Case Name: Holly Wright, et al. v. Paul Alexander DaSilva, et al.

Case No.: 2016-1-CV-296446

(1) Motion to Quash or Modify Deposition Subpoenas for Production of Business Records
(2) Motion to Compel Compliance with Response to Request for Production of Documents, and for Sanctions

Factual and Procedural Background

On or about March 25, 2012, plaintiffs Richard Wright III and Holly Wright purchased a 2000 Honda Odyssey (“Vehicle”) from defendants Capitol Honda and UAG Capitol, Inc. dba Capitol Honda (“UAG”). (First Amended Complaint (“FAC”), ¶19.) The Vehicle was manufactured, designed, assembled, et al. by defendant American Honda Motor Co., Inc. (“AHMC”). (FAC, ¶20.)

On or about June 16, 2014, defendant Paul Alexander DaSilva (“DaSilva”), while acting in the course and scope of his employment by defendant DaSilva Dairy Farms, LP (“DaSilva Farms”), drove through a red traffic signal directly facing him without braking or swerving at the intersection at Dale Road and Kaiser Drive in the city of Modesto and collided with the Vehicle occupied by plaintiffs Holly Wright, Richard Wright III, Jeremy Wright, and decedents Ashleigh Wright and Curtis Lanch. (FAC, ¶¶22 – 29.) As a result, Ashleigh Wright and Curtis Lanch died. (Complaint, ¶31.)

On information and belief, plaintiffs allege defendant DaSilva has a driving record preceding this collision which includes multiple DUIs, reckless driving, multiple accidents, and revocation(s) and/or suspension(s) of his driving privilege and defendant DaSilva Farms knew of DaSilva’s driving record. (FAC, ¶¶25 and 30.)

On June 15, 2016, plaintiffs Holly Wright, Richard Wright III, Jeremy Wright by and through his guardian ad litem Dan Snyder, and Arvelle Lanch (“Plaintiffs”) filed a complaint against DaSilva, DaSilva Farms, AHMC, Capitol Honda and UAG asserting causes of action for: (1) Negligence; (2) Strict Liability; and (3) Negligent Infliction of Emotional Distress.

On August 12, 2016, defendant UAG Capitol, Inc. dba Capitol Honda (“Capitol Honda”) filed its answer to the complaint. On August 15, 2016, defendant AHMC filed its answer to the complaint. On September 6, 2016, defendant DaSilva filed his answer to the complaint. On September 9, 2016, defendant DaSilva Farms filed its answer to the complaint.

On June 1, 2017, the court granted Plaintiffs’ motion for leave to file an amended complaint. On June 8, 2017, Plaintiffs filed the operative FAC which asserts causes of action for:

(1) Negligence, Grossly Reckless, and Wrongful Acts, including as Defined in Civil Code Sec. 3294 for Punitive or Exemplary Damages – Injuries and Wrongful Death [against DaSilva and DaSilva Farms]
(2) Negligence [against AHMC, UAG, Capitol Honda]
(3) Strict Products Liability/ Injuries and Wrongful Deaths [against AHMC, UAG, Capitol Honda]
(4) Breach of Express Warranty [against AHMC, UAG, Capitol Honda]

On June 13, 2017, plaintiffs further amended the pleading to substitute Da Silva Dairy Management, Inc. (“DaSilva Management”) for a Doe defendant.

On September 29, 2017, defendant DaSilva filed an answer to the FAC. On October 24, 2017, defendants DaSilva Farms and DaSilva Management (collectively, “DaSilva Dairy”) filed an answer to the FAC.

I. Defendants DaSilva Dairy’s motion to quash or modify deposition subpoenas for production of business records is GRANTED, in part, and DENIED, in part.

A. Discovery dispute.

On or about August 15, 2018, Plaintiff Jeremy Wright issued a deposition subpoena for production of business records to the Custodian of Records at Bank of the West requesting production of the following records :

Any and ALL documents concerning or relating to any checking, savings, brokerage, and other financial accounts held by DaSilva Dairy Farms LP., (est. 2014) Principal place of business: 2466 E. Maricopa, Escalon, California or under signature authority of Joe DaSilva, Anna DaSilva, or Melissa Kale.
b. Bank statements
c. Canceled checks
d. Deposit tickets
e. Items deposited
f. Credit and debit memos
g. Wire transfer documents
h. Correspondence
i. Account statements
From January 1, 2011 through June 1, 2015

On or about August 22, 2018, Plaintiff Jeremy Wright issued a deposition subpoena nearly identical to the one issued on August 15, 2018. Plaintiff Jeremey Wright was unaware that this second duplicate deposition subpoena and have since withdrawn this second duplicate deposition subpoena.

On August 24, 2018, defendants DaSilva Dairy’s counsel sent Plaintiff Jeremy Wright’s counsel an objection to the subpoena.

On August 29, 2018, Plaintiff Jeremy Wright’s counsel replied and refused to withdraw or modify the subpoenas.

Between August 30, 2018 and September 5, 2018, Plaintiff Jeremy Wright’s counsel and DaSilva Dairy’s counsel met and conferred with regard to the August 15, 2018 deposition subpoena to Bank of the West.

On August 30, 2018, plaintiff Jeremy Wright served a Notice of Taking Deposition of Shelley Bryant and Demand for Production of Documents/ Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents for Shelley Bryant on September 20, 2018. This deposition is directed at the custodian of records for the accounting service utilized by DaSilva Dairy. Defendants DaSilva Dairy’s counsel received the Civil Subpoena for Shelley Bryant on September 5, 2018 and served an objection on the same date. Also on that same date, defendants DaSilva Dairy’s counsel informed Bank of the West and others of their intent to file a motion to quash.

On September 7, 2018, defendants DaSilva Dairy filed the instant motion to quash or modify deposition subpoenas for production of business records.

B. Merits.

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.

(Code Civ. Proc., § 1987.1, subd. (a).)

1. Deposition Subpoena to Bank of the West.

As both sides to this discovery dispute acknowledge, one of the issues in this case is whether defendants DaSilva Dairy are liable under the doctrine of respondeat superior for the actions of DaSilva. Defendants DaSilva Dairy contend DaSilva was not acting in the course and scope of his employment and was, instead, driving his personal vehicle which he personally maintained and insured. DaSilva Dairy contends further that at the time of the incident, DaSilva was driving to a friend’s house and planned to watch a sporting event. DaSilva’s friend, Dr. Michael Steine, was a veterinarian employed by Lander Vet Clinic and one of several veterinarians who DaSilva Dairy contracted with for animal health services.

In opposition, Plaintiff Jeremy Wright contends the business records of DaSilva Dairy are probative because DaSilva’s assertion that he was using a personal vehicle for social activity is not credible and DaSilva Dairy business records are needed to test the truth of DaSilva’s assertions.

DaSilva Dairy’s primary objection is that the deposition subpoena seeks information which is protected by the right to privacy. The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 370.) A party seeking to prevent discovery on the basis of the right of privacy must demonstrate that a legally protected privacy interest exists, there is a reasonable expectation of privacy under the particular circumstances, and the disclosure of the information would constitute a serious invasion of that interest. (Alch v. Sup. Ct. (2008) 165 Cal.App.4th 1412, 1423 (Alch).) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is directly relevant to an issue in the litigation. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 850.) Once direct relevance has been shown, the proponent of discovery must demonstrate that the information sought is not available through less intrusive means. (Allen v. Sup. Ct. (1984) 151 Cal.App.3d 447, 449.) In order to fairly balance the competing interests, courts must weigh the party’s privacy interest against the requesting party’s need for the information, the state’s interest, if any, and any other relevant interests presented. (Alch, supra, 165 Cal.App.4th at pp. 1432-1434.)

Defendants DaSilva Dairy contend the disclosure of the records being sought would amount to a serious invasion of their right to financial privacy. It is well-established that the right to privacy extends to a person’s financial affairs. (See Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550; see also International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 330.) As a threshold issue, the right of privacy contained in Article I, Section 1 of the California Constitution is limited to “people,” meaning natural persons. (Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791.) Corporations enjoy a general right of privacy, but do not enjoy the level of protection afforded individuals. (Id., p. 795.) The corporation’s right to privacy must be balanced against the relevancy of the information sought, with any doubts resolved in favor of allowing discovery. (Hecht, Solberg, Robinson, Goldberg & Bagley v. Sup. Ct. (2006) 137 Cal.App.4th 579, 595; see also Ameri-Medical Corp. v. Workers’ Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288-1289.)

Thus, it is incumbent upon plaintiff Jeremy Wright to demonstrate the direct relevance of the documents being sought. Plaintiff Jeremy Wright contends DaSilva is lying when he asserts that he used the vehicle exclusively for his personal purpose and not for DaSilva Dairy related purposes and is lying when he states that he did not use DaSilva Dairy gas to fuel his vehicle. Plaintiff Jeremy Wright contends bank records for DaSilva Dairy will prove DaSilva is lying. The court finds plaintiff Jeremy Wright has not made an adequate demonstration of direct relevance. DaSilva Dairy bank records may show DaSilva Dairy’s expenditure on gas or vehicle insurance, but it is not clear how DaSilva Dairy bank records will establish that DaSilva used DaSilva Dairy’s gas to fuel his vehicle or that DaSilva expenditures on vehicle insurance will establish that DaSilva Dairy paid the insurance on DaSilva’s vehicle. Nor is it clear to the court how DaSilva Dairy bank records will disprove DaSilva’s assertion that he was going to attend a sporting event with his friend, Dr. Steine.

Accordingly, defendants DaSilva Dairy’s motion to quash deposition subpoena for production of business records issued to Bank of the West is GRANTED.

2. Deposition Subpoena to Shelley Bryant.

As a preliminary matter, plaintiff Jeremy Wright contends the motion to quash the deposition subpoena to Shelley Bryant should be denied because the DaSilva Dairy defendants did not meet and confer in advance of filing their motion to quash. However, plaintiff Jeremy Wright did not cite, and the court is not aware of, a statutory meet and confer requirement prior to the filing of a motion to quash deposition subpoena.

With regard to the merits, the court holds some of the same concerns with the documents sought from Shelley Bryant (“Bryant”). The deposition subpoena for Bryant requests production of 18 categories of documents. The first category requests, “The complete downloads of business related financial records from QuickBooks provided to you by or on behalf of Melissa Kale, Paul Alexander Da Silva, DaSilva Dairy Farms, DaSilva Dairy Farms Management, Inc. and all of either of their affiliated and related and predecessor entities and sole proprietorships for the tax years 2009, 2010, 2011, 2012, 2013, 2014 and 2015.”

This request implicates DaSilva Dairy’s right to privacy. As discussed above, plaintiff Jeremy Wright does not make a sufficient showing that the information sought is directly relevant to an issue in this case. While a more narrowly tailored request may be relevant to demonstrating the truth of assertions made by DaSilva, the request is much too overbroad as currently phrased.

However, not all of plaintiff Jeremy Wright’s requests are overbroad. Some of the requests are more narrowly tailored. For instance, the seventh category of documents requested seeks, “Copies of all records relating to the gas tank and pump at the Da Silva Dairy submitted to you by or on behalf of Melissa Kale, Paul Alexander Da Silva, Da Silva Dairy Farms, Da Silva Dairy Farm Management, Inc. and all of either their affiliated and related and predecessor entities and sole proprietorships for the tax years 2009, 2010, 2011, 2012, 2013, 2014, and 2015.” This seventh category is more narrowly tailored and plaintiffs Jeremy Wright has adequately demonstrated the direct relevance of this request to test the veracity of DaSilva’s assertion that he pays for the gas used to fuel his personal vehicle and, consequently, was not acting in the course and scope of employment at the time of the incident.

Accordingly, defendants DaSilva Dairy’s motion to quash deposition subpoena for production of business records issued to Shelley Bryant is GRANTED, in part, as to requests number 1, 2, 3, 13, and 18. Defendants’ DaSilva Dairy’s motion to quash deposition subpoena for production of business records issued to Shelley Bryant GRANTED, in part, as to requests number 4 – 12 and 14 – 17. Any documents produced in response to requests number 4 – 12 and 14 – 17 shall be subject to a protective order. Defendants’ DaSilva Dairy’s motion to quash deposition subpoena for production of business records issued to Shelley Bryant is otherwise DENIED.

II. Plaintiff Jeremy Wright’s motion to compel compliance with response for production of documents is GRANTED, in part, and DENIED, in part.

A. Discovery dispute.

On August 10, 2018, plaintiff Jeremy Wright served the DaSilva Dairy defendants with a “Notice of Taking Deposition of Melissa Kale with Request for Production of Documents.”

On August 20, 2018, the DaSilva Dairy defendants served an Objection to Notice of Deposition of Melissa Kale and Demand for Production of Documents.

Melissa Kale (“Kale”) appeared for her deposition in the capacity of bookkeeper and custodian of records for the DaSilva Dairy defendants on August 24, 2018. Although Kale produced a few documents responsive to plaintiff Jeremy Wright’s requests, defendants’ counsel instructed Kale not to produce the bulk of the documents.

On August 29, 2018, plaintiff Jeremy Wright’s counsel sent a meet and confer letter to defendants’ counsel asking Kale to produce the remainder of the responsive documents and offering to enter into a stipulated protective order.

On August 30, 2018, defendants’ counsel responded by producing some further documents, but did not produce all of the outstanding documents.

Between August 31, 2018 and September 5, 2018, counsel for plaintiff Jeremy Wright and defendants continued to exchange meet and confer letters with regard to the production of responsive documents.

On September 11, 2018, plaintiff Jeremy Wright filed the instant motion to compel the DaSilva Dairy defendants to produce documents responsive to the deposition request for production of documents (“RPD”), numbers 1 – 5, 14, 16 – 17, 21, 30 – 32, 37, and 39 – 42.

B. Merits.

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., §2025.480, subd. (a).)

“This motion … shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., §2025.480, subd. (b).) As a preliminary matter, the DaSilva Dairy defendants contend plaintiff Jeremy Wright did not adequately meet and confer prior to filing this motion. The DaSilva Dairy defendants’ counsel submits a declaration stating plaintiff Jeremy Wright’s counsel declined his request for a conference call and an offer for an attorneys’ eyes only review of financial records.

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §2016.040.) A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.)

In reviewing the declarations and correspondence filed in support and opposition to this motion, the court finds plaintiff Jeremy Wright’s counsel’s efforts to be reasonable and in good faith under the circumstances.

The party objecting to a discovery request bears the burden of explaining and justifying the objections. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.)

1. RPD, numbers 1 – 3 and 5.

Plaintiff Jeremy Wright’s RPD number 1 seeks, “All Records of all veterinary services provided or rendered to or on behalf of PAUL ALEXANDER DA SILVA, AND TO DASILVA DAIRY FARMS, DASILVA DAIRY FARMS MANAGEMENT, INC. and all of either of their affiliated and related and predecessor entities and sole proprietorships from January 1, 2009 to present.”

In moving to compel production of documents responsive to this RPD, plaintiff Jeremy Wright contends responsive documents will show the close business connection between the DaSilva Dairy defendants and their veterinarian. As discussed above, DaSilva contends he was not acting in the course and scope of employment at the time of the incident and was instead driving to his friend’s house with plans to watch a sporting event. The friend, Dr. Steine, served as the DaSilva Dairy defendants’ veterinarian.

In opposition, the DaSilva Dairy defendants argue, principally, that the request is overbroad and irrelevant. The scope of discovery is broad and admissibility is not the test. “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., §2017.010; emphasis added.) “[D]oubts as to relevance should generally be resolved in favor of permitting discovery.” (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)

Accordingly, plaintiff Jeremy Wright’s motion to compel the DaSilva Dairy defendants’ to produce documents responsive to the deposition RPD, number 1, is GRANTED. DaSilva Dairy defendants shall produce any documents responsive to deposition RPD, number 1, within 10 calendar days from notice of entry of this order.

Plaintiff Jeremy Wright’s RPD, numbers 2 – 3 are substantially similar to RPD, number 1. For the same reason, plaintiff Jeremy Wright’s motion to compel the DaSilva Dairy defendants’ to produce documents responsive to the deposition RPD, numbers 2 – 3, is GRANTED. DaSilva Dairy defendants shall produce any documents responsive to deposition RPD, numbers 2 – 3, within 10 calendar days from notice of entry of this order.

The court does not find this reasoning applicable to RPD, number 5. The court finds RPD, number 5, to be too overbroad and irrelevant. Accordingly, plaintiff Jeremy Wright’s motion to compel the DaSilva Dairy defendants’ to produce documents responsive to the deposition RPD, number 5, is DENIED.

2. RPD, numbers 16, 17, 21, 37, 39, 40 and 42.

The DaSilva Dairy defendants contend they already produced all documents responsive to deposition RPD, numbers 16, 17, 21, 37, 39, 40 and 42. The DaSilva Dairy defendants shall provide a further verified response to deposition RPD, numbers 16, 17, 21, 37, 39, 40, and 42 affirming that all responsive documents have been produced within 10 calendar days from notice of entry of this order.

3. RPD, number 30 – 31.

Deposition RPD, number 30, seeks, “All records, logs, receipts of any kind, and other writings [Evidence Code §250] documenting and/or memorializing, and relating to, cash purchase of gasoline by PAUL ALEXANDER DASILVA for any and all vehicles, whether or not claimed and/or reported as a business expense, and other unspecified cash expenses claimed and/or reimbursed, for the years 2009 through 2014, inclusive.”

The DaSilva Dairy defendants contend they did not produce anything because there are no documents responsive to deposition RPD, number 30, in their possession. The DaSilva Dairy defendants assert the same with regard to deposition RPD, number 31. The DaSilva Dairy defendants shall provide a further verified response to deposition RPD, numbers 30 – 31, representing their inability to comply in accordance with Code of Civil Procedure section 2031.230 within 10 calendar days from notice of entry of this order.

4. RPD, number 41.

Deposition RPD, number 41, seeks, “Each and every ‘writing’ (as defined by Evidence Code §250) that relates in any way to each bank account check ledger utilized by DASILVA DAIRY FARMS, DASILVA DAIRY FARMS MANAGEMENT, INC. and all of either of their affiliated and related and predecessor entities and sole proprietorships for the years 2013 through 2015, inclusive.”

The DaSilva Dairy defendants object on the basis that this particular request is a veiled attempt at gaining access to their financial condition in connection with a claim for punitive damages which is prohibited absent a court order. Plaintiff contends the information is relevant to evaluate the defendants’ claim that DaSilva did not utilize his vehicle for the business, DaSilva Dairy did not pay or reimburse any expenses related to DaSilva’s vehicle, and to assess the overall importance of veterinary services to DaSilva Dairy.

Plaintiff Jeremy Wright’s motion to compel the DaSilva Dairy defendants’ to produce documents responsive to the deposition RPD, number 41, is GRANTED, in part. The request is overbroad and shall be limited to, “Each bank account check ledger utilized by DASILVA DAIRY FARMS, DASILVA DAIRY FARMS MANAGEMENT, INC. and all of either of their affiliated and related and predecessor entities and sole proprietorships for the years 2013 through 2015, inclusive.” The DaSilva Dairy defendants may redact any information which reflects their overall financial condition. The production of any documents responsive to deposition RPD, number 41, shall be subject to a protective order. Subject to these limitations, DaSilva Dairy defendants shall produce any documents responsive to deposition RPD, numbers 41, within 10 calendar days from notice of entry of this order.

C. Sanctions.

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.480, subd. (j).)

Plaintiff Jeremy Wright requests $5,460 in monetary sanctions against the DaSilva Dairy defendants. The court finds an award of monetary sanction would be inappropriate and unjust under the circumstances. Accordingly, plaintiff Jeremy Wright’s request for monetary sanctions is DENIED.