The Garment Industry in California is regulated by the Labor Code statutes (CA Labor Code §§2671 - 2692) and the California Code of Regulations (CA CR §§ 13600 - 13659), as promulgated by the California state Department of Industrial Relations and overseen by the Labor Commissioner (the “Commissioner”), who is advised by a 15-member advisory committee appointed by the Commissioner (CA LC §2674.1 and CA CR §13632).
“Garment manufacturing” is defined as “sewing, cutting, making, processing, repairing, finishing, assembling, or otherwise preparing any garment or any article of wearing apparel or accessories designed or intended to be worn by any individual…[including without limitation] clothing, hats, gloves, handbags, hosiery, ties, scarfs, and belts, for sale or resale [by other persons under the statutes…]” (CA Labor Code §2671).
Garment industry laws and regulations apply to “person[s],” meaning any individual or entity “engaged in the business of garment manufacturing,” but does not include employees in the industry, or people engaged “engaged solely in cleaning, alteration, or tailoring” (CA Labor Code §2671).
Garment industry employers must keep available records for three (3) years detailing (i) workers’ names and addresses; (ii) hours and wages; (iii) production sheets; and (iv) any conditions of employment. (CA Labor Code §§2673 - 2673.1). Labor Code §13631 provides that the records must be kept for four (4) years “unless otherwise specified.”
Workers are guaranteed state minimum wage and overtime compensation, apportioned based on the work they complete. Workers may enforce the law with a complaint to the Commissioner, who will investigate and rule on the matter, subject to judicial review. (CA Labor Code §2673.1).
An employee's claim of hours worked and back wages due shall be presumed valid absent contradictory “specific [and] compelling” evidence from the employer, including “accurate and contemporaneous” records as required by the statute. Both parties can receive attorney’s fees and sanctions in the case of bad faith.
Every person engaged in the business of garment manufacturing must register with the Labor Commissioner as either a “Contractor” (includes subcontractors); or “Manufacturer,” under penalty of misdemeanor.
Employee leasing companies and temp agencies that provide garment industry employees must also register, and provide notice to the Labor Commissioner of all such employee contracts with relevant employment details (e.g., name / hours / term).
Registrants must update with Commissioner with material changes (e.g., new address).
All registrants must display in at least three (3) inch letters their Name; Address; and Garment manufacturing registration number, placed on the front of the business premise and main exterior entrance.
Registration can be extended up to 90 days while the Labor Commissioner reviews a renewal application. (CA LC §2675.2)
A commissioner may, at the commissioner’s discretion, impose penalties, revoke regulations and confiscate or dispose of goods.
The Division may confiscate and place into custody all garments manufactured by an unregistered person. The garments can be disposed of or destroyed, but not placed into the stream of commerce.
The Division will provide notice to the person by registered mail and telephone.
If a person’s garments are confiscated twice within a five-year period, the Division may also confiscate the means of production (including manufacturing equipment), except where the lack of registration was because of a delayed renewal application.
The Commissioner establishes a General Fund to employees damaged by a garment manufacturer or contractor’s failure to pay wages and benefits as required by the law.
Funds in the account are derived from:
The commissioner can investigate and mediate contract disputes in the garment industry (CA LC §2680.5).
Anyone against whom a penalty is assessed or whose goods are confiscated can appeal to the Commissioner in writing within 15 business days after the citation, and are entitled to an informal hearing within 30 days (10 days if confiscated goods are involved.)
The Commissioner will issue a finding / determination within 15 days after the hearing, and seek a judgment in state court. The Commissioner’s finding may be appealed by writ of mandate in CA Superior Court.
In order to prevent employers from closing their shops to avoid paying their employees' wages and then reopening as another business, a successor employer in the garment industry is liable for wages due by a predecessor employer if the successor:
CA LC §§2685 - 2692 govern proceedings for arbitration of pricing and quality disputes based on written contracts between garment manufacturers and contracts.
Upon request, the Department of Industrial Relations appoints an arbitration panel:
Within seven (7) days, the parties receive notice of the arbitration date/time and location.
The hearing must be no later than twenty-one (21) days after the request is filed, but afford the parties at least five (5) days notice before the hearing.
If no parties appear at an arbitration, arbitration rights are forfeited, with costs applied to the requesting party. If only one party appears, the hearing proceeds and is binding.
The Arbitration chairperson is empowered to issue subpoenas;
Each party may be represented by an attorney at the party’s expense;
Evidence rules are inapplicable, all relevant evidence shall be admitted.
Testimony must be taken under oath;
No formal records are kept, except by the parties’ request;
The panel may request additional evidence for up to three (3) days after the hearing;
The panel’s award is decided by majority vote, written and signed by panel members;
At most fifteen (15) days after the hearing, the panel issues a written award with a finding for all arbitration questions, and notify both parties and the Commissioner.
Parties shall bear all arbitration costs (including interpreters requested by the panel), but the panel may impose such costs (including attorneys fees) as party of its award.
Within ten (10) days, parties must file either: Notice of appeal with the applicable superior court; or File proof of compliance with the Commissioner.
California law prohibits employment of industrial homeworkers in the garment industry.
CA CR §13622 permits aged or disabled homeworkers to obtain special authorization for homework permits in the garment industry if the Division finds:
The industrial homeworker was working for an employer prior to Sept. 1, 1941, and is:
Garment industry workers completing at garments at home for another party (other than personal or family use) are presumed to be employees and not independent contractors (“Industrial homeworkers”).
Employers of industrial homeworkers must obtain an industrial homeworker license.
Industrial homeworkers must obtain an industrial homeworker permit, and keep accurate records of their hours and work, submitted regularly to their employer.
The Division has the right to inspect the place of business and records of registrants.
Where an employer violates the code or regulations, the Division can revoke licenses or permits, and confiscate garments or materials used in violation of the law.
“Intermediary transactions are very common in the downtown Los Angeles garment industry…”
“Proof of a contract through invoices alone is meager evidence that this transaction and this alleged relationship between the parties existed. Kim does not provide correspondence or even declaratory evidence of an oral agreement between the parties that might corroborate her version of events. As Emory Park points out, Kim provides no details about the clothing products, including who ordered them, how she manufactured them, where she purchased them, or where she sourced the materials...The absence of these pertinent facts indicates that Kim’s declaration are not set forth with sufficient particularity in violation of section 482.040.
“In reply, Kim argues that she acted as intermediary in some transactions with Jindi China and Emory Park, and in others she was a direct seller who purchased goods from Jindi China and sold them to Emory Park...Kim contends that this lawsuit is about direct sales...She attaches purchase orders to Jindi China and Jindi China’s Packing Lists to Emory Park to corroborate her version of events...Kim contends that she “dug up” these additional documents, which were previously misplaced...
“There are several defects with Kim’s reply. First, Kim has presented evidence in reply – purchase orders and packing lists – that were required with her moving papers. Emory Park has had no opportunity to oppose this evidence. New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.
“Second, although Kim claims that she prepares the purchase orders, those contained in her Exhibit D state that Jindi China is the vendor and Emory park is the shippee. Nothing on the invoices which Kim claims she prepared identifies her as the seller.
“Third, and perhaps most important, Kim alleges that she acted as an “independent seller” in which Jindi China would manufacture and ship the goods to Emory Park FOB. Assuming this is true, Kim provides no evidence that she owned the goods shipped to Emory Park. In fact, the evidence from Jindi China is that when Kim was a direct importer of Jindi China’s products, she took the products and did not pay for them.... There is no reason to attach Emory Park’s assets to pay for goods which Kim never paid for herself. Jindi China and Emory Park have made separate arrangements to address the problems caused by Kim’s failures by assigning their claims to Jindi USA.
“Kim has not shown the probable validity of her claims. The application for right to attach order is denied.” Evelyn Kim vs. Emory Park Inc. Et Al, BC675614 (1/30/2018) (https://trellis.law/ruling/BC675614/evelyn-kim-vs-emory-park-inc-et-al/201801307ab861).
“Since plaintiff prevailed on his claims for unpaid wages, plaintiffs are entitled to reasonable attorney fees. (See, California Labor Code, Section 1194.)
“The Court declines to exercise its discretion to deny the entire fee request. Under Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, a court that is “firmly persuaded that the plaintiff's attorney had no reasonable basis to anticipate a FEHA damages award [of $25,000 or more] ... may deny, in whole or in part” the fee request. (Id. at 987) The Court is not “firmly persuaded” that it should deny fees because plaintiffs recovered less than $25,000. At trial plaintiff presented sufficient evidence that he reasonably anticipated a damage award that would exceeded $25,000.
“The most widely accepted approach for determining a “reasonable” fee award is the “lodestar” method. The lodestar figure is calculated using the reasonable rate, multiplied by the reasonable number of hours spent on the case. (Ketchum v. Moses (2001) 24 C4th 1122, 1131-1132.)
“In the present case, the court finds that the reasonable hourly attorney rate for plaintiff’s counsel Kane Moon is $400 per hour, and the reasonable hourly attorney rate for plaintiff’s counsel Allen Feghali is $250 per hour. This hourly rate is within the range of attorneys as experienced as plaintiff’s counsel in the local legal community.
“The court finds that the reasonable number of hours spent by attorney Kane Moon on this case was 75 hours, and the reasonable number of hours spent by attorney Matthew Hale on this case was 90 hours. In making this determination the court found that plaintiff’s counsel inappropriately billed for some clerical tasks and that some of the billing was excessive, especially for attorneys as experienced as plaintiff’s counsel. While plaintiff has the right to have multiple attorneys, the court finds that some of the attorneys work were duplicative and unnecessary.
“An upward adjustment to the lodestar is not warranted in this action. This was a very straight forward and simple wage and hour case. This case did not present any novel or difficult issues. There is no evidence that plaintiff’s counsel was precluded from taking other cases. Plaintiff had limited success in this action.
“A downward adjustment to the lodestar is not warranted in this action. Plaintiff took this case on a contingency. While plaintiff had limited success, the court is not inclined to do any further downward adjustment to the loadstar.
“Attorney fees need not be apportioned between distinct causes of action when the causes of action are so inextricably intertwined that it would be impractical or impossible to separate the attorney's time into compensable and noncompensable units. In the present case, plaintiffs’ various claims involve a common core of facts and are based on related legal theories, and as such, it would be impractical or impossible to separate the attorneys’ time.
“Based upon the foregoing, the court awards plaintiff’s attorney fees in the amount of $52,500.” Antelmo Herrera vs. Joseph Shamtoob, BC575656 (1/1/2017) (https://trellis.law/ruling/BC575656/antelmo-herrera-vs-joseph-shamtoob/2017030161d359).
“Section 218.7, enacted on October 14, 2017 and applicable to contracts entered into on or after January 1, 2018, states:
“[A] direct contractor making or taking a contract…for the construction, alteration, or repair of a building” shall assume, and is liable for, any debt owed to a wage claimant… incurred by a subcontractor at any tier acting under, by, or for the direct contractor for the wage claimant’s performance of labor included in the subject of the contract between the direct contractor and the owner.” §218.7(a)(1).
“The direct contractor’s liability extends only to unpaid wage, fringe or other benefit payment or contributions, including interest, but shall not extend to penalties or liquidated damages. §218.7(a)(2).
“Deacon contends that section 218.7 creates exactly the liability that the hearing officer thought exists under section 2810.3. Pet. Op. Br. at 11. If the hearing officer were correct, there would be no need for section 218.7, and the law does not presume that the Legislature performed an idle act. Shoemaker v. Myers, (1990) 52 Cal.3d 1, 22. Pet. Op. Br. at 12. Deacon contends that section 2810.3 should be construed in a manner that does not subsume section 217.8, and the way to do so is that section 2810.3 governs only relationships where workers are borrowed and section 218.7 extends liability to direct contractors for a subcontractor’s failure to pay its workers. Id.
“The Commissioner correctly points out that the hearing officer’s interpretation of section 2810.3 does not render section 218.7 an idle act so long as section 218.7 adds something substantive to the existing law. Opp. at 18. According to the Commissioner, section 218.7 does so in two ways. First, the two laws have different remedies. Section 2810.3 provides for "all civil legal responsibility and civil liability" for the payment of wages, including statutory liquidated damages, and civil and statutory penalties. Section 218.7’s remedy is limited to unpaid wages, other payment benefits, and interest, but not penalties or liquidated damages. Second, section 218.7 applies without regard to the number of employees of the direct contractor or subcontractor, whereas section 2810.3 expressly excludes any business entities with a workforce of fewer than 25 workers, and any business entities with five or fewer workers supplied by one or more labor contractors. §2810.3(a)(1)(B)(i)-(ii). Opp. at 18.
“The Commissioner is correct that the two statutes have somewhat different remedies and section 218.7 has a broader application to contractors than section 2810. This negates any conclusion that the hearing officer’s interpretation of section 2810.3 would make enactment of section 218.7 an idle act.
“Yet, Deacon is surely correct that section 218.7’s legislative history shows its purpose was to address the very public policy issue raised by the hearing officer -- “that workers in the construction industry employed by subcontractors needed greater protection” and that the general contractor ultimately benefits from the work performed by the subcontractor’s employees and is in a stronger position to ensure their payment. AR 23.
A July 18, 2017 Senate Judiciary Committee report for AB 1701 confirms this public policy choice:
“Under current law, if a subcontractor on a private construction project fails to pay all of the wages, fringe benefits, and contributions to which the workers are lawfully entitled, the primary recourse for the workers and the labor trust fund is to seek payment from the subcontractor who stiffed them. Alternatively, the workers may engage in the sometimes lengthy, costly, and not always successful process of trying to impose a mechanics lien on the project. Either way, the workers and the trust funds may find themselves going unpaid for some time or even not getting paid at all. This bill, by contrast, would make the direct contractor liable for any unpaid wages, fringe benefits, or contributions. In this way, the direct contractor becomes the backstop that ensures workers and trust funds are not left holding the bag.” Pet. RJN Ex. A, pp. 14-15 (emphasis added).
“Imposing liability on a general contractor for the failure of a subcontractor to pay wages or benefits would be new in the context of California private sector construction projects. Yet the concept has plenty of precedent.” Pet. RJN Ex. A, p. 21 (emphasis added).
“This legislative history clearly shows both that the Legislature did not believe that construction industry general contractors were liable for the wages of their subcontractors under existing law. AB 1701’s legislative history repeatedly refers to section 2810.3, yet does not state that section 2810.3 imposed liability on general contractors in the construction industry for their subcontractor’s workers’ wages: “[Existing law provides that a client employer shares with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages….” Pet. RJN Ex. A, pp. 9, 15, 27 (second emphasis added). AB 1701’s legislative history shows a legislative intent to rectify this problem by imposing liability on the general contractor for such wages without regard to whether the workers were supplied by the labor contractor.
“The Commissioner discounts AB 1701’s description of contractor liability as “new”, arguing that it should carry little weight for the court’s interpretation of section 2810.3. Opp. at 18. The court disagrees. While a single inapt description might have little weight, AB 1701’s legislative history as a whole demonstrates that the Legislature believed that existing law did not cover a construction general contractor unless the contractor obtained workers in the underground industry of temp workers.
“In sum, while the hearing officer’s interpretation would not render section 218.7 an idle act, the passage of section 218.7 is compelling evidence that the Legislature did not believe that section 2810.3 already provided that a construction contractor would be liable for its subcontractor’s workers’ wages unless the subcontractor provided workers to the contractor. This legislative belief supports the plain meaning interpretation of section 2810.3, as supported by its own legislative history, that section 2810.3 imposes liability on entities that “borrow” workers, not those that subcontract only for a scope of work.” Deacon Corp. vs. Labor Commissioner State of California, BS170083 (2/27/2018) (https://trellis.law/ruling/BS170083/deacon-corp-vs-labor-commissioner-state-of-california-et-al/20180227b48a53).
“Defendants make three arguments on Demurrer: (1) that Guardado has not pleaded the names or facts of Labor Code violations as to other aggrieved employees sufficient to sustain a PAGA claim on their behalf (Demurrer at pp. 3–4); (2) that Guardado has not adequately pleaded that U.S. Garments Inc. and U.S. Garments, LLC are alter-egos (Demurrer at pp. 4–5); and (3) that Guardado has not pleaded facts with sufficient specificity to state any underlying violation of the Labor Code to support her PAGA claim. (Demurrer at pp. 6–9.)
“Defendants fail to provide any authority supporting their first argument that PAGA plaintiffs must name each member of their purported class of aggrieved employees. The court accordingly finds this argument without merit.
“The court also may not sustain a demurrer on the basis that Guardado has failed to allege an alter-ego relationship among the Defendants, as alter-ego is but one theory that Guardado advances for holding both Defendants liable for the same violations. The primary theory appears to be joint-employer liability based on allegations that both Defendants controlled Guardado’s working life. (Complaint ¶ 14; see Service Employees Internat. Union v. County of Los Angeles (1990) 225 Cal.App.3d 761, 772–73 [explaining joint-employer doctrine].) Defendants levy no challenge against this theory in their Demurrer, and since “[a] demurrer must dispose of an entire cause of action to be sustained,” this court lacks authority to sustain the demurrer as to the alter-ego theory if the underlying claims would continue on an alternative basis. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)
“Defendants’ final argument, that Guardado “fails to allege any specific facts sufficient enough to give notice to Defendants as to exactly how much she, or any other ‘non-party Aggrieved Employee’, alleges not to have been paid” as a result of the violations, is likewise without merit. (Demurrer at p. 7.) The argument rests essentially on two cases with virtually identical holdings: that a plaintiff alleging a simple claim to wages unpaid upon termination under the Labor Code must allege the amount of wages due. (Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420, 423, cited in Oppenheimer v. Moebius (1957) 151 Cal.App.2d 818, 819–20.) Both cases involved plaintiffs who sought a definite amount of damages or penalties for wages unpaid upon termination, but failed to allege facts providing any basis for the amount claimed, other than the amount itself.
“Those cases are distinguishable. Guardado here does not allege entitlement to a definite sum on an inscrutable basis, but instead alleges a series of unlawful practices on the part of Defendants which violate the Labor Code and deprived Guardado and other employees of their wages: rounding down their hours worked (Complaint ¶ 56), forcing employees to work through meal and rest breaks by daily productivity quotas (Complaint ¶ 57), and not paying employees for the time they worked before and after their scheduled shifts. (Complaint ¶ 58.) Defendants do not cite any authority for the proposition that PAGA allegations of this type must be pleaded with any greater specificity than Guardado has done here.
Accordingly, the Demurrer is OVERRULED in its entirety.” BC679008 - ROSA GUARDADO VS US GARMENT INC ET AL (4/9/2018) (https://trellis.law/ruling/BC679008/rosa-guardado-vs-us-garment-inc-et-al/20180409e0bcdf).
“The relevant issue is whether the amount owed to Abbott is fixed and readily ascertainable. The fact that some purchase orders were cancelled or modified and that Abbott’s entitlement to commission fluctuated affects this issue. But Abbott’s commission information spreadsheet shows that he accounted for these variables. Abbott Decl. ¶23, Ex. 7. Abbott’s spreadsheet lists the vendor, the garments sold, the quantity sold, the selling price, the order date, the invoice number, the status of the order (cancelled or not cancelled), the commission rate for the sale, and the commission owed. Ibid. Abbott’s collection of this information in the ordinary course of his business serves as validation of these figures. Ibid. Abbott has shown that the amount that he seeks to attach is fixed and readily ascertainable.[4]
b. Probable Validity
The elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to plaintiff. Oasis West Realty, LLC v. Goldman, (2011) 51 Cal.4th 811, 821.
The question for probability of success is whether Defendants’ calculations or Abbott’s are more reliable. It is remarkable that Baldwin Sun claims that it owed Abbott only $74,8326.19 in total commissions from August 2017 through May 2018, whereas Abbott claims that he was owed $111,881.09 in unpaid commissions in that same time frame. Abbott Decl. ¶¶ 18, 21. Reviewing the spreadsheets and underlying evidence, the court finds Abbott’s evidence more persuasive. Abbott presents a more comprehensive compilation of information as well as the purchase orders upon which this compilation is based. Abbott Decl. ¶24, Exs. 7-8. By contrast, Baldwin Sun presents no supporting documentation for its spreadsheet and appears to predicate its calculations on cancelled/changed orders which it fails to delineate. See K. Trinh Decl., Exs. D, E.
Defendants argue that Abbott has not shown the probable validity of his claim because he breached the Agreement. Opp. at 14-15. Abbott (1) misrepresented customer future needs in presenting orders to Baldwin Sun, including a particular customer in 2015 (K. Trinh Decl. ¶6), (2) failed to follow up when a customer expressed interest (K. Trinh Decl. ¶5), and (3) may have taken Baldwin Sun samples and used them for other manufacturers (K Trinh Decl. ¶7). Ibid.
A defendant may raise a claim of offset for any indebtedness of the plaintiff to the defendant raised in a cross-complaint or affirmative defense in an answer. CCP §483.015(b)(2), (3). The defendant’s offset claim under CCP section 483.015(b)(2) or (3) must be supported by sufficient evidence to prove a prima facie case of attachment in its own right. Lydig Construction, Inc. v. Martinez Steel, (2015) 234 Cal.App.4th 937; Pos-A-Traction, Inc. v. Kelly Springfield, (C.D. Cal. 1999) 112 F.Supp.2d 1178, 1183.
None of Defendants’ assertions present a prima facie case of offset. Baldwin Sun presents no evidence that Abbott intentionally (or even negligently) mispresented to Baldwin Sun any customer’s interest in purchasing additional products. Baldwin Sun manufactured additional product without a purchase order at its own risk. Baldwin Sun does not negate the prospect that particular customers may have expressed interest to Abbott that they would be purchasing more products and then later lost interest. Baldwin Sun also has failed to show that Abbott failed to follow up any customer’s interest, and has no evidence that Abbott actually used its samples with other manufacturers. Abbott refutes the existence of these alleged breaches. Abbott Supp. Decl. ¶¶ 5-9. Even if such breaches of the Agreement did exist, they would furnish grounds for termination of the Agreement, not to avoid paying Abbott his duly-earned commission altogether.
Abbott has established the probable validity of his breach of contract claim as against Baldwin Sun. Abbott has shown that (1) the Agreement exists between the Abbott and Baldwin Sun (Abbott Decl. ¶4, Ex. 1), (2) Abbott performed his obligations under the Agreement by providing Baldwin Sun with independent wholesale apparel sales representative services (Abbott Decl. Exs. 7-8), (3) Baldwin Sun breached the Agreement by failing to provide Abbott with accurate commission statements and all commission owed (Abbott Decl. ¶¶ 17-18, 21), and (4) Abbott has suffered damages in an amount equal to the amount owed.
Abbott has shown a probability of success and right to attach against Baldwin Sun in the amount of $116,270.51.” Kenneth Abbott vs. Baldwin Sun Inc. Et Al, BC716333 (2/28/2019) (https://trellis.law/ruling/BC716333/kenneth-abbott-vs-baldwin-sun-inc-et-al/20190228658a9b).
“Defendant here submits very weak evidence to show that it has an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. There is a declaration from Ke Chiang Liao, KL Global’s principal, who explains the various interactions with plaintiff’s principal, Sandy, and states, “It is my opinion that Sandy and Deshnok Ovreseas has and continues to conspire to damage KL Global’s reputation in the apparel industry so that she can claim my brand and my clients as her own.”... There is no real explanation that the company has an expectation of privacy in its banking records, and that the information included in those records could implicate trade secrets.
“Defendant primarily relies on outdated statutory sections and case law, and assumes the initial burden is on plaintiff.
“Nevertheless, the court may find that even a corporate defendant, with somewhat limited privacy rights, would reasonably have an expectation of privacy with respect to its banking records, and that unfettered access to this information from a banking institution on the part of a customer in a competitive business, in which the customer is evidently attempting to damage defendant’s business reputation, could give rise to an intrusion that is serious.
“Plaintiff should then in opposition explain what legitimate and important countervailing interests would be served by the disclosure of the bank records directly from the bank. Plaintiff argues that the records are essential to determine whether defendant represented itself as a company that was viable and had sufficient money to pay for half a million dollars’ worth of products and also whether defendant fraudulently transferred assets to third parties instead of paying the money to plaintiff. Plaintiff also argues that the documents sought are only from the time period when the parties began to do business in 2017 and to put the transaction in context, and that with respect to third party privacy, plaintiff is entitled to the identity of witnesses.
“With respect to the identification of feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy, defendant argues in the reply essentially that the discovery is overly broad and premature, as the time period is for many months before the parties entered into a relationship, there is no fraudulent transfer claim in the current pleadings, and plaintiff has not, even in recent discovery, sought any bank records directly from defendant, which would appear to be the most logical and least intrusive means for obtaining information concerning the viability of the company.
“In weighing this showing, it is not clear that plaintiff has established a compelling interest in this information sufficient to overcome the privacy interest at this juncture in the litigation, particularly where the records have not yet been sought through written discovery requests directly on the corporation. If it should turn out that certain records seem to be missing or are incomplete, a subpoena to the banking institution which seeks more specific records would appear to be a better outcome in connection with the interests of the parties as well as those of the third party banking institution. The motion is granted without prejudice to plaintiff seeking to subpoena information if and when plaintiff can establish that the information cannot be obtained through less intrusive means.” “No Case Name Available”, EC688874 (1/11/2019) (https://trellis.law/ruling/EC688874/no-case-name-available/20190111b9e53d).
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