2018-00243747-CU-PN

Serena Boutte Morales vs. Moseley C. Collins

Nature of Proceeding: Motion to Quash Subpoena

Filed By: Barnes, Heather A.

Defendants Moseley C. Collins, III and Moseley C. Collins, III, Attorney at Law A Professional Law Corporation’s (collectively, “Defendants”) motion to quash plaintiff Serena Boutte Morales’ (“Plaintiff”) subpoena to Wells Fargo Bank seeking Defendants’ client trust account bank statements for March through October 2003 is ruled upon as follows.

This legal malpractice action arises from Defendants’ alleged mishandling of Plaintiff’s personal injury suit, and the settlement Defendants’ negotiated on her behalf. The underlying personal injury action arose from a fall that occurred on June 15, 2001. Plaintiff, then 19-months old, fell from the second story landing in her mother’s apartment building. Plaintiff is currently 18 years old.

Plaintiff’s mother, Elisabeth Boutte, retained Defendants to file a personal injury suit on Plaintiff’s behalf. On or about June 8, 2002, Plaintiff’s grandmother, Theresa Neathery, was named Guardian ad litem for Plaintiff in the litigation. The litigation was submitted to judicial arbitration on February 6, 2003, where Plaintiff’s special damages were calculated at $65,277.11 and her general damages were calculated at $30,000. General damages were reduced by 50% due to Ms. Boutte’s contributory negligence. Plaintiff’s award was $80,277.11.

In this instant action, Plaintiff alleges claims for legal malpractice, breach of fiduciary duty, and breach of contract. Plaintiff alleges Defendants’ prosecution and settlement of her personal injury case fell below the standard of care. Plaintiff alleges Defendants improperly submitted her personal injury action to arbitration, failed to present sufficient evidence of her injuries and damages, failed to obtain court approval of his engagement agreement, the compromise of Plaintiff’s claims as a minor, his fees and costs, and the payment of medical liens. Plaintiff alleges Defendants failed to obtain a court order directing her money be placed in a blocked account so her funds would be protected.

Plaintiff alleges Defendants distributed the settlement funds to her grandmother, who then embezzled the funds.

On or around July 24, 2019, Plaintiff issued a deposition subpoena to Wells Fargo Bank, N.A. seeking the following:

“All Wells Fargo Bank, N.A. trust account statements for Moseley Collins III, Attorney at Law, Wells Fargo Account No. 024601250 for the period of March 2003 through October 2003.”

The parties met and conferred regarding withdrawal of the subpoena, but were unable to reach an agreement. In an effort to resolve the matter, Defendants produced redacted internal transactions statements from QuickBooks pertaining to Defendants’ trust account. Plaintiff contends the production of the internal records is not a substitute for the actual trust account bank statements and refused to withdraw the subpoena.

Defendants now move to quash the subpoena on the grounds the records are not relevant to this litigation and are protected by the right to financial privacy. Defendants also contend the records are protected by Defendants’ duty of confidentiality under Business & Professions Code § 6068(e)(1). Defendants contend at the very least, Defendants should have an opportunity to redact all information produced by the subpoena to the same extent they have redacted transaction records previously produced.

Defendants first argue the subpoena seeks documents that are protected by the right to privacy and also that are irrelevant because Plaintiff has not alleged Defendants misappropriated any of her settlement funds. Rather, Plaintiff has alleged Defendants paid her grandmother, her Guardian ad litem, who subsequently embezzled the funds. Defendants argue there are no allegations Defendants took any part in the misappropriation.

In opposition, Plaintiff argues the documents will “illuminate how Collins disposed of” the settlement proceeds, “may illuminate the reason for Collins’ five-month delay” in distributing the settlement proceeds, and can be compared against the internal documents produced to determine if they are accurate. Plaintiff argues the documents will “illuminate how and when her settlement proceeds were received, paid to Collins, to third parties and finally to Neathery.” (Opposition at 6:12-13.)

At the outset, the Court must agree that the Bank records sought here do implicate Mr. Collins’ constitutional rights to privacy and thus, Plaintiff must show significantly more than that the subpoena is reasonably calculated to lead to admissible evidence. In particular, where privacy rights are involved, the party seeking discovery must demonstrate that the material sought is “directly relevant” to a fundamental issue in the litigation and is “essential” to a fair resolution on the merits. (See, e.g., Alch v. Superior Court (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1432-1433.) Additionally, in order to pass constitutional scrutiny, the discovery relating to matters deemed private must be “narrowly tailored” to obtain only the “essential” information and the party seeking the discovery must also show there is no less intrusive means to obtain this information. (See, e.g., Tien v. Superior Court (Tenet Healthcare Corp .) (2006) 139 Cal.App.4th 528, 539-540; In re Marriage of Harris (2004) 34 Cal.4th 210, 244.) Even where these prerequisites are met, there is no categorical right to conduct discovery on such private matters as the Court is still required to ‘carefully balance’ the rights and interests involved before permitting an invasion of privacy. (See, e.g., Alch, at 1423-1425.)

Plaintiff’s showing in the present case falls short of justifying the proposed discovery. First, Plaintiff has failed to explain how the information is directly relevant to her claims in the legal malpractice action. While the bank account statements may show the tracing of the settlement funds and perhaps explain why it took five-months for the proceeds to be distributed, Plaintiff does not allege that Mr. Collins misappropriated or embezzled her settlement funds in any way. Plaintiff alleges only that Mr. Collins paid the settlement funds to her grandmother. Plaintiff’s grandmother, in turn, is the person who is alleged to have embezzled the funds. The allegations against Defendants include that they improperly submitted her personal injury action to arbitration, failed to present sufficient evidence of her injuries and damages, failed to obtain court approval of his engagement agreement, the compromise of Plaintiff’s claims as a minor, his fees and costs, and the payment of medical liens, and failed to obtain a court order directing her money be placed in a blocked account so her funds would be protected. Thus, whether or not there was a five-month delay in payment and how and when the funds were received and paid does not appear to be directly relevant to Plaintiff’s claims against Mr. Collins and his law firm.

Further, that the information may confirm the accuracy of the internal records voluntarily produced by Defendants is also not a sufficient basis upon which to compel an invasion into Mr. Collins’ right to financial privacy, in “all” of his trust account statements for a seven month period. Further, the discovery request is not “narrowly tailored” to seek only the information which is “directly relevant” and “essential.” Plaintiff’s subpoena seeks the entirety of the trust account statements for Moseley Collins III, Attorney at Law, for the period of March 2003 through October 2003, without any tailoring as to the settlement funds that are at issue in this action. Finally, Plaintiff’s offer to have Defendants’ redact entries that identify other clients does not change the foregoing analysis, nor

Because the opposition has failed to justify the invasion of Mr. Collins’ constitutional right to privacy, this motion to quash the subpoena for records from Bank must be and hereby is GRANTED. The Court therefore need not address the additional arguments raised in support of the motion.

Defendants’ request for sanctions is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.