| Singh v. MJ Food & Liquor, Inc. dba Shop N Save, et al. | CASE NO. 113CV251926 | |
| DATE: 7 November 2014 | TIME: 9:00 | LINE NUMBER: 5 |
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 6 November 2014. Please specify the issue to be contested when calling the Court and counsel.
On 7 November 2014, the motion of plaintiff Gurnam Singh (“Plaintiff” or “Singh”) to quash MJ Food & Liquor, Inc.’s (“MJ Food”) deposition subpoena to Wells Fargo Bank for production of business records was argued and submitted. Defendants Manu Kumar (“Kumar”), Jyoti Modi (“Modi”), Neeru Birly, Shana Birly and MJ Food (collectively, “Defendants”) filed a formal opposition to the motion.
- Statement of Facts
This is an action for breach of a contract regarding the sale of a liquor store business. According to the allegations of the second amended complaint (“SAC”), in April 2013, Singh and Kumar entered into an oral agreement whereby Kumar agreed to sell MJ Food to Singh for $560,000. (See SAC, ¶¶ 21, 28.)
On 12 April 2013, Plaintiff issued 6 blank signed checks and gave them to Kumar, and Kumar endorsed in his own handwriting amounts of $15,000, $15,000, and $20,000 to Neeru Birly, Kumar’s sister, and amounts of $15,000, $15,000, and $20,000 to Major Singh, Kumar’s friend. (See SAC, ¶ 25.)
From 6 April 2013 to 3 May 2013, Plaintiff gave Kumar cash totaling $200,000. (See SAC, ¶ 26.) Kumar then asked Plaintiff to deposit checks issued by Sharn Birly and Major Singh totaling $50,000 per issuer, and Plaintiff then gave Kumar the cash amount of $100,000. (See SAC, ¶¶ 26-27.) Plaintiff then tendered the remaining $260,000 owed, and additionally paid $18,000 in cash for the lease deposit for the landlord. (See SAC, ¶¶ 29-32.) Kumar thereafter refused to transfer ownership of the store or return the $578,000 to Plaintiff. (See SAC, ¶¶ 34-35.)
On 29 January 2014, Plaintiff filed the SAC, asserting causes of action for: breach of contract; breach of the implied covenant of good faith and fair dealing; fraud; conspiracy to defraud; conversion; unjust enrichment; and, declaratory relief.
On 11 March 2014, MJ Food filed a cross-complaint (“XC”) against Singh, asserting a single claim for conversion. According to the allegations of the XC, Singh is a former employee of MJ Food who worked as a cashier from 2008 to 25 May 2013. (See XC, ¶ 2.) During his tenure, Singh regularly rang up a small fraction of the purchase price on the cash register, while charging the full amount to the customer, converting the remainder to himself.[1] (See XC, ¶¶8-9.) MJ food noted a significant and inexplicable loss in profits and unaccounted-for decrease in inventory. (See XC, ¶ 11.)
After reviewing its cash register receipts and the tapes from the security camera located above the cash register, MJ Food noticed discrepancies between the costs of the items and the actual amounts rung up, and on 25 May 2013, MJ Food reported Singh’s conduct to the Mountain View Police Department and terminated Singh’s employment. (See SAC, ¶¶ 12-14.)
- Discovery Dispute
On 15 August 2014, Plaintiff was deposed as to the source of the money that he used to make the $578,000 payment. Although he testified that the money came from his savings and his family savings from India, Plaintiff also testified that he did not have the money wired to him from India, but rather, cash in increments of no more than $20,000 was delivered by 8-9 unknown “friends” or people with no relationship, over an unknown time period—but after he started working for MJ Food—perhaps as a loan from unknown persons in India, and then deposited into bank accounts at Bank of America and Wells Fargo.
On 3 September 2014, MJ Food served a deposition subpoena for production of business records on Wells Fargo Bank (“Wells Fargo”), requesting “[a]ll monthly statements reflecting deposits and withdrawals made to and from bank account… in the name of Gurnam Singh… for the period of November 1, 2008 through the present.” Also on 3 September 2014, Singh received a copy of the Notice to Consumer or Employee which notified them of the subpoena served on Wells Fargo.
After parties met and conferred, on 23 September 2014, Plaintiff filed the instant motion to quash the deposition subpoena to Wells Fargo for production of the business records. Defendants filed their opposition to the motion on 27 October 2014.
III. Discussion
- Motion to Quash Deposition Subpoena
- Legal Standard
Code of Civil Procedure section 1987.1 states that any person can move for 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. (Code Civ. Proc. § 1987.1, subd. (a).)
The court may also make any order that justice requires to protect the party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense, including a protective order providing that certain writings or tangible things designated for production not be produced. (CCP, § 2025.420, subds. (b) and (b)(11).)[2]
- Privacy
The right of privacy established by the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 370.) The right to privacy, however, is not absolute, and where privacy rights are implicated, the court must “carefully balance” the right of privacy and the right of civil litigants to discover relevant facts. (Valley Bank of Nevada v. Super. Ct. (Barkett) (1975) 15 Cal.3d 652, 657.)
Plaintiff asserts that “[t[he documents that MJ seeks are not relevant to the pending action… [since e]ven assuming SINGH’s banking records reflect deposits of various sums of money, it would not show the SOURCE of those funds and therefore is not evidence of anything alleged in the cross-complaint.” (Pl.’s memorandum of points and authorities in support of motion to quash deposition subpoena (“Pl.’s memo”), p.4:5-8.) However, Plaintiff’s own SAC alleges that he deposited certain funds in his bank accounts and gave cash from his bank accounts totaling $578,000. The deposit and withdrawal of funds from his bank accounts such as his account at Wells Fargo would directly support or disprove his allegations and deposition testimony.
Here, Defendants have shown that the evidence sought is “directly relevant” to Plaintiff’s claims. (See Harris v. Super. Ct. (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Super. Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 859-862; see also Valley Bank of Nevada, supra, 15 Cal.3d at pp.657-658 (stating that bank records are within a recognized zone of privacy).)
Accordingly, Plaintiff’s motion to quash MJ Food’s deposition subpoena to Wells Fargo for production of business records is DENIED.
- Conclusion and Order
Plaintiff’s motion to quash MJ Food’s deposition subpoena to Wells Fargo for production of business records is DENIED.
| ____________________________
DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] In the excerpts of the deposition attached to the opposition papers, Plaintiff admitted that he was undercharging customers for items purchased because, according to him, Defendant instructed him to do so.
[2] While this section refers to the court’s authority to make orders pertaining to depositions, a subpoena for the production of business records is considered a deposition subpoena. (CCP, §§ 2020.010, subds. (a)(3) and (b) and 2020.020, subd. (b).)
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