On 28 March 2014, the motion of defendant T&D Tile Co., Inc. to compel response to a deposition question and for an award of monetary sanctions was argued and submitted. Plaintiff Lisa DeGeorge filed a formal opposition to the motion in which she requests monetary sanctions.

Statement of Facts

This is an action for premises liability and negligence which arises from an alleged trip and fall that occurred the evening of 25 July 2012. Plaintiff Lisa DeGeorge (“Plaintiff”) alleges that she was walking through the restaurant lobby operated by defendant Dry Creek Grill, Inc. (“Dry Creek Grill”) when her foot caught on the slate floor and she fell, sustaining injury. Plaintiff alleges that the negligent installation of the floor by defendant T&D Tile Co., Inc. (“T&D Tile”) caused her fall.

Discovery Dispute

On 15 October 2013, the parties deposed two potential witnesses: Maunel Ornelas (“Mr. Ornelas”), the assistant manager at the Dry Creek Grill, and Joe Vanetti (“Mr. Vanetti”), the bar manager.

Mr. Ornelas initially testified that Plaintiff was on her cell phone, talking, when she fell walking through the restaurant lobby. (See Eisenberg Dec., Ex. C., p. 29:20-23) However, upon further questioning, Mr. Ornelas testified that he did not see Plaintiff fall and did not see Plaintiff on her cell phone as she was exiting out of the Dining Room 2, immediately before her fall. (See Blum Opp’n. Dec., Ex. C., p. 40:12-16.) He also testified that immediately after the fall, as he was assisting Plaintiff, he saw that she was on her cell phone. (See Blum Opp’n. Dec., Ex. C., p. 40:17-25.) In addition, he further testified that he saw Plaintiff walk outside to the fire pit on a couple of occasions during which she was talking with someone on her cell phone. (See Reply, attached Ornelas Dep., p. 31:2-24.)

Mr. Vanetti testified that while Plaintiff was at the bar, before her fall, she was on her cell phone. (See Eisenberg Dec., Ex. D., p. 16:23-25 17:1-6) He also testified that he saw her stand up from the bar but did not know where her cell phone was at that time. (See Eisenberg Dec., Ex. D., p. 18:14-20, 19:2-11.) He further testified that when he last saw Plaintiff before the fall, he did not see her with a cell phone in her hand. (See Eisenberg Dec., Ex. D., p. 19:2-11).

Plaintiff was deposed on 31 October 2013. Plaintiff testified that she was supposed to meet her friend at the Dry Creek Grill a little bit after 7:30 p.m. (See Blum Opp’n. Dec., Ex. A., p. 29:3-9.) She further testified that while she was at the Dry Creek Grill that evening she received texts on her cell phone from her friend. (See Blum Opp’n. Dec., Ex. A., p. 29:10-13, 32:8-12.) In addition, she testified that she did not remember whether she made any calls on her cell phone that night. (See Blum Opp’n. Dec., Ex. A., p. 33:10-19.) Plaintiff also testified that she had been at the Dry Creek Grill approximately two hours before her fall occurred, but she could not estimate the approximate time of her fall. (See Blum Opp’n. Dec., Ex. A., p. 34:15-25, p. 35:2-6.) She further testified that at the time of her fall, her cell phone was in her purse. (See Blum Opp’n. Dec., Ex. A., p. 66:21-25, 67:1-9, 72:16-21.)

Plaintiff testified that the cell phone that she had on the evening of her fall had since broken and she was now using a new cell phone with the same number. (See Blum Opp’n. Dec., Ex. A., p. 93:23-25, 94:1-9.) Counsel for T&D Tile then asked Plaintiff, “What is that phone number?” (See Blum Opp’n. Dec., Ex. A., p. 94:10.) Plaintiff’s counsel instructed her not to answer on the ground that the question invaded Plaintiff’s right to privacy. (See Blum Opp’n. Dec., Ex. A., p. 94:22-25; 95:13-14.)

Counsel for T&D Tile declares that following Plaintiff’s deposition, she met and conferred with Plaintiff’s counsel regarding the request for Plaintiff’s cell phone number, but was unable to resolve the issue. (See Eisenberg Dec., p. 1:10-12.)

Subsequently, on 21 November 2013, counsel for T&D Tile sent Plaintiff’s counsel a meet and confer letter. (See Eisenberg Dec., Ex. A., p.1.) Plaintiff’s counsel sent a reply letter on 27 November 2013, objecting to the subject question based upon privacy and relevancy grounds. (See Blum Opp’n. Dec., Ex. E., p. 1-3.)

On 17 January 2014, T&D Tile filed a motion to compel Plaintiff’s response to the deposition question asking for her cell phone number and for an award of sanctions. On 18 March 2014, Plaintiff filed papers in opposition to the motion in which she requests monetary sanctions. On 21 March 2014, T&D Tile filed reply papers in support of the motion.

Discussion

I. Motion to Compel Plaintiff’s Response to Deposition Question
II.
T&D Tile seeks an order compelling Plaintiff’s response to the deposition question asking for her cell phone number.

A. Legal Standard
B.
Code of Civil Procedure section 2025.480 provides that, if a deponent fails to answer any question during a deposition, the party seeking discovery may move the court for an order compelling an answer. (Code Civ. Proc., § 2025.480, subd. (a).) If the court determines that the answer sought is subject to discovery, it shall order that the answer be given on the resumption of the deposition. (Code Civ. Proc., § 2025.480, subd. (i).)

C. Analysis
D.
i. Timeliness of T&D Tile’s Motion
j.
As a threshold matter, Plaintiff argues that T&D Tile’s motion is untimely because it was filed 63 days after the completion of the record of the deposition.

Under Code of Civil Procedure section 2025.480, subdivision (b) a motion for an order compelling an answer to a deposition question or production of a document that is specified in the deposition subpoena shall be made no later than 60 days after the “completion of the record of the deposition.” (Code Civ. Proc., § 2025.480, subd. (b).)

Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, the only California case interpreting the phrase “completion of the record,” held that in the context of a motion to compel further responses to a subpoena duces tecum the record of the deposition is complete when the deponent produces documents subject to the request, serves objections, or in the case where the parties make arrangements for the deposing party to inspect and copy the requested records at the place where the records are usually kept, when the inspection is complete. (Id. at p. 132-134.)

There is no authority interpreting the phrase “completion of the record” in the case of a live deposition of a party in which a motion is sought to compel a response to a deposition question. (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:801, p. 8(E)-142 to 8(E)-143.) It is unclear whether the deposition record is deemed complete when the reporter sends notice that the transcript is available for review or only after the expiration of time to sign or correct the transcript. (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:801, p. 8(E)-142 to 8(E)-143.)

Even assuming arguendo that, in the case of a live deposition of a party, the deposition record is complete when the reporter sends notice that the transcript is available for review, the Court finds T&D Tile’s motion timely. (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:801, p. 8(E)-142 to 8(E)-143.)

In the present case, there is correspondence from the court reporter dated 15 November 2013, giving notice that Plaintiff’s original deposition transcript was available for review. The correspondence is addressed to Plaintiff and her counsel. Plaintiff argues that the 60-day time limit began to run on 15 November 2013, and that T&D Tile’s motion filed on 17 January 2014, is therefore untimely.

However, the correspondence does not indicate that notice was given to anyone other than Plaintiff and her counsel. There is no proof of service or other notation, such as an abbreviation for carbon copy, indicating that T&D Tile received a copy of the letter. In addition, counsel for T&D Tile declares that the notice of the transcript’s availability was not received until 20 November 2013. T&D Tile’s motion was filed within 60 days of the 20 November 2013 date.

Furthermore, unlike other limitations periods, such as 45-day limitation set forth in Code of Civil Procedure section 2031.310, subdivision (c) concerning motions to compel further response to a request for production of documents, the 60-day limitation period for a motion to compel an answer to a deposition question, set forth in Code of Civil Procedure section 2025.480, subdivision (b), does not appear to be jurisdictional, as it does not provide that a party who fails to comply with the deadline “waives any right” to compel answers. (Cf. Code Civ. Proc., §§ 2025.480, subd. (b) and 2031.310, subd. (c); see also Sexton v. Super. Ct. (1997) 58 Cal.App.4th 1403, 1409.)

Thus, the Court finds T&D Tile’s motion to be timely.

ii. Relevancy of the Information Sought
iii.
Plaintiff argues T&D Tile’s motion should be denied because the information sought, her cell phone number, is irrelevant.

Generally, a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter and is reasonably calculated to lead to discovery of admissible evidence. (See Code Civ. Proc., § 2017.010; Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 223.)

Plaintiff argues that she should not be compelled to answer the deposition question regarding her cell phone number because her cell phone number and/or records are not relevant and do not have “probative value under Evidence Code § 350 & 352.” (Opp’n., p. 10:10-14.)

First, Plaintiff’s citation to Evidence Code sections 350 and 352 is misplaced. Admissibility is not the test for discovery. (See Stewart v. Colonial West. Agency, Inc. (2011) 87 Cal.App.4th 1006, 1014.; TBG Ins. Services Corp. v. Super. Ct. (2002) 96 Cal.App.4th 443, 448.) In addition, Code of Civil Procedure section 2025.460, subdivision (c) states that “[o]bjections [. . . ] to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.” Code of Civil Procedure section 2025.460, subdivision (c) represents a legislative policy against making objections at depositions on the ground of relevance, even though it is entirely proper to object at trial to irrelevant questions. This distinction is logical. Discovery is an opportunity to, in some cases, “fish” for facts, see Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 224-225, whereas trial is an opportunity to present to the trier of fact only evidence that has the “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Thus, “irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.” (Stewart v. Colonial West. Agency, Inc. (2011) 87 Cal.App.4th 1006, 1014.)

Second, Plaintiff’s cell phone number is relevant to the subject matter of the action and reasonably calculated to lead to the discovery of admissible evidence. T&D Tile seeks Plaintiff’s cell phone number in order to subpoena phone records to determine whether Plaintiff was on her cell phone at the time of her fall. Mr. Ornelas and Mr. Vanetti testified that Plaintiff was using her cell phone while at the Dry Creek Grill prior to her fall. (See Eisenberg Dec., Ex. D., p. 16:23-25 17:1-6) In addition, Mr. Ornelas testified that when he approached Plaintiff immediately after her fall, to assist her, he saw her on her cell phone. (See Blum Opp’n. Dec., Ex. C., p. 40:17-25.) Conversely, Plaintiff testified that at the time of her fall, her phone was in her purse. (See Blum Opp’n. Dec., Ex. A., p. 66:21-25, 67:1-9, 72:16-21.) .)

T&D Tile argues that Plaintiff’s cell phone number and phone records are necessary to evaluate and/or establish its defense that Plaintiff’s own negligence, by talking or texting while walking, caused and/or contributed to her fall. (See Mem. Ps & As., p. 6:14-18.) T&D Tile states in its moving papers that it seeks Plaintiff’s cell phone records from the date of her accident. (Reply, p. 5:16:17)

Plaintiff argues that the exact time of her fall is uncertain and, therefore, even if the cell phone number was provided and the records were obtained, T&D Tile could not establish that she was on her phone at the time of the fall. However, T&D Tile persuasively contends that an approximate time of the fall can be established by comparing witness testimony, looking at Plaintiff’s credit card receipt, or looking at a text message made after the fall. Plaintiff’s cell phone number would tend to lead to admissible evidence because T&D Tile may be able to establish from cell phone records that Plaintiff was on her cell phone at the time of her fall, contrary to her testimony.

Thus, the Court finds that the information sought by the deposition question asking for Plaintiff’s cell phone number is relevant.

iv. Objection Based on Right to Privacy
v.
Plaintiff also argues T&D Tile’s motion should be denied because the information sought, her cell phone number, is protected by her right to privacy.

The burden is on Plaintiff to justify this objection. (See San Diego Professional Ass’n v. Super. Ct. (1962) 58 Cal.2d 194, 199 [noting that the burden of establishing that a particular matter is privileged is on the party asserting that privilege]; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 [finding that the party objecting to an interrogatory based on attorney-client had the burden of proving the validity of the objection]; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:814.)

The right to privacy established by the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (See Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.) In determining whether private information is subject to discovery, the court must balance the individual’s privacy interest against a litigant’s right to discover relevant information. (See generally John B. v. Super. Ct. (2006) 38 Cal.App.4th 1177, 1199; Palay v. Super. Ct. (1993) 18 Cal. App. 4th 919, 934; Save Open Space Santa Monica Mountains v. Super. Ct. (2001) 84 Cal. App.4th 235, 252-255.)

Notably, certain types of information are more sensitive than others and the sensitivity of the information sought must be considered. (See Alch v. Super. Ct. (2008) 165 Cal.App.4th 1412, 1437 [stating that the trial court’s analysis was fundamentally flawed because it failed to consider the significant differences in privacy concerns attaching to different categories of information, and consequently failed to consider the possibility of requiring partial disclosure through redaction of sensitive information rather than denying discovery outright].)

Here, T&D Tile seeks Plaintiff’s cell phone number so it may subpoena her cell phone records from the date of the accident. (Mem. Ps & As., p. 6:14-16.) Plaintiff argues that she has a right to privacy in her non-published telephone number and records, including the times, names, and telephone numbers of her friends and relatives to whom she may have spoken on the date of her fall, 25 July 2012. (Opp’n., p.9:16-18.) Plaintiff also states that she has concerns and fears that the CEO of T&D Tile, Mario Della Maggiore, “will engage in a campaign of harassment and oppression” against her if he learns her cell phone number. (Opp’n., p. 9:19-22.) Plaintiff testified at her deposition that Mr. Maggiore yelled to her in a bar, “See you in court, bitch.” (See Blum Dec. Ex. A., p. 104:7-22.)

Conversely, T&D Tile argues that Plaintiff’s cell phone number is “only marginally private.” (Mem. Ps & As., p. 6:23.) T&D Tile asserts that a protective order limiting the use of Plaintiff’s contact information and disclosure to counsel alone would adequately address any privacy concerns raised by Plaintiff. (Mem. Ps & As., p. 7:1-3.)

While Plaintiff does not cite any authority to support the proposition that she has a right to privacy in her cell phone number, courts have held that individuals have a right to privacy in various contexts involving home telephone numbers and contact information. (See Planned Parenthood Golden Gate v. Super. Ct. (2000) 83 Cal.App.4th 347 [holding that releasing the names, telephone numbers, and home addresses of third parties associated with Planned Parenthood, whom the parties did not intend to call as witnesses and whose identities were not known to the real parties, constituted an invasion of the third parties’ right to associational privacy and residential privacy interest]; see also Puerto v. Superior Court (2008) 158 Cal. App. 4th 1242, 1252-1253 [contact information such as telephone numbers and home addresses are generally found to be private].) In general, an individual’s “privacy interest in avoiding unwanted communication” is stronger in the context of disclosure of the individual’s home address or telephone number than in a more public setting. (See County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal. 4th 905, 927 citing Hill v. Colorado (2000) 530 U.S. 703, 716.)

Consequently, the Court finds that Plaintiff has a privacy interest in her cell phone number, but a lesser privacy interest than she would have in contact information such as her home telephone number. Thus, the Court finds that the privacy rights implicated in the present case are minimal and, moreover, the intrusion upon Plaintiff’s privacy rights is outweighed by T&D Tile’s interest in establishing its defense of contributory negligence.

With regard to Plaintiff’s concern that her cell phone number could be used by Mr. Maggiore to harass or oppress her, the Court notes that T&D Tile has stated that it is “amenable to a protective order providing that the phone number and subpoenaed records showing the phone number be restricted to attorney’s eyes only” which would ameliorate Plaintiff’s concern. (Reply, p. 5:22-24.)

Thus, Plaintiff’s objection based on her right to privacy is overruled and, accordingly, an order compelling Plaintiff’s response to the question asking for her cell phone number is warranted.

Conclusion

T & D Tile’s motion for an order compelling Plaintiff to respond to the deposition question asking for her cell phone number at the time of her fall is GRANTED.

III. Request for Monetary Sanctions
IV.
A. T & D Tile’s Request for Monetary Sanctions

T&D Tile requests monetary sanctions under Code of Civil Procedure 2025.480, subdivision (j) in connection with its motion. The request is not code-compliant because T&D Tile did not identify the person, party, or attorney against whom the sanction is sought in its motion in accordance with Code of Civil Procedure section 2023.40.

Accordingly, T&D Tile’s request for monetary sanctions is DENIED.

B. Plaintiff’s Request for Monetary Sanctions
C.
In its opposition, Plaintiff requests monetary sanctions against T&D Tile pursuant to Code of Civil Procedure section 2025.480, subdivision (j). Code of Civil Procedure section 2025.480, subdivision (j) states that the court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless if finds substantial justification otherwise.

Here, Plaintiff was unsuccessful in its opposition to T&D Tile’s motion and, thus, is not entitled to sanctions. (See Code Civ. Proc., § 2025.480, subd. (j).)

Plaintiff’s request for monetary sanctions is accordingly DENIED.

Conclusion and Order

T&D Tile’s motion for an order compelling Plaintiff to respond to the deposition question asking for her cell phone number at the time of her fall is GRANTED. T&D Tile may also pose reasonably related follow-up questions regarding the identity of Plaintiff’s cell phone carrier at the time of her fall. Accordingly, Plaintiff shall appear and answer the questions posed, at a mutually agreed upon date and time, within 20 calendar days of the filing of this order.

T & D Tile’s request for monetary sanctions is DENIED.

Plaintiff’s request for monetary sanctions against Plaintiff is DENIED.