Case Name: Pedro Ibarra vs PayActiv, Inc.
Case No.: 18CV325038

Plaintiff has filed a motion to quash a business records subpoena directed to Verizon Wireless that seeks “all information” about two specific cell phone numbers, including customer name and address, call and text history from October 2018 to present, and cell tower location. Defendant objects, contending that the information is needed to determine, if in fact, those numbers belong to the Plaintiff, in which case the information “might be relevant” to establish that Plaintiff’s “primary objective is to harass the company and pursue his employment claims against the company.” Defendant argues that if the numbers do not belong to Plaintiff as he testified, that he cannot assert a privacy interest, or that if they do belong to him, he has perjured himself.

Defendant is rather cavalier about the privacy rights of third party who are not involved in this litigation. The subpoena specifically requests information that impinges on the privacy rights of those third parties, namely those whose phone information is sought, and those who communicated with the owner of the cellphone. The information sought is governed by the requirement to serve a notice to consumer (CCP 1985.3), which has not been done as to any non-party consumers. The consumer records act states that “[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.” Defendant makes no attempt to address the right of the third parties to notice before their private information is produced. Defendant’s arguments as to why this information is needed is based on speculation at best, and the Court finds that Defendant has not met its burden to establish good cause to overcome the privacy rights inherent in the information sought.

Moreover, in light of the context, these cell phones allegedly were used to send anonymous texts to PayActiv employees that imply illegal activities by an officer of PayActiv, and could be considered as efforts to exercise free speech rights. (See generally Roe v. Halbig (2018) 29 Cal.App.5th 286.) Under Code of Civil Procedure section 1987.1(b)(5), a motion to quash a subpoena may be filed by “[a] person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.” The subpoenas fail to even attempt to provide any means of notice to such third persons whose consumer records are sought as required by section 1985.3, and the motion to quash is GRANTED.

Sanctions by Defendant are DENIED, as Defendant has not prevailed on this motion.

Sanctions by Plaintiff are DENIED, as not code-compliant. Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Emphasis added.)

As the request for sanctions does not include the amount sought, it does not comply with section 2023.040. The Court does not set briefing schedules for sanctions on discovery matters following the hearing.