Judge: Shirley K. Watkins, Case: 21VECV01448, Date: 2022-12-07 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 21VECV01448    Hearing Date: December 7, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendants G&S Import-Export, Inc., Chaminda De Silva, and Praeventus Solutions, Inc.’s Motion to Quash Subpoena Directed to Bank of the West is DENIED. 

Defendants G&S Import-Export, Inc., Chaminda De Silva, and Praeventus Solutions, Inc.’s Motion to Modify is GRANTED only as to Subpoena Request nos. 1 & 2.  Subpoena Request nos. 1 & 2 is ordered to be limited to “monthly statements” reflecting receipts, withdrawals or “inter-bank transfers” to Plaintiff.  The motion to modify is DENIED as to Subpoena Request nos. 4-6.

Defendants G&S Import-Export, Inc., Chaminda De Silva, and Praeventus Solutions, Inc.’s Motion for Protective Order for in camera inspection is DENIED.

            The Court finds that Subpoena Request nos. 3 and 7, as related to GS Corporation, is MOOT due to lack of notice to GS Corporation. 

Introduction

            Defendants G&S Import-Export, Inc. (G&S), Chaminda De Silva (De Silva), and Praeventus Solutions, Inc. (Praeventus) (collectively, Defendants) moved to quash Plaintiff Jiangsu Shinco Technology Co. Ltd.’s (Plaintiff) subpoena directed to Bank of the West; or alternatively, to modify the subpoena; or alternatively, for a protective order for the Court’s in camera inspection of the records. 

            Procedure

            GS Corporation (GS) is not a party defendant.  GS is not named as a moving party on the instant motion and not represented by Defendants’ Counsel.  Defendants’ objection to the subpoena served upon Bank of the West and the deposition officer does not identify GS as an objecting party.  GS is not referenced in Attorney Lyndon Hong’s correspondence dated October 6, 2022.  (Motion Exh. B.)  There is no evidence showing that GS asserted an objection to the subpoena.  GS has not raised any issue or objection to the subpoena.  Courts are prohibited from issuing advisory opinions on matters that are not ripe for review.  (Hunt v. Superior Court (1999) 21 Cal.4th 984, 998.)  “A controversy is not deemed ripe for adjudication unless it arises from a genuine present clash of interests and the operative facts are sufficiently definite to permit a particularistic determination rather than a broad pronouncement rooted in abstractions.”  (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1451.)  On this defect, the Court need not review arguments that would or could be presented by GS had GS appeared before the Court.

Further, the proof of service to the subpoena does not show that GS was even notified of the subpoena.  It is unclear if GS would be considered a “consumer” pursuant Code of Civil Procedure 1985.3 but fairness would dictate that notice of the subpoena upon Bank of the West be given to GS since documents pertaining to GS are being requested.  Without showing of any notice of the subpoena upon GS, GS has not been given notice and opportunity to be heard on the subpoena.  The motion to quash, modify, or motion for protective order so far as it would apply to GS is MOOT and Plaintiff’s subpoena request nos. 3 and 7 are MOOT. 

The following review applies to the Subpoena’s Requests as to Defendants G&S and Praeventus. 

            Discussion 

            A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses, or consumers from unreasonable or oppressive demands including violations of privacy.  (Code Civ. Proc. sec. 1987.1.)  “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (Code Civ. Proc. sec. 2025.420(b).)  Defendants objected to the subpoena Request nos. 1, 2, and 4-6 on grounds of corporate and third-party individual privacy interests.  Once good cause for production has been shown, the objecting party has the burden to file evidence to justify objections including those based upon privacy.  (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 97-98.)  The action is for collection of unpaid invoices on the sale of televisions and/or an accounting of alleged payments made to Plaintiff.  The invoices and the “Confirmation of liability and obligations” identified G&S as the purchaser and debtor.  (First Amended Complaint (FAC) Exhs. D & E.)  Some of the Bills of Lading showed that the televisions were shipped to Praeventus, as consignee.  (FAC Exh. F.)  Plaintiff alleged that Praeventus, as well as De Silva, are alter egos of G&S.  (FAC pars. 6-9.)  G&S, Praeventus, and De Silva alleged that the debt was paid and not owed.  (Answer Fifteenth Affirmative Defense.) Based upon these allegations, there is sufficient good cause shown for Plaintiff’s demand for production of the “monthly statements” of Praeventus and G&S. 

With good cause shown as to Subpoena Request nos. 1, 2, and 4-6, Praeventus and G&S has the burden to submit evidence to show its privacy interest and third-party individual privacy interests.  Praeventus and G&S failed to submit any admissible evidence showing that production of monthly statements would disclose confidential information of Defendants or any third-party individuals.  The declarations of Attorney Lyndon Hong attached to the motion and reply lack any evidence to support Defendants’ and/or third-party individual privacy interests.  Without evidence to support the objection, Defendants’ contention as to privacy is conclusory and Defendants failed to meet their burden.  The Court does not find the privacy objection persuasive as to Request nos. 1, 2, and 4-6. 

Defendants then argued that the requests are unreasonably overbroad, irrelevant, and oppressive/harassing.  As reviewed above, the Court determined that Request nos. 1, 2, and 4-6 are relevant as to G&S and Praeventus. 

“Oppression exists where there is ‘some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.’”  (Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1171 (quoting West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417).)  Objecting parties must file evidence detailing the amount of work involved, in order to support objections based upon burden and oppression.  (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.)  Defendants’ objection as to oppression or harassment is lacking in any evidentiary support.  The objection is especially frivolous because Defendants are not being requested to produce the document.  Bank of the West is the witness that would produce the documents.  The oppression/harassing objections are not persuasive as to Request nos. 1, 2, and 4-6.

Defendants’ overbroad objection is found to be persuasive as to Request nos. 1 and 2.  The Court notes that the scope of the request is limited by the specific definition of “monthly statements” and is limited in time as defined by “time period.”  However, Request nos. 1 and 2 is open-ended as to “receipts of funds, withdrawals of funds, or inter-bank transfers” going to persons other than Plaintiff.  Because this action is a collections case and Defendants claimed payment in full, the relevant receipts, withdrawals or inter-bank transfers should be limited to those made to Plaintiff.  Receipts, withdrawals, or inter-bank transfers to Defendants’ other television vendors is irrelevant.  Because Request nos. 1 and 2 are not limited to payments made to Plaintiff, the requests are overbroad.  The Court finds the overbroad objection to Request nos. 1 and 2 to be persuasive. 

The motion to quash and for protective order as to Request nos. 1 and 2 is DENIED.  The motion to modify Request nos. 1 and 2 is GRANTED so that the request is limited to “monthly statements” during the relevant “time period” showing receipts, withdrawals or “inter-bank transfers” made only to Plaintiff.

Specifically, as to Request nos. 5 & 6, the overbroad objection is not persuasive because the Request nos. 5 & 6 is limited in time and limited in “transactions” between G&S/Praeventus and Plaintiff.  Because the Requests are limited to transactions between G&S/Praeventus and Plaintiff, there is no request and no potential disclosure of confidential information as to any other persons (e.g., employees, vendors, or other non-parties.)  Defendants’ argument mischaracterizes the two requests.  Defendants argue that the term “transactions” is vague.  Ambiguity objections as to discovery are overruled unless requests are unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.)  The use of “transaction” does not make the request unintelligible.  Common use of the word is proper and the requests are straightforward.  The vague objection as to Request nos. 5 & 6 is unpersuasive. 

Defendants argued that the subpoena should be quashed because Plaintiff lacks standing to sue and does not have corporate authority to sue.  As was the case in Defendants’ prior motion to compel responses to form interrogatories heard on August 29, 2022, it is not within the purview of the Court on a motion to quash, modify, or for protective order to make a factual determination as to whether Plaintiff has standing to sue or has corporate authority to sue.  The objection is not a proper objection to a discovery demand.  The objections as to lack of standing and corporate authority to sue are, again, not considered. 

            Defendants lastly argue that other discovery alternatives exist, specifically depositions of each parties’ Person Most Knowledgeable (PMK) as to the payments made/an accounting.  However, with the modification made to Request nos. 1 & 2 and the limited scope of Request nos. 5 & 6, the subpoena is not as intrusive as argued.  The argument of less intrusive discovery methods is unpersuasive. 

            Defendants’ motion for protective order to conduct an in camera review of the documents is DENIED because the above review resolves all the issues/objections properly presented.