Judge: Randall J. Sherman, Case: 2018-01016568, Date: 2022-12-16 Tentative Ruling

The unopposed motion of attorney Stephanie L. McPhail of Foley & Lardner LLP to be admitted pro hac vice to represent defendant Fusion Investment Advisors, LLC in this action is granted.  The applicant has complied with CRC Rule 9.40.  If the applicant remains counsel for the client on the anniversary of the date this application is granted, the applicant must pay an annual renewal fee of $500 for each year that the attorney maintains pro hac vice status in this case, pursuant to Gov. Code §70617(e)(2).  Defendant Fusion is ordered to give notice of the ruling unless notice is waived.

Plaintiff Robert L. Crysel’s (1) Motion to Compel Further Response to Special Interrogatories, Set 2, Propounded on Defendant Thomas W. Savino and Request for Sanctions, (2) Motion to Compel Further Response to Special Interrogatories, Set 1, Propounded on Defendant Tucker Advisory Group, Inc. and Request for Sanctions, and (3) Motion to Compel Further Response to Special Interrogatories, Set 3, Propounded on Defendant American Equity Investment Life Insurance Company and Request for Sanctions, are denied.  Plaintiffs are ordered to give notice of the ruling unless notice is waived.

Plaintiff seeks answers from three defendants to the same interrogatory, asking defendants to identify every person who purchased an American Equity Investment Life Insurance Company annuity through Savino between January 2015 and January 2017.  These motions therefore involve privacy issues, and defendants even cite a California Financial Information Privacy Act, which includes a statute, Fin. Code §4052.5, which provides that a financial institution (which includes an insurance company) shall not share or otherwise disclose nonpublic personal information to or with any nonaffiliated third parties without the explicit prior consent of the consumer to whom the nonpublic personal information relates.  Case law mandates that courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.  SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal. App. 4th 741, 754.  Plaintiff thus must show a compelling need for this private information, but plaintiff’s argument in support of these motions falls short.

Plaintiff argues that an essential element of plaintiffs’ claims is “defendants’ knowledge/intent concerning the fraudulent acts”, making investigation into defendant Savino’s business and sales practices relevant.  Plaintiff further argues that an essential element of plaintiffs’ claims is knowledge of the underlying bad acts and intent to aid and abet and conspire to commit the underlying bad acts, and “There is no doubt that the witnesses could have knowledge of discoverable matters that are relevant to the many causes of action brought by plaintiffs.”  The court fails to see how other Savino clients would help establish whether Savino defrauded these clients, the plaintiffs.  Plaintiff has not shown how Savino’s interactions with his other clients are relevant to his dealings with plaintiffs, or how his conduct with his other clients may be connected to the liability of other defendants on plaintiffs’ claims.  Thus, the court concludes that the privacy interests of Savino’s other clients outweighs the need for discovery under these circumstances.  Finally, the time estimate for the trial of this case, which has been pending for over four years and is set for trial in just 24 days, is long enough without taking the time to hold additional trials-within-a-trial to determine whether Savino defrauded clients other than plaintiffs.

The two motions and three joinders seeking to bifurcate punitive damage issues at trial are granted pursuant to the mandatory provisions of Civil Code §3295(d).

A Pre-Trial Conference is also set for today and will go forward.