Judge: James L. Crandall, Case: 20-1158998, Date: 2022-08-18 Tentative Ruling

Motion to Quash Subpoena

The motions to quash deposition subpoena to Citibank N.A. filed by Defendant Brandon Bujold is DENIED.

Code of Civil Procedure section 1987.1 states, in part, “(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. [¶] (b) The following persons may make a motion pursuant to subdivision (a): [¶] (1) A party. [¶] (2) A witness. . . .”

“The right of privacy is an ‘ “inalienable right” ’ secured by article I, section 1 of the California Constitution. [Citation.] The right of privacy protects against the unwarranted, compelled disclosure of private or personal information and ‘extends to one’s confidential financial affairs as well as to the details of one's personal life.’ [Citation.] (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754.)

San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 (disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8), provides, “While we have not been directed to any statutory privilege which protects this information from disclosure, it is clear Cooper’s personnel records and employment history are within the scope of the protection provided by the state and federal Constitutions. [Citations.]” “The constitutional right of privacy is not absolute; it may be abridged to accommodate a compelling public interest. [Citations.] One such interest, evidenced by California's broad discovery statutes, is ‘ “the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.” ’ [Citation.] When an individual’s right of privacy in his financial affairs conflicts with the public need for discovery in litigation, the competing interests must be carefully balanced. [Citation.] Even where the balance weighs in favor of disclosure of private information, the scope of the disclosure will be narrowly circumscribed; such an invasion of the right of privacy ‘ “must be drawn with narrow specificity” ’ and is permitted only to the extent necessary for a fair resolution of the lawsuit.” [Citations.] (Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316; disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.)

Williams v. Superior Court (Williams) (2017) 3 Cal.5th 531, 552, explains, “The party asserting a privacy right must establish a legally protected privacy interest, and objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citations.] The party seeking information may raise in response whatever legitimate and important countervailing interest disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interest or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation.]” “To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.” (Id., at p. 557.)

The motions seek to quash Plaintiffs’ deposition subpoena to Citibank seeking the following records: “Any and all account records, including records of any account names and account numbers of any other account opened by the same person who opened the TMK Construction account, account no. 0000000000207156563 and the statement history, BTS records, deposit and withdrawal records of those accounts from inception to the present date now in your custody.”

Moving Defendant argues that the subpoena is overbroad and violates his right to financial privacy.

SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755–756, holds that corporations have a lesser right to privacy than individuals: “We conclude corporations do not have a right of privacy protected by the California Constitution.3 Article I, section 1 of the California Constitution protects the privacy rights of “people” only.4 “ ‘[T]he constitutional provision simply does not apply to corporations.’ ” (Ameri-Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1287[50 Cal.Rptr.2d 366], quoting Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791[195 Cal.Rptr. 393]; see Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1504[66 Cal.Rptr.3d 833] [corporation acknowledged that it had no right of privacy under the California Constitution].)

While corporations do have a right to privacy, it is not a constitutional right. The corporate right to privacy is a lesser right than that held by human beings and is not considered a fundamental right. (Ameri-Medical Corp. v. Workers' Comp. Appeals Bd., supra, at pp. 1287-1288, 50 Cal.Rptr.2d 366.)

Because the corporate privacy right is not constitutionally protected, the issue presented in determining whether Western's requests for production infringe that right is resolved by a balancing test. The discovery's relevance to the subject matter of the pending dispute and whether the discovery “ ‘appears reasonably calculated to lead to the discovery of admissible evidence’ ” is balanced against the corporate right of privacy. (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 595[40 Cal.Rptr.3d 446].) Doubts about relevance generally are resolved in favor of permitting discovery. (Ibid.)”

However, personal financial information is protected by an individual’s right to privacy. (Fortunato v. Super. Ct. (2003) 114 Cal.App.4th 480-81; see also Cobb v. Super. Ct. (1979) 99 Cal.App.3d 543, 550; Valley Bank of Nev. v. Super. Ct. (1975) 15 Cal.3d 562, 656.) As such, the court must balance the right of privacy against the need for discovery. (Hill, supra, 7 Cal.4th at 34-35.)

Here, Plaintiffs seek to obtain records which apparently belong to corporate entities that are parties to the action rather than financial records of individuals or third parties.

Plaintiffs have made a strong showing of potential relevance in support of the subpoena for business records. Plaintiffs explain, “Plaintiffs SDT at issue in the instant Motion to Quash is also necessary to prove the amounts of monies transferred from the mysterious “TMK Construction” Citibank account into these other Grinberg owned business Citibank accounts because plaintiffs do not know which account numbers listed in the Citibank records already produced in response to the Arbitration SDT correspond with the other Grinberg-owned business entities.

Additionally, plaintiffs’ SDT to Citibank in the instant civil case is necessary to prove that defendant, Grinberg, opened these other business accounts and fraudulently transferred some, most, or all of the six hundred thousand plus dollars, ($600,000.00) of checks written by plaintiff to “TMK Construction” into defendant Grinberg’s other Citibank business accounts.”

Defendant Bujord argues that the subpoenas could invade the privacy of an individual who opened the TMK Construction account. This is Defendant Grinberg. Defendant Grinberg, who is a party to this action, does not object to the subpoena or join in the Motion to Quash.

Further, Defendant Bujord does not establish that Defendant Grinberg has a personal account with Citibank. Even if Defendant Grinberg does have a personal account, the account would be extremely relevant given the allegations.

Defendant Bujord does not establish that there is a risk that his personal privacy would be violated by production of records.

Plaintiffs have shown that the subpoenas are reasonably calculated to lead to discovery of admissible evidence related to their claims of fraud against Defendants.

In balancing Defendant’s right to privacy against Plaintiffs’ right to obtain relevant information regarding alleged fraud involving the corporations’ business accounts or Defendant Grinberg’s personal account, the Court finds that Plaintiffs have met their burden in support of this discovery.

Further, Defendant has failed to establish a privacy interest that overcomes the legitimate and important countervailing interest there is in disclosing the documents.

Therefore, Defendant’s motions to quash the deposition subpoena for business records is DENIED.

To alleviate any privacy concerns, should there be any records pertaining to a personal account, the parties are ordered to enter into a protective order.

The Court declines to award monetary sanctions to either side because the parties acted with substantial justification in making and opposing these motions.

Plaintiffs to give notice.

Future hearing dates

11/3/22 - Mtn to Compel

11/3/22 – Mtn. to Compel / Mtn. to Deem Facts

12/1/22 – Mtns. to Compel / Mtn. to Deem Facts

1/27/23 – MSC

2/27/23 – Jury Trial