BodEv, Inc. vs. Mandell

13.

I. Motions to Quash

A motion to quash seeks to modify a subpoena or nullify it in its entirety because it is defective or seeks impermissible information. A motion to quash provides the trial court with the opportunity to determine the validity of a subpoena and whether the information sought should be produced. In re R.R., 187 Cal. App. 4th 1264, 1277 (2010). Specifically, California Code of Civil Procedure Section 1987.1 provides:

[w]hen a subpoena requires the attendance of a witness or the production of . . . documents . . . the court, upon motion reasonably made by . . . [a party or a witness], or upon the court’s own motion . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders.

Cal. Civ. Proc. Code § 1987.1(a)(b).

Additionally, “the court may make such other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” Cal. Civ. Proc. Code § 1987.1(a).

Typically, a motion to quash is filed before the time of production, but the court has the authority to consider the motion even after the date of production. In re R.R., supra, 187 Cal. App. 4th at 1277. If granted, the subpoena will be unenforceable because “quashing the subpoena” will make it void. See Quash, Merriam-Webster Law Dictionary (last updated April 3, 2026).

Here, Defendant served their Deposition Subpoena for Production of Business Records upon Chase on April 10, 2026. ROA 33, Exh. A. The subpoena requested that Plaintiff produce the business records described in Attachment 3 of the subpoena by mailing them to the deposition officer by April 30, 2026. Id.

On April 20, 2026, Plaintiff served Defendant with the herein Motion by mail and e-service. ROA 35, p.8.

Plaintiff moves to quash the Defendant’s subpoena on the grounds that Defendant did not serve notice of the subpoena to Chase upon Plaintiff. ROA 38, p.2. Plaintiff additionally seeks a protective order on the grounds that Plaintiff has a protected privacy interest in its confidential bank information with Chase. Id.

The Court notes here that Plaintiff’s Declaration in Support of Plaintiff’s Motion is devoid of any facts that support a finding that Plaintiff was not served with notice of Defendant’s Subpoena to Chase. As this was Plaintiff’s sole procedural argument for an order to quash Defendant’s subpoena to Chase, the Court finds no procedural justification to grant Plaintiff’s motion. Accordingly, the Court limits its treatment to the alleged privacy concerns raised by Plaintiff as justification for a protective order.

II. Privacy Concerns re: Sensitive Financial Information

The Supreme Court of California has recognized that “the right of privacy extends to one’s confidential financial affairs.” Valley Bank of Nev. v. Super. Ct., 15 Cal. 3d 652, 656 (1975). However, an important caveat to Valley Bank is that it more accurately stands for the proposition that a person has a reasonable expectation that a financial institution with whom a party shares a confidential relationship will not divulge that person’s confidential information absent compulsion by legal process. Id. at 657; Garrabrants v. Erhart, 98 Cal. App. 5th 486, 499 (2023).

Thus, a person does not have a reasonable expectation of

privacy in their financial affairs in all circumstances. Garrabrants, supra, 98 Cal. App. 5th at 500. Discovery of confidential financial information is permitted if the information is relevant to the subject matter at issue. Dompeling v. Super. Ct., 117 Cal. App. 3d 798, 808.

As Plaintiff correctly points out, “[a]lthough corporations have a lesser right to privacy than human beings and are not entitled to claim a right to privacy in terms of a fundamental right, some right to privacy exists.” Ameri- Medical Corp. v. Workers' Comp. Appeals Bd., 42 Cal. App. 4th 1260, 1287–1288 (1996). To resolve an objection related to corporate privacy, “the discovery's relevance to the subject matter of the pending dispute and whether the discovery ‘appears reasonably calculated to lead to the discovery of admissible evidence’” is balanced against the corporate right of privacy.” SCC Acquisitions, Inc. v. Super. Court, 243 Cal. App. 4th 741, 756 (2015). “Doubts about relevance generally are resolved in favor of permitting discovery.” Id. at 756.

Here, Plaintiff’s separate statement merely regurgitates Defendant’s subpoena production requests and completely fails to identify the protected privacy interest implicated by the requests with any particularity. Thus, the Court is left to ponder how each request violates Plaintiff’s privacy interests.

Additionally, having considered Defendant’s opposition, the Court finds that the relevance of the sought-after documents exceeds the Plaintiff corporation’s broad privacy interest in its sensitive financial information, particularly when such information is squarely at issue in the underlying controversy.

III. Sanctions re: Motions to Quash

California Code of Civil Procedure section 1987.2 provides that:

the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the

motion [to quash], 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.

Cal. Civ. Proc. Code § 1987.2. (emphasis added).

Where a court exercises its discretion to issue sanctions under Section 1987.2, “it must delineate the specific acts upon which the sanctions are awarded.” First City Properties, Inc. v. MacAdam, 49 Cal. App. 4th 507, 515 (1996).

Here, because Plaintiff failed to provide facts to substantiate its claim that Defendant’s subpoena was procedurally invalid, and because Plaintiff failed to identify with any particularity how Defendant’s subpoena’s individual requests for production threatened Plaintiff’s protected privacy interests, the Court finds that Plaintiff moves without substantial justification. Accordingly, the Court exercises its discretion to award to Defendant the reasonable amount of expenses incurred in opposing this Motion.

IV. Motions for Protective Order

A protective order does not seek to nullify the subpoena; rather, it permits production of discovery but limits disclosure and use of discovered information. Nativi v. Deutsche Bank Nat’l Tr. Co., 223 Cal. App. 4th 261, 318 (2014).

Unlike a Motion to Quash under California Code of Civil Procedure Section 1987.2, a Motion for Protective Order under Section 2025.420 must be accompanied by a meet and confer declaration that complies with the provisions of Section 2016.040. Cal. Civ. Proc. Code § 2025.420(a).

Effective January 1, 2026, a meet and confer declaration “shall state facts showing a reasonable and good faith attempt” on the part of the moving party to meet and confer either in person, telephonically, or by videoconference; e-mail alone will not suffice. Cal. Civ. Proc. Code § 2016.040(a).

Additionally, the moving party’s declaration “shall include whether [they have] met and conferred, including through an electronic communication, regarding the retention of a certified shorthand reporter to report the hearing on the motion.” Cal. Civ. Proc. Code § 2016.040(b).

Here, the Court finds that Plaintiff’s Declaration in Support of their Motion (ROA 33) fails to satisfy the meet and confer requirements of California Code of Civil Procedure Section 2016.040. Accordingly, Plaintiff’s Motion for a Protective Order is procedurally invalid as well.

V. Sanctions re: Motions for Protective Order

California Code of Civil Procedure Section 2025.420 mandates the imposition of discovery sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order” absent a finding that “the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Cal. Civ. Proc. Code § 2025.420(h).

The term “substantial justification” means “a justification that ‘is clearly reasonable because it is well grounded in both law and fact.’” In re Marriage of Moore, 102 Cal. App. 5th 1275, 1287 (2024) (quoting Doe v. U.S. Swimming, Inc., 200 Cal. App. 4th 1424, 1434 (2011)).

Here, Plaintiff does not offer, and the Court does not find, any substantial justification for Plaintiff’s failure to satisfy the statutory guidelines of California Code of Civil Procedure Section 2016.040. Additionally, the Court finds no reason why the imposition of sanctions would result in injustice to Plaintiff. Consequently, sanctions are mandatory and just. VI. Determining a Reasonable Sanctions Amount

Three principles guide the award and amount of attorney’s fees and costs imposed as a discovery sanction. Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc., 56 Cal. App. 5th 771, 790-91 (2020) (compulsion, causation, and

reasonableness).

“The amount of monetary sanctions is limited to the ‘reasonable expenses, including attorney’s fees’ that a party incurred as a result of the discovery abuse.” Cornerstone, supra, 56 Cal. App. 5th at 791 (quoting Cal. Civ. Proc. Code § 2023.030(a)). The principle of reasonableness means a trial court has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award. Id., (citing Parker v. Wolters Kluwer U.S., Inc., 149 Cal. App. 4th 285, 294 (2007)).

“After a motion to compel discovery has been filed, further expenses incurred in meeting and conferring on the discovery dispute, whether it be through private mediation or normal channels of communication, are not compensable as discovery sanctions.” Marriage of Moore, supra, 102 Cal. App. 5th at 1301.

Having considered these principles, the Court finds that Defendant is entitled to a reasonable sanctions award of $2,500 for successfully opposing Plaintiff’s Motion.

VII. Reporting Requirements re: Monetary Discovery Sanctions

California Business and Professions Code Section 6068 imposes a duty upon licensed attorneys to self-report to the State Bar, in writing, and within thirty (30) days of receiving notice of a court’s order imposing “judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).” Cal. Bus. & Prof. Code § 6068(o)(3) (emphasis added); See also Cal. Bus. & Prof. Code § 6086.7 (placing the same reporting requirements upon the courts).

The California State Bar Court reads these exceptions narrowly and has determined that monetary discovery sanctions of $1,000 or more are reportable where the sanction is not for failure to make discovery. See Matter of Rubin, 5 Cal. State Bar Ct. Rptr. 797, 808 (2021) (finding that an attorney had an independent duty to report sanctions of

$2,335 to the State Bar for unsuccessfully opposing a motion for a protective order). Accordingly, a monetary sanction is not exempt from reporting merely because it arises in a discovery proceeding.

California Rules of Court, Rule 10.609 states that a “judge issuing the order triggers the notification requirement under California Business and Professions Code Section 6068.7 is responsible for notifying the State Bar . . . and may direct court staff” to do so. Cal. Rules of Court, Rule 10.609(a).

Here, the Court finds that the sanctions imposed upon Plaintiff for unsuccessfully making the herein Motion, without substantial justification, are not imposed for failure to make discovery. Accordingly, the sanctions amount imposed shall trigger both the Court’s and Plaintiff’s attorney’s duty to report to the State Bar.

Accordingly, Plaintiff’s Motion to Quash Defendant’s Subpoena to Chase for the Production of Business Records and Motion for Protective Order are DENIED.

The Court IMPOSES monetary discovery sanctions upon Plaintiff’s attorneys, Joanna Ardalan and Kurt W. Schuettinger, jointly and severally, in the total collective amount of $2,500, due and payable to Mirsky Corporate Advisors, APC, no later than sixty (60) days after receipt of notice of this Order.

The Court orders Clerk to give notice to parties and to report the imposition of the herein sanctions to the State Bar.