SHERRI ZIFF LESTER VS LIVONIA & PICKFORD HIT & RUN DRIVER, ET AL.

Tentative Rulings

Case Number: *******1950 Hearing Date: November 29, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Sherri Ziff Lester (“Plaintiff”) filed this action against Defendants Livonia & Pickford Hit & Run Driver 3/9/18 7:24 PM and Livonia & Pickford Hit & Run Vehicle Owner 3/9/18 7:24 PM (collectively, “Defendants”) for damages arising from an alleged motor vehicle vs. pedestrian hit and run incident. Plaintiff provides that she fictitiously named Defendants when she filed her complaint because she is unaware of their true names. To date, Plaintiff has not filed proof of service of the summons and complaint on any defendant.

Plaintiff provides she seeks to commence discovery to ascertain Defendants’ true names. Plaintiff seeks leave to serve non-party Google LLC (“Google”) with a deposition subpoena for production of business records.

2. Motion to Commence Limited Discovery

CCP 2025.210(b) provides that “[t]he plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.”

The 20-day deposition hold applies to deposition subpoenas seeking only business records from a nonparty. (California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 24-25.) Thus, absent leave of court for good cause, a plaintiff cannot serve a nonparty witness with a deposition subpoena before service of the summons and complaint on a defendant. (Id. at 25; Pearlson v. Does 1 to 646 (1999) 76 Cal.App.4th 1005, 1011 [plaintiff, who could not identify any defendants in complaint naming only “Does” failed to show “good cause” to depose persons who allegedly might identify defendants- plaintiff’s request was deemed a “fishing expedition”].)

Here, Plaintiff contends that service on Defendants is impossible because Defendants’ identities are unknown to Plaintiff, so Plaintiff seeks leave to obtain documents that may lead to the discovery of Defendants’ true names. Plaintiff argues that without the requested discovery from Google, she will be unable to learn the true identities of Defendants and will be left without any legal remedy.

Plaintiff provides she seeks to commence the following discovery:

Issue and serve non-party Google LLC with a deposition subpoena for production of business records … for the purpose of discovery of the identity and location of persons having knowledge of any discoverable matter which may lead to the discovery of the identities of the “Livonia & Pickford Hit & Run Driver 3/9/18 7:24 pm” and the “Livonia & Pickford Hit & Run Vehicle Owner 3/9/18 7:24 pm”, which business records, include, without limitation:

a. tracking device records for cell phone or other mobile device tracking device data and cell phone or other mobile device location data history for the very narrow date, time period and location described, below;

(i) March 9, 2018;

(ii) for approximate 1 minute time period between 7:24:30 pm through 7:25:45 p.m.;

(iii) for very narrow location of approximately 2 residential city blocks in Los Angeles along Livonia and Pickford, identified and defined with geo-coordinates defining a very short and narrow “path of travel”; and,

b. any other business record which identifies or which may lead to the identification of other non-party witnesses with records and/or other information which may lead to the discovery of the true identity of the fictitiously named “Livonia & Pickford Hit and Run Driver 3/9/18 7:24 p.m.” and the factiously named “Livonia & Pickford Hit and Run Vehicle Owner 3/9/18 7:24 p.m.”; or,

c. which may lead to the identification of said factiously named defendants themselves.

(Mot. at pp. 3-4:7-2.) Additionally, Plaintiff’s proposed subpoena requests each cell phone number within the “Path of Travel” as defined in the subpoena, the name and address of the registered owner of each cell phone number, the geocoordinates and location data for each cell phone number, the location data history for all cell phone numbers detected with the Path of Travel, the location data history for all other devices detected with the Path of Travel, and the registered owner of such devices, among other information. (Mot. Exh. B.)

Plaintiff does not show good cause for seeking the records requested in the subpoena. Plaintiff seeks tracking data for all cell phone and mobile devices, location history, names and addresses of owners all devices for which Google has information, and any other business records that may identify non-party witnesses. As a preliminary matter, Plaintiff does not identify whether there were in fact any witnesses to the incident. More importantly, Plaintiff’s request for the above information for a two-block radius in Los Angeles potentially includes information pertaining to a vast number of people, including anybody residing in or driving through the area, regardless of whether they had any relevant information. Plaintiff makes no showing that she would be able to evaluate and meaningfully utilize the information that would be gleaned. Further, Plaintiff makes no showing that she has exhausted all other possible remedies to identify Defendants’ identities.

Additionally, although Plaintiff seeks records from Google’s custodian of records, there is no proof of service attached to the motion showing service of the moving papers on Google or Google’s custodian of records. The Court will require Plaintiff to serve the moving papers on Google if she seeks leave to serve any subpoena on Google. (See Cal. Rules of Court, Rule 3.1346.)

Based on the foregoing, the motion to commence discovery by serving the described subpoena on Google is denied.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 29^th day of November 2022