Clay v. Delgadillo

fee dispute. Cross-Complainants also assert that the claims of attorney-client privilege and work product have no merit.

Code of Civil Procedure section 1987.1 applies to a deposition subpoena. (Code Civ. Proc. § 2020.030.) Code of Civil Procedure section 1987.1 provides, in pertinent part: “[T]he court, upon motion reasonably made by [a party, witness, consumer, or employee] ... may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those 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.” (Code Civ. Proc. § 1987.1, subds. (a)-(b).)

There is no showing that the instant motion to quash has been “reasonably made.” There has been no attempt to resolve the parties’ dispute as to the requests for production in the Deposition Subpoena. Despite this, the Court will address the merits of the motion.

As a threshold matter, Cross-Complainants withdraw Request Nos. 18 and 24 as premature.

Requests in Subject Deposition Subpoena The Deposition Subpoena includes 27 requests. The following 25 requests remain at issue:

1. All DOCUMENTS and COMMUNICATIONS reflecting any instructions, directives and/or agreements accompanied with the IOLTA account at WELLS FARGO ACCOUNT ending in 5122 for the benefit of the LAW OFFICE OF JEROME A. CLAY, including but not limited to engagement letters, retainer agreements or fiduciary instructions from September 1, 2022, to present identifying clients M86CHEM, LLC, DESSAU, Inc. and/or FRANK DELGADILLO. This includes all internal account notes, branch notes, customer contact logs, case management records, and risk or compliance review notes relating to IOLTA account ending 5122 from September 1, 2022, through October 31, 2022.

2. All DOCUMENTS and COMMUNICATIONS identifying: the individual(s) who initiated or authorized each transfer, the method of initiation (online banking, branch visit, wire desk), any device, IP address, authentication method, or branch location and employee involvement for all transfers from the WELLS FARGO ACCOUNT ending in 5122 (IOLTA) account between September 15, 2022, and October 4, 2022.

3. All DOCUMENTS and COMMUNICATIONS reflecting WELLS FARGO’s designation, classification, or understanding of the

account ending 5122 as: an IOLTA account; a client trust account; or subject to attorney trust restrictions.

4. All non-SAR documents reflecting automated alerts, exception reports, internal transaction reviews, or thresholdbased monitoring triggered by the inbound international wire to, or any withdrawal, from WELLS FARGO ACCOUNT ending in 5122 (IOLTA) exceeding $100,000 for the period September-October 2022.

5. All communications (emails, messages, call logs, correspondence) between Wells Fargo and Jerome A. Clay, the Law Office of Jerome A. Clay, APC, or any authorized representative concerning: the WELLS FARGO ACCOUNT ending in 5122 (IOLTA); the inbound wire; or any withdrawals/transfers in September-October 2022.

6. All documents reflecting stated purpose, justification, or explanation for the inbound international wire, and each outgoing transfer from the WELLS FARGO ACCOUNT ending in 5122 (IOLTA).

7. All DOCUMENTS and COMMUNICATIONS reflecting the interest transfer (Int Transferred) in the amount of $1813.40 from the WELLS FARGO ACCOUNT ending in 5122 made payable to CA000000510710530 on or about September 30, 2022, and the identity of the real party of interest of said account.

8. All DOCUMENTS and COMMUNICATIONS reflecting the online transfer in the amount of $40,000.00 from the WELLS FARGO ACCOUNT ending in 5122 made payable to CLAY J PREFERRED CHECKING xxxxxx2531 on or about October 3, 2022.

9. All DOCUMENTS and COMMUNICATIONS reflecting the online transfer in the amount of $30,000.00 from the WELLS FARGO ACCOUNT ending in 5122 made payable to CLAY J PREFERRED CHECKING xxxxxx2531 on or about October 3, 2022.

10. All DOCUMENTS and COMMUNICATIONS reflecting the online transfer in the amount of $10,000.00 from the WELLS FARGO ACCOUNT ending in 5122 made payable to CLAY J PREFERRED CHECKING xxxxxx2531 on or about October 4, 2022.

11. All DOCUMENTS and COMMUNICATIONS reflecting the online transfer (Transfer IN Branch/Store) in the amount of $1,000,000.00 from the WELLS FARGO ACCOUNT ending in 5122 made payable to LAW OFFICE OF JEROME A CLAY A DDA xxxxxx9821 on or about October 4, 2022.

12. All DOCUMENTS and COMMUNICATIONS reflecting the online transfer (Transfer INBranch/Store) in the amount of $969,924.00 from the WELLS FARGO ACCOUNT ending in 5122 made payable to LAW OFFICE OF JEROME A CLAY A DDA xxxxxx9821 on or about October 4, 2022.

13. All DOCUMENTS and COMMUNICATIONS reflecting the interest transfer (Int Transferred) in the amount of $368.14.00 from the WELLS FARGO ACCOUNT ending in 5122 made payable to CA000000510710530 on or about October 4, 2022 and the identity of the real party of interest of said account.

14. All DOCUMENTS and COMMUNICATIONS reflecting any online transfers from CLAY J PREFERRED CHECKING xxxxxx2531, from October 3, 2022, including but not limited to any transfers to the LAW OFFICE OF JEROME A CLAY A DDA xxxxxx9821 (WELLS FARGO ACCOUNT ending in 9821).

15. All DOCUMENTS and COMMUNICATIONS reflecting any online transfers from CLAY J PREFERRED CHECKING xxxxxx2531, from October 4, 2022, to date, including but not limited to any transfers to Aero Title Bond and Insured.

16. All DOCUMENTS and COMMUNICATIONS reflecting any online transfers from CLAY J PREFERRED CHECKING xxxxxx2531, from October 4, 2022, to date, including but not limited to any transfers to My Flight, LLC.

17. All DOCUMENTS and COMMUNICATIONS reflecting any online transfers from CLAY J PREFERRED CHECKING xxxxxx2531, from October 4, 2022, to date, including but not limited to any transfers to Lone Mountain Aviation, Inc.

19. All DOCUMENTS and COMMUNICATIONS reflecting any online transfers from LAW OFFICE OF JEROME A CLAY A DDA xxxxxx9821 (WELLS FARGO ACCOUNT ending in 9821), from October 4, 2022, to date, including but not limited to any transfers to Aero Title Bond and Insured.

20. All DOCUMENTS and COMMUNICATIONS reflecting any online transfers from LAW OFFICE OF JEROME A CLAY A DDA xxxxxx9821 (WELLS FARGO ACCOUNT ending in 9821), from October 4, 2022, to date, including but not limited to any transfers to My Flight, LLC.

21. All DOCUMENTS and COMMUNICATIONS reflecting any online transfers from LAW OFFICE OF JEROME A CLAY A DDA xxxxxx9821 (WELLS FARGO ACCOUNT ending in 9821), from October 4, 2022, to date, including but not limited to any transfers to Lone Mountain Aviation, Inc.

22. All DOCUMENTS and COMMUNICATIONS reflecting any online transfers from LAW OFFICE OF JEROME A CLAY A DDA xxxxxx9821 (WELLS FARGO ACCOUNT ending in 9821), from October 4, 2022, to date, including but not limited to any transfers to OMAR KABILJAGIC.

23. All DOCUMENTS and COMMUNICATIONS reflecting any authorization, justification, or explanation provided to Wells Fargo for any transfers from the LAW OFFICE OF JEROME A. CLAY A DDA account xxxxxx9821 to OMAR KABILJAGIC.

25. Any and all bank withdrawal transactions to show where to show where the amount of $2,640,000.00 went, directly or indirectly, after the wire transfer into the WELLS FARGO ACCOUNT ending in 5122.

26. All COMMUNICATIONS reflecting the withdrawals and payments from the $2,640,000.00 wired into the abovedescribed WELLS FARGO ACCOUNT ending in 5122 from the date of the deposit of those funds to present.

27. All DOCUMENTS including but not limited to checks, wire transfers, debit and credit transactions reflecting the withdrawals and payments from the $2,640,000.00 wired into the above described WELLS FARGO ACCOUNT ending in 5122 from the date of the deposit of those funds to present.

Attorney-Client Privilege and Work Product Cross-Defendants assert in conclusory fashion that the Deposition Subpoena intrudes into attorney–client communications safeguarded by Evidence Code section 954, and the attorney work product absolutely protected under Code of Civil Procedure section 2018.030. When a responding party asserts claims of privilege or attorney work product protection, the responding party must provide sufficient factual information to enable the parties and the court to evaluate the merits of a claim, including, if necessary, a privilege log. (Code Civ. Proc. § 2031.240(c)(1); Riddell, Inc. v. Superior Court (2017) 14 Cal.App.5th 755, 772.)

“The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)

In addition, “[t]he person claiming protection under the attorney work product doctrine bears the burden of proving the preliminary facts to show the doctrine applies. [Citation.]” (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993.)

Here, Cross-Defendants have not establish the preliminary facts necessary to show the application of the attorney-client privilege or attorney work product doctrine, and thus, have failed to meet their burden to show that either applies to the requests at issue.

Similarly, Cross-Defendants make the conclusory assertion that the Deposition Subpoena seeks confidential attorney trust account information governed by Business and Professions Code section 6211 and Rule 1.15 of the California Rules of Professional Conduct, which impose strict duties of confidentiality and nondisclosure relating to IOLTA and client fund activity. Cross-Defendants provide no discussion of the rules cited and their application to any of the requests at issue. The court may “‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which [a party] reached the conclusion [he or she] wants [the court] to adopt.’” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 citing City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.)

Privacy There is a constitutional right to privacy in financial information. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 655-656; Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550.) “The right of privacy protects against the unwarranted, compelled disclosure of private or personal information and ‘extends to one’s confidential financial affairs as well as to the details of one’s personal life.’ [Citation.]” (SCC Acquisitions, Inc. v. Superior Court (2015) 243 CalApp.4th 741, 754.) The zone of privacy protected by Article I, Section 1 of the California Constitution encompasses personal financial information, but does not provide absolute protection. (Ibid.)”

Here, the 27 document requests seek bank records and other related information/documents concerning three accounts: the IOLTA account ending in 5122, Clay’s personal checking account ending in 2531, and Clay Law Office’s operating account ending in 9821.

The bank records and other documents sought in the instant Deposition Subpoena are directly relevant to the subject matter of the instant action. The Complaint alleges that Clay entered into a Retainer Agreement with Defendants, that the Retainer Agreement was signed at a fixed price, that Delgadillo was required to deposit a $2,640,000 retainer fee into Clay’s IOLTA account, and that Delgadillo deposited a $2,640,000 retainer fee to IOLTA. (See Complaint, ¶¶ 11, 13- 14, 26-27.) The Complaint alleges that Delgadillo is breaching the Retainer Agreement by demanding the return of the retainer fee that was deposited to the IOLTA, and

based thereon, among other allegations, asserts causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief. (Complaint, ¶ 30, 40(C), 56-57, 59.) Additionally, the Cross- Complaint asserts claims for breach of fiduciary duty, promissory fraud breach of contract, unjust enrichment, and conversion of funds, and seeks recovery of funds in excess of $2,265,000 in converted funds and unrefunded retainer fees from Cross-Defendants concerning the $2,640,000, as well as other additional payments made to Clay Law Firm, based upon Clay and Clay Law Firm’s position as general corporate counsel for M86CHEM, LLC in exchange for a monthly retainer of $5,000, and a paymaster agreement between M86CHEM, LLC and Clay whereby Clay was to be paid $40,000 to hold all funds paid by a Japanese company, Meiwa Engineering, Inc. in trust in Clay Law Firm’s IOLTA account. (See ROA 82, First Amended Cross-Complaint, ¶¶ 17-24.)

Cross-Complainants allege that Clay spent more than $400,000 in November 2022, to purchase a Cirrus aircraft, and that Clay had purchased a second aircraft with $350,000, from funds from the IOLTA. (Id., ¶¶ 40, 52; ROA 345, Declaration of Frank Delgadillo, Jr., ¶¶ 16-17, Exs. C-G.) Based on the foregoing, the financial information sought concerning the deposit of $2,640,000 into the IOLTA, and subsequent withdrawals and/or transfers of those funds are directly relevant to the subject matter of this action.

Under these circumstances, while Clay may have a privacy right in his personal checking account ending in 2531, Clay’s privacy rights do not outweigh Cross-Complainants’ compelling and countervailing interests in disclosure given the relevance of the documents sought. Request Nos. 8, 9, 10, 14, 15, 16, and 17 concern Clay’s personal checking account ending in 2531. The records sought are narrowly tailored, as specific to a transaction, except Request Nos. 14- 17, which are overbroad as discussed below.

Significantly, the IOLTA records produced by Wells Fargo in response to a prior deposition subpoena reflects that the wire transfer in the amount of $2,640,000 was received on September 13, 2022, with multiple transfers of large amounts to Clay’s personal checking ending in 2531 and the operating account of Clay Law Office ending in 9821, among others, from September 15, 2022, through October 4, 2022, amounting to withdrawals in the amount of $2,642,181.54, indicating that the entirety of the wire transfer had been transferred out of the IOLTA by October 4, 2022. (ROA 353, Ex.

C to the Declaration of Stephan M. Brown.) In light of the above, Cross-Defendants do not show an objectively reasonable expectation of privacy in the given circumstances.

Cross-Defendants do not otherwise establish that Clay Law Firm has a privacy right to the operating account ending in 9821. Corporations do not have a right of privacy protected

by the California Constitution. (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755-756.) Because the corporate privacy right is not constitutionally protected, the issue presented in determining whether a request for production infringes that right is resolved by a balancing test. (Id. at p. 756.) “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. [Citation.]

Doubts about relevance generally are resolved in favor of permitting discovery.” (Ibid.) Even assuming Clay Law Office had a financial right of privacy in the IOLTA account (Request Nos. 1-7, 13, 25-27) or the operating account (Request Nos. 11, 12, 18-24), the relevance of the document requests to the subject matter of this action outweigh any such interest. The requests are narrowly tailored by specific transaction, except Request Nos. 19-23 and 25-27, which are overbroad as discussed below.

Cross-Defendants cite to McGovern v. BHC Fremont Hospital, Inc. (2022) 87 Cal.App.5th 181, as confirming “that courts must curtail overreaching demands for sensitive financial materials when the proponent has not shown a sufficiently focused need,” and that the case emphasized that there must be a showing that the scope of the request outweighs privacy concerns. (Motion, 9:20-10:2.) However, that case did not involve financial privacy and was concerned with the privacy of mental health records pursuant to Welfare and Institutions Code section 5328, and exceptions thereto. (McGovern v. BHC Fremont Hospital, Inc. (2022) 87 Cal.App.5th 181, 196.) As such, it is not applicable to the case at issue.

Overbreadth and Oppression “Civil discovery is intended to operate with a minimum of judicial intervention. [I]t is a central precept of the Civil Discovery Act ... that discovery be essentially selfexecuting[.] [Citations].” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.) “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

The Court finds Request No. 6 to be overbroad as to time and therefore limits the request to October 2022-September 2022.

The Court finds Request Nos. 14-17 and 19-23 to be overbroad as to time as the records sought are from October 2022, “to date.” The Court limits these requests to documents from October 2022 to October 2023. The First Amended Cross- Complaint alleges that Clay Law Firm was

sent a formal demand letter for an accounting on or about September 27, 2023. (ROA 82, First Amended Cross- Complaint, ¶ 48.)

The Court finds Request No. 14 seeking all documents and communications reflecting any online transfer from Clay’s personal checking from October 3, 2022, including but not limited to any transfers to the operating account for Clay Law Office is overbroad in scope and time. The Motion to Quash is GRANTED as to Request No.

14.

The Courts finds Request Nos. 25-27 to be overbroad on their face. The Motion to Quash is GRANTED as to Request Nos. 25-27.

To the extent that Cross-Defendants claim that the Deposition Subpoena is oppressive, no showing is made that it creates an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. “Oppression must not be equated with burden. The objection based upon burden must be sustained by evidence of showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417 [interrogatories].)

Based on the foregoing, in sum, the motion to quash is DENIED as to Request Nos. 1-13, 15-17, and 19-23, subject to the limitations set forth above.

The motion to quash is GRANTED as to Request Nos. 14, and 25-27.

As a number of the requests may implicate the privacy rights of third parties, the Court ORDERS the parties to submit a joint stipulation and protective order as to confidentiality to protects such privacy interests, within 20 days, for the Court’s approval.

Wells Fargo is ORDERED to produce responsive documents within 30 days after receiving notice of the approved stipulation and protective order.

Cross- Complainants to give notice. 111 Elsaey vs. Premier Chrysler Dodge Jeep Ram of Buena Park, 24-01413332 Defendant, Premier Automotive of Placentia LLC dba Premier Chrysler Dodge Jeep Ram of Buena Park (“Premier”), moves for an order granting summary judgment in favor of Premier and against Plaintiffs, Amir Elsaey and Magdalena Elsaey (“Plaintiffs’). In the alternative, Premier moves for summary adjudication as to the claims for premises liability, negligence and loss of consortium on the grounds that they are barred

by the primary assumption of the risk doctrine, the Privette Doctrine, and the lack of foreseeability of a violent attack.

This motion initially came on for hearing on July 31, 2026. It was continued to August 20, 2026, for Plaintiffs to re-file the Index of Exhibits with highlighting which allows the highlighted portions to be deposition transcripts to be visible by August 3, 2206. (ROA 181.) On July 31, 2026, Plaintiffs re-filed their Index of Exhibits in three (3) volumes in accordance with the Court’s order. (ROA 184, 186, 188.)

Premier contends that Plaintiffs’ claims for premises liability, negligence, and loss of consortium are barred based on the primary assumption of the risk doctrine and Privette Doctrine.

Plaintiffs contend that Premier’s motion must be treated only as a motion for summary judgment as it failed to comply with California Rules of Court, rule 3.1350. Plaintiffs also contend that the primary assumption of the risk doctrine does not apply, and that even if it applies, it does not bar Plaintiffs’ claims because Premier unreasonably increased the risks beyond those inherent in Plaintiff, Amir Elsaey’s duties. Plaintiffs also contend that the Privette doctrine does not bar Plaintiffs’ claims because the retained control exception applies, the negligently furnishing of unsafe equipment exception applies, and the concealed hazard exception applies.

Service of Opposition The reply contends that Plaintiffs did not properly serve their opposition on July 17, 2026, as Plaintiffs filed and served their opposition to Defendant on July 17, 2026 by e- service.

Code of Civil Procedure section 1005 states, in part: “all papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, . . . .” (Code Civ. Proc. § 1005(c).) Section 1011 states, in part: “If service is made by electronic service, it shall be made pursuant to Section 1010.6 and applicable rules on electric [sic] service in the California Rules of Court.” (Code Civ. Proc. § 1011(c).) Section 1013 states, in part: “Electronic service shall be permitted pursuant to Section 1010.6 and the rules on electronic service in the California Rules of Court.” (Code Civ. Proc. § 1013(g).) Therefore, electronic service of the opposition is proper.

Notice of Summary Adjudication Plaintiffs argue that although Premier’s notice of motion states that it is in the alternative for summary adjudication, Premier fails to specify in its notice of motion and motion the claim, cause of action, or issues it is moving on, as required by California Rules of Court, rule 3.1350, such that the court