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

Case No.: 2016-1-CV-296446

Defendants Da Silva Dairy Farms, LP, Da Silva Dairy Management, Inc. and Joe Da Silva’s Motion to Quash Plaintiff Jeremy Wright’s Deposition Subpoena for Production of Business Records of Department of Motor Vehicles

Factual and Procedural Background

On or about June 16, 2014, defendant Paul Alexander DaSilva (“DaSilva”), while acting in the course and scope of his employment by defendants DaSilva Dairy Farms, LP, DaSilva Dairy Management, Inc., and Joe DaSilva (collectively, “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. (Second Amended Complaint (“SAC”), ¶¶33 – 39.) As a result, Ashleigh Wright died. (SAC, ¶41.)

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 defendants DaSilva Farms knew of DaSilva’s driving record. (SAC, ¶¶35 and 40.)

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 (“UAG”) 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 a first amended complaint (“FAC”) which asserted 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)
(3) Negligence [against AHMC, UAG, Capitol Honda]
(4)
(5) Strict Products Liability/ Injuries and Wrongful Deaths [against AHMC, UAG, Capitol Honda]
(6)
(7) Breach of Express Warranty [against AHMC, UAG, Capitol Honda]
(8)

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 Farms”) filed an answer to the FAC.

On August 29, 2019, Plaintiffs filed the operative SAC which adds a fifth cause of action for breach of implied warranty against AHMC, UAG, and Capitol Honda.

On October 8, 2019, defendants AMHC and UAG filed answers to the SAC.

On October 10, 2019, defendants DaSilva Farms filed answers to the SAC.

On October 22, 2019, defendant DaSilva filed an answer to the SAC.

I. Defendants DaSilva Farms’ motion to quash plaintiff Jeremy Wright’s deposition subpoena for production of business records of DMV is GRANTED, in part, and DENIED, in part.
II.

A. Discovery dispute.
B.

On or about October 11, 2019, plaintiff Jeremy Wright served a deposition subpoena for production of business records to the Department of Motor Vehicles (“DMV”) requesting production of documents evidencing title/ownership, vehicle registration, and title history from 2001 to the present for each and every vehicle registered to Melissa Kale, Richard Da Silva, Dennis Da Silva, Joe Da Silva, Ana Da Silva, Paul Da Silva, Michael Da Silva, and Da Silva Farms including related entities.

On or about October 31, 2019, defendant Da Silva Farms’ counsel sent meet and confer correspondence to plaintiff Jeremy Wright’s counsel setting forth objections to the DMV subpoena.

As of November 7, 2019, no response was received from plaintiff Jeremy Wright’s counsel regarding the meet and confer letter.

On November 7, 2019, defendant Da Silva Farms filed the motion now before the court, a motion to quash plaintiff Jeremy Wright’s deposition subpoena to the DMV except as to those DMV records relating to Paul Da Silva.

C. Merits.
D.

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).)

In the SAC, Plaintiffs allege defendant Joe Da Silva is the alter ego of defendants Da Silva Dairy Management, Inc. (“Da Silva Management”) and Da Silva Dairy Farms, LP (“Da Silva Partnership”). (SAC, ¶¶17 – 24.) Joe Da Silva is alleged to be the patriarch of the dairy/agricultural business and that his adult children (including defendant DaSilva) are employees, agents, and minority owners of Da Silva Management and Da Silva Partnership. (SAC, ¶19.)

Defendants Da Silva Farms acknowledge Plaintiffs have issued the subpoena to the DMV in an effort to support their alter ego allegations against defendant Joe Da Silva, but nevertheless contend the subpoena is overbroad in several respects. Temporally, the subpoena seeks DMV records dating back to 2001. In the SAC, Joe Da Silva is alleged to be the alter ego of Da Silva Management and Da Silva Partnership and that those two entities were incorporated and formed, respectively, on or about August 16, 2012. (SAC, ¶17.)

Defendants Da Silva Farms point out that to the extent the subpoena is directed at Joe Da Silva’s children, non-parties Melissa Kale, Richard Da Silva, Dennis Da Silva, Joe Da Silva, and Michael Da Silva did not become minority partners of Da Silva Farms until 2007. [Defendants Da Silva Farms note that Ana Da Silva is an un-served Doe defendant, but otherwise the parties do not discuss Ana Da Silva as it relates to this issue of temporal relevance.] In opposition, plaintiff Jeremy Wright indicates their agreement to narrow the temporal scope for these non-parties to the time frame of 2007 – 2017. The court agrees with defendants Da Silva Farms that the deposition subpoena is temporally overbroad as to Melissa Kale, Richard Da Silva, Dennis Da Silva, Ana Da Silva, and Michael Da Silva in view of the allegation that Da Silva Management and Da Silva Partnership were incorporated/formed in 2012 and by plaintiff’s own acknowledgment that the time frame should be limited.

Defendants Da Silva Farms also contends the subpoena is overbroad in that it seeks DMV records pertaining to third-party non-defendant entities DaSilva Dairy Farms, LLC; DaSilva Bros. Dairy; Joe DaSilva Dairy; and DaSilva Dairy. In opposition, plaintiff discusses and refers to the Dairy Entities, but they are defined as Da Silva Management and Da Silva Partnership. Since there is no explanation about the relevance of third-party non-defendant entities DaSilva Dairy Farms, LLC; DaSilva Bros. Dairy; Joe DaSilva Dairy; and DaSilva Dairy, the court finds the subpoena overbroad to the extent that it seeks documents relating to these third-party non-defendant entities.

Defendants Da Silva Farms further objects to the deposition subpoena on the ground that it 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 Da Silva Farms 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 the DMV records are relevant to establishing the alter ego liability of defendant Joe Da Silva. “The alter ego doctrine arises when a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff’s interests.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300.) “[T]wo conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” (Tucker Land Co. v. State of California (2001) 94 Cal.App.4th 1191, 1202.)

“In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone. [Citations.] ‘Among the factors to be considered in applying the doctrine are commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one as a mere shell or conduit for the affairs of the other.’ [Citations.] Other factors which have been described in the case law include inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. [Citations.] No one characteristic governs, but the courts must look at all the circumstances to determine whether the doctrine should be applied. [Citation.] Alter ego is an extreme remedy, sparingly used. [Citation.]” [Citations.]

(Hasso v. Hapke (2014) 227 Cal.App.4th 107, 155.)

DMV records are relevant because they have a tendency to prove or disprove whether Joe Da Silva is using Da Silva Management and/or Da Silva Partnership as an alter ego to conduct his own personal affairs. While plaintiff may be able to employ other discovery methods to inquire about the same information sought through this subpoena, plaintiff is entitled to independently verify such information through DMV records which is the least intrusive means. On balance, the court finds plaintiff Jeremy Wright’s right to discover relevant facts outweighs the right to privacy of defendants Da Silva Farms and Melissa Kale, Richard Da Silva, Dennis Da Silva, Joe Da Silva, Ana Da Silva, and Michael Da Silva. Defendants’ objection on grounds of privacy is OVERRULED.

Accordingly, defendants Da Silva Farms’ motion to quash plaintiff Jeremy Wright’s deposition subpoena for production of business records of DMV is GRANTED, in part, and DENIED, in part. With regard to request numbers 1 – 18 and 22 – 24 in the deposition subpoena, production of any business records shall be limited to the time-frame of 2001 through 2017. With regard to request numbers 4 – 6, production of any business records shall be further limited to Da Silva Dairy Farms, LP and Da Silva Dairy Management, Inc. produced in response to the deposition subpoena shall be subject to a protective order.