Susan Hilliard vs Anastacia Campbell et al

Case Number

22CV04533

Case Type

Hearing Date / Time

Mon, 09/23/2024 - 10:00

Nature of Proceedings

Motion: Quash Subpoena

Tentative Ruling

Susan Hilliard vs. Anastacia Campbell, et al. 

Case No. 22CV04533       

Hearing Date: September 23, 2024                                       

HEARING:              Defendants’ Motion to Quash Subpoena to Spectrum Mobile Legal Department

ATTORNEYS:        For Plaintiff Susan Hilliard: Eric Kennedy, Berit Elam, Buchalter

                                    For Defendants Anastacia Campbell and Mark Campbell: Marc S. Shapiro, Jonathan P. Cyr, Matthew C. Dingilian, Hanger, Steinberg, Shapiro & Ash

                                   

TENTATIVE RULING:

Defendants’ motion to quash subpoena to Spectrum Mobile Legal Department is denied. However, the subpoena will be modified as follows:

1. The document attachment to the subpoena shall be modified to conform to the proposed changes as set forth in Exhibit F to the declaration of Jonathan P. Cyr.

2. Any documents produced in response to the subpoena are subject to a protective order.

            a. Absent further order of the court, any documents produced by Spectrum Mobile, in response to the subpoena, shall be kept confidential and shall not be used or disclosed except in connection with this litigation. Further, plaintiff’s counsel shall not disclose to plaintiff any of the documents or information obtained, by way of the subpoena, unless the information relates directly to the subject matter of this action.

Background:

The operative third amended complaint (TAC) filed by plaintiff Susan Hilliard on August 10, 2023, alleges six causes of action against defendants Anastacia Campbell (Anastacia) and Mark Campbell (Mark) (collectively, defendants) for: (1) conversion; (2) trespass to chattels; (3) aiding and abetting conversion; (4) aiding and abetting trespass to chattels; (5) negligence; and (6) aiding and abetting negligence. (Note: Due to common surnames and to avoid confusion, the court will refer to defendants by their first names. No disrespect is intended.)

As alleged in the TAC:

Plaintiff and defendants reside in the El Capitan Ranches development (El Capitan) which is located in the County of Santa Barbara, California. (TAC, ¶¶ 1-3.) Plaintiff raises, cares for, and owns parrots as pets, and has trained some of them to fly unrestrained and return to her. (TAC, ¶ 5.) One of Plaintiff’s parrots is a blue-throated macaw named Dread. (TAC, ¶ 6.) Plaintiff purchased Dread approximately 15 years ago, when he was a few months old. (TAC, ¶ 7.) Dread was highly socialized to humans and capable of flying unrestrained. (Ibid.)

After taking possession of her property in El Capitan, plaintiff sent an email through a resident group chat notifying her neighbors that she owned birds that were trained to fly free and remarking that any birds who may visit neighboring property should not be encouraged to hang around because they could cause property damage. (TAC, ¶ 8.) Plaintiff suggested that her neighbors shoo visiting birds away with hoses, towels, or by using a cap gun. (Ibid.) Anastacia responded to plaintiff’s email stating that she did not want parrots at her property and that she had a “BB” gun to get rid of them. (TAC, ¶ 9.)

On March 14, 2021, Dread and two of plaintiff’s other parrots were flying unrestrained at plaintiff’s property. (TAC, ¶ 10.) Around 1:15 p.m. that day, Anastacia sent a message through the group chat stating there was a parrot in her yard. (TAC, ¶ 11.) Thirty-three minutes later, Anastacia posted a video to the group chat “showing [Mark] stalking across [defendants’] property with a rifle in his hands” which “ends abruptly with the sound of a parrot in distress.” (TAC, ¶ 13.) At his subsequent deposition, Mark testified that “he was concerned the bird would damage his property and intended to use the gun to scare the bird off.” (TAC, ¶ 14.) At the same time that she posted the video of Mark, Anastacia sent another message, to the group, stating there were now four parrots at her home, plaintiff went to defendants’ property to retrieve the birds. (TAC, ¶¶ 15, 16.) Dread was missing. (TAC, ¶ 15.) Because Anastacia arrived from the direction of the community dumpster to open the gate for plaintiff, instead of coming down her driveway, plaintiff believes that Anastacia disposed of Dread in the dumpster. (TAC, ¶ 16.)

Plaintiff believes that Mark shot Dread, injuring, or killing him.

Defendants filed their answer to the TAC on September 12, 2023, asserting a general denial and 19 affirmative defenses.

During discovery, Anastacia testified, at deposition and by way of interrogatory responses, that she lost the cell phone she owned on the date of Dread’s disappearance, in a lake on July 14, 2021. (Elam Decl., ¶¶ 3, 4 & Exhs. A, B.) She also testified that Spectrum Mobile was her cell phone company.

On June 17, 2024, plaintiff served a subpoena on the Spectrum Mobile Legal Department seeking records related to Anastacia’s cellular phone for the time period of March 2021 to September 2021. (Cyr Decl., ¶ 4 & Exh. B.)

Defendants now move to quash the subpoena. Plaintiff opposes the motion to quash.

Analysis:

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

“The state has two substantial interests in regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the legitimate privacy interests of the litigants and third parties. [Citation.] “ ‘The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. [Citation.] The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of ‘ “good cause.” ’ [Citations.]” The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. [Citation.]” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“In accordance with the liberal policies underlying the discovery procedures, doubts as to relevance should be resolved in favor of permitting discovery.” (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 493.)

By way of the subpoena, plaintiff seeks the following:

(1) “All RECORDS RELATED TO ANASTACIA CAMPBELL’s CELL PHONE dated between March 1, 2021 and September 30, 2021.”

(2) “All RECORDS RELATED TO ANASTACIA CAMPBELL’s replacement of her CELL PHONE device between March 14, 2021 and July 31, 2021.”

(3) “All RECORDS RELATED TO ANY videos taken by ANASTACIA CAMPBELL’s CELL PHONE device on March 14, 2021.”

(4) “All RECORDS RELATED TO ANY photos taken by ANASTACIA CAMPBELL’s CELL PHONE device on March 14, 2021.”

(5) “All RECORDS RELATED TO ANY cloud-based storage accessed by ANASTACIA CAMPBELL’s CELL PHONE device between March 14, 2021 and July 31, 2021.”

(6) “All RECORDS RELATED TO ANY cloud-based storage used by ANASTACIA CAMPBELL’s CELL PHONE device between March 14, 2021 and July 31, 2021.”

Over the course of meeting and conferring, plaintiff’s counsel agreed to amend the request to delete request No. 1, limit the timeframe in Nos. 3 and 4 to between 12:00 p.m. and 8:00 p.m. on March 14, 2021, add a request for “All RECORDS identifying ANY type of cloud-based storage systems accessed or used by ANASTACIA CAMPBELL’s CELL PHONE device between March 14, 2021 and July 31, 2021,” modifying the language of Nos. 5 and 6 to more particularly identify documents, and add requests Nos. 7 and 8 to seek records identifying the dates Anastacia uploaded or downloaded any files to or from any cloud-based storage system. (CYR Decl., ¶ 6 & Exh. F.) The parties were unable to reach an agreement.

Defendants argument is that the requests seek to violate Anastacia’s right of privacy.

 

“The state Constitution expressly grants Californians a right of privacy. [Citation.] Protection of informational privacy is the provision’s central concern. [Citation.] In [Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1], we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams, supra, 3 Cal.5th 531at p. 552.)

Anastacia does have a privacy interest in her cellular phone records. However, plaintiff has established an important countervailing interest in obtaining those records. No one appears to dispute the allegation that Dread went missing on March 14, 2021. Anastacia testified that she dropped her iPhone (which is capable of many functions including taking photographs and videos) in a lake approximately four months later, on July 14, 2021. Anastacia testified that she did not attempt to back the phone up to “the cloud” and she doesn’t think that the phone did automatic backups. She also testified that she did nothing in an attempt to recover lost data or even family photos.

The phone records, for the limited amount of time requested, are likely to lead to the discovery of admissible evidence. The requests are sufficiently limited in time and scope to minimize any intrusion into Anastacia’s privacy.

Defendants argue, by way of their reply to plaintiff’s opposition, that plaintiff’s opposition misrepresents Anastacia’s testimony, and that plaintiff is engaging in “an improper fishing expedition.” (Reply, p. 2, ll. 3-11.) The court has reviewed the responses to interrogatories as well as the deposition testimony, and understands the testimony Anastacia gave regarding not backing up her cell phone and that she previously sold Motorola phones rather than iPhones (which is what she claimed to have dropped into a lake). Any discrepancy, or omission, in plaintiff’s argument, in this regard, is immaterial and makes no difference to the ruling on this motion.

Further, defendants’ argument that plaintiff is engaging in a fishing expedition has no merit. “ ‘Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]’ [Citations.]” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653-654.) “A request for discovery is not subject to the objection that the proponent is engaged in a “ ‘fishing expedition.’ ” In our discovery statutes the Legislature has authorized “ ‘fishing expeditions’ ” and thus “ ‘the claim that a party is engaged upon a fishing expedition is not, and under no circumstances can be, a valid objection to an otherwise proper attempt to utilize the provisions of the discovery statutes.’ [Citation.]” (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739, fn. 4.)

While the court would not characterize plaintiff’s subpoena as a “fishing expedition,” even if it did constitute a fishing expedition, the subpoena would not be improper.

The motion to quash will be denied. However, the attachment to the subpoena, describing the categories of documents, will be modified by plaintiff to reflect the changes suggested during the meet and confer process. (Cyr Decl., Exh. F.)

As the subpoena does, to a minor extent, implicate Anastacia’s privacy rights, any documents or things obtained, by way of the subpoena, will be subject to a protective order.