Case Number: BC717584 Hearing Date: January 21, 2020 Dept: 31

DEFENDANT’S MOTION TO QUASH DEPOSITION SUBPOENAS IS GRANTED.

Background

On August 13, 2018, Plaintiff Bijan Ben Niakan filed the instant action against Defendants Alexander Akopnik, David Zeffren (“D. Zeffren”), Mira Zeffren (“M. Zeffren”), Isaac Stralberg, and Arrow-Med, RX, Inc. On February 19, 2019, Plaintiff filed the First Amended Complaint (“FAC”) asserting causes of action for:

Breach of Written Contract (against Stralberg and M. Zeffren);

Breach of Written Contract (against Akopnik);

Breach of Written Contract (against D. Zeffren and M. Zeffren);

Unjust Enrichment (against all Defendants);

False Promises (against Stralberg and M. Zeffren);

False Promises (against Akopnik); and

False Promises (against D. Zeffren and M. Zeffren).

On May 22, 2019, the Court sustained with leave to amend Defendants’ demurrer to the fourth cause of action for unjust enrichment and sustained without leave to amend Defendants’ demurrer to the fifth, sixth, and seventh causes of action for false promises. Plaintiff did not amend the FAC, leaving only the first through third causes of action.

Legal Standard

California Code of Civil Procedure section 1987.1, subdivision (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.

(Code of Civ. Proc., § 1987.1(a).)

There is no requirement that the motion contain a meet and confer declaration. (See Code of Civ. Proc., § 1987.1.)

“Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . 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.) “Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s ‘inalienable right of privacy’ provided by” Article 1, section 1 of the California Constitution. (See Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 855-856.)

Regarding the right of privacy, courts must carefully balance a right of privacy against the interest in having just litigation. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371; Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 657.) If there is a serious invasion of a constitutional right to privacy, the party seeking the evidence must establish that the information sought is not only essential and directly relevant, but also that this information could not be discovered through less intrusive means. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552; Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)

“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.” (Id.)

Discussion

Defendant Alexander Akopnik (hereinafter “Defendant”) moves to quash two deposition subpoenas for production of business records issued to J.P. Morgan Chase National Corporate Services Inc. (“Chase”) and Wells Fargo Bank National Association (“Wells Fargo”).

Service of Subpoena & Meet and Confer

Code of Civil Procedure section 1985.3 provides:

Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:

(1) To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor’s parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age.

(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail.

(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.

(Code of Civ. Proc. § 1985.3(b).)

Defendant moves to quash the subpoenas first arguing that the subpoenas and Notices to Consumer or Employee were never served on Defendant or Counsel. (Rubanowitz Decl. ¶ 5.)

Plaintiff fails to address this argument in his opposition, instead arguing that the motions should be denied because Defendant failed to adequately meet and confer prior to bring the motions.

The Court finds that given Plaintiff’s failure to rebut Defendant’s assertion that the subpoenas and notices to consumer were never served on Defendant or his counsel, Plaintiff made it virtually impossible for Defendant to adequately meet and confer before filing the instant motions. Moreover, such a failure to properly serve the subpoenas is a ground for granting the motions to quash. Still, the Court turns to the merits of the motion so as to thoroughly address the issues before it.

Financial Records

The right to privacy under the state constitution extends to one’s confidential financial affairs, and embraces confidential financial information in whatever form it takes, whether that form be tax returns, checks, statements, or other account information. (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 503.)

The subpoena issued to Chase requests: “Any and all bank records pertaining to: All bank statements from Chase Bank Account Number 976084285 bearing the name Alexander Akopnik from January 1, 2016 through December 31, 2018.” (Rubanowitz Chase Decl., Exh. 1.)

The subpoena issued to Wells Fargo similarly requests: “Any and all bank records pertaining to: All bank statements from Wells Fargo Bank Account Number 1575230493 bearing the name Alexander Akopnik, Marina Kogan-Akopnik, from January 1, 2016 through December 31, 2018.” (Rubanoqitz Wells Fargo Decl., Exh. 1.)

Defendant moves to quash the subpoenas issued to Chase and Wells Fargo arguing that the matters and documents sought are unreasonable, oppressive, violate rights of privacy, and are protected by statute. Defendant asserts that Plaintiff is engaged in an improper fishing expedition and the information sought has in fact been provided and is available to be provided by Defendant in his discovery responses. Defendant contends that because the allegations are simply of a loan to Defendant that was not paid back, Plaintiff, himself, has the record of any payments Plaintiff made, which shall be sufficient to assert his collection claim. Defendant argues that despite having been provided the entirety of all non-privileged documents pertaining to this matter, Plaintiff, in an effort to vex, harass, and burden Defendant is now inexplicably seeking duplicative information from Defendant and information that is and was available in the discovery process.

In opposition, Plaintiff argues that due to Defendant’s assertions regarding the receipt of the funds and alleged payments made, it has become necessary to subpoena Defendant’s bank statements to establish the receipt of the loans and any payments made thereof. Plaintiff asserts that Defendant claims that the funds were never received by Defendant, never deposited in Defendant’s account, or otherwise were never transferred to Defendant’s various accounts. Plaintiff contends that Defendant also asserts that certain payments were made by cash from his various accounts and has presented a few withdrawal slips as evidence of said payments without any designation or description of who said funds were paid to. Plaintiff argues that Defendant has refused to voluntarily provide any of his bank statements to resolve these issues.

Plaintiff asserts that in light of the fact that Plaintiff made previous loans to Defendant independent of the loans at issue here and that Defendant and Arrow-Med, RX, Inc. owed rent to Defendant, Defendant’s claims need clarification back to January 2016 through December 2018. Plaintiff contends that in claiming he paid monies on the loans at issue here, Defendant is mixing his payments on prior loans and rent payments with payments on the loans at issue here.

Plaintiff argues that the requested bank statements are not overly broad, but rather specific. The subpoenas request statements for a three-year period, which does not amount to more than 36 statements, which covers the period of the loans at issue here, the prior loans, and rent payments due between 2016 and 2018.

The Court finds that Plaintiff, as the party seeking constitutionally protected information, has failed to establish Defendant’s bank statements’ direct relevance to the instant litigation. The Court finds that Plaintiff’s requests are extremely overbroad and that the information sought can be obtained through less intrusive means. While Plaintiff argues that Defendant has blocked attempts to obtain discovery, any of Defendant’s purported discovery abuses do not waive his constitutionally protected right to privacy in his financial records. Moreover, although Plaintiff asserts that Defendant has failed to voluntarily provide any of his bank statements, nothing before the Court indicates that Plaintiff has propounded discovery on Defendant and Defendant has failed to adequately respond to such discovery. If Plaintiff has, in fact, propounded discovery on Defendant and Defendant has failed to adequately respond, the correct method for obtaining such discovery is to file a motion to compel further responses instead of issuing an overly broad subpoena to Defendant’s banks. Accordingly, Plaintiff has access to the same relevant information he seeks here.

Based on the foregoing, Defendant’s motions to quash deposition subpoena for production of business records issued to Chase and Wells Fargo are GRANTED.

Monetary Sanctions

Under Code of Civil Procedure section 1987.2(a), “the 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.”

Defendant seeks monetary sanctions in the amount of $1,200.00 for each motion plus costs in the amount of $1.65 per motion.

The Court notes that Defendant’s notice of motion fails to indicate that Defendant seeks sanctions, fails to identify the parties against whom sanctions are sought, and fails to indicate the amount of sanctions sought, all in violation of Code of Civil Procedure section 2023.040. Moreover, Defendant fails to justify the amount of sanctions sought, as Defendant does not indicate counsel’s hourly rate or the amount of time counsel seeks to be compensated for.

Based on the foregoing, Defendant’s request for sanctions is DENIED.

Conclusion

Defendant’s motions to quash subpoena for production of business records issued to Chase and Wells Fargo are GRANTED. Defendant’s request for sanctions is DENIED.

Moving party to give notice.