” and “Arch action”, respectively.

1. Relevant Background and Motion to Vacate

On March 12, 2020, Bigge filed a motion to sever trial of the cross-complaints from the main action, or to conduct the trial in two phases.

On March 16, 2020, Bigge filed a motion requesting an order directing T-Mobile to respond to subpoenas.

The Court is not in receipt of an opposition brief to the motions.  On June 30, 2020, Bigge filed Notices of No Opposition Received to the two motions on calendar.

DISCUSSION RE MOTION TO DIRECT T-MOBILE TO RESPOND TO SUBPOENAS

            Bigge moves for an order directing T-Mobile USA, Inc. and T-Mobile US, Inc. (collectively, “T-Mobile”) to respond to subpoenas.

1. Proofs of Service

California Rules of Court, Rule 3.1346 states: “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.”

On April 24, 2020, Bigge filed proofs of personal service of the moving papers on T-Mobile USA, Inc. and T-Mobile US, Inc.

1. Merits of Motion

Bigge served a subpoena on each of T-Mobile USA, Inc. and T-Mobile US, Inc., seeking all records regarding incoming/outgoing calls, call logs, call summaries, billings, statements, cellular service call details, all logs reflecting incoming/outgoing SMS messages, and all records containing date/times of messages for Garcia’s phone number.  (Cammarano Decl., Exs. 1-2.)  In response, T-Mobile/MetroPCS stated it was unable to respond to the subpoenas without the consent of the account holder pursuant to Public Utilities Code, §2891(a)(4) and CCP §1985.3(f), or a court order.  (Id., Ex. 3.)[1]

Bigge seeks Plaintiff’s cellular phone activity in order to refute his assertion that he was totally disabled as a result of the accident.  Bigge seeks the subpoenaed information to show the extent Plaintiff has been able to use his cell phone during his claimed total disability, including a 25-day period when he was purportedly in Mexico.

            Pursuant to CCP §1985.3, prior to the date called for in the subpoena duces tecum for the production of documents, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum personally or if he is a party to his attorney of record.  (CCP §1985.3(b).)  Personal records include documents pertaining to a consumer (individual) and which are maintained by any “witness”, including a telephone corporation which is a public utility.  (CCP §1985.3(a)(1)-(2).)  “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.”  (CCP §1985.3(f).)

            Public Utilities Code, §2891(a) states:

(a) No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber’s consent, in writing, any of the following information:

(1) The subscriber’s personal calling patterns, including any listing of the telephone or other access numbers called by the subscriber, but excluding the identification to the person called of the person calling and the telephone number from which the call was placed, subject to the restrictions in Section 2893, and also excluding billing information concerning the person calling which federal law or regulation requires a telephone corporation to provide to the person called.

(Pub. Util. Code, § 2891(a)(1).)

            Bigge argues that Public Utilities Code §2891 applies only to “residential subscribers” and not to cellular/mobile services.  However, CCP §1985.3 does not make any distinction with regard to personal records maintained by telephone corporations that are a public utility—whether the phone records sought are for residential subscribers or mobile phone users.  And here, Bigge acknowledges that Plaintiff has not given his consent for the production of the documents sought.  (Mot. at p.3.)

            The Legislature has apparently decided that telephone consumers’ right to privacy in their cellular communications outweighs the need for such information in private litigation.  Thus, the motion to direct T-Mobile to respond to the subpoenas is denied.

DISCUSSION RE MOTION TO SEVER

1. Legal Standard

            CCP §1048(b) states in relevant part:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of the state or of the United States.

(CCP §1048(b).)

1. Merits of Motion

            Bigge moves to sever trial of the cross-complaints between Plas-Tal and Bigge from Plaintiff’s underlying personal injury action.  Alternatively, Bigge requests that the trial be conducted in two phases before two separate juries: (1) the issues of the cross-complaints of Plas-Tal and Bigge (each alleging express and implied indemnity, contribution, and declaratory relief) be heard in phase one; and (2) Plaintiff’s underlying personal injury claim (negligence) in phase two.  Bigge states that it is currently the only personal injury defendant because Plaintiff dismissed the other defendants from the lawsuit.

According to Bigge, Plas-Tal’s claims hinge on whether the operation of Bigge’s crane was within the perimeter of the date of accident “job ticket” terms and conditions and whether Plas-Tal owed a duty of care to Plaintiff or Bigge, while Bigge’s cross-claims that the work was within the terms and conditions of the job ticket.   Bigge argues that its cross-complaint against Plas-Tal and Plas-Tal’s cross-complaint against Bigge are for indemnity, contribution, and declaratory relief, which relate to insurance obligations and the duty to defend and insure and which are irrelevant and separate from the personal injury action.

At this time, Bigge states that Plas-Tal and its insurer have denied coverage to Bigge.  Bigge argues that if Plas-Tal is held responsible for its contractual obligations, then Plas-Tal is obligated to defend Bigge before the jury and pay for defense fees incurred up to the assumption of its obligation.  On the other hand, Bigge contends that Plas-Tal may circumvent its indemnity obligations only if Bigge is found solely negligent.  Bigge then argues that the final findings of Plas-Tal’s indemnity obligation may possibly need to wait until the conclusion of the personal injury trial because there may be issues of comparative fault of Plaintiff or his co-workers that defeat Plas-Tal’s “sole negligence” defense.  Finally, Bigge argues that issues regarding insurance coverage should be severed because trying negligence with evidence of liability insurance in the same trial would violate Evidence Code §1155.

The Court finds that severance in this situation would be proper under CCP §1048(b) as it would further convenience and avoid prejudice to the parties, as well as be conducive to expedition and economy.  (See e.g., Rutter Guide, Cal. Prac. Gudie Civ. Trials & Ev. (Sept. 2019 Update) Ch.4-G, §4.348 [“Complaint for indemnification under a release and hold harmless agreement was properly severed from a cross-complaint for breach of these agreements. (Day v. Papadakis (1991) 231 CA3d 503, 506, 282 CR 548, 550 [disapproved on other grounds by Morehart v. County of Santa Barbara, supra, 7 C4th at 743-744, 29 CR2d at 815 & fn. 11])].)  Further, the motion is not opposed by any of the parties.  Bigge points out that Plas-Tal stated in its case management statement in section 14 regarding bifurcation (filed February 25, 2020) that it “intend[s] to file a motion for an order bifurcating and request separate trials under Code of Civil Procedure section 1048(b) of the Plaintiff’s personal injury action.”  (See Dennis A. Cammarano Decl., ¶12.)

CONCLUSION AND ORDER

Bigge’s motion for an order directing T-Mobile to respond to the subpoenas is denied.

Bigge’s motion to sever trial of Plas-Tal and Bigge’s cross-complaints from Plaintiff’s underlying personal injury complaint is granted.

Bigge shall provide notice of this order.

[1] Exhibit 4 of Bigge’s counsel’s declaration includes “refined” deposition subpoenas to T-Mobile.  (Cammarano Decl., Ex. 4.)