Judge Donald F. Gaffney, Case Frongello v. Kozich 2022-12-07 Tentative Ruling

Judge: Donald F. Gaffney, Case: Frongello v. Kozich, Date: 2022-12-07 Tentative Ruling

TENTATIVE RULING:

Motion to Compel Compliance with Deposition Subpoena for Production of Business Records

Plaintiff Joyce Karen Frongello moves to compel compliance with the Deposition Subpoena for Production of Business Records issued to nonparty witness Pacific Premier Bank. For the following reasons, the motion is GRANTED.

A party may serve a nonparty with a deposition subpoena commanding the production of business records for copying. (Code Civ. Proc., §§ 2020.010(a)(3), (b), 2020.020(b).) If the nonparty deponent does not comply, the requesting party may move for an order directing compliance with the subpoena. (See Code Civ. Proc., § 2025.480; see also Code Civ. Proc., § 1987.1.)

The instant motion concerns the business records subpoena issued to nonparty witness Custodian of Records for Pacific Premier Bank. (Waller Decl. ¶ 3, Ex. 1 [the “Subpoena”].) The Subpoena requests eight categories of documents or records relating to Pacific Premier Bank Account Number 502008345 and Pacific Premier Bank Routing Number 122244566.

(Waller Decl., Ex. 1.)

Compliance with Code of Civil Procedure Section 1985(b)

Defendant first contends that the Subpoena is procedurally defective because an affidavit is required. Although Code of Civil Procedure section 1985(b) states that an affidavit must be served with a subpoena duces tecum issued before trial that sets forth good cause for production of the matters described in the subpoena, the Civil Discovery Act controls over that section. (See Terry v. SLICO (2009) 175 Cal.App.4th 352, 358 [“The contrary provisions in sections 1985 and 1987.5 ... are inconsistent with and therefore superseded by section 2020.510.”].) Code of Civil Procedure section 2020.510 governs deposition subpoenas for “testimony” and “business records, documents, electronically stored information, and tangible things” and expressly provides that “a deposition subpoena under subdivision (a) need not be accompanied by an affidavit or declaration showing good cause for the production of the documents and things designated.” (Code Civ. Proc., § 2020.510(a) & (b).) An affidavit in conformity with section 1985(b) is not required.

Defendant’s Objections

Defendant next contends that the Subpoena’s requests are overboard, not reasonably calculated to lead to the discovery of admissible evidence, is invasive, harassing, and unduly burdensome.

California law provides parties with expansive discovery rights. In the absence of contrary court order, a civil litigant’s right to discovery is broad. (Williams v. Superior Court (2017) 3 Cal.5th 531, 551.) “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010; see Davies v. Superior Court (1984) 36 Cal.3d 291, 301 [“discovery is not limited to admissible evidence”].) The statutory phrase “ ‘subject matter’ ” is “ ‘broader than the issues’ and is not limited to admissible evidence.” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 711, 3 Cal.Rptr.3d 877; accord, Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172–173.) “ ‘For discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....” [Citation.] 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.’ ” (Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8.)

Code of Civil Procedure section 2017.010 and other statutes governing discovery “must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.” (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d at 355, 377.) This means that “disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it.” (Id. at 378.)

“In sum, the relevance of the subject matter standard must be reasonably applied;in accordance with the liberal policies underlying the discovery procedures, doubts as to relevance should generally be resolved in favor of permitting discovery (cf. Chapin v. Superior Court (1966) 239 Cal.App.2d 851, 855—859, 49 Cal.Rptr. 199).” (Pacific Tel. & Tel. Co., 2 Cal.3d at 173.)

Plaintiff’s Complaint alleges that on or about January 6, 2021, Nationwide Reconveyance LLC issued a check from its Trust Account made payable to “Joyce Karen Frongello” in the amount of $315.512.367 (the “Proceeds Check”). (Compl. ¶ 13.) The Complaint further alleges that Plaintiff did not endorse the Proceeds Check or authorize any of the Defendants to sign the Proceeds Check in her name. (Compl. ¶14.) Plaintiff provided evidence that the Subpoena is directed at the bank for the Nationwide Reconveyance LLC, the issuer of the Proceeds Check. (Waller Decl. ¶ 8.) Additionally, the Subpoena’s document requests are limited to records relating to the Proceeds Check [“check 5552”].

The Subpoena is not overboard and requests records reasonably calculated to lead to the discovery of admissible evidence. Defendant has not justified his objections that the Subpoena is invasive, harassing, and unduly burdensome.

Defendant’s Privacy Objections

Next, Defendant contends that the Subpoena seeks to elicit private financial information from Defendant.

The right to privacy in California primarily derives from the California Constitution’s declaration that individuals have an inalienable right to privacy. (Art. I § 1.) The concept of privacy is extended to financial privacy in litigation, but the privilege is subject to balancing the needs of the litigation with the sensitivity of the information/records sought. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657.) Nevertheless, “even where the balance weighs in favor of disclosure of private information, the scope of disclosure will be narrowly circumscribed; such an invasion of the right to privacy must be drawn with narrow specificity and is permitted only to the extent necessary for a fair resolution of the lawsuit.” (Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316, disapproved on other grounds Williams v. Superior Court (2017) 3 Cal.5th 531, 558, fn. 8.)

Where the right to privacy is asserted as a protection against discovery, the person raising the objection must establish: (1) a legally protected privacy interest, (2) an objectively reasonable expectation of privacy in the given circumstances, and (3) a threatened intrusion that is serious. (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 552.) 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. (Id., at 557.) The court must “place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies.” (Id.)

The Subpoena does not request records from Defendant, his bank, or any financial institution known to be affiliated with him. Defendant has not established that he has a legally protected privacy interest in records relating to Pacific Premier Bank Account Number 502008345 and Pacific Premier Bank Routing Number 122244566.

Plaintiff’s request for sanctions is granted. Defendant David Kozich shall pay sanctions in the amount of $1,950.00 to Plaintiff Joyce Karen Frongello within 30 days of service of notice of ruling. (See, e.g., Code Civ. Proc., §§ 2023.010(d); 2025.480(j).)

Plaintiff shall give notice.