Case Number: BC662004 Hearing Date: June 08, 2018 Dept: A

Facciano v Facciano

MOTION TO QUASH DEPOSITION SUBPOENA

Calendar:

3

Case No.:

BC662004

Hearing Date:

6/8/18

Action Filed:

5/18/17

Trial Date:

Not set

MP:

Defendant Andrew Facciano

RP:

Plaintiff Joseph J. Facciano, Jr.

ALLEGATIONS IN COMPLAINT:

Plaintiff Joseph J. Facciano, Jr. (“Plaintiff”) brings this action on behalf of his mother Blanca R. Facciano, who is deceased (“Decedent”). Plaintiff alleges that Decedent, an elder adult, was a patient at Defendant Windsor Gardens Healthcare (“Windsor”) from February 22, 2016 to March 2, 2016; and was a patient of Defendant Trinity Care Hospice (“Trinity”) from March 2, 2016 up to her death on March 5, 2016. Plaintiff alleges that Defendants and their employees/agents failed to meet the standard of care with respect to Decedent. As to Defendants Andrew and Pauline Facciano (Plaintiff’s siblings), Plaintiff alleges that they made a healthcare decision to transfer Decedent into hospice and thereafter administered lethal doses of morphine to her.

The complaint was filed on May 18, 2017. The first amended complaint was filed December 20, 2017. The second amended complaint (“SAC”), filed March 15, 2018, alleges causes of action for:

(1) wrongful death by negligence all Defendants except Andrew and Pauline Facciano;

(2) survival action by negligence all Defendants except Andrew and Pauline Facciano;

(3) lack of informed consent all Defendants except Andrew and Pauline Facciano;

(4) medical battery all Defendants except Andrew and Pauline Facciano;

(5) negligence against Andrew and Pauline Facciano;

(6) elder abuse against Andrew and Pauline Facciano;

(7) fraudulent concealment against Andrew and Pauline Facciano;

(8) constructive fraud against Andrew and Pauline Facciano;

(9) breach of fiduciary duty against Andrew and Pauline Facciano;

(10) wrongful death against Andrew and Pauline Facciano; and

(11) conspiracy against Andrew and Pauline Facciano.

Request for Judicial Notice:

Andrew Facciano requests judicial notice of: (A) the court docket in case LASC No. 16STPB03812; (B) the underlying petition for removal of successor trustee; (C) notice of settlement of case no. 16STPB03812; and (D) the Release and Settlement Agreement. The request is granted pursuant to Evidence Code, §452(d).

DISCUSSION:

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, 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. (CCP §1987.1(a).)

CCP §1985.3 provides that a subpoenaing party shall serve on the consumer whose records are being sought, a copy of the subpoena duces tecum for personal records. (CCP §1985.3(b).)

Andrew Facciano moves to quash the subpoena issued on Logix Federal Credit Union (“Logix”) on the ground that Plaintiff signed a settlement agreement in a related proceeding that had a Civil Code, §1542 waiver, wherein Plaintiff agreed to waive any right to a claim, whether known or unknown, that in any way relates to the “facts, circumstances, or events alleged therein.”

The deposition subpoena for production of business records issued on Logix requests 4 categories of documents: (1) any and all documents that refer, reflect, relate, or pertain to Decedent from January 1, 2013 to the present; (2) any and all documents that refer, reflect, relate, or pertain to any and all assets which were owned by Decedent from January 1, 2013 to the present; (3) any and all writings, letters, memorandum, notes, etc. which indicate any conversations/correspondence with any persons, including Andrew and Pauline Facciano, and/or any of their attorneys, agents, etc., regarding Decedent from January 1, 2013 to the present; and (4) any and all accountings and profit and loss statements, work papers, etc. of Decedent and any and all third persons with whom Logix had contact regarding Decedent from January 1, 2013 to the present. (See Mot., Ex. E [Depo. Subpoena].)

Andrew Facciano argues that Plaintiff signed a settlement agreement wherein he waived his right to any claim pertaining to the trust, trust assets or distribution, or his mother’s affairs.

However, a review of the terms of the settlement agreement fail to show the facts of Case No. 16STPB03812. At most, section 4 (Mutual Release; Waiver of All Known and Unknown Causes) states that the parties agree to release one another from and against any and all claims, demands, causes of action, etc. with respect to the subject of all matters pertaining or in any way relating to and/or arising out of the underlying litigation. They also agree to a Civil Code, §1542 waiver of any injury, loss, damage, or liability that may thereafter be incurred by reason of, or related to, the matters released. The complaint in the underlying trust action is not provided, nor is there a summary of the allegations of the action in the Settlement Agreement. Based on the information currently before the Court, it appears that the settlement was regarding a trust petition filed in the probate court to handle trust assets, but that underlying action did not involve the allegations regarding Decedent’s wrongful death and survival claims (i.e., tort claims for elder abuse, fraud, etc.). Thus, the Court will not, at this time, construe the language of the release or the Civil Code §1542 as broadly as suggested by Andrew Facciano without more support.

Andrew Facciano also argues that the subpoena should be quashed because it seeks documents that are not reasonably calculated to lead to the discovery of admissible evidence. However, Plaintiff argues that during the meet and confer process, he justified his request for such records in order to show the cost of Decedent’s funeral, cremation, health insurance, life insurance, and monies received from life insurance, which are part of the damages calculations sought in the complaint. (Opp. at Ex. B.) As such, Plaintiff has shown that the documents sought may be reasonably calculated to lead to the discovery of admissible evidence regarding damages. Further, the documents sought are not overbroad but are limited to a period of approximately 3 years prior to Decedent’s death to the present.

Next, Andrew Facciano argues that the subpoena seeks the financial information of Andrew and Pauline Facciano, which violates their privacy interest. However, the deposition subpoena seeks documents related to Decedent—not Andrew or Pauline Facciano’s financial records. As such, Andrew and Pauline’s financial records and privacy are not at issue. To the extent that Decedent may have had financial dealings with Andrew or Pauline Facciano, it is not clear based on the papers whether this is in fact the case, there is no support for such argument, and it is unclear what privacy interests Andrew and Pauline Facciano have regarding Decedent’s finances.

Finally, Plaintiff argues in opposition that Andrew Facciano already provided him with a copy of some of Decedent’s bank statements from Logix and thus Andrew Facciano has waived objections. (Opp. at Ex. A.) The Court will not construe the production of two-pages of Decedent’s bank account as a waiver for all bank account statements. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [“[A]n implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit.”]; Lynch v. Cal. Coastal. Commission (2017) 3 Cal.5th 470, 475 [waiver is the intentional relinquishment or abandonment of a known right].)

Nevertheless, for the reasons, above, the Court will deny the motion to quash.

RULING:

Deny the motion to quash the deposition subpoena issued on Logix.

(Neither party requested sanctions.)