Memorandum Points and AuthoritiesCal. Super. - 6th Dist.February 11, 2021wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O 21 CH009861 Santa Clara - Civil Dmitry Stadlin, SBN 302361 STADLIN MARINHO LLP EIGCtronI-cally FIled 111 N. Market Street. Suite 300 by suPer'or court 0f CA, San Jose, California 95113 county 0f santa Clara: Tel: (408) 645-7801 on 4/12/2021 7:54 PM Fax: (408) 645-7802 Reviewed By: M. Sorum Email: ds@stadlinmarinho.com case #21CH009361 Attorneys for Petitioner EnvelOPG: 6225314 BRIAN CUONG TRAN SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA BRIAN CUONG TRAN Case N0.: 21CH009861 MEMORANUM OF POINTS AND Petitioner, i AUTHORITIES IN SUPPORT OF i MOTION TO QUASH RE: DEPOSITION i NOTICE FROM RESPONDENT v. MICHAEL QUOC HAN TO g PETITIONER BRIAN CUONG TRAN MICHAEL QUOC HAN, aka., MICHAEL : HAN, aka., MIKE HAN, g DATE;5-25-21 i TIME:2:OO PM DEPT: 4 Respondent. E I. INTRODUCTION This is a civil harassment restraining order filed by Petitioner BRIAN CUONG TRAN (“Petitioner”) against Respondent MICHAEL QUOC HAN, aka., MICHAEL HAN, aka., MIKE HAN (“Respondent”). The court granted Petitioner’s request for a temporary restraining order 0n February 11, 2021. On April 1, 2021, Respondent, by and through his attorney(s) of record, served Petitioner, through his attorney of record, a deposition notice With document production request (“Deposition Notice” - See Exhibit A) to take place Via Zoom on April 15, 2021. Petitioner files this instant Application t0 quash the Deposition Notice and Request for Production 0f documents as there is n0 right t0 discovery in Civil Harassment Restraining Order cases, and since it is 1 . .30rum MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O irrelevant, immaterial, prejudicial, privileged, and overbroad. The Request for Production 0f Documents also sought documents related to third-party individuals that are not a party to this instant matter, and Who were previously represented by Petitioner’s counsel. II. STATEMENT OF THE CASE On February 11, 2021, Petitioner, by and through his attorney, applied for and received a temporary civil harassment restraining order (“CHRO”) against Respondent. The Court set hearing on Petitioner’s CHRO for April 6, 2021. On March 5, 2021, Respondent was served With the CHRO through personal service. On March 29, 2021, Respondent filed his response t0 Petitioner’s CHRO request. On April 1, 2021, Respondent served Petitioner a Deposition Notice set for April 15, 2021 Via Zoom. The Deposition Notice also requested 15 different categories 0f documents t0 be produced on April 12, 2021. Upon review 0f the Deposition Notice, the documents requested by Respondent are highly irrelevant, immaterial, prejudicial, privileged, and overbroad. On April 6, 2021, both parties appeared for the hearing, the court set the matter for long cause trial on June 2, 2021. III. LEGAL ARGUMENT a. There is N0 Right t0 discovery of a Third Party’s Records Under CCP §527.6 Pursuant to California Code 0f Civil Procedure (“CCP”) §527.6 “there is n0 provision under section 527.6 allowing for discovery, and in any case, under the civil harassment scheme there is insufficient time in which t0 conduct discovery.” (Thomas v. Quintero (2005) 126 Cal.App.4th 635, fn. 11; See generally: Byers v. Cathcart (2002) 57 Ca1.App.4th at p. 811; Diamond View Limited v. Herz (1986) 180 Ca1.App.3d 612, 619-620, fn.8) Section 527.6, subdivision (d) requires the trial court t0 “receive any testimony that is relevant” at the hearing. The court in Schraer commented in a footnote that this could 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O be in the form 0f oral 0r written testimony, including affidavits, declarations or deposition. (Schraer v. Berkeley Property Owners'Assn. (1989) 207 Cal.App.3d at p. 733, fn. 6.) This statement is mystifying inasmuch as n0 case holds that discovery is allowed under section 527.6, and the general testimonial statute allowing for testimony in the form of affidavits, deposition, 01" oral testimony was earlier found by the Schraer court t0 be inapplicable t0 section 527.6 proceedings. (Id. at p. 731, 255 Cal.Rptr. 453.)” (Thomas v. Quintero (2005) 126 Ca1.App.4th 635, 650.) b. The Deposition Notice is Unreasonable 0r Oppressive Pursuant to the civil discovery statutes, a party may obtain discovery 0f the following: “any matter, not privileged, that is relevant t0 the subject matter involved in the pending action 0r to the determination 0f any motion made in that action, if the matter either is itself admissible in evidence 0r appears reasonably calculated t0 lead t0 the discovery 0f admissible evidence.” CCP §2017.010 (emphasis added). Discoverable matters may concern a claim for relief, or a defense (Id.). The purpose 0f the discovery statutes is to “(1) t0 give greater assistance t0 the parties in ascertaining the truth and in checking and preventing perjury; (2) t0 provide an effective means 0f detecting and exposing false, fraudulent, and sham claims and defenses; (3) t0 make available, in a simple, convenient and inexpensive way, facts Which otherwise could not be proved except With great difficulty; (4) t0 educate the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements; (5) t0 expedite litigation; (6) t0 safeguard against surprise; (7) to prevent delay; (8) t0 simplify and narrow the issues; and, (9) t0 expedite and facilitate both preparation and trial.” (Fuss v. Superior Court for Los Angeles County (1969) 273 Cal. App. 2d 807, quoting Greyhound Corp. v. Superior Court In and For Merced County (1961) 56 Cal. 2d 355, 376, (superseded by Statute on other grounds as stated in Coito v. Superior Court (2012) 54 Cal. 4th 480.) 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O CCP § 2017.020(a) similarly provides that the court shall limit discovery When the burden 0r intrusiveness of the request clearly outweighs the likelihood that it would lead t0 the discovery of admissible evidence. Pursuant t0 CCP § 2019.030(a), the court shall restrict the frequency 0r extent 0f a particular discovery method if the discovery is unreasonably cumulative 01" duplicative 01" if the information may be obtained from another source that is more convenient, less expensive, 0r less burdensome 0n the person. Thus, the court should consider whether the discovery is unreasonably cumulative 0r duplicative, 0r Whether the particular method is unduly burdensome 0r expensive. (CCP § 2017.020(a); CCP § 2019.030(a).) In this instant matter, the Deposition Notice is oppressive and burdensome and is not directed at information that is discoverable 01" that would lead t0 discoverable 01" admissible evidence. In fact, it is itself a continuation 0f the harassment that Petitioner has suffered at Respondent’s hands. IV. PETITIONER’S REASONS TO QUASH THE DOCUMENT REQUESTS IN THE DEPOSITION NOTICE Petitioner submits this separate statement in support 0f his motion t0 quash Deposition Notice from Respondent t0 Petitioner under California Rules 0f Court, Rule 3.1345, subdivision (a)(5). The demands listed below were propounded by Respondent in the notice 0f deposition t0 Petitioner. DOCUMENT REQUEST NO.1: A11 COMMUNICATIONS With Bank 0f America from January 1, 2020 to the present RELATING TO any account for Splend, LLC. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Respondent has not been involved with Splend, LLC - at least according t0 his own filed response (CH-120 Filed on March 29, 2021.) Petition has n0 duty t0 disclose the banking records 0f his business, especially in a situation 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O where it is alleged that Respondent has previously attempted to defraud Petitioner 0f money in these accounts. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. DOCUMENT REQUEST N02: A11 COMMUNICATIONS with the San Jose Police Department Bank [sic] RELATING TO HAN. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. Under Civil Code § 47(b), a citizen’s report to police regarding suspected criminal activity of another person is privileged. (See also Hagberg v. California Federal Bank FSB (2004) 32 Ca1.4th 350, 375.) DOCUMENT REQUEST NO.3: A11 COMMUNICATIONS With the Morgan Hill Police Department RELATING TO HAN. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. Under Civil Code § 47(b), a citizen’s report to police regarding suspected 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O criminal activity of another person is privileged. (See also Hagberg v. California Federal Bank FSB (2004) 32 Ca1.4th 350, 375.) DOCUMENT REQUEST NO.4: A11 COMMUNICATIONS With Vanechay Phommachack RELATING to HAN from January 1, 2020 t0 the present. Petitioner objects t0 these items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, Petitioner literally is unable t0 comply With these requests because they are worded in a vague and overbroad matter that makes it impossible for him to respond With any specificity. Respondent seeks materials related t0 a non-party that are not related to this instant CHRO request in any way whatsoever, which violates the non-party’s right to privacy under the California and United States Constitutions. Lastly, these communications are privileged as Petitioner’s counsel also represented Ms. Vanechay Phommachack in a Civil Harassment Restraining Order proceeding against Respondent. DOCUMENT REQUEST NO.5: A11 COMMUNICATIONS with Vanechay Phommachack RELATING TO the LAWSUIT. Petitioner objects t0 these items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, Petitioner literally is unable t0 comply with these requests because they are worded in a vague and overbroad matter that makes it impossible for him to respond With any specificity. Respondent seeks materials related t0 a non-party that are not related to this instant CHRO request in any way whatsoever, Which violates the non-party’s right t0 privacy under the California and United States Constitutions. Lastly, these communications are privileged as Petitioner’s 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O counsel also represented Ms. Vanechay Phommachack in a Civil Harassment Restraining Order proceeding against Respondent. DOCUMENT REQUEST NO.6: A11 COMMUNICATIONS With Vanechay Phommachack RELATING TO the PRIOR ACTION. Petitioner objects t0 these items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, Petitioner literally is unable t0 comply With these requests because they are worded in a vague and overbroad matter that makes it impossible for him to respond With any specificity. Respondent seeks materials related t0 a non-party that are not related to this instant CHRO request in any way whatsoever, which violates the non-party’s right to privacy under the California and United States Constitutions. Lastly, these communications are privileged as Petitioner’s counsel also represented Ms. Vanechay Phommachack in a Civil Harassment Restraining Order proceeding against Respondent. DOCUMENT REQUEST NO.7: A11 COMMUNICATIONS with Detective Sean Farrell. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. Under Civil Code § 47(b), a citizen’s report to police regarding suspected criminal activity 0f another person is privileged. (See also Hagberg v. California Federal Bank FSB (2004) 32 Ca1.4th 350, 375.) 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O DOCUMENT REQUEST NO.8: A11 COMMUNICATIONS With any representatives 0f the Santa Clara County District Attorney’s office RELATING TO the burglary 0fYOUR home. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. Under Civil Code § 47(b), a citizen’s report to police regarding suspected criminal activity 0f another person is privileged. (See also Hagberg v. California Federal Bank FSB (2004) 32 Ca1.4th 350, 375.) DOCUMENT REQUEST NO.9: A11 COMMUNICATIONS WITH any representatives 0f the Santa Clara County District Attorney’s office RELATING TO HAN. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. Under Civil Code § 47(b), a citizen’s report to police regarding suspected criminal activity 0f another person is privileged. (See also Hagberg v. California Federal Bank FSB (2004) 32 Ca1.4th 350, 375.) 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O DOCUMENT REQUEST NO.10: A11 Videos 0f the burglary suspect Who YOU refer t0 in YOUR Declaration dated February 11, 2021 that YOU filed in this LAWSUIT. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. Under Civil Code § 47(b), a citizen’s report to police regarding suspected criminal activity of another person is privileged. (See also Hagberg v. California Federal Bank FSB (2004) 32 Ca1.4th 350, 375.) DOCUMENT REQUEST NO.11: A11 COMMUNICATIONS with any police department RELATING TO the burglary of YOUR home. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. Under Civil Code § 47(b), a citizen’s report to police regarding suspected criminal activity of another person is privileged. (See also Hagberg v. California Federal Bank FSB (2004) 32 Ca1.4th 350, 375.) 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O DOCUMENT REQUEST NO.12: A11 COMMUNICATIONS with MS. PHOMMACHACK’S COUNSEL RELATING TO the PRIOR ACTION. Ms. Phommachack’s Counsel is the Counsel that is the author of this very motion and that represents Petitioner in this case. Petitioner objects t0 these items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, Petitioner literally is unable t0 comply With these requests because they are worded in a vague and overbroad matter that makes it impossible for him to respond With any specificity. Respondent seeks materials related t0 a non-party that are not related t0 this instant CHRO request in any way whatsoever, Which violates the non-party’s right to privacy under the California and United States Constitutions. Lastly, these communications are privileged as Petitioner’s counsel also represented Ms. Vanechay Phommachack in a Civil Harassment Restraining Order proceeding against Respondent. DOCUMENT REQUEST N013: YOUR cell phone records for the period from April 29, 2020 through and including May 1, 2020. Petitioner objects t0 these items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, Petitioner literally is unable t0 comply With these requests because they are worded in a vague and overbroad matter that makes it impossible for him to respond With any specificity. Respondent seeks materials that are not related t0 this instant CHRO request in any way whatsoever, Which violates the non-party’s right t0 privacy under the California and United States Constitutions. There is n0 reason to turn over cell phone records t0 the very person Who is harassing the protected party. 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O DOCUMENT REQUEST NO.14: A11 DOCUMENTS RELATING TO the business bank account that YOU REFER TO in paragraph 8 0fYOUR Declaration dated February 11, 2021 that YOU filed in this LAWSUIT. Petitioner objects t0 above referenced requested items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Respondent has not been involved with Splend, LLC - at least according t0 his own filed response (CH-120 Filed on March 29, 2021.) Petition has n0 duty t0 disclose the banking records 0f his business, especially in a situation where it is alleged that Respondent has previously attempted to defraud Petitioner 0f money in these accounts. Additionally, this request is incredibly overbroad and it would be a burden for Petitioner t0 produce these documents, if they exist(ed). The request violates Petitioner’s rights t0 privacy under the California and United States Constitutions. DOCUMENT REQUEST NO.15: A11 DOCUMENTS (including photographs and digital images) that depict 0r otherwise evidence the burglary 0fYOUR home including Without limitation any photographs 0r digital images depicting the following, all 0f Which are referenced in YOUR Declaration dated February 11, 2021 that YOU filed in this LAWSUIT: (A) the kitchen screen on the ground, (B) damage t0 the Window frame/sfll that had been pried open, (C) financial documents from Splend LLC that were on the floor next t0 YOUR nightstand, and (D) the open closet door. Petitioner objects t0 these items because the items sought are irrelevant, immaterial, prejudicial, privileged, and Respondent has not shown good cause for the requested discovery. Additionally, Petitioner literally is unable t0 comply With these requests because they are worded in a vague and overbroad matter that makes it 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN mmflmmr-POJNH Nwwmwwmwwr-tr-II-Ir-tr-II-Ir-tr-lI-lr-t OOQGDO‘lr-POONb-‘OCqucbmrPOONI-‘O impossible for him to respond With any specificity. Respondent seeks materials that are not related t0 this instant CHRO request in any way whatsoever, Which violates the non-party’s right to privacy under the California and United States Constitutions. IV. CONCLUSION For the reasons stated herein above, Petitioner respectfully requests this Court t0 grant Petitioner’s motion to quash Respondent’s deposition notice With production of document requests. Respectfully submitted, Dated: April 12, 2021 STADLIN MARINHO LLP Dmitry Stadlin Attorney for Petitioner 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH RE: DEPOSITION NOTICE FROM RESPONDENT MICHAEL QUOC HAN TO PETITIONER BRIAN CUONG TRAN