Case Number: GC047929 Hearing Date: June 12, 2014 Dept: A

Zhang v City of Arcadia

MOTION TO QUASH SUBPOENA

Calendar: 19
Case No: GC047929
Date: 6/13/14

RELIEF REQUESTED:
1. Motion of Defendant, Bowen Du
Order quashing City of Arcadia’s subpoena to obtain records from T-Mobile

2. Motion of Defendant, City of Arcadia
Order compelling T-Mobile to comply with subpoena for records.

DISCUSSION:
This case arises from a motor vehicle accident that occurred when the Defendant, Bowen Du, failed to stop at a crosswalk. Alice Zhang and Priyanka Patel suffered injuries when they were struck by Bowen Du’s motor vehicle. Alice Zhang died as a result and her parents have filed a Complaint in GC047929 to seek damages for her wrongful death. Priyanka Patel has filed a Complaint in GC048703.
In addition, the Plaintiffs in both GC047929 and GC048703 claim that the crosswalk had a dangerous condition created by the Defendant, City of Arcadia.
Trial is set for October 6, 2014.

This hearing concerns a dispute arising from the City of Arcadia’s trial subpoena for business records that it served on T-Mobile. The City of Arcadia seeks business records for the day of the motor vehicle accident in order to determine whether Bowen Du was using his cell phone at the time of the accident.

1. Motion to Quash
CCP section 1987.1 permits the Court to make order quashing a subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the Court shall declare, including protective orders. The Defendant argues that the records of his telephone calls are protected by the right to privacy.
Where discovery involves matters encompassed by the right to privacy, Courts recognize that judicial discovery orders inevitably involve state-compelled disclosure subject to constitutional constraints. Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 566-567. The constitutional right of privacy provided by Article 1, section 1 of the California Constitution and implied by provisions of the United States Constitution is not absolute and it may be abridged when there is a compelling and opposing state interest. Id.
The need to obtain information in discovery is such a state interest. However, discovery into information protected by the right of privacy cannot be justified solely on the ground that it may lead to relevant information. Id. Instead, the proponent of discovery into constitutionally protected material has the burden of making a threshold showing that the evidence sought is “directly relevant” to the claim or defense. Britt v. Superior Court (1978) 20 Cal.3d. 844, 859-862. Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; instead, the Court must carefully balance the compelling public need for discovery against the fundamental right of privacy. Mendez, 206 Cal. App. 3d 557, 566-567.
The City of Arcadia served a subpoena for records of the Defendant’s use of his cell phone on the day of the accident. The Defendant has a reasonable expectation of privacy with regards to his use of his cell phone. However, the records concerning the Defendant’s use of the cell phone at the time of the accident are directly relevant to the issue of whether the Defendant was negligently operating his motor vehicle. Further, the City of Arcadia asserts that the records will directly impeach the Defendant’s claim that he was not using the cell phone at the time of the accident.
The accident occurred at 6:42 pm. The records of the Defendant’s cell phone use for the entire day are not directly relevant to the issue of the Defendant’s negligent operation of the motor vehicle at 6:42 pm. Instead, the Court will order that the subpoena will be modified so that it compels the production of records for the relevant time period, e.g., the records of the Defendant’s cell phone usage from 6:30 pm to 7:00 pm. Since the identity of the persons to whom the Defendant was speaking is irrelevant, the Court will also order that the telephone numbers be redacted. This will limit any invasion of privacy.

The Defendant argues in his motion that the records are irrelevant because the Defendant’s police detective “admitted” in the police report that the Defendant was not using his cell phone. A copy of the Traffic Collision Report is in exhibit B. The report indicates on page 2 that a “forensic download” of P-1’s cell phone showed that it was not in use at the time of the collision. P-1 is the Defendant, Bowen Du.
However, a Traffic Collision Report is not an official act of or admission by the City of Arcadia. Instead, it is a record based on the statements of third parties compiled by the police and it is an inadmissible public record. People v. Flaxman (1977) 74 Cal. App. 3d Supp. 16, 20. The report is reasonably subject to dispute because it is based on a police officer’s observations. Otherwise, motor vehicle cases would be straightforward because the parties could simply rely upon a police officer’s determination to adjudicate liability.
Accordingly, there is no admission by the City of Arcadia that the Defendant was not using his cell phone at the time of the accident. Instead, the City of Arcadia may obtain discovery of the records because they are directly relevant to the issue of whether the Defendant was negligently operating his motor vehicle at the time of the accident.

Therefore, the Court will deny the request to quash the entire subpoena; instead, the Court will modify the subpoena under CCP section 1987.1 so that it compels the production of documents for the time period of 6:30 pm to 7:00 pm on the day of the accident and so that the telephone numbers are redacted from the records.
Further, the Court will order T-Mobile to comply with the subpoena as modified. This is required because T-Mobile has stated that it will not comply with the subpoena unless it is accompanied by written consent or a Court order (per T-Mobile’s May 20, 2014 letter in exhibit 3 to City of Arcadia’s motion to compel compliance).

2. Motion to Compel Compliance
The City of Arcadia filed this motion to seek an order compelling T-Mobile to comply with its subpoena. The analysis of the Defendant’s motion to quash reveals that the Court will compel compliance with the subpoena, as modified so that it limits the records for the time period from 6:35 pm to 6:50 pm and redacts the telephone numbers. Accordingly, the City of Arcadia’s motion is moot because this issue will be decided by the Defendant’s motion to quash.

RULING:
1. Motion of Defendant, Bowen Du
Modify subpoena so that it obtains records from T-Mobile of the Defendant’s cell phone usage from 6:30 pm to 7:00 pm on the day of the accident and so that the telephone numbers are redacted.

2. Motion of Defendant, City of Arcadia
Take off calendar as moot.