Case Number: BC527620    Hearing Date: April 24, 2014    Dept: 34

Moving Party: Defendant Urgent Nursing Resources, Inc. (“defendant”)

Resp. Party: None

Defendant’s unopposed motion to quash the subpoena served on JP Morgan Chase is GRANTED. The Court declines to impose sanctions.

PRELIMINARY COMMENTS:

The court is concerned about plaintiff’s actions and inactions concerning this subpoena to J.P. Morgan Chase. First, plaintiff filed an immensely overbroad subpoena requesting numerous private financial documents. Then, after defendant filed its motion to quash, plaintiff chose not to file an opposition. Plaintiff’s decision not to oppose this motion indicates to the court that plaintiff agrees with defendant that the subpoena should be quashed. If so, plaintiff should have withdrawn the subpoena voluntarily, thus saving this court the time required to prepare this decision.

Had defendant prepared a proper declaration substantiating its attorney’s time in preparing this motion, the court would have awarded sanctions against plaintiff.

BACKGROUND:

Plaintiffs commenced this action on 11/15/13 against defendants for: (1) failure to pay overtime wages; (2) failure to provide meal and rest periods; (3) failure to keep accurate records; (4) violation of Labor Code section 203; and (5) unfair business practices.

On 2/26/14, the Court sustained defendants’ demurrer to the complaint, with leave to amend. Plaintiff has not yet filed an amended complaint.

ANALYSIS:

Defendant moves to quash the deposition subpoena served on JP Morgan Chase on the grounds that it is overbroad, seeks irrelevant information, and seeks information protected by defendant’s and third parties’ rights to privacy.

California Code of Civil Procedure section 1987.1, subd. (a) provides:

If a subpoena requires the attendance of a witness or the production of books, documents, 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.

A motion to quash must be accompanied by a separate statement unless “no response has been provided to the request for discovery.” (Cal. Rules of Court, rule 3.1345(a), (b).) Defendant provides a separate statement.

“A motion to quash by a ‘consumer’ or ’employee’ must be served on the witness and the deposition officer at least five days before the date set for production of the subpoenaed records. (Failure to serve the deposition officer does not invalidate the motion but excuses the officer from liability for improper release of the subpoenaed records.)” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2011) ¶ 8:602.) The date of production in the subpoena was set for 2/21/14. (See Dos Santos Decl., Exh. A.) Defendant timely served the instant motions more than five days before this date.

The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 1985.3(g).) However, a discovery motion should not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith. (See Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 434.) Defendant fails to provide such a declaration.

The subpoena requests production of the following items:

1) All applications for bank loans signed by any the DEFENDANT from August 2009 to November 2012.
2) All DOCUMENTS concerning loans YOU provided to the DEFENDANT from August 2009 to November 2012.
3) All DOCUMENTS, including but not limited to UCC liens and statements, which YOU filed with the California Secretary of State concerning the DEFENDANT from August 2009 to November 2012.
4) All DOCUMENTS which YOU filed with any Local, state, or federal government agency concerning the DEFENDANT from August 2009 to November 2012.
5) All DOCUMENTS which YOU received from any local, state, or federal government agency concerning the DEFENDANT from August 2009 to November 2012.
6) All other DOCUMENTS, including but not limited to credit reports, evidence of collateral, tax returns, financial statements, fictitious business name statements, business licenses, and bank account statements, which YOU received from any or all of the DEFENDANT from August 2009 to November 2012.
7) All bank account statements for bank account number from August 2009 to the present.
8) All checks, cashier’s checks, or other negotiable instruments drawn on the DEFENDANTS bank account, number from August 2009 to the present.
9) All documents which identify the persons who are authorized to sign checks drawn on the DEFENDANT’s bank account number from August 2009 to the present.

(Dos Santos Decl., Exh. A.)

“[I]ndividuals have a legally recognized privacy interest in their personal financial information.” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal. 4th 319, 330.) “The extent of any privacy rights of a business entity is unsettled.” (Volkswagen of America, Inc. v. Sup. Ct. (2006) 139 Cal.App.4th 1481, 1492, fn.9 [citing, e.g., Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 793]; see also Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶¶ 8:297-8:297.6.) The California Supreme Court has assumed, without deciding, that corporate entities have privacy rights. (Hecht, Solberg, Robinson, Goldberg & Bagley v. Sup. Ct. (2006) 137 Cal.App.4th 579, 594 [citing Connecticut Indem. Co. v. Sup. Ct. (2000) 23 Cal.4th 807, 817-818].) One case has found that “[p]rivacy rights accorded artificial entities . . . depend on the circumstances. . . .” (Ameri-Medical Corp. v. Workers’ Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288 [citing, e.g., United States v. Hubbard (D.C.Cir.1980) 650 F.2d 293, 306 07].) “Two critical factors are the strength of the nexus between the artificial entity and human beings and the context in which the controversy arises.” (Ameri-Medical Corp., 42 Cal.App.4th 1288 [internal quotations and citations omitted].) Another case noted “‘[a] corporation, partnership or unincorporated association has no personal right of privacy.'” (Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 516.) “Assuming a business entity has a right of privacy, courts must determine whether it is outweighed by the relevance of the information sought to the subject matter in the pending action. ‘(D)oubts as to relevance should generally be resolved in favor of permitting discovery.’ ” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2012) ¶ 8:297.5 [quoting Hecht, supra, 137 Cal.App.4th at p. 595].)

“California accords privacy the constitutional status of an ‘inalienable right,’ on a par with defending life and possessing property.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841 [citing Cal. Const., art. I, § 1; White v. Davis (1975) 13 Cal.3d 757].) In determining this issue, “courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Id. at p. 843.)

The right to privacy is not absolute and is limited by the right to discovery. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853.) “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.) However, “when the constitutional right of privacy is involved, the party seeking discovery of private matter must do more than satisfy the section 2017 standard. The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” (Lantz, 28 Cal.App.4th at pp. 1853-1854.)

“However, determination of the nature of the compelling state interest does not complete the constitutional equation.” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 934.) “An impairment of the privacy interest ‘passes constitutional muster only if it is necessary to achieve the compelling interest.’” (Ibid. [quoting Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1148].)

“That means that the conflict between the competing values must be unavoidable, i.e., that it does not arise from the choice of means by which to secure the compelling interest. It can readily be seen that if the conflict is avoidable but is not avoided the real conflict is not between the compelling interest and the constitutional interest but between the means chosen to achieve the compelling interest and the constitutional interest. Thus, a logical corollary of the compelling interest doctrine is the alternatives test. It requires a reordering of the values to be placed on the constitutional scales. If an alternative means of securing the compelling interest can be devised by which to avoid or minimize the conflict between the values protected by the constitution and the values found to be of compelling interest, that must be done. [Citation.] This results in a prohibition, among other things, of overbroad means of enforcement. It requires that the state utilize the ‘least intrusive’ means to satisfy its interest. [Citation.]”

(Palay, 18 Cal.App.4th at p. 934 [quoting Wood, 166 Cal.App.3d at p. 1148].) “The scope of methods used must be tailored to avoid disclosure of protected records.” (Palay, 18 Cal.App.4th at p. 934.)

“The burden is on the party seeking the constitutionally protected information to establish direct relevance.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Ibid.)

Because plaintiffs have not filed an opposition to the instant motion, there is no showing as to why the documents sought are relevant to the instant action. Accordingly, defendant’s motion to quash the subpoena is GRANTED.

Defendant vaguely requests an award of monetary sanctions against plaintiff and her counsel of record. An award of sanctions for a motion to quash deposition subpoenas is discretionary. “[T]he court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2(a).)

Defendant fails to indicate an amount of sanctions sought. There is no showing in the declaration as to how much time was spent in preparation of the instant motion, or any other evidence to support a sanctions amount. Because it is impossible for the Court to determine an appropriate sanctions amount based on the moving papers, and because plaintiff has been given no notice as to the amount of sanctions sought, the Court declines to impose sanctions. However, had a proper, substantiated request for sanctions been made, the court would have imposed sanctions.

Defendant to prepare the Order.