Judge Thomas D. Long, Case 22STCV16330 2022-12-06 Tentative Ruling

On May 17, 2022, Plaintiff SCG Development Group, Inc. filed this action against Defendants Harley A. Hong (“Harley”); Does 1-10, Trustee of the Young Ae Hong Living Trust dated December 20, 2018; and Does 11-20, Personal Representative on behalf of and for the estate of Fay Wha Hong (“Fay”), alleging (1) intentional misrepresentation; (2) concealment; (3) conversion/embezzlement; (4) larceny; (5) breach of contract; and (6) unjust enrichment. “The parties and relevant individuals share a last name. For clarity, convenience, and in order to avoid confusion, we refer to them by their first names and intend no disrespect.” (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

On August 18, 2022, Plaintiff issued deposition subpoenas for production of business records to JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC, requesting all records pertaining to Fay Wha Hong since January 1, 2012. (Motion, Exs. A-B.)

On September 14, 2022, Harley and Fay filed a motion to quash the subpoenas. Harley and Fay contend that Plaintiff is misusing the discovery process to obtain irrelevant information and material, any relevancy claim is substantially outweighed by their constitutional privacy rights, and the subpoenas are overbroad in time and scope.

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’ These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, citations omitted.) The Court must “balance the public need against the weight of the privacy right,” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information, and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

Harley and Fay argue that because the lawsuit is limited to an alleged scheme occurring in the last four years, the request for records “for the period from January 1, 2012 through the present” is irrelevant. (Motion at pp. 6-7.) In response, Plaintiff’s counsel contends that during the meet-and-confer discussions, the parties agreed to a narrower scope of four years, from January 1, 2018 to the present. (Opposition at p. 3.) Plaintiff’s counsel’s email confirming the discussion states, “You had further represented . . . that you would not oppose the production of the requested records should the time frame of the subpoena be narrowed to four (4) years to the period of January 1, 2018 through the present.” (Kourasis Decl., Ex. 2.) Defense counsel responded, “This does not comport. My objections are based on time and scope as stated in the Motion.” (Ibid.) The Court therefore cannot conclude that the parties in fact agreed to narrowing the timeframe. However, the suggested modification is reasonable. The Complaint alleges that “[f]or no less than the past four years, Fay was an employee of SCG,” and within that timeframe, Fay and Harley “engaged, jointly and severally, in an artifice and scheme of embezzlement and stealing money from SCG.” (Complaint ¶ 11.) Because the requesting party agrees to limit the production, the motion is granted in part to limit production to records from only “the period from January 1, 2018 through the present.”

Harley and Fay also contend that information regarding loans, records of savings accounts, records of security purchases, and safety deposit boxes are irrelevant. (Motion at p. 7.) However, this conclusory assertion contains no further argument. The Complaint alleges a scheme of forging checks from Plaintiff for deposit into Fay’s business, disbursing the embezzled funds, using the funds to pay for secured debt recorded against real property, and using the funds for personal purposes. (See Complaint ¶ 11.) The requested records are relevant and might reasonably lead to admissible evidence.

Harley and Fay also argue that the subpoenas should be quashed because they invade their right to privacy. (Motion at pp. 7-8.) However, the subpoenas seek records related to only Fay, not Harley. Fay is deceased. (See Complaint ¶¶ 5, 14.) “[T]he right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded . . . . [T]he right does not survive but dies with the person.” (Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, 62.) Harley contends that he “also has a right to claim privacy as a third person.” (Motion at p. 8.) However, he does not explain or provide evidence showing how the requested documents invade his privacy.

Accordingly, the motion to quash is GRANTED IN PART. The request is modified to seek production of the records for “the period from January 1, 2018 through the present.” JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC are ordered to produce the requested records pursuant to the subpoena, subject to this modification, within 21 days.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court