Motion_to_quash_subpoena

Motion

Cal. Super. - 4th Dist.February 20, 2020

30-2020-01135 AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 FHlectronically Filed by Superior Court of California, County of Orange, 07/06/2020 02:08:00 PM. 162-CU-PA-C) C - ROA #45 - DAVID H. YAMASAKI, Clerk of the Court By Giovanni Galon, Deputy Clerk. John T. Farmer, Esq. SBN:089168 Joyce R. Dondanville, Esq.; SBN: 176926 FARMER CASE & FEDOR 402 W. Broadway, Suite 1100 San Diego, California 92101 (619) 338-0300 / (619) 338-0180 (Fax) Attorneys for Defendants, VEDETTE TELENKO and DAVID TELENKO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE KYLE OSBORNE, an incompetent CASE NO.: 30-2020-01135162-CU-PA- individual, by and through his Guardian ad CJC Litem, JENNIFER MOSTERO, NOTICE OF MOTION TO QUASH Plaintiff, DEPOSITION SUBPOENA FOR v. PRODUCTION OF BUSINESS RECORDS; MEMORANDUM OF GRANT TELENKO, an individual; DAVID POINTS AND AUTHORITIES [Filed concurrently with Declaration of TELENKO, an individual; RAYMOND y Joyce R. Dondanville and [Proposed] BEATIFICATO, an individual; MARY BEATIFICATO, an individual; and DOES 1- Order] 50, Date: August 20, 2020 Datondants. Time: 1:30 pm clencants Dept: C13 ) ) ) ) ) ) TELENKO, an individual; VEDETTE ) ) ) ) ) ) ) : Reservation: 73332158 ) PLEASE TAKE NOTICE that on August 20, 2020 at 1:30 p.m. in Department C13 of the Orange County Superior Court, or as soon as thereafter as may be heard, Defendants David Telenko and Vedette Telenko (“the Telenko Defendants) move to quash Plaintiff's deposition subpoena for production of business records from the Orange County Sheriff's Department on the following grounds: (1) the subpoena is overbroad, irrelevant and does not seek information reasonably calculated to lead to the discovery of admissible evidence; (2) the subpoena unreasonably infringes on the Telenko Defendants’ constitutional right to privacy under California law; and (3) the subpoena purports to require production of character evidence in G:\07\11194-Osborne\Plead\Motion to Quash.doc 1 DEFENDANT’S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 violation of Evidence Code §1101(a). In the alternative, the Telenko Defendants move the Court for a protective order limiting the scope of the subpoena. This motion is based upon this Notice, the attached Memorandum of Points and Authorities, the supporting declaration of Joyce R. Dondanville, the arguments presented at the hearing, and all other records and files in this action. Dated: July 6, 2020 FARMER CASE & FEDOR Due wa Jog T. Farmer, Esq. ’ oyce R. Dondanville, Esq. Attorneys for Defendants VEDETTE TELENKO and DAVID TELENKO G:\07\11194-Osborne\Plead\Motion to Quash.doc 2, DEFENDANT’S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L BACKGROUND This case arises out of a personal injury automobile accident that occurred on or around 12:00 a.m. on November 25, 2019, outside the premises of 14 Via Terracaleta in Coto de Caza, California. Plaintiff filed a Complaint on February 20, 2020 against the driver of the vehicle, Grant Telenko, and his parents, David and Vedette Telenko, and Raymond and Mary Beatificato. On or about June 24, 2020, counsel for Plaintiff served the Defendants and the custodian of records for the Orange County Sheriff’s Department with a Deposition Subpoena for Production of Business Records, which is attached to the Declaration of Joyce R. Dondanville as Exhibit A. The subpoena seeks all call logs and audio files pertaining to 911 calls and/or noise complaints associated with the Telenko Defendants’ residence located at 7 Wild Rose Place, Aliso Viejo, CA 92656, during June 1, 2010 through the present. The Plaintiffs subpoena is overbroad and seeks information that is irrelevant to the instant action and protected by constitutionally recognized privacy rights. Pursuant to clear and established California law, Plaintiff is prohibited from obtaining said documents and information. For the reasons sets forth below, Plaintiff respectfully requests this Court quash Defendants’ subpoena. 111 111 111 111 111 111 111 111 111 G:\07\11194-Osborne\Plead\Motion to Quash.doc 3 DEFENDANT’S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 II. THE COURT SHOULD QUASH THE SUBPOENA, OR, IN THE ALTERNATIVE, GRANT A PROTECTIVE ORDER A party consumer (the consumer is the person whose records are sought in the subpoena) may file a motion to quash the subpoena. The motion must be served on the records custodian and the deposition officer at least five days before the date set for production. (Code of Civ. Proc., §§ 1985.3(g), 1985.6(f).) Filing a motion to quash or serving written objections automatically excuses the custodian and deposition officer from producing the subpoenaed records until the court orders such production or the parties stipulate thereto. (Code of Civ. Proc., §§ 1985.3(g), 1985.6(f).) A party witness may seek protection from the Court from a subpoena through either a motion to quash the subpoena under California Code of Civil Procedure §1987.1 or a motion for a protective order pursuant to Code of Civil Procedure §2017.020. Code of Civ. Proc., §1987.1 provides in pertinent part: (a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things . . . at the taking of a deposition, the court . . . 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. 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. Moreover, C.C.P. § 2017.020(a), provides in pertinent part: “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.” Thus, the Court retains inherent power to protect a witness from unreasonable or oppressive demands through either a motion to quash or a protective order. Plaintiff’s subpoena is improper and inappropriate for several reasons. The logs and audio files sought are not within the permissible scope of discovery because they are privileged, in violation of the Telenko Defendants’ constitutional right to privacy, and not relevant to the G:\07\11194-Osborne\Plead\Motion to Quash.doc 4 DEFENDANT’S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 subject matter. Moreover, the subpoena subjects the Sheriff’s Department to unjustly burdensome and oppressive demands which are clearly contrary to California law. A. THE RECORDS SOUGHT ARE NOT RELEVANT TO THE INSTANT ACTION AND WILL NOT REASONABLY LEAD TO THE DISCOVERY OF ADMISSABLE EVIDENCE In order for the documents and videos sought by this subpoena to be discoverable, they must be directly relevant to the issues in the litigation. It is not enough that Plaintiff merely thinks that they will lead to the discovery of relevant evidence. (Binder v. Superior Court (1987) 196 Cal. App. 3d 893,901.) The information sought must be (1) “not privileged,” (2) “relevant to the subject matter” of the action, and (3) either itself admissible or “reasonably calculated to lead to the discovery of admissible evidence.” (C.C.P. § 2017(a).) “Relevancy” may vary with size and complexity of the case and must be considered with regard to the burden and value of the information sought. (See Bridgestone/Firestone, Inc. v. Sup.Ct. (Rios) (1992) 7 Cal.App.4th 1384, 1391, 9 Cal.Rptr.2d 709, 712; Allen v. Superior Court (1984) 151 Cal.App.3d 449, 198 Cal.Rptr. 737; Stony Brook I Homeowners Ass'n. et al. v. Superior Court (Diehl) (2000) 84 Cal.App.4th 691, 101 Cal.Rptr.2d 67.) In this case, the Plaintiff’s subpoena seeks information that is irrelevant, and unrelated to the subject matter or issues in this action. This action is about the personal injuries suffered by Plaintiff Kyle Osborne when he jumped on the front of Defendant Grant Telenko’s vehicle when he was turning around in front of 14 Via Terracaleta in Coto de Caza. Any 911 calls or tapes or noise complaints about the Telenko’s residence in Aliso Viejo has nothing to do with the subject accident or plaintiff’s injuries. What does it matter if the Telenko’s neighbors complained about noise? Additionally, the subpoena in this case is overbroad as it seeks information from the past ten years — “June 1, 2010 through the present”. What has happened at the Telenko residence over the past ten years is completely irrelevant to the plaintiff’s injuries in this case. This subpoena is an obvious effort to harass and embarrass the Telenko Defendants. The documents and information sought are neither admissible nor reasonably calculated to lead to the discovery of admissible evidence. Ivy G:\07\11194-Osborne\Plead\Motion to Quash.doc 5 DEFENDANT’S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 B. THE RECORDS SOUGHT ARE NOT WITHIN THE PERMISSIBLE SCOPE OF DISCOVERY BECAUSE THEY VIOLATE THE DEFENDANTS’ CONSTITUTIONAL RIGHT TO PRIVACY Article I, section 1 of the California Constitution creates a State Constitutional right to privacy. The Constitutional right to privacy may be raised to prevent the disclosure of certain records. (See Valley Bank v. Superior Court (1975) 15 Cal. 3d 652.) Privacy protection is recognized in civil proceedings. Sehlmeyer v. Department of General Services (1993) 17 Cal. App. 4th 1072, 1079. Highly relevant, nonprivileged information may be shielded from discovery if its disclosure would “impair a person's inalienable right or privacy." Cal. Const., art. I, § 1; see also Britt v. Superior Court (1978) 20 Cal. 3d 844, 855-56; Pioneer Electronics (USA), Inc., v. Superior Court (2007) 40 Cal. 4th 360, 370. The U.S. Constitution also guarantees the right to privacy. Griswold v. State of Connecticut (1965) 381 U.S. 478, 484; Palay v. Superior Court (1993)18 Cal. App. 4th 919, 931. Although the constitutional privacy protection is not absolute, [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation on the right of privacy." Boler v. Superior Court (1987) 201 Cal. App. 3d 467, 473. Courts "must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery. Vinson v. Superior Court (1987) 43 Cal.3d 833, 841. "California accords privacy the constitutional status of an 'inalienable right,’ on a par with defending life and possessing property..." Id. Defendants’ subpoena seeks disclosure of the exact information afforded protection by the California Constitution. The subpoena seeks call logs and audio files of 911 calls and noise complaints about the Telenko families’ personal residence. The Plaintiff has no viable reason to invade the Telenko’s privacy like that and for information that is completely unrelated to the motor vehicle accident or plaintiff’s injuries. All 911 emergency calls, if any, pertaining to the Telenko residence and any noise complaints from neighbors, if any, are inadmissible and protected by Defendants’ rights to privacy. Moreover, the subpoena is essentially seeking privileged communications from other persons, who are not parties to this action and have not authorized 111 111 G:\07\11194-Osborne\Plead\Motion to Quash.doc 6 DEFENDANT’S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 the release of such information. This subpoena is a blatant violation of personal privacy rights, including the Telenko Defendants. The documents and information sought are neither admissible nor reasonably calculated to lead to the discovery of admissible evidence. C. The Subpoena Should Be Quashed Because It Seeks Inadmissible Character Evidence “...[e]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion”. Cal. Evid. Code § 1101(a). Here, we can only presume that by issuing this subpoena, Plaintiff is hoping to find some negative information about the Telenko family in order to prove their conduct on the day of the subject accident. That means Plaintiff’s subpoena is seeking inadmissible character evidence about the Telenko Defendants and should be quashed on this ground as well. IIL. CONCLUSION For the foregoing reasons the Telenko Defendants respectfully request the Court quash the Plaintiff’s subpoena or in the alternative limit the scope of the requested information. Dated: July 6, 2020 FARMER CASE & FEDOR By: (SF onae /, Top T. Farmer, Esq. 7 yce R. Dondanville, Esq. Attorneys for Defendants VEDETTE TELENKO and DAVID TELENKO G:\07\11194-Osborne\Plead\Motion to Quash.doc 7 DEFENDANT’S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS