Judge: David A. Hoffer, Case: 30-2022-1247659, Date: 2022-10-03 Tentative Ruling
Before the Court are:
(a) 17 Motions to Quash Subpoenas (the “MTQs”), filed on 4/27/22 by the particular defendants identified as the subject of the respective subpoenas - defendants Spectrum Construction Group, Inc. (“Spectrum”), Spectrum Building Companies, Inc. (“SBC”), Bisher Aljazzar (“Aljazzar”), Deena Elsherif (“Elsherif”), individually and as Trustee of the Deena Elsherif Living Trust (“Trust”), and STOLAC, LLP (“Stolac”); and
(b) one additional “Consolidated” Motion for Enforcement of Subpoenas, etc. filed on 5/13/22 by Plaintiff Great American Insurance Company (“GAIC”) .
All of these 18 motions concern effectively identical third party subpoenas issued by GAIC, in sets for each of the moving defendants (Spectrum, SBC, Aljazzar, Elsherif individually and as Trustee for the Trust, and Stolac, collectively here the “Defendants”), to Wells Fargo Bank, Chase Bank, Sunwest Bank, and Merrill Lynch (collectively the “Banks”). The 17 MTQs seek to quash all of the subpoenas as to all of the Defendants to all of the Banks, except that Stolac has moved to quash only the Wells Fargo subpoena as directed to it.
The MTQs and the Motion to consolidate are all GRANTED IN PART, to allow the subpoenas as to only some of the stated categories, with the materials that are produced by Banks to be subject to a protective order to be finalized at the hearing.
As a threshold matter, the subpoenas include a number of categories which lack reasonable specificity. A subpoena for records directed to a nonparty “must describe the documents to be produced with reasonable particularity” – identifying “generalized broad categories of materials rather than specific documents or, at least, categories of documents or materials which are reasonably particularized in relation to the manner in which the producing party maintains such records” does not suffice. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 218–219.)
Many of the categories at issue here fail to meet this requirement. Specifically, Category Nos. 3-10 present vague, sweeping, and subjective descriptions, rather than identifying specific categories of documents that a bank custodian could identify. For example, Category 3 seeks “Any and all dealings, transactions, and records, documents, of whatsoever kind or nature, pertaining to DEFENDANT and any entity(ies) with which it/he/she is affiliated, directly or indirectly…” (ROA 295, Ex. G.) Category 4 seeks “Any and all dealings, transactions, and records, documents, of whatsoever kind or nature, directly or indirectly, reflecting any property owned by, or owed to, or controlled by, DEFENDANT…” Category 5 seeks “Any and all dealings, transactions, and records and documents, of whatsoever kind or nature, that reflect any form of ownership interest or lien interest in DEFENDANT, or any of its/his/her respective assets… …” None of these categories identify the documents sought with reasonable specificity so that a bank custodian could identify the materials to be provided. And for Categories 6-10 what is sought is vaguely described as “Review and discussion of” various materials, or “Identification and discussion” of various materials. Again, those descriptions lack reasonable specificity sufficient for a bank custodian to identify the materials to be provided. The MTQs as to Categories 3-10 are, thus, all GRANTED, and the Consolidated Motion as to those Categories is DENIED, but these rulings are without prejudice to renewed subpoenas which coherently identify specific categories of documents that are reasonably particularized and properly tailored.
For the remaining Categories (Nos. 1, 2 and 11-13), the MTQs are all DENIED and the Consolidated Motion is GRANTED, except that the timeframe for the subpoenas is to be limited to records from 01/01/2021 to present. In light of both the fraudulent transfer claims presented and the scope of the Indemnity Agreement (ROA 293, Wise Decl. ¶ 7, Ex. A, at “Tenth”), discovery may properly extend to a reasonable period prior to the first transfers at issue and through to the time of this ruling.
Stolac’s objections to the subpoenas, based on its claim that it is not subject to the Indemnity Agreement at issue, is OVERRULED. This Court already concluded that Stolac is subject thereto. (RJN Ex. 6; ROA 293, Wise Decl. ¶ 7, Ex. A, at “First.”)
Defendants’ privacy claims are insufficient to prevent the discovery at issue as limited by the rulings on scope as discussed above. Where privacy interests are at issue, 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. 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. The court must then balance these competing considerations. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)
Here, although financial records are generally subject to privacy protections, in light of the terms of the Indemnity Agreement, Defendants have at best a limited basis to assert such claims here. In contrast, GAIC has shown a legitimate and important countervailing interest in obtaining the records at issue (as limited by the rulings on scope discussed above). Defendants have presented no reasonable proposals to serve the same interests, except as to entry of an appropriate protective order. The Court will therefore permit the discovery at issue, as limited by the rulings on scope discussed above, subject to an appropriate protective order.
The Court understands from GAIC’s 9/26/22 filing (ROA 621) that the parties have exchanged drafts for a stipulated protective order. If no agreement thereon has been reached by the time of the hearing, the Court will make any orders necessary to see to the prompt entry of an appropriate protective order in this case.
The unopposed Request for Judicial Notice filed by GAIC (ROA 291) is GRANTED under Ev. Code §452(d), and for official records, under Ev. Code §§ 452(c) and (d), as to the existence of those records.
Counsel for GAIC is to prepare a proposed Order, in accordance with C.R.C. 3.1312, which comports with the foregoing, and is to give notice of these rulings.