Reply To Opposition To Motion To Quash

Reply

Cal. Super. - 4th Dist.July 25, 2017

A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7Q 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A AN A, CA 92 70 7 <9 PRINTED ON RECYCLED PAPER ATTICUS N. WEGMAN, ESQ. (SBN 273496) AITKEN + AITKEN 4+ COHN 3 MACARTHUR PLACE, SUITE 800 ELECTRONICALLY FILED P.O. BOX 2555 Superior Court of California, SANTA ANA, CA 92707-2555 County of Orange (714) 434-1424/(714) 434-3600 FAX 07/09/2018 at 09:20:00 AM Clerk of the Superior Court Attorneys for Plaintiff, DAVID ESTRADA WHEE ERR SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CASE NO: 30-2017-00933709 [Hon. Sheila Fell, Dept. C25] David Estrada, an individual; Plaintiff, REPLY TO MOTION FOR AN ORDER QUASHING SUBPOENA AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEREOF VS. Ashley Ayres, an individual; Dennis Thompson, an individual; and DOES 1-50, inclusive; Defendants. Date: July 18,2018 Time: 10:00 a.m. Dept.: C25 RESERVATION NO.: 72808991 Complaint Filed: 7/25/17 Trial Date: 5/13/19 e r N r ’ N r ’ a r ’ a r ’ a r ’ a r ’ w r ’ a w r w t a w t a a w t a aw a a a a TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Plaintiff David Estrada files the following Reply to his Motion for an Order Quashing Subpoea: 1 REPLY TO MOTION FOR AN ORDER QUASHING SUBPOENA AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEREOF A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 SO S OO 0 NN O N n n B R A W N = - = m e e m e m A A Wn B A W N D = 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 Ne ] J E E E O Le I - -t AN Wn A L D = O O © No ~ Q 9 PRINTED ON RECYCLED PAPER I. DEFENDANT’S SUBPOENA FOR ESTANCIA HIGH SCHOOL RECORDS IS NOT DIRECTLY RELEVANT TO THE INSTANT LITIGATION Defendant is correct that the instant litigation involved a dog bite attack. However, Defendant fails to demonstrate that their instant subpoena is not overly broad. Attached as Exhibit A, please find a true and correct copy of Defendant's subpoena for records from Estancia High School. Defendant is seeking the following records: RECORDS REQUEST 1. Any and all school records including but not limited to report cards, grades, progress reports, achievement tests, and grades; 2. Any and all school records showing the names of teachers who instructed STUDENT; 3. Any and all records related to emotional counseling; 4. Any and all records related to parent-teacher conferences; 5s Any and all standardized testingrecords; 6. Any and all attendance records; 7. Any and all TEP (Individualized Education Program) records; 8. Any and all ESL (English as a Second Language) records; 9. Any and all disciplinary records; 10. Any and all incident reports; 11. Any and all medical records; 12. Any and all field trip forms, consent forms, and emergency notification cards; 13; Any and all other officially generated reports, including email; 14. Any and all extracurricular activity records; 15. Any and all applications or enrollment forms for school attendance; 16. Any and all diplomas; Defendant’s subpoena asks for information that is highly private and confidential and in no way relates to this dog bite attack. The records requested related to Plaintiff when he was a minor and developing as a young man. Certainly, Plaintiff has a privacy right per the California 2 REPLY TO MOTION FOR AN ORDER QUASHING SUBPOENA AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEREOF A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 O© 00 3 Oa wn Br W O N = -_- e t e d e d p d p d ed A N n n A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 DO ND No No No No \® } - -_ - aN wh EN Ww No - oS © [= <] ~~ No ~ IQ £9 PRINTED ON RECYCLED PAPER Constitution and that does not evaporate after filing a lawsuit for injuries related to a dog attack. If Plaintiff were maintaining a claim for lost earnings, which he is not and has waived as seen below, conceivably his past report cards and grades could be relevant to claims for past and future lost earnings. In this case, however, past and future lost earnings have been waived. Defendant also argues that the past high school records, which Defendant has no indication and has offered this Court no proof as to what specifically they believe they will discover, relate to Plaintiff’s claim for emotional distress. Defendant received information from Plaintiff, however, under oath on June 8, 2018 at his deposition, that prior to this dog bite attack, he did not undergo any counseling or therapy: Attorney for Defendant: Had you ever received psychological therapy in the past, before this incident? Answer from Client: No. --Deposition testimony of Plaintiff David Estrada, Pg. 115, lines 19-21, attached hereto as Exhibit B. The Defendant has no basis to believe Plaintiff is not telling the truth, yet Defendant improperly continues to pursue such records. Defendant has failed to show how each of the sixteen (16) categories of documents are reasonably calculated to lead to the discovery of admissible evidence and that there is a compelling public need for this information balanced against the Plaintiff’s fundamental right of privacy. See Board of Trustees (1981) 119 Cal. App.3d 516. II. PLAINTIFF HAS WAIVED ANY CLAIM FOR PAST AND FUTURE LOST EARNINGS In some circumstances, limited records relating to an injured person’s past school records can be directly relevant to one’s claim for injury. For instance, if a litigant is injured due to the fault of the defendant and claims that his injuries prevent him from gaining employment. In such a case, limited review of past report cards and grades received prior to injury may be directly relevant to an expert’s opinion relating to one’s lost future earnings or vocational rehabilitation. Here, Plaintiff has waived all claims for past and future lost earnings: 3 REPLY TO MOTION FOR AN ORDER QUASHING SUBPOENA AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEREOF A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 O O © 9 O N nn bs W N -_ = e d A A Ln B R A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 \] No N N N N N = = - AN Wn BH Ww ND = O O No ~ nQ €9 PRINTED ON RECYCLED PAPER Attorney for Plaintiff: I've consulted with my client and we are going to waive any claim for past lost earnings, or future lost earnings, or any claim for future lost earnings capacity in this case. Attorney for Defendant: Mer. Estrada, do you stipulate to that? Answer from Client: Yes. --Deposition testimony of Plaintiff David Estrada, Pg. 7, lines 6- 12, attached hereto as Exhibit B. As such, the instant subpoena is not directly relevant to the instant litigation and will serve no purpose other than to potentially inadvertently reveal private information relating to Plaintiff when he was a minor in high school. Potentially private information that could be revealed based on the wording of Defendant’s subpoena could include if Plaintiff was raped/molested in high school, was punished for committing an illegal act, or information that Plaintiff was abused by others, all of which would be irrelevant and inadmissible. Of course, middle school and high school are unique institutions whereby our children obtain an education and grow towards adulthood. This time period for most people includes the most dramatic change as they test their abilities and, in some cases, their rebellious traits. As such, precaution should be taken by the Court is giving Defendant’s a blank check for such records without a properly and narrowly tailored subpoena. III. PLAINTIFF'S REQUEST FOR SANCTIONS IS BASED ON CODE OF CIVIL PROCEDURE SECTION 1987 ET SEQ., NOT SECTION 2023.040 Defendant argues that Plaintiff failed to provide notice of sanctions and other requirements for discovery sanctions based on the general statute Code of Civil Procedure section 2023.040. Plaintiff, however, contends that its request of sanctions is based on quashing a subpoena to a third party per section 1987 et seq. Code of Civil Procedure section 1987 does not include a requirement for notice similar to that found in Code of Civil Procedure section 2023.040. Recall, deposition subpoenas are the only legal discovery devices by which a litigant can require information from a non-party, which in this case is Estancia High School. 4 REPLY TO MOTION FOR AN ORDER QUASHING SUBPOENA AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEREOF A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 OO © 9 O N Un BA W N -_- = e e e d e d e e A A Ln A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 D D ND N o No No No No - -_- -_ aN (5 H W No - OS \O 0 3 No ~ IQ €9 PRINTED ON RECYCLED PAPER IV. CONCLUSION As such, Plaintiff requests that Court grant its motion to quash records relating to the subpoena for Estancia High School. Dated: July 6, 2018 AITKEN 4+ AITKEN + COHN By: (PE ATTICUS N. WEGMAN, ESQ. Attorneys for Plaintiff DAVID ESTRADA 5 REPLY TO MOTION FOR AN ORDER QUASHING SUBPOENA AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEREOF A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 OO 0 uN O N Wn hr W N -_ = e d e d e d p d A A Wn A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 No Do No NO [N S No NS ] ND - - - = aN wn ES N wo No - oS © [= =] ~ [N °] 0 €9 PRINTED ON RECYCLED PAPER PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 3 MacArthur Place, Suite 800, Santa Ana, California, 92707. On July 9, 2018 I served the foregoing documents described as REPLY TO MOTION FOR AN ORDER QUASHING SUBPOENA AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEREOF on the parties herein in this action by placing ( ) the original (x) a true copy thereof in a sealed envelope addressed as indicated on the attached service list. (X) BY MAIL (X) As follows: Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or posiags meter date is more than one day after date of deposit for mailing an affidavit. ( ) By Personal Service: I caused the above-referenced the document(s) to be delivered by hand to the attached addressees. (X) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). ( ) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named persons at the following telephone number(s) see attached Proof of Service list. () By Email Transmission: I caused the above-referenced document(s) to be transmitted to the persons listed in the attached Proof of Service lists. Executed on July 9, 2018 at Santa Ana, California. (X) (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. | / In) | 14 J A - So, Kristin McCarthy 1 PROOF OF SERVICE A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 OO 0 9 ON nn Bx W N -_ = e m e d e d e a p a A A Wn B R A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N o Bo N o N o No N o N o Do - - - ~ AN Ww Nn wo No - o Oo o o ~ [N °] 0 £9 PRINTED ON RECYCLED PAPER Estrada v. Ayres SERVICE LIST Francois Auroux, Esq. VEATCH CARLSON, LLP 1055 Wilshire Blvd., 11th Flr. Los Angeles, California 90017 213-381-2861 Fax 213-383-6370 Attorneys for Defendants 2 PROOF OF SERVICE