The court grants in part Plaintiff/Cross-Defendant Randall L. Nickel’s motion to quash Defendant/Cross-Complainant The Huntington Beach Gables Homeowners Association’s subpoenas issued to Wells Fargo Bank, National Association and JP Morgan Chase Bank, N.A., as set forth below.
Legal Standard
Code of Civil Procedure section 1987.1, subdivision (a) provides that: “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.”
Merits
First, Plaintiff argues that based upon Code of Civil Procedure section 1985, subdivision (b), Defendant was required to serve a copy of an affidavit showing good cause for the documents along with the subpoenas. An affidavit showing good cause is not required for the subpoenas. “A deposition subpoena that commands only the production of business records for copying need not be accompanied by an affidavit or declaration showing good cause for the production of the business records designated in it.” (Code Civ. Proc., § 2020.410, subd. (c); see, Code Civ. Proc., § 2020.510, subd. (b) [a deposition subpoena that commands the production of business records, documents, electronically stored information, and tangible things “need not be accompanied by an affidavit or declaration showing good cause for the production of the documents and things designated.”]; Terry v. SLICO (2009) 175 Cal.App.4th 352, 358
[the contrary provisions in sections 1985 and 1987.5 are inconsistent with and therefore superseded by section 2020.510.].) This argument therefore has no merit.
Second, Plaintiff argues that the subpoenas violate his financial privacy rights and are overbroad and harassing.
The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious . . . 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. A court must then balance these competing considerations.
(Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)
The information sought must be directly relevant to a claim or defense. (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665 [disapproved on other grounds].) A compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. However, when “lesser interests are at stake . . . the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Williams v. Superior Court, supra, 3 Cal.5th at p. 556.) Discovery will not be ordered as to matters protected by privacy rights if the information sought is available from other sources or less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 453.) A person has a right to privacy to his or her confidential financial affairs. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656; Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 480-481 [financial records are protected by an individual’s right to privacy].)
Here, the documents requested in each subpoena is as follows:
- All writings, documents, photographs, correspondence, contracts, plans and memoranda, in your possession, custody or control related to Randall L. Nickel from October 1, 2018 to November 30, 2018.
- All bank statements from each account of Randall L. Nickel from January 1, 2018 to present.
- All cashier’s checks to or from each account of Randall L. Nickel from January 1, 2018 to present.
- All cancelled checks from each account of Randall L. Nickel from January 1, 2018 to present.
- All writings, documents, photographs, correspondence, contracts, plans and memoranda, in your possession, custody or control related to a transfer of funds occurring in each account of Randall L. Nickel to or from J-Pad, LLC.
- All writings, documents, photographs, correspondence, contracts, plans and memoranda, in your possession, custody or control related to a transfer of funds occurring in any account of Randall L. Nickel to or from J-Sandcastle Co LLC.
- All writings, documents, photographs, correspondence, contracts, plans and memoranda, in your possession, custody or control related to a transfer of funds occurring in any account of Randall L. Nickel to or from Alderport 4476 Co LLC.
- All writings, documents, photographs, correspondence, contracts, plans and memoranda, in your possession, custody or control related to a transfer of funds occurring in any account of Randall L. Nickel to or from Jamie Gallian.
- All checks made to cash from January 1, 2018 to present deposited or transfe1Ted from an account in the name of Randall L. Nickel.
- All writings, documents, photographs, correspondence, contracts, plans and memoranda, in your possession, custody or control related to a transfer of funds occurring in any account of Randall L. Nickel to or from April Hayes occurring between October 1, 2018 to present.
Defendant argues that the subpoenas seek information and records regarding the movement of funds in relation to the purported transfer of Real Property located at 4476 Alderport, Huntington Beach, CA 92649, which is relevant to Defendant’s Cross-Complaint filed November 9, 2020 to set aside the voidable transfer. (ROA 31.) Plaintiff acknowledges in his First Amended Complaint, the operative pleading, that on October 21, 2018, he purchased the real property located at 4476 Alderport, Huntington Beach, CA 92649 from Jamie Gallian. (FAC, at ¶ 53.) He also alleges that Gallian had been in engaged in “litigation between Ms. Gallian and the HOA and the six defendant Board
Members named herein [that] was expensive, litigious, vitriolic, and costly.” (FAC, at ¶ 22.) He acknowledges that on August 7, 2018, six defendant Board Members named herein filed their Motion for Attorneys’ Fees in the Gallian action. (FAC, at ¶ 23.) Just days before the hearing, Gallian sold the property. On November 8, 2018, Gallian was ordered to pay HOA over $300,000.00. (FAC, at ¶ 23.) In the Cross-Complaint, the HOA asks the court to set aside the sale of the property on the grounds of fraudulent transfer. (See generally, Cross-Complaint [ROA 31].)
As an initial matter, none of the requests are overbroad as to time. These subpoenas, at their broadest, were limited to records “from January I, 2018 to present.” (See Decl. of Michael D. Poole at ¶ 5, and Exhs. A & B.) Plaintiff argues that these pre-date his meeting of Ms. Gallian. Defendants do not have to accept that testimony as true and documents from January of 2018 for a sale in October of 2018 are limited in time and not overbroad. Based on these facts, payments made to and from any entity or person associated with Plaintiff and any entity or person associated with Ms. Gallian are directly relevant to the cross-claims for fraud and overcome any privacy objection.
The requests are not burdensome or harassing. Plaintiff’s counsel’s asserts that he gave the relevant financial documents to defense counsel. But the only financial information subpoenaed by previous counsel for the HOA was for the front and back sides of the two cashier’s checks Nickel gave to Gallian for the Subject Property (See Poole Decl., at ¶14 and Exhs. D and E.) No other financial information was ever subpoenaed. (See Poole Decl., at ¶15). The absence of responsive documents is itself evidence directly relevant to the Cross-Complaint.
However, at this time, Defendant has not shown a need for the entirety of Plaintiff’s financial expenditures. The court therefore strikes request nos. 1-4, 9, and 10. The remainder request transactions more narrowly tailored that withstand the privacy objection.
The Court declines to award any sanctions.
Plaintiff shall give notice of the ruling to all parties and to third-parties Wells Fargo Bank, National Association, and JP Morgan Chase Bank, N.A.