Albert Vinas vs. Wayne Hayes

Motion to Quash Subpoena

Cal. Super. - 4th Dist.July 15, 2016

© 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O Robert A. von Esch IV, Esq. (SBN 226453) Jennifer M. Porche, Esq. (SBN 270035) VON ESCH LAW GROUP, ALC 2201 East Chapman Avenue Fullerton, CA 92831 rob@voneschlaw.com Tel: (714) 456-9118 Fax: (714) 456-9119 Attorneys for Plaintiff and Cross-Defendant, ALBERT VINAS and Cross-Defendant, JODI VINAS ELECTRONICALLY FILED Superior Court of California, County of Orange 09/06/2017 at 10:52:00 A Clerk of the Superior Court By Giovanni Galon, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE — ALBERT VINAS, an individual, Plaintiff, VS. WAYNE HAYES, an individual; DOES 1-10, inclusive, Defendants. WAYNE HAYES, an individual; AMY HAYES, an individual, Cross-Complainants, VS. ALBERT VINAS, an individual; JODI VINAS, an individual; ROES 1-100, inclusive, Cross-Defendants. CENTRAL JUSTICE CENTER Case No.: 30-2016-00863773-CU-CO-CIC Assigned for all purposes to: Hon. Andrew P. Banks, Judge in Dept. C11 NOTICE OF MOTION AND MOTION TO QUASH OR IN THE ALTERNATIVE FOR A PROTECTIVE ORDER RE: DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS TO BANK OF AMERICA VISA REGARDING CROSS-DEFENDANT, JODI VINAS AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $595 AGAINST DEFENDANT AND CROSS- COMPLAINANT, WAYNE HAYES AND HIS COUNSEL OF RECORD, DAVID WARD, ESQ. [Sanctions sought under Cal. Code Civ. Proc. §§2023.010(a); 2023.010(b); 2023.010(c); 2023.010(h); and 1987.2.] [Concurrently filed with Motion to Quash Deposition Subpoena for Personal Appearance and Records to Bank of America Visa re: Albert Vinas; Separate Statements; Declaration of NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS -1- © 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O Jennifer M. Porche; and [Proposed] Orders re: same] Hearing Date: October 6, 2017 Hearing Time: 1:30 p.m. Department: C11 Reservation No.: 72657571 Complaint Filed: July 15, 2016 Cross-Complaint Filed: January 17, 2017 First Amended Cross-Complaint: June 13, 2017 Trial Date: November 27, 2017 TO THE HONORABLE COURT, ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on October 6, 2017, at 1:30 p.m. or as soon thereafter as matter may be heard in Department C11 of the Superior Court of the State of California for the County of Orange — Central Justice Center, located at 700 Civic Center Drive West, Santa Ana, California 92701 Cross-Defendant, JODI VINAS (hereinafter “Vinas”) will and hereby does move this Honorable Court for an order quashing, or in the alternative for a protective order, the deposition subpoena to Bank of America Visa for personal appearance and for records. Notice is additionally given that Vinas will request that the Court award monetary sanctions in the sum of at least $595 against Defendant and Cross-Complainant, WAYNE HAYES (hereinafter “Hayes”) and his attorney of record, David Ward on the grounds that Hayes’ subpoena document requests are overreaching and invade privacy rights. Furthermore, the deponent on the Notice to Consumer and the Subpoena are not the same. This Motion is made on the following grounds: the offending subpoena contains inadequate description of documents; invasion of privacy rights; seeks privileged, irrelevant, or otherwise inadmissible evidence; and the burden, expense, and intrusiveness of the discovery outweighs any likelihood that the information sought will lead to the discovery of admissible evidence. (California Code Civil Procedure sections 1985.3(g); 1987.1; 2017.010; 2017.020(a); 2018.030; 2019.030(a); 2020.410(a); and 2020.510(a)(2); California Evidence Code sections 210, 350, and 950 ef seq.; and California Constitution, Article I, §1. NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS eo . © 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O Sanctions against Defendant and Cross-Complainant, WAYNE HAYES and his counsel of record David Ward are sought in the amount of $595 under Cal. Code Civ. Proc. §§2023.010(a); 2023.010(b); 2023.010(c); 2023.010(h); and 1987.2. This Motion will be based on this notice, the Memorandum of Points and Authorities, Separate Statement, the Declaration of Jennifer M. Porche, Esq. concurrently filed, documents and records on file herein, and materials that may be presented prior to or at the hearing on said Motion. DATED: September 6, 2017 VON ESCH LAW GROUP, ALC ~~ me ta ) By: Robert A. von Esch IV, Esq. Jennifer M. Porche, Esq. Attorneys for Plaintiff and Cross-Defendant, ALBERT VINAS and Cross-Defendant, JODI VINAS NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS N- © 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This matter is simple. This subpoena should be quashed / a protective order entered on 2 grounds e The document requests are so blatantly overbroad unfettered financial information is requested regarding the consumer for 5 days for no known reason. e The Notice to Consumer and Subpoena do not list the same deponent. II. LEGAL AUTHORITY — MOTION TO QUASH “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 such terms or conditions as the court shall declare, including protective orders.” (Cal. Code Civ. Proc. §1987.1.) “Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production.” (Cal. Code Civ. Proc. §1985.3(g).) The discovery sought seeks to invade the privacy rights of Vinas. “California accords privacy the constitutional status of an inalienable right, on a par with defending life and possessing property. Courts must balance right of civil litigants to discover relevant facts against privacy interests of persons subject to discovery.” (California Constitution, Article I, §1; Vinson v. Superior Court (1987) 43 Cal. 3d 833.) “...the court may make any...order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the witness, consumer, or employee.” (Cal. Code Civ. Proc. §1987.1.) The discovery sought seeks to invade the right of privacy with regard to personal financial information. Information regarding a party’s personal financial affairs falls under a protected zone of NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS 4 - © 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O privacy under Article I, §1 of the California Constitution. (Cobb v. Superior Court (1979) 99 Cal. App. 3d 543.) Hayes is fully and completely well aware of this fact. This is a portion of the Motion to Quash filed by Hayes, verbatim, regarding the legal authority on this issue: As a matter of law, a court order is required to obtain discovery of a Defendants’ financial condition in actions seeking punitive damages. (Civ. Proc. Before Trial (Rutters Group, 2005) §8:27, p. 8b-1; see also Civ. Code §3295(c).) Such order will be granted only if the Court finds “substantial probability” that Plaintiff will prevail on the punitive damage claim. (Ibid.) The rationale for the limitation on discovery as it pertains to a party is that discovery of finances encourages “game playing - creating a situation in which one party gains unfair advantage over the other simply by seeking financially protected information.” (Rawnsley v. Sup. Ct. (Pioneer Theatres) (1986) 183 Cal.App.3d 86, 89.) Even where the issue of punitive damages or financial resources is relevant, courts have held that a party is presumptively entitled to a protective order against disclosure of confidential financial information in any case . . . even when the information is germane to the claim sued upon. (Moskowitz v. Sup.Ct. (Zerner, Sim & Cibener) (1992) 137 Cal.App.3d 313, 318.) (Hayes’ Motion to Quash, Page 9, filed April 26, 2017.) No such Court order exists providing that Hayes is authorized to serve this kind of discovery. This subpoena is harassing and a waste of counsel and this Court’s time. “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Cal. Code Civ. Proc. §2017.010.) “Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action. . .” (Cal. Code Civ. Proc. §2017.010, emphasis added.) “No evidence is admissible except relevant evidence.” (Cal. Evid. Code §350.) “Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Cal. Evid. Code §210.) This subpoena is so overbroad it is impossible to tell if any relevant information would be produced in response to this subpoena. NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS -5- © 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O California Code Civil Procedure section 2017.010 permits only discovery of relevant matter which “either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” “...the court may make any...order as may be appropriate to protect the parties, the witness, the consumer, or the employee from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the witness, consumer, or employee.” (Cal. Code Civ. Proc. §1987.1.) “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Cal. Code Civ. Proc. §2017.020(a).) “The court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Cal. Code Civ. Proc. §2019.030(a).) In Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, as modified, (Mar. 7, 1997), the court determined a subpoena duces tecum was overly burdensome where the subpoena failed to identify any specific document, but merely described broad categories in a 12-page attachment to the subpoena that included 6 pages of “definitions” and “instructions” and asked for everything in the custodian's possession relating to the litigation. Hayes’ attorney has provided no logical reason this deposition should go forward, nor the documents produced. This is nothing more than harassment and gamesmenship. III. LEGAL AUTHORITY — PROTECTIVE ORDER “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Cal. Code Civ. Proc. §2025.420(a).) Under NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS -6- © 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O California Code Civil Procedure section 2025.420(b)(1), the Court may order that the deposition not take place at all. As described above, this deposition is duplicative, harassing, and purposeless. There is no reason for this deposition to take place and no relevant evidence to be gained, as admitted by the deponent. IV. MEET AND CONFER EFFORTS For a Motion to Quash, although a “meet and confer” requirement is not specifically provided for in California Code Civil Procedure sections 1985.3, 1985.6 or 1987.1, particular grounds for a motion to quash require a good faith effort at informal resolution. However, for a Protective Order, the motion “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Cal. Code Civ. Proc. §2025.420(a).) Vinas’ counsel has made multiple efforts to meet and confer. (Declaration of Jennifer M. Porche.) Those efforts have gone unanswered. V. SANCTIONS California Code Civil Procedure section 2025.410(d) provides that the Court “shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Cal. Code Civ. Proc. §2023.030(a).) “Misuses of the discovery process include. . .(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. (b) Using a discovery method in a manner that does not comply with its specified procedures. (¢) Employing a discovery method in a manner or to an extent that causes 111 111 NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS . © 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. . .(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Cal. Code Civ. Proc. §2023.010.) California Code Civil Procedure section 1987.2 provides: “In making an order pursuant to a motion made under. . .Section 1987.1 [motion for order quashing a subpoena duces tecum], the court may in its discretion award the amount of the reasonable expenses incurred in making. . .the motion, including reasonable attorneys’ fees, if the court finds the motion was. . .opposed in bad faith or without substantial justification. . .” The subpoenaing party’s refusal over moving party’s objections to withdraw the subject subpoena, without substantial justification, subjects that party to monetary sanctions for misuse of the discovery process. (Cal. Code Civ. Proc. §2023.010(a).) Monetary sanctions should also be imposed under California Code Civil Procedure sections 2023.010(b), 2023.010(c), and 2023.010(h), as well as under California Code Civil Procedure section 1987.2, as stated above. As stated in the Declaration of Jennifer M. Porche, Esq., Vinas has incurred expenses and fees as a result of the Petitioners and their counsel’s conduct as described herein, in the sum of $595. (See Declaration of Jennifer M. Porche, Esq., {5-8.) VI. CONCLUSION Vinas respectfully requests that the deposition subpoena be quashed, or in the alternative a protective order entered, preventing this harassing and purposeless deposition from taking place. Vinas also respectfully requests that the Court issue sanctions in the amount of $595 against Defendant and Cross-Complainant, WAYNE HAYES and his counsel of record, David Ward. DATED: September 6, 2017 VON ESCH LAW GROUP, ALC er Pa — - — By: Robert A. von Esch IV, Esq. Jennifer M. Porche, Esq. Attorneys for Plaintiff and Cross-Defendant, ALBERT VINAS and Cross-Defendant, JODI VINAS NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS -8- © 0 J Oo U 1 A W N N BH N N N N N N N N N N N FH HB BH 2B RB BH BH 9H 92 0 NN O0 0 U 1 DN W N BH O OW 0 N O U l hh W N HH O PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 and am not a party to the within action; my business address is 2201 East Chapman Avenue, Fullerton, CA 92831. On September 6, 2017, I served on the parties of record in this action the foregoing document(s) entitled: NOTICE OF MOTION AND MOTION TO QUASH OR IN THE ALTERNATIVE FOR A PROTECTIVE ORDER RE: DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS TO BANK OF AMERICA VISA REGARDING CROSS-DEFENDANT, JODI VINAS AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $595 AGAINST DEFENDANT AND CROSS-COMPLAINANT, WAYNE HAYES AND HIS COUNSEL OF RECORD, DAVID WARD, ESQ. by placing the __ original _X a true copy(ies) thereof enclosed in a sealed envelope or by attaching said copies to an electronic mail message addressed as follows: David T. Ward Bank of America Visa Hallstrom, Klein, & Ward, LLP 818 W. Seventh Street, 2nd Floor 15615 Alton Parkway, Suite 175 Los Angeles, CA 9001 7 Irvine, CA 92618 (Via Personal Service Only) Attorney for Defendant, Wayne Hayes (Via Electronic Mail Only) [X] BY ELECTRONIC MAIL - I electronically served the documents listed above by transmitting an electronic message from my email address, which is secretary @voneschlaw.com, and sending the email to the recipient as addressed above, or by electronic transmission via One Legal, LLC through the user interface at www.onelegal.com. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [ X] BY PERSONAL SERVICE - I caused the aforementioned document(s) to be personally served upon the addressee as indicated above. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 6, 2017, at Fullerton, California. Sarah Chamberlin NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND RECORDS TO BANK OF AMERICA VISA RE: JODI VINAS -9.