Jane Doe v. Justin Patton Mozart

Case Number

24CV00278

Case Type

Hearing Date / Time

Mon, 07/29/2024 - 10:00

Nature of Proceedings

1) Mtn to Seal Lodged Record and Order Permitting Plaintiff to Proceed Under a Pseudonym; 2) Mtn to Seal Portions of Opp; 3) Mtn to Compel Prod of Subpoenaed Records; 4) Mtn for Order Directing Def to Execute a Written Consent to Release Cell Records

Tentative Ruling

Jane Doe v. Justin Patton Mozart                   

Case No. 24CV00278

Hearing Date: July 29, 2024                                                    

HEARING:              (1) Motion of Jane Doe to Seal Lodged Record and For an Order Permitting Plaintiff to Proceed Under a Pseudonym

                                    (2) Motion of Non-Party Park Plaza Santa Barbara to Seal Portions of Opposition to Plaintiff’s Motion to Compel Production of Subpoenaed Business Records and Request for Monetary Sanctions

                                    (3) Motion of Jane Doe to Compel Production of Subpoenaed Records by Non-Party Park Plaza Santa Barbara, and Request for Sanctions

                                    (4) Motion of Jane Doe for Order Directing Defendant Justin Mozart to Execute a Written Consent to Release his Cell Phone Records or, Alternatively, an Order Compelling Verizon to Produce His Cell Phone Records Without His Written Consent Pursuant to Subpoena

                                                           

ATTORNEYS:        For Plaintiff Jane Doe: Nada V. Lahoud

                                    For Defendant Justin Patton Mozart: Trevor D. Large, Natalie N. Mutz, Fauver Large Archbald & Spray LLP

                                    For Non-Park Plaza Santa Barbara: Payam Khodadadi, Alexandra L. Hider, McGuire Woods LLP

TENTATIVE RULING:

1. Jane Doe’s motion to seal lodged record and for an order permitting plaintiff to proceed under a pseudonym is denied. Plaintiff shall proceed in the action using her true legal name. Plaintiff shall file and serve an amended complaint, using her true legal name, no later than August 12, 2024. Other than substituting “Jane Doe” with her true name, no other modifications to the complaint are authorized.

2. Park Plaza Santa Barbara’s motion to seal portions of opposition to plaintiff’s motion to compel production of subpoenaed business records and request for monetary sanctions is denied.

3. Jane Doe’s motion to compel production of subpoenaed records by Park Plaza Santa Barbara, and for sanctions, is denied.

4. Jane Doe’s motion for order directing defendant Justin Mozart to execute a written consent to release his cell phone records or, alternatively, an order compelling Verizon to produce his cell phone records without his written consent pursuant to subpoena, is denied without prejudice.

Background: 

Plaintiff Jane Doe filed a complaint in this matter on January 18, 2024, alleging five causes of action against defendant Justin Patton Mozart (Mozart): (1) false imprisonment – El Encanto; (2) sexual battery (Civ. Code, § 1708.5) – El Encanto; (3) sexual battery (Civ. Code, § 1708.5) – Hilton Hotel; (4) intentional infliction of emotional distress; and (5) gender violence – Civil Code section 52.4.

As alleged in the complaint:

On August 12, 2022, plaintiff booked a room for a weekend getaway at the Hilton Barbara Beachfront Resort (the Hilton Hotel) located at 633 E. Cabrillo Boulevard in Santa Barbara, California. (Compl., ¶ 21.) Shortly after 10 p.m. on the evening of August 14, 2022, plaintiff drove out to State Street to get a drink or a bite to eat. (Id. at ¶ 25.) As plaintiff circled the State Street area for a place to stop, an “attractive, white, well-dressed male in his mid-30s with somewhat curly blond hair, a fit/muscular frame and about 5’10” (hereinafter, Doe 1) flagged plaintiff down and approached her vehicle stating that “ ‘some faggot had been hitting on him at a bar’ ” and that he needed a ride to his nearby hotel. (Ibid.) Though plaintiff found the statement offensive, plaintiff agreed because Doe 1 seemed harmless. (Ibid.)

Doe 1 “surprisingly” entered the back seat of plaintiff’s vehicle instead of the front passenger side, pulled out his phone, and began clicking on it. (Compl., ¶ 26.) Though plaintiff could not see what Doe 1 was doing on his phone, plaintiff surmises that he may have been alerting co-conspirators that he had succeeded in tricking plaintiff to take him back to the El Encanto Hotel (the El Encanto). (Ibid.) Leaning forward from the backseat between the gap of the two front seats, Doe 1 gave plaintiff directions to the El Encanto. (Ibid.)

On arrival at the El Encanto, Doe 1 directed plaintiff to park her vehicle in the hotel parking lot and invited plaintiff to his room. (Compl., ¶ 27.) Plaintiff agreed, and they both walked to Room 1202. (Ibid.) Doe 1 told plaintiff that his name was Benjamin Mozart, that he was in a rock band, and that he was best friends with Johnny Depp. (Ibid.) Doe 1 offered plaintiff what he claimed to be a marijuana joint which plaintiff accepted. (Ibid.) When plaintiff offered the marijuana joint back to Doe 1, he refused and did not smoke any of it. (Id. at ¶ 29.)

After taking a few hits of the joint that Doe 1 had given to her, plaintiff started to feel lethargic and drowsy. (Compl., ¶ 29.) Doe 1 then “proceeded to undress [p]laintiff, touch her breasts, penetrate her vagina with his penis and attempted to insert his penis in her mouth.” (Ibid.) Plaintiff remembers only a few minutes of the sexual encounter before losing consciousness. (Ibid.)

Plaintiff woke up the next morning naked in Doe 1’s hotel bed with Doe 1 asleep on the opposite side. (Compl., ¶ 29) Plaintiff did not remember any of the previous night after smoking the marijuana joint other than the initial few minutes of sexual activity with Doe 1. (Ibid.) Plaintiff had not consumed any substances on the evening of August 14, 2022, other than the marijuana joint that Doe 1 had given her which was enclosed in a prescription pill bottle. (Ibid.)

After purchasing a phone charger from the main hotel area and returning to Room 1202, plaintiff went to breakfast with Doe 1. (Compl., ¶ 31.) After breakfast, plaintiff drove Doe 1 to Los Angeles. (Id. at ¶ 32.) Before departing the El Encanto, Doe 1 gave plaintiff the prescription pill bottle containing the remainder of the marijuana joint that plaintiff had smoked the prior evening. (Ibid.) Plaintiff never spoke with Doe 1 again. (Ibid.)

The following night, August 15, 2022, while plaintiff was in her room at the Hilton Hotel, she smoked some of the marijuana joint Doe 1 had given her. (Compl., ¶ 33.) Soon after, plaintiff started to feel lethargic and drowsy. (Ibid.) Before losing consciousness, plaintiff recalls two male voices repeatedly stating that “she’s a threat, she’s not a threat”. (Ibid.)

The next morning, August 16, 2022, plaintiff awake and observed that her internal vaginal area was extremely sore and achy in an odd manner and without any reason. (Compl., ¶ 34.) After her sexual encounter with Doe 1, plaintiff’s vagina was not sore or achy and felt normal. (Id. at ¶ 35.) In light of the “drugged” manner in which plaintiff awoke and the excruciating soreness and achiness of her internal vaginal area, plaintiff is certain than a sexual assault occurred during the evening of August 15, 2022, with additional drugging by smoking the marijuana joint provided by Doe 1 in order to render plaintiff immobile for the purpose of facilitating a brutal sexual assault. (Ibid.)

Plaintiff reported the sexual assault to a doctor at Cedars Sinai in Playa Vista on October 5, 2022, and to a nurse practitioner at UCLA Health on December 2, 2022. (Compl., ¶ 36.) On January 27, 2023, plaintiff filed an online police report with the Santa Barbara Police Department. (Ibid.) Through the assistance of a private investigator, plaintiff eventually determined that Mozart was the registered guest for Room 1202 at the El Encanto from August 12, 2022 through August 15, 2022, and that Mozart had checked into Room 1202 at the El Encanto on the same day that plaintiff booked her room at the Hilton Hotel even though Mozart’s father owns a home a few miles away. (Id. at ¶ 37.)

After reviewing available public records, plaintiff believes that Mozart was not Doe 1 who had flagged her down in the vicinity of State Street on the evening of August 14, 2022, and who said his name was Benjamin Mozart. (Compl., ¶ 38.) Public records indicate that Mozart was about 51 years old on August 14, 2022, but Doe 1 appeared to be in his mid to late 30s. (Ibid.) Further, available photos of Mozart on the Ancestry website do not match plaintiff’s recollection of Doe 1. (Ibid.)

Doe 1 had the key to Room 1202 and full access to it with his belongings stored there. (Compl., ¶ 39.) Plaintiff believes that Mozart, acting in concert with Doe 1 and likely others, targeted plaintiff specifically and conspired to drug and sexually assault her for an unknown reason beyond sexual gratification. (Ibid.) The drugging and sexual assault that took place in plaintiff’s hotel room at the Hilton Hotel on August 15, 2022, which occurred after plaintiff smoked the marijuana joint given to her by Doe 1 and which was “likely” laced with an intoxicating substance such as fentanyl, was planned and orchestrated. (Ibid.) Plaintiff believes that what occurred on the evening of August 14, 2022, in Room 1202 at the El Encanto with Doe 1 and possibly others was a trial run or set up for what later occurred the following night in plaintiff’s room at the Hilton Hotel. (Ibid.)

Plaintiff has reason to believe that the sexual assaults that occurred at the El Encanto and the Hilton Hotel may have been planned and instigated by a male student that plaintiff knew at UCLA during the school year 1992-1993, and who was rumored to be a stalker and who has carried a vendetta against plaintiff. (Compl., ¶ 40.) Plaintiff asserts that, “[a]fter a reasonable opportunity for investigation and discovery, facts will come to light to help explain the reasons and connections for the heinous events that occurred on or about August 14, 2022 and August 15, 2022 and reveal all the parties who were responsible.” (Ibid.)

Discovery is now taking place and the above referenced motions have been filed by the parties indicated.

Analysis:

1. Jane Doe’s Motion to Seal Lodged Record and Proceed Under a Pseudonym:

Jane Doe argues that the complaint in this matter alleges facts of a sensitive and highly personal nature, including acts of sexual battery, and that there exists an overriding interest that overcomes the right of public access to the record and that she should be permitted to proceed under a pseudonym.

The specific document that Jane Doe seeks to have sealed is the amendment to complaint disclosing the actual identity of plaintiff Jane Doe, that she has filed conditionally under seal concurrently with the motion. (Notice of Motion, p. 3, ll. 5-7.) She also seeks an order permitting her to continue to proceed under the pseudonym “Jane Doe” in this action and keep her identity confidential, and for the redaction of any court papers, including exhibits, that have been filed with the court, to the extent they disclose the true identity of Jane Doe. (Id. at p. 3, ll. 7-11.)

Mozart has no objection in principle to the motion, but expresses concern over the practicality of maintaining plaintiff’s anonymity where plaintiff’s “actions and filings to date are inconsistent with her purported desire to conceal her identity.” (Opp., p. 1, ll.22-25.) Should the court grant the motion, Mozart “seeks guidance from the Court regarding the proper protocol and standards for both parties to preserve Plaintiff’s identity in the context of a case in which Plaintiff elects to openly identify herself.” (Id. at p. 2, ll. 16-19.)

In reply, Jane Doe suggests: “The few prior documents filed with this Court that contain disclosures of Plaintiff JANE DOE’s true identity can easily be rectified by this Court ordering that the filing party file a redacted version that shields Plaintiff JANE DOE’s true identity. Plaintiff JANE DOE expressly requested in her Motion that this Court issue an order for the redaction of any court papers including exhibits heretofore filed with this Court only to the extent that they directly or indirectly disclose the true identity of Plaintiff JANE DOE.” (Reply, p. 2, ll. 12-17.)

“Public access to court proceedings is essential to a functioning democracy. It promotes trust in the integrity of the court system, and it exposes abuses of judicial power to public scrutiny. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1221, 86 Cal.Rptr.2d 778, 980 P.2d 337 (KNBC).) The right of public access applies not only to criminal cases, but also to civil proceedings like this one. (Id. at p. 1222, 86 Cal.Rptr.2d 778, 980 P.2d 337.) And the right to access court proceedings necessarily includes the right to know the identity of the parties. (Id. at p. 1211, 86 Cal.Rptr.2d 778, 980 P.2d 337 [public has a general right of access to civil proceedings; by submitting a dispute to resolution in court, litigants should anticipate the proceedings will be adjudicated in public].)” (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 110-111.)

“Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party’s request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. In deciding the issue the court must bear in mind the critical importance of the public’s right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur “ ‘only in the rarest of circumstances.’ ” [Citation.]” (Id. at pp. 111-112.)

The court notes that no California statute expressly permits Jane Doe to proceed using a pseudonym.

Jane Doe argues that, should she not be permitted to proceed under a pseudonym, the harm she may suffer is: “Plaintiff JANE DOE has a substantial interest in maintaining her privacy for fears of stigma, loss of economic opportunities, potential danger to her safety and the significant harm to her young nieces and nephews if her true identity is revealed in the public record. Other than sealing Plaintiff’s full name from the public, the public will have full access to this case. The Defendants in this case will not be prejudiced.” (Motion, p. 7, ll. 19-23.)

Although, as stated above, Mozart does not oppose Jane Doe from proceeding by way of a pseudonym, it is the court that bears the responsibility of ensuring the public’s right to access judicial proceedings, including the identities of the parties. As Mozart already knows the true identity of Jane Doe, it is not Mozart’s rights that are of concern here. It is the public’s First Amendment rights that must be the focus of consideration.

The court does not find that Jane Doe has met her burden of showing an overriding interest that outweighs the First Amendment right of public access to court proceedings. The potential harms she lists are entirely speculative, are similar to what litigants in other lawsuits might experience, and do not rise to the level of overriding interests described in the cases or statutes that permit parties to proceed using a pseudonym. Jane Doe does not submit any evidence that tends to support her claims of the harms she may suffer. Further, Jane Doe has already disclosed her own identity in this action, and it has been part of the public record for over six months. In fact, Jane Doe continues to provide information that either directly or indirectly discloses her true identity. For example: She discloses her true identity in her motion to compel Park Plaza to produce subpoenaed documents, that is being heard concurrently with her motion to allow her to proceed by pseudonym, that was filed on May 24, 2024. (See Lahoud Dec. Exhs. 6, 7.)

Most of the cases cited by Jane Doe do not discuss the reasoning behind allowing the parties to proceed under pseudonyms. Rather, the fact that they were using pseudonyms is secondary to whatever issue the court was ruling on. For example: Doe v. Superior Court (2011) 194 Cal.App.4th 750, ruled that someone proceeding in litigation using a pseudonym could verify documents using the pseudonym rather than their legal name. There is no discussion, or indication, of what led the trial court to allow the use of a pseudonym. In Doe v. City of Los Angeles (2007) 42 Cal.4th 531, the appellate court reviewed the sustaining of a demurrer. Again, no analysis of the trial court allowing plaintiff to proceed by a pseudonym. One of the cases cited by Jane Doe actually states: “We do not decide the appropriate standards or mechanisms for protective nondisclosure of identity in California, because the matter is not now before us.” (Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, 1452, fn. 7.)

While not binding on this court, it is worth noting that many other jurisdictions and federal courts have found allegations of sexual assault insufficient to allow a plaintiff to proceed by use of a pseudonym. For example: In Plaintiff B. v. Francis (2011) 631 F.3d 1310, 1316, the court noted that “courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff’s identity may cause her to “ ‘suffer some personal embarrassment.’ ” Doe v. Frank, 951 F.2d 320, 324 (11th Cir.1992); see, e.g., Doe v. Del Rio, 241 F.R.D. 154, 159–62 (S.D.N.Y.2006) (holding that plaintiffs alleging sexual abuse by police officer could not proceed anonymously); Doe v. Shakur, 164 F.R.D. 359, 360–62 (S.D.N.Y.1996) (denying motion by plaintiff suing hip-hop artist for brutal sexual assault requesting to remain anonymous).”

The motion to allow plaintiff to proceed, in this litigation, under a pseudonym will be denied.

As for the filing of documents under seal:

 “A strong presumption exists in favor of public access to court records in ordinary civil trials. That is because the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.” (In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575.)

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).)

California Rules of Court, rule 2.550(d) provides:

“The court may order that a record be filed under seal only if it expressly finds facts that establish:

“(1) There exists an overriding interest that overcomes the right of public access to the record;

“(2) The overriding interest supports sealing the record;

“(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

“(4) The proposed sealing is narrowly tailored; and

“(5) No less restrictive means exist to achieve the overriding interest.”

“[A] reasoned decision about sealing or unsealing records cannot be made without identifying and weighing the competing interests and concerns. Such a process is impossible without (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations. The burden of presenting information sufficient to accomplish the first two steps is logically placed upon the party seeking the sealing of the documents, who is presumptively in the best position to know what disclosures will harm him and how. This means at a minimum that the party seeking to seal documents, or maintain them under seal, must come forward with a specific enumeration of the facts sought to be withheld and specific reasons for withholding them.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)

As noted above, the only document that Jane Doe specifically identifies is the amendment to complaint disclosing the actual identity of plaintiff Jane Doe. Because Jane Doe will not be permitted to proceed under the pseudonym of “Jane Doe,” and her identity is the only thing she seeks to conceal in the document, her request will be denied.

2. Non-Party Park Plaza Santa Barbara’s Motion to Seal Portions of Opposition to Plaintiff’s Motion to Compel Production of Subpoenaed Business Records and Request for Monetary Sanctions:

Park Plaza moves, “out of an abundance of caution,” to seal references to plaintiff’s true name in its opposition to plaintiff’s motion to compel production. The motion is brought on the possibility that the court grants Jane Doe’s motion to proceed under a pseudonym. Because the motion to proceed under a pseudonym is being denied, there is no basis for granting Park Plaza’s motion and it will be denied.

3. Jane Doe’s Motion to Compel Production of Subpoenaed Records by Non-Party Park Plaza Santa Barbara, and Request for Sanctions:

Jane Doe moves to compel the production of subpoenaed business records from Park Plaza and for sanctions.

On March 18, 2024, Jane Doe served Park Plaza’s agent for service of process, CT Corporation System, with a subpoena that requests:  

“1. All DOCUMENTS and COMMUNICATIONS RELATING TO any HOTEL reservations made by or for NVL anytime from August 12, 2022 through August 18, 2022 including, but not limited to:

1. Hotel registration records;
2. Identity produced at check-in by NVL;
3. All phone calls made from and received through the HOTEL’s phone system in the assigned room for NVL;
4. All purchases made by or for NVL at the HOTEL whether in-room or at HOTEL facilities, including credit card receipts, HOTEL receipts if charged to the room, and any other receipts;
5. Records of complaints, disturbances or property damage RELATING TO NVL or her guests; and
6. Any valet records including information on the vehicle driven by NVL.

2. All DOCUMENTS and COMMUNICATIONS RELATING TO any HOTEL reservations made by or for JPM anytime from August 12, 2022 through August 18, 2022 including, but not limited to:

1. Hotel registration records including the name of the front desk employee who checked JPM in;
2. Method including the date and time that the reservation was made by or for JPM;
3. Identity produced at check-in by JPM;
4. All phone calls made from and received through the HOTEL’s phone system in the assigned room for JPM;
5. All purchases made by or for JPM at the HOTEL whether in-room or at HOTEL facilities, including credit card receipts, HOTEL receipts if charged to the room, and any other receipts;
6. Records of complaints, disturbances or property damage RELATING TO JPM or his guests; and
7. Any valet records including information on the vehicle driven by JPM.

3. All DOCUMENTS identifying all the registered guests of the HOTEL during the period from August 12, 2022 through August 18, 2022, including a full hotel registry for that period indicating the name of each registered guest, room number, check-in and check-out dates and the number of occupants (and their names, if available) per registered guest room.

4. All DOCUMENTS for all purchases made at the HOTEL facilities during the period from August 12, 2022 through August 18, 2022 including without limitation receipts and any other DOCUMENTS which RELATE TO or indicate the identity of the purchaser.

5. A list with contact information and position held of all YOUR employees and independent contractors providing services, including security for the HOTEL at any time from August 12, 2022 through August 18, 2022.

6. Any security or surveillance video of the HOTEL, and any portion or facilities thereof, from August 12, 2022 through August 18, 2022.

7. Any DOCUMENTS RELATED TO any security personnel, security services and security methods employed at the HOTEL from August 12, 2022 through August 18, 2022 including video retention policies and methods.

8. Name and contact information for any PERSONS at the HOTEL specifically assigned at anytime to service JPM, if any, including the relevant period of their assignment.

9. Any building maps or plans for the HOTEL showing the numbering and location of the various hotel accommodations for the period from August 12, 2022 through August 18, 2022.” (Lahoud Dec., ¶ 7 & Exh. 6.)

On March 19, 2024, a substantively identical subpoena was served on Santa Barbara JV Holdings LLC. (Lahoud Dec., ¶ 8 & Exh. 7.)

As noted above, Jane Doe moves to compel compliance by Park Plaza to the subpoena.

In opposition, Park Plaza argues: (1) The subpoena is defective because it is not directed to the custodian of records or another person qualified to certify the records; (2) The motion is moot because Park Plaza has served plaintiff with a signed declaration, under Evidence Code section 1561, subdivision (b), that it does not have any responsive documents; and (3) The subpoena improperly seeks private information for thousands of individuals without providing them with notice or opportunity to be heard.

The court finds the second ground has merit.

“If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.” (Evid. Code, § 1561, subd. (b).)

Park Plaza’s Custodian of Records served a declaration on Jane Doe, on June 5, 2024, certifying under penalty of perjury that “Park Plaza Santa Barbara, a California limited partnership (‘Deponent’) is not the custodian of any documents requested in the Deposition Subpoena for Production of Business Records, dated March 12, 2024 (‘Subpoena’), propounded by Plaintiff, Jane Doe and directed to Deponent. Deponent does not have any responsive documents requested in the Subpoena in its custody.” (Khodadidi Dec., ¶ 4 & Exh. 3.)

Counsel for Park Plaza sent email correspondence to plaintiff’s counsel, on more than one occasion, explaining that Park Plaza is the incorrect entity, and informed plaintiff’s counsel which entity was the correct entity to which Jane Doe should issue the subpoena, and even offering to accept service of the corrected subpoena. (Khodadidi Dec., ¶ 5 & Exh. 4.)

In reply, Jane Doe essentially accuses Park Plaza of lying about the items not being under Park Plaza’s control. These accusations do not overcome Park Plaza’s declaration, under penalty of perjury, that it does not have responsive documents.

Park Plaza has provided sufficient evidence that it is not the proper recipient of the subpoena and that it does not have any responsive documents.

Plaintiff’s motion is moot, because Park Plaza provided a proper code-compliant response, and will be denied.

As the motion is being denied on the grounds that the motion is moot, the court need not address Park Plaza’s other arguments in opposition to the motion.

4. Jane Doe’s Motion for Order Directing Defendant Justin Mozart to Execute a Written Consent to Release his Cell Phone Records or, Alternatively, an Order Compelling Verizon to Produce His Cell Phone Records Without His Written Consent Pursuant to Subpoena

Jane Doe seeks an order compelling Mozart to execute a written consent to release his cellular phone records from August 10, 2022, through April 17, 2024, or, in the alternative, to compel Verizon to produce the requested cellular phone records.

Mozart opposes the motion on the grounds that: (1) The Verizon subpoena is invalid and ineffective because it was served prior to obtaining Mozart’s consent; (2) The court is not empowered to override State and Federal laws governing the disclosure of consumer phone records; (3) The subpoena is overbroad and infringes on Mozart’s rights of privacy; and (4) Mozart already provided a signed authorization to release phone records for a reasonable period of time. Mozart additionally argues that Jane Doe should be sanctioned for abandoning the meet and confer process.

“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.” (Code Civ. Proc., § 1985.3, subd. (f).)

On April 17, 2024, counsel for Jane Doe sent correspondence to counsel for Mozart requesting that Mozart sign a written authorization to release his cellular phone records for the period of January 1, 2022, through January 31, 2024. (Lahoud Dec., ¶ 2 & Exh. 1.) [Note: the dates in the letter differ from the actual authorization and give two alternative dates of August 10, 2022, through August 20, 2022, or, alternatively August 10, 2022, through April 17, 2024. The subpoena itself contains the timeframes listed in the letter rather than what is on the proposed release.] Mozart did not sign the release.

On April 29, 2024, Dane Joe served the subpoena on Verizon via facsimile. (Lahoud Dec., ¶ 3 & Exh. 3.)

On May 13, 2024, Verizon responded to the subpoena, indicating that it would not produce any records without a signed written authorization from Mozart, pursuant to Code of Civil Procedure section 1985.3, subdivision (f), or a court order. (Lahoud Dec., ¶ 6 & Exh. 6.)

Following several discussions between counsel regarding the records, On June 6, 2024, Mozart agreed to execute a limited release of his cell phone records. (Lahoud Dec., ¶ 5 & Exh. 5.) [Note: Jane Doe filed the present motion 12 days following that representation.]

On the same day that the present motion was filed, June 18, 2024, Mozart sent Jane Doe and electronically signed authorization for Verizon to release his cell phone records for the period of August 11, 2022, through August 16, 2022. (Large Dec., ¶ 5; Lahoud Reply Dec., ¶ 2 & Exh. 1.) Jane Doe responded with an email, the same day, stating that the authorization was not sufficient and suggested a release from August 10, 2022, through September 10, 2022, and for all text logs and content from August 11, 2022. (Lahoud Reply Dec., ¶ 2 & Exh. 2.)

In addition to having no proof that Verizon was served with the present motion, thus precluding a ruling compelling Verizon to comply with the subpoena, the subpoena was never valid pursuant to the plain language of Code of Civil Procedure section 1985.3, subdivision (f), which is set forth above. As the subpoena was never valid, Mozart’s deadline to file a motion to quash was never triggered.

As noted above, on the day that Jane Doe filed the present motion, Mozart sent an authorization to release the Verizon record for the period of August 11, 2022, through August 16, 2022. As alleged in the complaint, the events that are the subject of this action began on August 12, 2022, when Jane Doe drove to Santa Barbara and checked into her hotel room at the Hilton. (Compl., ¶ 21.) The evening of August 14, 2022 is the first time that Jane Doe encountered Doe 1. (Id. at ¶ 25.) The events that allegedly involved either Mozart or the Doe defendants ended on the evening of August 15, 2022. (Id. at ¶ 33.) Jane Doe acknowledges this in her motion at page 4, lines 3-8.

Despite Jane Doe’s arguments to the contrary, the authorization signed by Mozart covers one day before, and one day after, the alleged events contained in Jane Doe’s complaint. Additionally, Jane Doe acknowledges in her motion that Mozart was a guest at the El Encanto Hotel from August 12, 2022, through August 15, 2022. (Motion, p. 4, ll. 9-12.)

Other than pure speculation regarding precautions taken by the “co-conspirators,” Jane Doe does not set forth any persuasive reasons why, at this point, she should have access to Mozart’s records for any longer period of time. As there is a signed authorization, Jane Doe’s motion will be denied as moot. The ruling will be without prejudice to seek additional records should further discovery provide a legally sufficient reason for doing so.

Although the court does find that Jane Doe should have engaged in further attempts to resolve the matter informally, the court will not, at this time, issue sanctions requested by Mozart.