The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
Previously pending on this court's law and motion calendar for May 5, 2011, was plaintiffs' motion to quash three subpoenas issued to Pacific Bell for plaintiffs' telephone records. Steve Mikhov appeared for plaintiffs. Jason Welch appeared for defendant Kia Motors, Inc. ("Kia").*fn1 After reviewing the papers and hearing oral argument, the court now issues the following order.
Plaintiffs Lisa and Kevin Robinson purchased a Kia Sportage in 2007, and claim that defendant failed to repair it in 2010, despite a reasonable number of attempts. Plaintiffs allege that Kia then refused to repurchase the vehicle in violation of California's Song-Beverly Act. The claims are for violations of the Song-Beverly Act and the federal Magnuson-Moss Warranty Act. Plaintiffs seek damages, rescission, and restitution.
Defendant subpoenaed plaintiffs' telephone records from Pacific Bell pursuant to Fed. R. Civ. P. 45 in order to determine whether Kia received several calls from plaintiff Lisa Robinson regarding her concerns about the car during the period from August to November, 2010, as she alleges. The first subpoena was served on April 5, 2011, seeking the records for Mr. and Mrs. Robinson's phone number, to be produced on May 9, 2011. No one disputes that this subpoena was properly signed. The second and third subpoenas were issued on April 6, 2011, and seek records for the phone number under Mrs. Robinson's name, and Mr. Robinson's name, respectively, and seeking production on April 27, 2011. Plaintiffs allege that these subpoenas were not signed by a judicial officer.
California takes the privacy rights of its citizens seriously, especially where information is sought concerning consumer activities. The statute expressly references the records sought here. In order to obtain such information, the seeker must follow strict procedures. The information here is protected from disclosure by California law, Cal. Code Civ.
P. § 1985.3, which provides in pertinent part:
(b) Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:
(c) Prior to the production of the records, the subpoenaing party shall do either of the following:
(1) Serve or cause to be served upon the witness a proof of personal service or of service by mail attesting to compliance with subdivision (b).
(2) Furnish the witness a written authorization to release the records signed by the consumer or by his or her attorney of record. The witness may presume that any attorney purporting to sign the authorization on behalf of the consumer acted with the consent of the consumer, and that any objection to release of records is waived.
(f) 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.
(k) Failure to comply with this section shall be sufficient basis for the witness to refuse to produce the personal records ...