Mario Landino v. Rosario Spatola, et al.		CASE NO. 113CV250091
DATE: 16 January 2015	TIME: 9:00	LINE NUMBER: 8

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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15 January 2015.  Please specify the issue to be contested when calling the Court and counsel.

On 16 January 2015, the motion of defendant/cross-complainant Rosario Spatola (“Rosario”) and defendant Georgina Bugeja a.k.a. Georgina Spatola (“Georgina”) (collectively, “the Spatolas”) to quash subpoenas to nonparties JP Morgan Chase Bank N.A. (“Chase”), Bank of America N.A. (“Bank of America”), American Express Travel Related Services Company, Inc. (“American Express”), Capital One Bank (USA) N.A. (“Capital One”), and BTI Group, Inc. d.b.a. Business Team (“BTI”) and for monetary sanctions was argued and submitted.  Plaintiff/cross-defendant Mario Landino (“Landino”) filed a formal opposition to the motion.[1]

All parties are reminded that all papers must comply with California Rules of Court (“CRC”), rule 3.1110(f).[2]

1. Statement of Facts

This action arises out of a partnership dispute.  In the complaint, Landino alleges the following: In 1994, Landino and Rosario formed a partnership to operate a pizzeria, and executed a written contract providing that each partner was entitled to equal shares of partnership profits/losses and could “withdraw from the Partnership funds per month for personal use,” and withdrawals would “be charged against that Partner’s share of the partnership net profits.”  (Compl., Ex. A.)

In 2012, Rosario decided to expel Landino and dissolve the partnership based on an “audit” prepared by Rosario’s wife, Georgina, who was not qualified to conduct an audit.  The Spatolas then formed a new company to take over the partnership and its assets, and refused to allow Landino to inspect the partnership’s books.

In the cross-complaint, Rosario alleges the following: Rosario and Landino agreed that Rosario would manage the pizzeria and Landino would perform the partnership’s bookkeeping/accounting.  In November 2011, the Spatolas applied for a home loan modification that required them to produce the partnership’s financial records.  Landino gave the records to Rosario.  The Spatolas reviewed the records and found that Landino misappropriated partnership funds.  The Spatolas also believe that Cross-Defendants conspired to help Landino breach his fiduciary duties.

1. Discovery Dispute

On 13 November 2014, Landino issued subpoenas for business records to Chase, Bank of America, American Express, and Capital One (collectively, “the Banks”), seeking records from various financial accounts of the Spatolas.  The same day, Landino issued a subpoena for business records to BTI—Georgina’s employer—seeking the production of documents concerning the pizzeria, DG, the audit, Rosario, and Landino, as well as Georgina’s personnel records and employment history.

The Spatolas believe that the discovery sought by the subpoenas is irrelevant, overbroad, unduly burdensome and oppressive, and protected from disclosure by their privacy rights.

On 26 November 2014, the Spatolas filed this motion to quash the subpoenas and for an award of monetary sanctions against Cross-Defendants.

On 5 January 2015, Landino filed an opposition to the motion and requests an award of monetary sanctions against the Spatolas and their counsel.

The Spatolas filed reply papers on 12 January 2015.

III.     Discussion

1. Motion to Quash

The Spatolas move to quash the subpoenas to the Banks and BTI pursuant to Code of Civil Procedure (“CCP”) section 1987.1, which provides that, if a subpoena requires the production of documents, a party may 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.[3]  (CCP, § 1987.1, subd. (a).)

Landino opposes the motion, and as a threshold matter, asserts that the motion should be summarily denied based on procedural defects because the Spatolas did not name the parties to whom the motion is addressed, meet and confer, or file a separate statement and copies of the subpoenas with the moving papers.[4]

1. Procedural Matters

First, Landino contends that the motion is fatally defective because it does not name the parties to whom it is addressed.  CRC, rule 3.1112(d) provides that a “motion must . . . [n]ame the parties to whom it is addressed.”  The motion states that it is directed “to all parties and their attorneys of record” (the Spatolas’ Notice, at p. 1:25), but the subpoenas were issued only by Landino, and the Spatolas request sanctions against Cross-Defendants.  Thus, the moving papers do not properly name the parties to whom it is addressed.  In any event, Landino was able to respond to the substantive merits of the motion.  Therefore, the Court will not summarily deny the motion simply because it does not properly name the parties.[5]

Next, Landino argues that the Spatolas failed to meet and confer before bringing this motion.  Where a subpoena issued to a party’s bank seeks the production of that party’s personal records, the party is not required to meet and confer before filing a motion to quash the subpoena.  (See CCP, §§ 1987.1 [not requiring the moving party to meet and confer] & 1985.3, subds. (a) [“consumer” is a person who used the services of a “witness,” e.g., a bank] & (g) [authorizing a consumer/party to bring a motion to quash a subpoena for personal records without imposing a meet and confer requirement].)  Thus, the Court will not summarily deny the motion for lack of meet and confer efforts.[6]

Landino also insists that the motion should be summarily denied for lack of a separate statement.  A motion to quash a subpoena for records must be supported by a separate statement “that provides all the information necessary to understand each discovery request and all the responses to it that are at issue” and sets forth “the text” of each discovery request.  (CRC, rule 3.1345(a)(3) & (c).)  Courts have the discretion, but are not required, to deny a discovery motion for lack of a separate statement that complies with the CRC.  (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894.)

The Spatolas did not submit a separate statement as required.[7]  The Court considered summarily denying the motion for this reason alone.[8]  However, the Spatolas quote text from that subpoena to BTI and describe the discovery sought by the subpoenas to the Banks in their moving papers.  (The Spatolas’ P&A, at pp. 5:25-6:2, 6:14, 6:16, 6:28-7:5; Georgina’s decl., at ¶ 2.)  The Spatolas also submit copies of the subpoenas with their reply papers.  (Dewhirst decl., Ex. 1.)  This information is sufficient for the Court to determine what records are sought by the subpoenas.  Furthermore, Landino addresses the substantive merits of the motion to quash in his opposition, and thus, it appears he was not prejudiced by the lack of a separate statement.  Accordingly, the Court exercises its discretion to consider the merits of the motion, despite the lack of a separate statement that complies with the CRC.

Lastly, Landino insists that the motion should be summarily denied because the Spatolas did not submit copies of the subpoenas with the moving papers.  While it is true that the Spatolas did not submit copies of the subject subpoenas with the moving papers,[9] Landino cites no legal basis in support of his position that a motion to quash should be denied where the moving party does not attach the subpoenas to the moving papers.[10]  In any event, the Spatolas submitted copies of the subpoenas with their reply papers.  The Court will therefore not summarily deny the motion simply because the Spatolas did not submit copies of the subpoenas with the moving papers.

In light of the foregoing, Landino’s assertion that the motion to quash should be summarily denied on procedural grounds is unavailing, and the Court will consider the merits of the motion.

1. Merits of the Motion

The subpoenas to the Banks seek account statements and documents reflecting any deposits and withdrawals made by or on behalf of the Spatolas from August 1, 2007 to the present, from specific accounts.  The subpoena to BTI seeks the production of documents concerning the pizzeria, the partnership, DG, the Spatolas, Landino, and the audit, as well as Georgina’s employment/payroll records and employment history, BTI’s decision and offer to employ Georgina, the conditions and benefits of Georgina’s employment and her employment contract, Georgina’s job title(s) and duties, Georgina’s job evaluations and complaints/grievances, documents showing Georgina’s salary and other forms of income provided by BTI, communications between Georgina and BTI, and other documents referring or relating to Georgina.

The Spatolas object to the subpoenas on the grounds that the subpoenas are “oppressive, overbroad or unduly burdensome,” the discovery sought is not relevant, and the disclosure of such information “would be an unreasonable violation of [the Spatolas’] right of privacy.”

It is the objecting party’s burden to justify the objections.  (See Fairmont Ins. Co. v. Super. Ct. (Stendell) (2000) 22 Cal.4th 245, 255.)  The merits of the Spatolas’ objections are discussed in turn below.

1. Relevance and Overbreadth Objections

Discovery is allowed for any matter that is not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence.  (CCP, § 2017.010.)  The “relevance to the subject matter” and “reasonably calculated to lead to the discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery.  (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)  Admissible evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid. Code, §§ 210 & 350-351.)  Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

1. Subpoenas to the Banks

The Spatolas first insist that the discovery sought by the subpoenas to the Banks is not relevant to this case because it encompasses a seven-year period.  This argument lacks merit.  Landino alleges that after forming the partnership in 1994, Rosario wrongfully acquired and refused to account for partnership assets and failed to pay Landino his equal share of partnership profits, including $50,000 of partnership funds that the Spatolas unilaterally decided they were entitled to receive in 2012.  (Compl., ¶¶ 17, 20, 26, 47, & 62-67.)  In contrast, Rosario alleges that he and Landino are entitled to equal shares of the partnership’s profits/assets, but the parties disagree as to the amount of partnership funds that each is entitled to receive in light of the funds previously paid to (or taken by) each partner.  (Cross-Compl., ¶¶ 15, 18, & 37-38.)  Thus, the income Rosario received from the partnership—including income received in the past seven years—is a disputed fact that is of consequence to the determination of the parties’ claims.  Therefore, the discovery of the Spatolas’ bank records for the past seven years is relevant to the subject matter and reasonably calculated to lead to the discovery of admissible evidence.

Next, the Spatolas argue that the discovery sought by the subpoenas to the Banks is not relevant because Landino was responsible for maintaining the partnership’s financial records.  This contention is unavailing, as the discovery sought pertaining to the income that Rosario and his wife received from the partnership is relevant to determine the value of each partner’s share of partnership assets regardless of whether Landino maintained the partnership’s accounting/bookkeeping records.

Lastly, the Spatolas assert that the discovery sought is not relevant because it encompasses Georgina’s financial information, and Georgina was never a partner.  However, records of Georgina’s income from the partnership are relevant to determine each partner’s share of the partnership assets, since (1) Georgina allegedly married Rosario in the late 1990s, (2) the Spatolas—including Georgina—allegedly acquired $50,000 in partnership funds in 2012, and (3) the Spatolas allegedly formed DG and caused DG to wrongfully acquire partnership assets.  In any event, the discovery sought reflects Rosario’s income from the partnership, and thus—regardless of whether Georgina’s financial information is relevant—the discovery sought is reasonably calculated to lead to the discovery of admissible evidence.

Accordingly, the relevance and overbreadth objections to the subpoenas to the Banks are overruled.

1. Subpoena to BTI

The subpoena to BTI seeks documents reflecting Georgina’s income as well as her personnel records and employment history from 2004 to the present.

As discussed above, documents showing Georgina’s income are reasonably calculated to lead to the discovery of admissible evidence regarding each partner’s share of partnership assets.

In addition, Landino argues that the discovery sought by the subpoena to BTI encompasses records pertaining to the audit and Georgina’s employment qualifications and experience, and such discovery is relevant to Rosario’s allegation that Georgina was qualified to audit the partnership’s financial records.  Both parties allege that Rosario decided to dissolve the partnership, expel Landino, and unilaterally divide the remaining partnership assets based on the results of Georgina’s audit of the partnership’s financial records.  However, Landino alleges that the audit was improper because Georgina was not qualified to conduct such an audit, and Rosario alleges that Georgina was qualified based on her prior training and experience.  (Compl., ¶ 18; Cross-Compl., ¶ 15.)  The discovery sought by the subpoena to BTI is reasonably calculated to lead to the discovery of admissible evidence pertaining to the audit and Georgina’s qualifications to perform such an audit, e.g., her prior accounting and bookkeeping training and experience.  Thus, the discovery sought is relevant.

The relevance and overbreadth objections to the subpoena to BTI are accordingly overruled.

2. Undue Burden and Oppression Objections

The Spatolas argue that the subpoenas to the Banks are unduly burdensome and oppressive because the Banks “should not be required to search their records for business and financial information that has no relevance to any legitimate issue in this litigation.”  (The Spatolas’ P&A, at p. 7:8-11.)  The Spatolas also insist that the subpoena to BTI is unduly burdensome and oppressive because it is overbroad.

“[S]ome burden is inherent in all demands for discovery,” and a party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating the hardship.  (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.)  For example, a discovery request seeking the production of documents has been found to be “oppressive” where declarations showed that responding would require the review of over 13,000 insurance claim files, requiring five adjusters to each work full-time for six weeks.  (Mead Reinsurance Co. v. Super. Ct. (1986) 188 Cal.App.3d 313, 318.)

Here, the Spatolas present no facts indicating that the Banks and BTI would experience hardship if required to produce the discovery sought by the subpoena.  This could have been accomplished by stating the number of hours it would take for the subpoenaed parties to locate/produce the responsive documents and at what cost.  Thus, the Spatolas have not justified their undue burden and oppression objections.

The objections on the grounds of undue burden and oppression are therefore overruled.

3. Privacy Objection

The Spatolas insist that the discovery sought by the subpoenas is protected from disclosure by their right to privacy in their financial information and Georgina’s right to privacy in her personnel records and employment history.

The right of privacy protects an individual’s “reasonable expectation of privacy against a serious invasion,” meaning that there is a legally protected privacy interest, a reasonable expectation of privacy under the particular circumstances, and a serious invasion of the interest.  (Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370-371 [“Pioneer”]; Alch v. Super. Ct. (2008) 165 Cal.App.4th 1412, 1423-1424 [“Alch”].)  Courts have found serious invasions of privacy interests exist where parties to civil litigation have sought to discover the financial information, employment histories, and confidential personnel records of other individuals.  (Fortunato v. Super. Ct. (2003) 114 Cal.App.4th 475, 480 [financial information]; Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 656-657 [“Valley Bank”] [bank account records]; Alch, supra, at pp. 1432-1433 [employment history]; San Diego Trolley v. Super. Ct. (2001) 87 Cal.App.4th 1083, 1097 [“San Diego Trolley”] [personnel records]; Board of Trustees of Leland Stanford Jr. Univ. v. Super. Ct. (1981) 119 Cal.App.3d 516, 530, 533 [defining confidential personnel records to include records used to determine the individual’s qualifications].)

To the extent the subpoena to BTI seeks documents pertaining to the pizzeria, DG, Rosario, Landino, and the audit, the discovery sought does not implicate the Spatolas’ privacy rights.  To the extent the subpoenas seek records concerning the Spatolas’ financial information and Georgina’s personnel records and employment history, the Spatolas’ privacy rights are implicated.

However, the right to privacy 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, supra, at 657.)  Generally, “the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.”  (Hooser v. Super. Ct. (2000) 84 Cal.App.4th 997, 1004.)  In balancing interests, courts consider “the purpose of the information sought, the effect that disclosure will have on the parties and on the trial, the nature of the objections urged by the party resisting disclosure, and ability of the court to make an alternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information undertakes certain specified burdens which appear just under the circumstances.”  (Id., at p. 658, citing Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 382; see also Pioneer, supra, at p. 371 [a protective order limiting the dissemination and use of private information will assuage privacy concerns].)  In the discovery context, if a serious invasion of privacy is established, then discovery will be allowed where the party seeking discovery shows a “compelling need” for the discovery sought, i.e. the discovery sought is “directly relevant” and “essential to the fair resolution” of a matter in dispute.  (Alch, supra, at p. 1425, citing Britt v. Super. Ct. (1978) 20 Cal.3d 844, 848, 859.)  During pre-trial discovery, since “uncertainty is inevitable” about the information actually contained in the discovery sought, direct relevance may be established even though the discovery sought encompasses “irrelevant or unusable” information.  (Id., at p. 1429-1430.)  Also, if a serious invasion or privacy is established, then discovery will only be allowed by the least intrusive means.  (Allen v. Super. Ct. (Sierra) (1984) 151 Cal.App.3d 447, 449.)

The merits of the privacy objections based employment/personnel records sought by the subpoena to BTI and financial information sought by the subpoenas to the Banks and BTI are discussed separately below.

1. Employment/Personnel Records

With respect to the direct relevance requirement, Landino maintains that he has a compelling need to discover Georgina’s employment records in order to fairly litigate the issue of whether Georgina was qualified to conduct an audit.  Landino alleges that Georgina was not qualified to conduct such an audit because she “is not a CPA, accountant or auditor, and has absolutely no clue how to audit a business such as the pizzeria,” and thus, Georgina intentionally interfered with the partnership and Rosario’s decision to expel Landino and deprive him of partnership assets based on the audit was improper, in breach of the partnership agreement, and part of the Spatolas’ conspiracy to deprive Landino of his share of partnership assets.  (Compl., ¶¶ 18, 26, 39, & 57.)  In contrast, Rosario alleges that Georgina was qualified to conduct an audit because she “had prior accounting and bookkeeping training and experience in creating and evaluating balance sheets, general ledgers, and other accounting records.”  (Cross-Compl., ¶ 15.)  In support of this motion, Georgina declares that she is “employed as a business broker and conducted an audit of the accounting records for [the partnership] and uncovered Mr. Landino’s embezzlement.”  (Georgina’s decl., ¶ 1.)  Therefore, there is a dispute as to whether Georgina was qualified to audit the partnership’s financial records, and evidence showing her qualifications based on her work-related training, employment experience, and job duties is necessary to fairly litigate the matter.  Since Georgina’s employment history and personnel records will reflect her qualifications, Landino has established that Georgina’s employment records are directly relevant.

Turning to the least intrusive means element, where a party seeks to discover another individual’s confidential personnel/employment records, the party seeking discovery must show that the discovery request is sufficiently narrow and “the information cannot reasonably be obtained through depositions or from nonconfidential sources.  [Citation.]”  (Harding Lawson Associates v. Super. Ct. (1992) 10 Cal.App.4th 7, 10.)  The subpoena to BTI seeks the production of Georgina’s personnel records and employment history from 2004 to the present.  Given that Rosario alleges that Georgina’s qualifications to conduct an audit of the partnership generally stem from her prior experience/training and Georgina suggests that her qualifications are based on her work as a business broker, the subpoena to BTI is sufficiently narrow.  In addition, Landino presents evidence that he propounded requests for production of documents on Rosario seeking any documents concerning Georgina’s audit and Rosario’s allegations and claims, but in response, Rosario did not produce documents evidencing Georgina’s qualifications or identify any non-confidential source(s) from which such records could be obtained.  (Elliott decl., ¶¶ 4-5 & Exs. B-C.)  Since the subpoena to BTI is sufficiently narrow and Landino has attempted to obtain discovery through non-confidential sources, Landino has shown that the subpoena to BTI is the least intrusive means to obtain the subject information.

Thus, Landino has shown a compelling need for the discovery of Georgina’s personnel/employment records and that the subpoena to BTI is the least intrusive means to obtain the information sought.  Furthermore, the Court is inclined to issue a protective order to assuage privacy concerns.  (See Pioneer, supra, at p. 371 [“[p]rotective measures, safeguards and other alternatives may minimize the privacy intrusion”; e.g., “if intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged”].)

Accordingly, to the extent the subpoena to BTI seeks Georgina’s personnel records and employment history, the privacy objection is overruled.

1. Financial Information

With respect to the subpoenas to the Banks, Landino asserts that the discovery sought is “directly relevant to the issues raised by [the Spatolas’] cross-complaint.”  (Landino’s Opp’n, at p. 6:19-21.)  His counsel declares that the discovery sought is necessary to litigate the parties’ claims because bank records showing how much money the Spatolas received from the partnership—especially cash deposits given that the pizzeria received a significant amount of its income in cash—are essential to the fair resolution of disputed material facts.  (Elliott decl., at ¶ 3.)   This argument is well-taken.  When one partner asserts claims for accounting and conversion against the other partner for allegedly misappropriating partnership funds, then the partners’ personal financial records are “fundamental” to the litigation in order to prove the amount of money each partner received from the partnership.  (Rawnsley v. Super. Ct. (1986) 183 Cal.App.3d 86, 91 [“Rawnsley”].)  Here, the discovery sought regarding the Spatolas’ financial records is necessary to determine the amount of money the Spatolas received from the partnership, and such information is essential to the fair resolution of the claims for conversion and accounting.

As for the subpoena to BTI, the Spatolas insist that the discovery sought is not directly relevant because it contains information about Georgina’s salary, W-2 forms, compensation, “and/or any other form of income or remuneration.”  (The Spatolas’ P&A, at p. 6:18-22.)  As discussed above, Landino has a compelling need to discover the Spatolas’ financial records, including records showing their income, in order to make an accurate accounting of the partners’ income from the pizzeria which typically engaged in cash transactions.  Information about Georgina’s salary, other forms of income from her employer, and tax forms will also reflect the Spatolas’ income.  Such discovery is directly relevant to the litigation in order to determine each partner’s respective share of partnership assets, especially since the pizzeria typically conducted transactions in cash.  Moreover, although not mentioned by Landino, Landino alleges that the Spatolas were motivated to conspire to deprive him of his share of partnership assets because, shortly after Rosario married Georgina in 1994, Rosario “began to live beyond his means” and had “a continuous need of cash” to repay the Spatolas’ debts.  (Compl., ¶ 14.)  Records showing the Spatolas’ income from Georgina’s employer are necessary to prove this allegation.  Thus, Georgina’s records of income are directly relevant.

Next, Landino argues that the subpoenas are the least intrusive means to obtain the Spatolas’ financial records.  Where one partner asserts claims for conversion and accounting against the other based on an alleged misappropriation of partnership funds, “[t]he only way [the partner] can prove his case is to obtain [the other partner’s] financial records.”  (Rawnsley, supra, at p. 91.)  In this case, Landino previously propounded requests for the production of documents on the Spatolas seeking to discover their financial records records, but the Spatolas did not produce all of the responsive records necessary to create an accounting.  (Elliott decl., at ¶ 4-5 & Ex. C.)  Thus, Landino has demonstrated that the subpoenas to the Banks and BTI are the least intrusive means to obtain the information sought.

To summarize, Landino has shown that the financial information sought by the subpoenas is directly relevant to the litigation and the subpoenas are the least intrusive means to obtain the discovery sought.  Further, the Court finds that a protective order is appropriate to assuage the Spatolas’ privacy concerns.  (See Pioneer, supra, at p. 371.)

Thus, to the extent the subpoenas seek records showing the Spatolas’ financial information, the privacy objection is overruled.

1. Conclusion

In sum, the Spatolas’ objections are overruled.  The motion to quash the subpoenas is accordingly DENIED.

However, a protective order limiting the dissemination and use of responsive records that disclose the Spatolas’ financial information and Georgina’s personnel/employment records is warranted.  The terms of the protective order are set forth below.

1. Requests for Monetary Sanctions
2. The Spatolas’ Request

The Spatolas request an award of monetary sanctions against “Plaintiff and Cross-Defendants” under CCP section 1987.2.[11]

Since the notice refers to “Cross-Defendants” plural, it would appear that the Spatolas request an award of monetary sanctions against Landino and the other named cross-defendants.  However, the Spatolas do not proffer arguments to support their request for monetary sanctions against Kelmenson, Mariella, Guiseppe, Mary, and Garrett, and the Spatolas did not properly name the other cross-defendants as addressees of this motion.

Accordingly, the request for monetary sanctions against Kelmenson, Mariella, Guiseppe, Mary, and Garrett is not adequately supported or addressed, and an award of monetary sanctions against those parties is not warranted.

Furthermore, a request for a monetary sanction shall “be accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (CCP, § 2023.040.)  However, the Spatolas do not submit a declaration supporting the amount of the monetary sanction sought.  Thus, to the extent they request sanctions against Landino—or, for that matter, against Cross-Defendants—their request is not code-compliant.

The Spatolas’ request for an award of monetary sanctions is therefore DENIED.

2. Landino’s Request

Landino makes a code-compliant request for monetary sanctions against the Spatolas and their counsel in the amount of $1,148.50.

CCP section 1987.2, subdivision (a) provides that a court has the discretion to award monetary sanctions “if the court finds the motion was made or opposed in bad faith or without substantial justification.”

Here, the Spatolas’ motion has been denied.  Given that the Spatolas did not justify any of their objections, the Court finds the motion was made without substantial justification.  An award of monetary sanctions is therefore warranted.

Landino’s counsel declares that he spent 3.3 hours preparing the opposition at a rate of $295 per hour (3.3 x $295 = $973.50), and another attorney at his firm spent 0.5 hours preparing the opposition at a rate of $350 per hour (0.5 x $350 = $175), for a total of $1,148.50 ($973.50 + $175 = $1,148.50) in attorney’s fees.  (Elliott decl., at ¶¶ 10-13.)

A court may award monetary sanctions for the reasonable expenses, including attorney’s fees, incurred in opposing a motion to quash brought under CCP section 1987.1.  (CCP, § 1987.2, subd. (a).)  The Court finds the time counsel and the other attorney spent on this matter and their hourly rates to be reasonable.

Thus, Landino’s request for an award of monetary sanctions against the Spatolas and their counsel is GRANTED in the full amount requested, i.e. $1,148.50.

1. Conclusion and Order

The Spatolas’ motion to quash the subpoenas is DENIED.  Accordingly, within 20 days of the date of the filing of this Order, or at another date mutually agreed upon by Landino and the subpoenaed parties, the Banks and BTI shall produce documents responsive to their respective subpoenas.  To the extent the records produced in response to the subpoenas reflect the Spatolas’ financial information and/or Georginia’s personnel records and employment history, Landino and his counsel shall only use the records in connection with this litigation, and only disclose the records to others as reasonably necessary in furtherance of this litigation.

The Spatolas’ request for an award of monetary sanctions is DENIED.

Landino’s request for an award of monetary sanctions against the Spatolas and their counsel is GRANTED in the amount of $1,148.50.  Accordingly, within 20 days of the date of the filing of this Order, the Spatolas and their counsel shall pay $1,148.50 to Landino’s counsel.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] As this Court understands the composition of the parties, Landino is the plaintiff.  Landino, Mariella Landino, Guiseppe Landino, Mary Landino, Brian Garret, and Gary Kelmenson (collectively, “Cross-Defendants”) are the cross-defendants.  The opposition is filed only on behalf of Landino.  (See Landino’s Opp’n, at p. 1:23-24 [“plaintiff Mario Landino (‘Plaintiff’) should be awarded his reasonable attorneys fees for having to oppose this motion”].)

[2] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.  An index to exhibits must be provided.  Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[3] In reply, the Spatolas request an order quashing the subpoenas, “or alternatively, the subpoenas should be limited in scope to those matters at [sic] relevant to the litigation with a protective order in place.”  The Spatolas did not request an order modifying the subpoenas or a protective order in their moving papers.  Code of Civil Procedure (“CCP”) section 1987.1, subdivision (a) provides that courts may make an order modifying a subpoena “upon motion reasonably made by [a party], or upon the court’s own motion after giving counsel notice and an opportunity to be heard.”

Since the Spatolas did not include a request for an order modifying the subpoenas in their moving papers and do not otherwise specify how the subpoenas should be modified, they have not reasonably made a motion for an order modifying the subpoenas.  That being said, CCP section 1987.1, subdivision (a) also authorizes courts to “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.”  Accordingly, if the Court finds a protective order is appropriate, then it will issue such an order.

[4] In addition, Landino objects to Georgina’s declaration filed in support of the motion.  Since there is no authority requiring the Court to rule on evidentiary objections made in connection with a discovery motion, the Court declines to rule on the evidentiary objections.

[5] However, the Court will consider the fact that motion is not properly addressed to the other cross-defendants in connection with the Spatolas’ request for an award of monetary sanctions.

[6] While meeting and conferring is not required, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  The Court has concerns when there does not appear to be any effort to resolve discovery issues without Court intervention.  (See McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)

[7] In reply, the Spatolas insist that CRC, rule 3.1345 does not require them to provide a separate statement because that rule only applies where the subject subpoena seek the production of documents “at a deposition.”  (The Spatolas’ Reply, at p. 3:3-12, emphasis in original.)  The Spatolas’ argument lacks merit because, “under the plain meaning rule, the [Civil Discovery] Act contemplates that discovery conducted by way of a business records subpoena is a ‘deposition.’”  (See Unzipped Apparel LLC v. Bader (2007) 156 Cal.App.4th 123, 131.)  Therefore, contrary to the Spatolas’ assertion, the subpoenas at issue are deposition subpoenas, and CRC, rule 3.1345 applies.

[8] Notably, the Spatolas previously filed a similar motion to quash a subpoena to Chase that was set to be heard on 12 December 2014, without filing the requisite supporting separate statement.  The Spatolas withdrew their first motion after the Court posted its tentative ruling on 11 December 2014 (“Prior Tentative Ruling”), wherein the Court advised that it “had given thought to summarily denying the motion for this reason alone,” since the Court “feels that the more ‘bad behavior’ it tolerates, the more ‘bad behavior’ it is going to get.”  (Prior Tentative Ruling, at p. 2 & fn. 12.)

[9] Georgina states that copies of the subpoenas are attached to her declaration as an exhibit (Georgina decl., at ¶ 2), but there are no exhibits attached to her declaration and the Spatolas did not otherwise submit copies of the subpoenas.

[10] As the Court previously informed the parties and their counsel, the Court “will suggest that all counsel become familiar with CRC, rule 3.112(b): ‘Other papers may be filed in support of a motion, including declarations, exhibits, appendices, and other documents or pleadings.’”  (Prior Tentative Ruling, at p. 3.)

[11] The Spatolas request the payment of “expenses,” but that term is not used in the discovery statutes.  Where specific terms of art are defined, those terms should be used.  The discovery statutes refer to monetary sanctions, evidence sanctions, issue sanctions, and terminating sanctions.