Case Number: BC643963 Hearing Date: October 01, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL AUTHORIZATION FOR RELEASE OF PLAINTIFF’S CELL PHONE RECORDS; MOTION DENIED

On December 15, 2016, Plaintiff Lily Nathan (“Plaintiff”) filed this action against Defendants City of Los Angeles, County of Los Angeles, and Los Angeles County Metropolitan Transportation Authority (collectively, “Defendants”) for premises liability and general negligence relating to a December 17, 2015 trip and fall incident. Defendant seeks to compel inspection of Plaintiff’s cell phone records for the three hour period surrounding her fall. Defendant does not seek discovery of the content of any text messages or calls. Rather, Defendant argues the existence of calls or messages at the time of the fall would contradict her deposition testimony that she was not using her cell phone at the time of the fall. Defendant contends that the elevation alleged to be a dangerous condition is not dangerous absent distractions.

It does not appear Defendant has served a subpoena on Plaintiff’s cell phone service provider or requested the records from Plaintiff through written discovery. The Court may compel compliance with a deposition subpoena (Code of Civ. Proc., § 1987.1, subd. (a)), or may compel a party’s responses to a demand for production of documents (Code of Civ. Proc., § 2031.300, subd. (a)). However, Defendant does not cite to any authority, and the Court is unaware of any, that allows the court to compel a Plaintiff’s authorization for records. The proper procedure is to request the documents through written discovery or to serve a subpoena for business records. If no response is made, then the court may make an order compelling compliance.

Accordingly, the Motion to compel Plaintiff’s authorization for release of cell phone records is DENIED.

Moving party to give notice.