Judge John C. Gastelum, Case 22-01291869 2023-09-14 Tentative Ruling

Judge: John C. Gastelum, Case: 22-01291869, Date: 2023-09-14 Tentative Ruling

Motion to Quash Subpoena

Tentative Ruling: Defendant Diane J. Rinker seeks an order that the deposition subpoenas for production of business records issued by Bart Rinker, as Trustee of the 2020 Harry S. Rinker Separate Property Trust and directed to (1) Farmers & Merchants Bank and (2) Wells Fargo Bank, N.A. be quashed as they pertain to the request for records related to Diane J. Rinker’s personal and confidential financial records. Defendant also seeks sanctions (in the amount of $9,000) against Plaintiff and counsel of record.

Motion to QUASH is GRANTED. No sanctions.

Defendant Diane argues the broad subpoenas issued to the two banking institutions violate her privacy rights.

Where the right to privacy is asserted as a protection against discovery, the person raising the objection must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and 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.” (Ibid.)

In 2017, the Supreme Court in Williams expressly disapproved case law requiring a “compelling need” for discovery of any and all private information, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. The California Supreme Court clarified that a compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. (Id., at 556.) However, when “lesser interests are at stake…the strength of the countervailing interest sufficient to warrant disclosure of private information vary according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures. (Ibid.)

Here, Defendant Diane has sustained her burden of establishing the records sought are protected by her Constitutionally protected right of privacy. She cites Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 480–481, where the Court explained:

A bank customer reasonably expects the bank to maintain the confidentiality of private financial matters. (Burrows v. Superior Court (1974) 13 Cal.3d 238, 243, 118 Cal.Rptr. 166, 529 P.2d 590.) While there is no “bank-customer privilege akin to the lawyer-client privilege” or other statutory privileges, confidential financial information given to a bank by its customers is protected by the right to privacy that became a part of the California Constitution after the judicial formulation of the tax-return privilege. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, 542 P.2d 977; Cal. Const., art. I, § 1.) Thus, there is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account information. (See ibid.; Schnabel v. Superior Court, supra, 5 Cal.4th at pp. 712–713, 21 Cal.Rptr.2d 200, 854 P.2d 1117.)

(Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 480–481.)

Plaintiff is attempting to obtain Defendant Diane’s private banking information and communications with not only the bank but from other third parties, with no limitation in scope other than time (from 2021).

Plaintiff argues that Defendant Diane has not established a privacy interest, but clearly, seeking confidential documents from two banking institutions is protected.

Plaintiff also seems to make a relevancy argument that he will prove his breach of fiduciary duty claim through the records.

Plaintiff pleads in the 1^st cause of action for Breach of Fiduciary Duty:

58. The damages resulting from diversion and misappropriation of income and profits by Diane, Kenneth, and Does 1 through 100, as alleged above, include (but are not limited to) the said Defendants causing (a) more than $150,000.00 to be misappropriated from TRC to pay Diane’s personal attorney for work that was neither authorized by the Board of Directors nor for the benefit of TRC; (b) more than $250,000.00 to be misappropriated from Rinker Management to pay Diane’s other personal expenses (other than legal expenses). The full amount of these damages, like the full amount of the other damages enumerated in Paragraph 57, above, cannot be fully ascertained because of Defendants’ ongoing, wrongful withholding from Plaintiff the books, records, other documents, and information relating to TRC, Rinker Management, and the Limited Partnerships.

(Complaint ¶58.)

If what Plaintiff is essentially seeking to do is trace company funds to Defendant, subpoenas to banking institutions for the Defendant Entity would seemingly suffice.

Furthermore, Defendant argues information relating to the alleged misappropriations has already been provided. (See Supp. Decl. of Barclay generally) (ROA 367).

Thus, the alleged compelling need for production of private banking information is not so compelling.

Further, Plaintiff fails to argue there are no less intrusive means of obtaining the documents.

Finally, although the entity Defendants (Rinker Company and Rinker Management LLC) and their financial information appear to be sought in the subpoenas, it does not appear that they were served with the subpoenas or notices to consumer. (See Code Civ. Proc., § 2020.410(d).)

For these reasons, the motion is granted.

As to sanctions, the meet and confer efforts herein were not satisfactory. Clearly counsel could have come up with some resolution to the issues presented in this motion had they met and conferred in good faith. Therefore, the Court will impose no sanctions at this time, and encourages the parties to meet and confer in good faith prior to hearings on the other pending discovery motions.

MP to give notice.