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GLEN A. VAN DYKE, SBN: 183796
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MEGAN DEHERRERA, SBN: 306646
2 VAN DYKE LITIGATION & TRIAL ATTORNEYS, P.C.
940 Southwood Blvd, Suite 102
3 Incline Village, NV 89451
Telephone: (530) 214-3667
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glen@vdlitigation.com
5 megan@vdlitigation.com
6 Attorneys for Plaintiffs
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF PLACER
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DAN and CYBELLE DROHAN, CASE NO. SCV0039280 (Consolidated with
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SCV0039372)
Plaintiffs,
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vs. OPPOSITION TO MOTION TO QUASH
12 DAN DROHAN’S SUBPOENA TO SAFE
CARAMAZZA CONSTRUCTION, INC., a CREDIT UNION; DECLARATION OF
13 California Corporation, JAMES SALVADOR
CARAMAZZA, an individual, DONALD GLEN A. VAN DYKE
14 JOSEPH, INC. and DOES 1 through 100,
inclusive, Date: April 14, 2022
15 Time: 8:30 a.m.
Defendants. Dept.: Department 42
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17 AND RELATED CROSS-COMPLAINTS Complaint Filed: March 16, 2017
Trial date: June 13, 2022
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20 Plaintiffs Dan and Cybelle Drohan (“Plaintiffs”) hereby oppose Defendants’ Caramazza
21 Construction, Inc., James A. Caramazza, and Jaclyn Caramazza’s Motion to Quash Business
22 Records Subpoena as follows:
23 I. INTRODUCTION
24 This subpoena seeks directly relevant documents to show fraudulent diversion of a
25 corporation’s funds to its principals to support allegations of alter ego. This subpoena has been
26 substantially narrowed from a prior subpoena and now only seeks documents from SAFE Credit
27 Union for accounts bearing the signatory authority and/or in the name of Defendant Caramazza
28 Construction, Inc. for “All documents pertaining to amounts paid to, and amounts paid from
Opposition to Motion to Quash ~1~ Drohan v. Caramazza
1 CARAMAZZA CONSTRUCTION, INC.” for the time period just before Plaintiffs contracted
2 with the corporation until just after the corporation filed for bankruptcy. This motion should be
3 denied because it is narrowly tailored to the Defendant corporation and so that Plaintiffs can
4 obtain the evidence needed to prove their alter ego allegations at trial. The corporation does not
5 have privacy interests in these documents, but if the Court finds any other privacy interests to
6 exist, redactions can be made and/or a protection order can be ordered to protect any privacy
7 interests that may exist.
8 II. BACKGROUND
9 This case arises out of the construction of a custom single family home in Truckee,
10 California. Plaintiffs hired Caramazza Construction, Inc. as the general contractor to build their
11 home in 2014. Caramazza Construction, Inc. held itself out as a secure and profit-making builder
12 with several ongoing projects. Plaintiffs alleged that Caramazza Construction, Inc. failed to
13 complete construction, failed to complete work in a workmanlike manner causing damage, and
14 fraudulently overbilled on the project. (Declaration of Glen A. Van Dyke, “Van Dyke Decl.”, ¶
15 2.) Plaintiffs’ alleged damages resulting from construction defects, failure to complete work, and
16 overbilling. (Id.). Plaintiffs’ alleged damages at this time exceed $700,000. (Id.).
17 Unbeknownst to Plaintiffs, the construction company they thought they were contracting
18 with was being drained of its assets by its principals while defaulting on its liabilities and
19 responsibilities across several of its ongoing projects.
20 On August 24, 2018, Caramazza Construction, Inc. filed for Chapter 7 bankruptcy. (Van
21 Dyke Decl., ¶ 3).
22 After the bankruptcy filing, Plaintiffs filed Doe Amendments bringing into the case
23 individual owners and alter egos of Caramazza Construction, Inc.: James A. Caramazza, Jaclyn
24 Caramazza, and Helen Caramazza. (Van Dyke Decl., ¶ 4). James S. Caramazza was an original
25 defendant in this case. (Id.). James S. Caramazza and Helen Caramazza have since been
26 dismissed from this case. (Id.).
27 On April 15, 2019, the Bankruptcy Trustee for Caramazza Construction, Inc.’s
28 bankruptcy subpoenaed bank records from SAFE Credit Union, where all of Defendants do their
Opposition to Motion to Quash ~2~ Drohan v. Caramazza
1 banking. (Van Dyke Decl., ¶ 5, Exh. 1). The subpoena sought bank records from Caramazza
2 Construction, Inc., James A. Caramazza, James S. Caramazza, Jaclyn Caramazza, and Helen
3 Caramazza but only for the period shortly after the bankruptcy filing from August 1, 2018 to
4 April 2019. (Id.). The documents produced by SAFE Credit Union revealed further facts
5 supporting Plaintiffs’ alter ego allegations, including the following:
6 - Defendants comingle funds with one another;
7 - The non-corporate Defendants take improper draws from Caramazza Construction,
8 Inc.’s bank accounts;
9 - Caramazza Construction, Inc.’s accounts were drained by the non-corporate Defendants
10 leaving it undercapitalized;
11 - Entities other than Caramazza Construction, Inc. cashed checks for construction
12 purportedly performed by Caramazza Construction, Inc.; and
13 - The bank account of Caramazza Construction, Inc. was used to pay personal expenses
14 of the alter ego Defendants. (Van Dyke Decl., ¶ 6). Plaintiffs incorporated these allegations into
15 Paragraphs 13 and 14 the Fourth Amended Complaint. (Id. at ¶ 7, Exh. 2).
16 A review of even the limited timeframe of bank records obtained by the Bankruptcy
17 Trustee shows that despite constructing dozens of homes and selling millions of dollars of homes
18 in the years leading up to the bankruptcy, construction funds were being fraudulently diverted by
19 the corporation’s principals, named as alter egos in this case. (Van Dyke Decl., ¶ 8). This left the
20 corporation undercapitalized and unable to be held responsible for its debts and liabilities,
21 including those in this case while at the same time individuals were profiting from the diverted
22 funds.
23 On September 13, 2021 Caramazza Construction, Inc.’s Chapter 7 bankruptcy closed.
24 (Van Dyke Decl., ¶ 9, Exh. 3). As a corporation, Caramazza Construction, Inc.’s debts and
25 liabilities—including for this case—are not discharged. 11 U.S.C. § 727(a)(1).
26 On December 16, 2021, this Court granted a prior motion to quash of a subpoena that
27 sought accounts of the corporation and individuals directed to SAFE Credit Union on the
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Opposition to Motion to Quash ~3~ Drohan v. Caramazza
1 grounds that the subpoena was “overly broad and unduly burdensome while also seeking
2 financial information for parties subject to a bankruptcy stay.” (Van Dyke Decl., ¶ 11, Exh. 4).
3 As a result of the Court’s order, Plaintiffs issued a new and drastically tailored subpoena,
4 this time only tailored to the Defendant corporation, and not seeking documents from accounts
5 for any individuals. (Van Dyke Decl., ¶ 12).
6 III. ARGUMENT
7 This subpoena seeks directly relevant documents to further support Plaintiffs’ alter ego
8 allegations for the time period shortly before Plaintiffs entered into a construction contract with
9 Caramazza Construction, Inc. and extending to the period of time after the bankruptcy was filed.
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A. The Documents Sought in the Subpoena to SAFE Credit Union Are Directly
11 Relevant to Plaintiffs’ Alter Ego Allegations.
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Under California law, a corporate identity may be disregarded where an abuse of the
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corporate privilege justifies holding the equitable ownership of a corporation liable for the
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actions of the corporation. The alter ego doctrine prevents individuals or other corporations from
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misusing the corporate laws by the device of a sham corporate entity formed for the purpose of
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committing fraud or other misdeeds. Sonora Diamond Corp. v. Sup. Ct. (2000) 83 Cal.App.4th
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523, 538.
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To recover on an alter ego theory, the plaintiff “must allege sufficient facts to show a
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unity of interest and ownership, and an unjust result if the corporation is treated as the sole
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actor.” Leek v. Cooper (2011) 194 Cal.App.4th 399, 415. Courts consider factors such as the
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following when evaluating alter ego status: commingling of funds, holding out by one entity that
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it is liable for debts of another, identical equitable ownership, use of same offices and employees,
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use of one as a mere shell or conduit for affairs of the other, inadequate capitalization, disregard
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of corporate formalities, lack of segregation of corporate records, and identical directors and
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officers. See Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 512–13.
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Where “financial information goes to the heart of the cause of action itself, a litigant
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should not be denied access so easily.” Rawnsley v. Sup. Ct. (1986) 183 Cal.App.3d 86, 91.
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Opposition to Motion to Quash ~4~ Drohan v. Caramazza
1 Defendants will deny that they are the alter ego of Caramazza Construction, Inc. The
2 discovery sought will show that Caramazza Construction, Inc.’s assets were fraudulently
3 diverted to the individual alter ego Defendants leaving the corporation undercapitalized and
4 unable to satisfy its debts and liabilities. If Caramazza Construction, Inc.’s principals are not
5 found to be alter egos and responsible for the liabilities of the corporation, an inequitable result
6 will follow because Plaintiffs will have no recourse for the over $700,000 in damages they have
7 suffered because of the fraud.
8 Plaintiffs require production of the directly relevant documents from SAFE Credit Union
9 to prove their alter ego allegations.
10 B. The Subpoena to SAFE Credit Union is Not Overly Broad or Burdensome.
11 The subpoena to SAFE Credit Union is tailored to the period of time, 2013 to 2019,
12 which represents one year before Plaintiffs contracted with Caramazza Construction, Inc. and to
13 one year after Caramazza Construction, Inc. filed for bankruptcy. The subpoena is narrowly
14 tailored to seek documents from accounts only of the corporation Caramazza Construction, Inc.
15 and does not seek documents from any individual accounts.
16 For these reasons, the subpoena is not overly broad. Additionally, since the subpoena is
17 directed to SAFE Credit Union, there is no burden on Defendants.
18 The corporation does not have privacy interests in these documents, but if the Court finds
19 any other privacy interests to exist, redactions can be made and/or a protection order can be
20 ordered to protect any privacy interests that may exist.
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C. Plaintiffs Have a Compelling Need for The Subpoenaed Documents That
22 Substantially Outweighs Any Privacy Interests.
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The only way for Plaintiffs to prove their alter ego allegations of fraudulent diversion of
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funds to undercapitalize and bankrupt the corporation is through the subpoenaed bank records.
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The need for the documents outweighs privacy interests, if any exist.
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Further, Caramazza Construction, Inc. has no constitutionally protected privacy rights
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since “corporations do not have a privacy right protected by the California Constitution.” SCC
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Acquisitions, Inc. v. Sup. Ct. (2015) 243 Cal.App.4th 741, 755. The corporation also exposed its
Opposition to Motion to Quash ~5~ Drohan v. Caramazza
1 financial affairs to the public through its bankruptcy filing, further reducing and waiving privacy
2 rights, if any.
3 Even though James A. Caramazza and Jaclyn Caramazza have not yet filed for
4 bankruptcy, based on information to date, these individuals are the main culprits of fraudulent
5 diversion of funds and benefited the most from the diverted funds. (Van Dyke Decl., ¶ 10).
6 IV. CONCLUSION
7 For the foregoing reasons, Plaintiffs request Defendants’ Motion to Quash be denied.
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Dated: April 1, 2022 VAN DYKE LITIGATION
9 & TRIAL ATTORNEYS, P.C.
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By: __________________________________
13 GLEN A. VAN DYKE,
Attorneys for Plaintiffs
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Opposition to Motion to Quash ~6~ Drohan v. Caramazza
1 DECLARATION OF GLEN A. VAN DYKE
2 I, GLEN A. VAN DYKE, declare:
3 1. I am an attorney licensed to practice law in the State of California and am the
4 attorney of record for the Plaintiffs Dan and Cybelle Drohan (“Drohans”) in this action. The
5 facts set forth herein are of my own personal knowledge and if called upon to testify to the truth
6 thereto, I could and would so competently testify.
7 2. This case arises out of the construction of a custom single family home in
8 Truckee, California. Plaintiffs hired Caramazza Construction, Inc. as the general contractor to
9 build their home in 2014. Caramazza Construction, Inc. held itself out as a secure and profit-
10 making builder with several ongoing projects. Plaintiffs alleged that Caramazza Construction,
11 Inc. failed to complete construction, failed to complete work in a workmanlike manner causing
12 damage, and fraudulently overbilled on the project. Plaintiffs’ alleged damages resulting from
13 construction defects, failure to complete work, and overbilling. Plaintiffs’ alleged damages at
14 this time exceed $700,000.
15 3. On August 24, 2018, Caramazza Construction, Inc. filed for Chapter 7
16 bankruptcy.
17 4. After the bankruptcy filing, Plaintiffs filed Doe Amendments bringing into the
18 case individual owners and alter egos of Caramazza Construction, Inc.: James A. Caramazza,
19 Jaclyn Caramazza, and Helen Caramazza. James S. Caramazza was an original defendant in this
20 case.
21 5. On April 15, 2019, the Bankruptcy Trustee for Caramazza Construction, Inc.’s
22 bankruptcy subpoenaed bank records from SAFE Credit Union, where all of Defendants do their
23 banking. Attached hereto as Exhibit 1 is a true and correct copy of the subpoena. The subpoena
24 sought bank records from Caramazza Construction, Inc., James A. Caramazza, James S.
25 Caramazza, Jaclyn Caramazza, and Helen Caramazza but only for the period shortly after the
26 bankruptcy filing from August 1, 2018 to April 2019.
27 6. The documents produced by SAFE Credit Union revealed further facts supporting
28 Plaintiffs’ alter ego allegations, including the following: Defendants comingle funds with one
Opposition to Motion to Quash ~7~ Drohan v. Caramazza
1 another; The non-corporate Defendants take improper draws from Caramazza Construction,
2 Inc.’s bank accounts; Caramazza Construction, Inc.’s accounts were drained by the non-
3 corporate Defendants leaving it undercapitalized; Entities other than Caramazza Construction,
4 Inc. cashed checks for construction purportedly performed by Caramazza Construction, Inc.; and
5 The bank account of Caramazza Construction, Inc. was used to pay personal expenses of the
6 alter ego Defendants.
7 7. Plaintiffs incorporated the facts learned from the documents produced by SAFE
8 Credit Union into the Fourth Amended Complaint, a true and correct copy of which is attached
9 hereto as Exhibit 2.
10 8. My review of even the limited timeframe of bank records obtained by the
11 Bankruptcy Trustee shows that despite constructing dozens of homes and selling millions of
12 dollars of homes in the years leading up to the bankruptcy, construction funds were being
13 fraudulently diverted by the corporation’s principals, named as alter egos in this case.
14 9. On September 13, 2021 Caramazza Construction, Inc.’s Chapter 7 bankruptcy
15 closed. Attached hereto as Exhibit 3 is a true and correct copy of the final decree closing the
16 bankruptcy.
17 10. Even though James A. Caramazza and Jaclyn Caramazza have not yet filed for
18 bankruptcy, based on information I have reviewed to date including the documents produced by
19 SAFE Credit Union in the bankruptcy, these individuals are the main culprits of fraudulent
20 diversion of funds and benefited the most from the diverted funds.
21 11. Attached hereto as Exhibit 4 is a true and correct copy of the Court’s tentative
22 ruling on a prior motion to quash a subpoena to SAFE Credit Union.
23 12. As a result of the Court’s order, Plaintiffs issued a new and drastically tailored
24 subpoena, this time only tailored to the Defendant corporation, and not seeking documents from
25 accounts for any individuals.
26 I declare under penalty of perjury under the laws of the State of California that the
27 foregoing is true and correct, and that this declaration was executed on April 1, 2022 at Incline
28 Village, Nevada.
Opposition to Motion to Quash ~8~ Drohan v. Caramazza
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Dated: April 1, 2022
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By: __________________________________
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GLEN A. VAN DYKE
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Opposition to Motion to Quash ~9~ Drohan v. Caramazza
EXHIBIT 1
,
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B2570 (Form 2570 - Subeoena to Produce Documents, Information, or Objects or To Permit Inspection in a Bankruptcy Case or Adversary Proceeding) ( 12/15)
UNITED STATES BANKRUPTCY COURT
California
- - - - - - - -Eastern
----------- District of
--------------------
In re Caramazza Construction
Debtor
Case No. _ _1_8_-2_5_3_2_8_-A_-_7__
(Complete if issued in an adversary proceeding)
7 --
Chapter - - -
Plaintiff
V.
Adv. Proc. No. - - - - - - -
Defendant
SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT
INSPECTION OF PREMISES IN A BANKRUPTCY CASE (OR ADVERSARY PROCEEDING)
To: SAFE Credit Union
(Name ofperson to whom the subpoena is directed)
~ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the
material: See Attachment A.
PLACE DATE AND TIME
DNLC: 1830 15th Street, Suite 200, Sacramento, CA 95811 04/15/19
D Inspection ofPremises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
I may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
PLACE I DA TE AND TIME
The following provisions of Fed. R. Civ. P. 45, made applicable in bankruptcy cases by Fed. R. Banlcr. P. 9016, are
attached - Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a
subpoena; and Rule 45(e) and 45(g), relating to your duty to respond to this subpoena and the potential consequences of not
doing so.
Date: 03/25/19
CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk
The name, address, email address, and telephone number of the attorney representing (name ofparty)
Alan S. Fukushima · , who issues or requests this subpoena, are:
Nicholas L Kohlmeyer: 1830 15 Street, Suite 200, Sacramento, CA 95811; (916) 443-2051; nkohlmeyer@dnlc.net
Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored information, or tangible things, or the
inspection of premises before trial, a notice and a copy of this subpoena must be served on each party before it is served on
the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).
;
B2570 (Fonn 2570 Subpoena to Produce Documents, Information, or Objects or To Permit Inspection in a Bankruptcy Case or_ Adv_ers~ry ~r~ceeding) ~-Page_ 3)
Federal Rule of Civil Procedure 45(c), (d), (e), and (g) (Effective 12/1/13)
(made applicable in bankruptcy cases by Rule 9016, Federal Rules of Bankruptcy Procedure)
(c) Place of compliance. (ii) disclosing an unretained expert's opinion or information that does
not describe specific occurrences in dispute and results from the expert's
(1) For a Trial, Hearing, or Deposition A subpoena may command a study that was not requested by a party.
person to attend a trial, hearing, or deposition o~y as ~ollows: (C) Specifying Conditions as an Alternative. In the circumstances
(A) within JOO miles of where the person resides, 1s employed, or described in Rule 45(d)(3)(B), the court may, instead of quashing or
regularly transacts business in person; or modifying a subpoena, order appearance or production under specified
(B) within the state where the person resides, is employed, or regularly conditions if the serving party:
transacts business in person, if the person (i) shows a substantial need for the testimony or material that cannot
(i) is a party or a party's officer; or be otherwise met without undue hardship; and
(ii) is commanded to attend a trial and would not incur substantial (ii) ensures that the subpoenaed person will be reasonably
expense. compensated.
(2) For Other Discovery. A subpoena may command: . . (e) Duties in Responding to a Subpoena.
(A) production of documents, or electronically stored tnformatton, or
things at a place within JOO miles of where the person resides, is employed, (I) Producing Documents or Electronically Stored Information These
or regularly transacts business in person; and procedures apply to producing documents or electronically stored
(B) inspection of premises, at the premises to be inspected. information:
(A) Documents. A person responding to a subpoena to produce
(d) Protecting a Person Subject to a Subpoena; Enforcement.
documents must produce them as they are kept in the ordinary course of
business or must organize and label them to correspond to the categories in
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
the demand.
attorney responsible for issuing and serving a subpoena must take
(B) Form for Producing Electronically Stored Information Not
reasonable steps to avoid imposing undue burden or expense o~ a pe~son
Specified If a subpoena does not specify a form for producing
subject to the subpoena. The court for the district where comphance 1s
electronically stored information, the person responding must produce it in
required must enforce this duty and impose an appropriate sanction -
a form or forms in which it is ordinarily maintained or in a reasonably
which may include lost earnings and reasonable attorney's fees - on a
usable form or forms.
party or attorney who fails to comply.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
(2) Command to Produce Materials or Permit Inspection
information in more than one form.
(A) Appearance Not Required A person commanded to produce
· (D) Inaccessible Electronically Stored information The person
documents, electronically stored information, or tangible things, or to
responding need not provide discovery of electronically stored information
permit the inspection of premises, need not appear in person at the pla~- of
from sources that the person identifies as not reasonably accessible because
production or inspection unless also commanded to appear for a depos1t10n,
of undue burden or cost On motion to compel discovery or for a protective
hearing, or trial.
order, the person responding must show that the information is not
(BJ Objections. A person commanded to produce documents or tangible
reasonably accessible because of undue burden or cost. If that showing is
things or to permit inspection may serve on the party or attorney designated
made, the court may nonetheless order discovery from such sources if the
in the subpoena a written objection to inspecting, copying, testing or
requesting party shows good cause, considering the limitations of Rule
sampling any or all of the materials or to inspecting the premises - or to
26(b)(2)(C). The court may specify conditions for the discovery.
producing electronically stored information ~ the form_ or form~ requested.
The objection must be served before the earher of the tune specified for
(2) Claiming Privilege or Protection
compliance or 14 days after the subpoena is served. If an objection is made,
(A) Information Withheld A person withholding subpoenaed
the following rules apply:
information under a claim that it is privileged or subject to protection as
(i) At any time, on notice to the commanded person, the serving party
trial-preparation material must:
may move the court for the district where compliance is required for an
(i) expressly make the claim; and
order compelling production or inspection.
(ii) describe the nature of the withheld documents, communications,
(ii) These acts may be required only as directed in the order, and the
or tangible things in a manner that, without revealing information itself
order must protect a person who is neither a party nor a party's officer from
privileged or protected, will enable the parties to assess the claim.
significant expense resulting from compliance.
(B) Information Produced If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trial-
(3) Quashing or Modifying a Subpoena.
preparation material, the person making the claim may notify any party that
(A) When Required On timely motion, the court for the district where
received the information of the claim and the basis for it After being
compliance is required must quash or modify a subpoena that:
notified, a party must promptly return, sequester, or destroy the specified
(i) fails to allow a reasonable time to comply;
information and any copies it has; must not use or disclose the information
(ii) requires a person to comply beyond the geographical limits
until the claim is resolved; must take reasonable steps to retrieve the
specified in Rule 45(c); .
information if the party disclosed it before being notified; and may
(iii) requires disclosure of privileged or other protected matter, 1fno
promptly present the information under seal to the court for the district
exception or waiver applies; or
where compliance is required for a determination of the claim. The person
(iv) subjects a person to undue burden.
who produced the information must preserve the information until the claim
(B) When Permitted To protect a person subject to or affected by a
is resolved.
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
(g) Contempt. The court for the district where compliance is required- and
also, after a motion is transferred, the issuing court - may hold in contempt
development, or commercial information; or
a person who, having been served, fails without adequate excuse to obey
the subpoena or an order related to it
For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013)
.,
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ATTACHMENT A
To Subpoena to Produce Documents, Information, or Objects or to Permit
Inspection of Premises in a Bankruptcy Case (Or Adversary Proceeding)
[Directed to SAFE Credit Union]
Pursuant to the subpoena to which this Attachment A is attached, you are directed to
produce the following documents in your possession, custody and/or control.
Document Requests:
For accounts bearing the signatory authority and/or in the name(s) of: CARAMAZZA
CONSTRUCTION, INC., TRUCKEE LAHONTAN EQUITY GROUP, LP, JAMES A.
CARAMAZZA, JAMES S. CARAMAZZA, and/or JACLYN J. CARAMAZZA; and SAFE
CREDIT UNION accounts that transferred or received funds concerning the above named parties,
including accounts ending in XXX.549, XXX.098, XXX.413, for the period August 1, 2018 to
present:
1. All documents pertaining to all open or closed checking, savings and other deposit
or checking accounts in the name of, or under signature authority of, any of the named parties,
including but not limited to:
a. signature cards;
b. account statements;
c. canceled checks;
d. deposit tickets; and
e. items deposited.
2. All documents pertaining to all Cashier's, Manager's, or Bank Checks, Traveler's
Checks, and Money Orders purchased or negotiated by any of the named parties, including but not
limited to:
a. documents (including checks, debit memos, cash in tickets and wires in)
reflecting how the checks or money orders were purchased;
b. documents (including bank checks, credit memos, cash out tickets and wires
out) reflecting disbursements of the proceeds of any negotiated checks or
money orders;
c. applications for purchase of checks or money orders; and
d. retained copies of negotiated checks or money orders.
3. All documents pertaining to wire transfers sent or received by any of the names
parties, including but not limited to:
a. Fed Wire, CHIPS, SWIFT, or other money transfer of message documents;
b. documents (including checks, debit memos, cash in tickets and wires in)
reflecting the source of the funds wired out;
c. documents (bank checks, credit memos, cash out tickets and wires out)
reflecting the ultimate disposition within the bank of the funds wired in; and
.
d. notes, memoranda or other writings pertaining to the sending or receipt of
wire transfers.
4. All documents pertaining to open or closed bank credit cards in the name of, or
under the signatory authority of, any of the named parties, including but not limited to:
a. applications for credit;
b. credit reports;
c. monthly statements;
d. financial statements;
e. documents (including checks, debit memos, cash in tickets and wires in)
reflecting payments on the account;
f. correspondence files; and
g. teller tapes reflecting all transactions between the bank and any of the
parties named.
Filed 02/07 /19 Case 18-25328 D c 37
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2 J. RUSSELL CUNNINGHAM, SBN 130578
NICHOLAS L. KOHLMEYER, SBN 299087
3 RYAN IVANUSICH, SBN 318276
DESMOND, NOLAN, LIVAICH & CUNNINGHAM
4
1830 15th Street
5 Sacramento, California 95811
Telephone: (916) 443-2051
6 Facsimile: (916) 443-2651
7 Attorneys for Alan S. Fukushima
Chapter 7 Trustee
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UNITED STATES BANKRUPTCY COURT
IO
EASTERN DISTRICT OF CALIFORNIA
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12 SACRAMENTO DIVISION
13 In re: Case No. 18-25328-C-7
Chapter 7
14 CARAMAZZA CONSTRUCTION, INC.,
DNL-3
15 Debtor.
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ORDER GRANTING APPLICATION FOR AUTHORITY TO ISSUE
18 DISCOVERY PURSUANT TO FRBP 2004
19 An application for authority to issue discovery pursuant to Federal Rule of Bankruptcy
Il
20 Procedure 2004 has been made by Chapter 7 trustee ALAN S. FUKUSHIMA {''Trustee"). Upon
21 consideration of the application, the Trustee's declaration and the record, and good cause
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appearing therefor,
IT IS SO ORDERED that the Trustee is authorized to examine SAFE Credit Union
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24 concerning funds transferred to and from Caramazza Construction, lnc.'s SAFE Credit Union l
25 account to and from various accounts, including an account held by Truckee Lahontan Equity
I{
26 Group, LP, pursuant to Federal Rule of Bankruptcy Procedure 2004. I
27 Ill
28 Ill
RECEIVED
February 06, 2019 1
CLERIC, U.S. IIAIIKllUPTCY COURT
EASTERH DISTllCT 01' CAI.Il'ORHIA
0006441734
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Case 18-25328 D c 37
Filed 02/07/19
1 IT IS FURTHER ORDERED that in connection with said examinations, the Trustee is
2 authorized to request, for inspection and copying, production of documents, pursuant to Federal
3 Rule of Bankruptcy Procedure 2004(b)-(c).
4 IT IS FURTHER ORDERED that attendance for examination and production of
5 documentary evidence can be compelled in the manner provided in Federal Rule of Bankruptcy
6 Procedure 9016 for the attendance of witnesses at a hearing or trial, pursuant to Federal Rule of
7 Bankruptcy Procedure 2004(c).
8 Dated: February 07, 2019
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11 United SJates Bankruptcy Judge
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J. RUSSELL CUNNINGHAM, SBN 130578
2 NICHOLAS L. KOHLMEYER, SBN 299087
RYAN IVANUSICH, SBN 318276
3
DESMOND, NOLAN, LIVAICH & CUNNINGHAM
4 1830 15th Street
Sacramento, California 95811
5 Telephone: (916) 443-2051
Facsimile: (916) 443-2651
6
7 Attorneys for Alan S. Fukushima
Chapter 7 Trustee
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9 UNITED STATES BANKRUPTCY COURT
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EASTERN DISTRICT OF CALIFORNIA
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SACRAMENTO DIVISION
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In re: Case No. 18-25328-A-7
14 Chapter 7
15 CARAMAZZA CONSTRUCTION, INC.,
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Debtor.
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PROOF OF SERVICE
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I am employed in the City and County of Sacramento. My business address is 1830 15th Street
20 Sacramento, California 95811. I am over the age of 18 years and not a party to the above-entitled action.
21 I am familiar with Desmond, Nolan, Livaich & Cunningham's practice whereby the mail is sealed
given the appropriate postage and placed in a designated mail collection area. Each day's mail is collect
22 and deposited in the U.S. mailbox after the close of each day's business.
23 On April 4, 2019, I served the following:
24 1. SUBPOENA TO PRODUCE DOCUMENTS, OR OBJECTS OR TO PERMIT
25 INSPECTION OF PREMISES IN A BANKRUPTCY CARE (OR
ADVERSARY PROCEEDING)
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1 l ./) (BY MAIL) on the parties in this action by causing a true copy thereof to be placed
in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail,
2 addressed as follows:
3 Caramazza Construction, Inc.
Alan S. Fukushima
4 770 L Street, Suite 950 1640 Denton Court
Sacramento, CA 95814 Folsom, CA 95630
5
Julia M. Young Van Dyke Litigation & Trial Attorneys
6 4120 Douglas Blvd., Ste. 306-494 11025 Pioneer Trail, Ste. 101 A
Granite Bay, CA 95746 Truckee, CA 96161
7
8 James A. Caramazza James S. Caramazza
Jaclyn Caramazza Helen Caramazza
9 1640 Denton Court 1214 Blackberry Circle
Folsom, CA 95630 Folsom, CA 95630
10
I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct and that this declaration is executed on April 4, 2019 at
12 Sacramento, California.
13
ELLEN ANGELLO
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J. RUSSELL CUNNINGHAM, SBN 130578
2 NICHOLAS L. KOHLMEYER, SBN 299087
RYAN IV ANUSICH, SBN 318276
3
DESMOND, NOLAN, LIV AICH & CUNNINGHAM
4 1830 15th Street
Sacramento, California 95811
5 Telephone: (916) 443-2051
Facsimile: (916) 443-2651
6
7 Attorneys for Alan S. Fukushima
Chapter 7 Trustee
8
9 UNITED STATES BANKRUPTCY COURT
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EASTERN DISTRICT OF CALIFORNIA
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SACRAMENTO DIVISION
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Inre: Case No. 18-25328-A-7
14 Chapter 7
15 CARAMAZZA CONSTRUCTION, INC.,
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Debtor.
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PROOF OF SERVICE
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I am employed in the City and County of Sacramento. My business address is 1830 151h Street
20 Sacramento, California 95811. I am over the age of 18 years and not a party to the above-entitled action.
21 I am familiar with Desmond, Nolan, Livaich & Cunningham's practice whereby the mail is seal
given the appropriate postage and placed in a designated mail collection area. Each day's mail is collect
22 and deposited in the U.S. mailbox after the close of each day's business.
23 On April 4, 2019, I served the following:
24 1. NOTICE OF SUBPOENA TO JAMES A. CARAMAZZA;
25 2. NOTICE OF SUBPOENA TO JACLYN J. CARAMAZZA;
3. NOTICE OF SUBPOENA TO JAMES S. CARAMAZZA;
26 4. NOTICE OF SUBPOENA TO HELEN CARAMAZZA;
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I [ I (BY ELECTRONIC MAIL) on the Office of the U1tited States Trustee
addressed as follows:
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•ustpRegion 17.sc.ecf@usdoj.gov
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• jason.blumberg@usdoj.gov
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( .J) (BY MAIL) on the parties in this action by causing a true copy thereof to be placed
5 in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail,
addressed as foll
Preview
GLEN A. VAN DYKE, SBN: 183796 1 MEGAN DEHERRERA, SBN: 306646 2 VAN DYKE LITIGATION & TRIAL ATTORNEYS, P.C. 940 Southwood Blvd, Suite 102 3 Incline Village, NV 89451 Telephone: (530) 214-3667 4 glen@vdlitigation.com 5 megan@vdlitigation.com 6 Attorneys for Plaintiffs 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF PLACER 9 DAN and CYBELLE DROHAN, CASE NO. SCV0039280 (Consolidated with 10 SCV0039372) Plaintiffs, 11 vs. OPPOSITION TO MOTION TO QUASH 12 DAN DROHAN’S SUBPOENA TO SAFE CARAMAZZA CONSTRUCTION, INC., a CREDIT UNION; DECLARATION OF 13 California Corporation, JAMES SALVADOR CARAMAZZA, an individual, DONALD GLEN A. VAN DYKE 14 JOSEPH, INC. and DOES 1 through 100, inclusive, Date: April 14, 2022 15 Time: 8:30 a.m. Defendants. Dept.: Department 42 16 17 AND RELATED CROSS-COMPLAINTS Complaint Filed: March 16, 2017 Trial date: June 13, 2022 18 19 20 Plaintiffs Dan and Cybelle Drohan (“Plaintiffs”) hereby oppose Defendants’ Caramazza 21 Construction, Inc., James A. Caramazza, and Jaclyn Caramazza’s Motion to Quash Business 22 Records Subpoena as follows: 23 I. INTRODUCTION 24 This subpoena seeks directly relevant documents to show fraudulent diversion of a 25 corporation’s funds to its principals to support allegations of alter ego. This subpoena has been 26 substantially narrowed from a prior subpoena and now only seeks documents from SAFE Credit 27 Union for accounts bearing the signatory authority and/or in the name of Defendant Caramazza 28 Construction, Inc. for “All documents pertaining to amounts paid to, and amounts paid from Opposition to Motion to Quash ~1~ Drohan v. Caramazza 1 CARAMAZZA CONSTRUCTION, INC.” for the time period just before Plaintiffs contracted 2 with the corporation until just after the corporation filed for bankruptcy. This motion should be 3 denied because it is narrowly tailored to the Defendant corporation and so that Plaintiffs can 4 obtain the evidence needed to prove their alter ego allegations at trial. The corporation does not 5 have privacy interests in these documents, but if the Court finds any other privacy interests to 6 exist, redactions can be made and/or a protection order can be ordered to protect any privacy 7 interests that may exist. 8 II. BACKGROUND 9 This case arises out of the construction of a custom single family home in Truckee, 10 California. Plaintiffs hired Caramazza Construction, Inc. as the general contractor to build their 11 home in 2014. Caramazza Construction, Inc. held itself out as a secure and profit-making builder 12 with several ongoing projects. Plaintiffs alleged that Caramazza Construction, Inc. failed to 13 complete construction, failed to complete work in a workmanlike manner causing damage, and 14 fraudulently overbilled on the project. (Declaration of Glen A. Van Dyke, “Van Dyke Decl.”, ¶ 15 2.) Plaintiffs’ alleged damages resulting from construction defects, failure to complete work, and 16 overbilling. (Id.). Plaintiffs’ alleged damages at this time exceed $700,000. (Id.). 17 Unbeknownst to Plaintiffs, the construction company they thought they were contracting 18 with was being drained of its assets by its principals while defaulting on its liabilities and 19 responsibilities across several of its ongoing projects. 20 On August 24, 2018, Caramazza Construction, Inc. filed for Chapter 7 bankruptcy. (Van 21 Dyke Decl., ¶ 3). 22 After the bankruptcy filing, Plaintiffs filed Doe Amendments bringing into the case 23 individual owners and alter egos of Caramazza Construction, Inc.: James A. Caramazza, Jaclyn 24 Caramazza, and Helen Caramazza. (Van Dyke Decl., ¶ 4). James S. Caramazza was an original 25 defendant in this case. (Id.). James S. Caramazza and Helen Caramazza have since been 26 dismissed from this case. (Id.). 27 On April 15, 2019, the Bankruptcy Trustee for Caramazza Construction, Inc.’s 28 bankruptcy subpoenaed bank records from SAFE Credit Union, where all of Defendants do their Opposition to Motion to Quash ~2~ Drohan v. Caramazza 1 banking. (Van Dyke Decl., ¶ 5, Exh. 1). The subpoena sought bank records from Caramazza 2 Construction, Inc., James A. Caramazza, James S. Caramazza, Jaclyn Caramazza, and Helen 3 Caramazza but only for the period shortly after the bankruptcy filing from August 1, 2018 to 4 April 2019. (Id.). The documents produced by SAFE Credit Union revealed further facts 5 supporting Plaintiffs’ alter ego allegations, including the following: 6 - Defendants comingle funds with one another; 7 - The non-corporate Defendants take improper draws from Caramazza Construction, 8 Inc.’s bank accounts; 9 - Caramazza Construction, Inc.’s accounts were drained by the non-corporate Defendants 10 leaving it undercapitalized; 11 - Entities other than Caramazza Construction, Inc. cashed checks for construction 12 purportedly performed by Caramazza Construction, Inc.; and 13 - The bank account of Caramazza Construction, Inc. was used to pay personal expenses 14 of the alter ego Defendants. (Van Dyke Decl., ¶ 6). Plaintiffs incorporated these allegations into 15 Paragraphs 13 and 14 the Fourth Amended Complaint. (Id. at ¶ 7, Exh. 2). 16 A review of even the limited timeframe of bank records obtained by the Bankruptcy 17 Trustee shows that despite constructing dozens of homes and selling millions of dollars of homes 18 in the years leading up to the bankruptcy, construction funds were being fraudulently diverted by 19 the corporation’s principals, named as alter egos in this case. (Van Dyke Decl., ¶ 8). This left the 20 corporation undercapitalized and unable to be held responsible for its debts and liabilities, 21 including those in this case while at the same time individuals were profiting from the diverted 22 funds. 23 On September 13, 2021 Caramazza Construction, Inc.’s Chapter 7 bankruptcy closed. 24 (Van Dyke Decl., ¶ 9, Exh. 3). As a corporation, Caramazza Construction, Inc.’s debts and 25 liabilities—including for this case—are not discharged. 11 U.S.C. § 727(a)(1). 26 On December 16, 2021, this Court granted a prior motion to quash of a subpoena that 27 sought accounts of the corporation and individuals directed to SAFE Credit Union on the 28 Opposition to Motion to Quash ~3~ Drohan v. Caramazza 1 grounds that the subpoena was “overly broad and unduly burdensome while also seeking 2 financial information for parties subject to a bankruptcy stay.” (Van Dyke Decl., ¶ 11, Exh. 4). 3 As a result of the Court’s order, Plaintiffs issued a new and drastically tailored subpoena, 4 this time only tailored to the Defendant corporation, and not seeking documents from accounts 5 for any individuals. (Van Dyke Decl., ¶ 12). 6 III. ARGUMENT 7 This subpoena seeks directly relevant documents to further support Plaintiffs’ alter ego 8 allegations for the time period shortly before Plaintiffs entered into a construction contract with 9 Caramazza Construction, Inc. and extending to the period of time after the bankruptcy was filed. 10 A. The Documents Sought in the Subpoena to SAFE Credit Union Are Directly 11 Relevant to Plaintiffs’ Alter Ego Allegations. 12 Under California law, a corporate identity may be disregarded where an abuse of the 13 corporate privilege justifies holding the equitable ownership of a corporation liable for the 14 actions of the corporation. The alter ego doctrine prevents individuals or other corporations from 15 misusing the corporate laws by the device of a sham corporate entity formed for the purpose of 16 committing fraud or other misdeeds. Sonora Diamond Corp. v. Sup. Ct. (2000) 83 Cal.App.4th 17 523, 538. 18 To recover on an alter ego theory, the plaintiff “must allege sufficient facts to show a 19 unity of interest and ownership, and an unjust result if the corporation is treated as the sole 20 actor.” Leek v. Cooper (2011) 194 Cal.App.4th 399, 415. Courts consider factors such as the 21 following when evaluating alter ego status: commingling of funds, holding out by one entity that 22 it is liable for debts of another, identical equitable ownership, use of same offices and employees, 23 use of one as a mere shell or conduit for affairs of the other, inadequate capitalization, disregard 24 of corporate formalities, lack of segregation of corporate records, and identical directors and 25 officers. See Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 512–13. 26 Where “financial information goes to the heart of the cause of action itself, a litigant 27 should not be denied access so easily.” Rawnsley v. Sup. Ct. (1986) 183 Cal.App.3d 86, 91. 28 Opposition to Motion to Quash ~4~ Drohan v. Caramazza 1 Defendants will deny that they are the alter ego of Caramazza Construction, Inc. The 2 discovery sought will show that Caramazza Construction, Inc.’s assets were fraudulently 3 diverted to the individual alter ego Defendants leaving the corporation undercapitalized and 4 unable to satisfy its debts and liabilities. If Caramazza Construction, Inc.’s principals are not 5 found to be alter egos and responsible for the liabilities of the corporation, an inequitable result 6 will follow because Plaintiffs will have no recourse for the over $700,000 in damages they have 7 suffered because of the fraud. 8 Plaintiffs require production of the directly relevant documents from SAFE Credit Union 9 to prove their alter ego allegations. 10 B. The Subpoena to SAFE Credit Union is Not Overly Broad or Burdensome. 11 The subpoena to SAFE Credit Union is tailored to the period of time, 2013 to 2019, 12 which represents one year before Plaintiffs contracted with Caramazza Construction, Inc. and to 13 one year after Caramazza Construction, Inc. filed for bankruptcy. The subpoena is narrowly 14 tailored to seek documents from accounts only of the corporation Caramazza Construction, Inc. 15 and does not seek documents from any individual accounts. 16 For these reasons, the subpoena is not overly broad. Additionally, since the subpoena is 17 directed to SAFE Credit Union, there is no burden on Defendants. 18 The corporation does not have privacy interests in these documents, but if the Court finds 19 any other privacy interests to exist, redactions can be made and/or a protection order can be 20 ordered to protect any privacy interests that may exist. 21 C. Plaintiffs Have a Compelling Need for The Subpoenaed Documents That 22 Substantially Outweighs Any Privacy Interests. 23 The only way for Plaintiffs to prove their alter ego allegations of fraudulent diversion of 24 funds to undercapitalize and bankrupt the corporation is through the subpoenaed bank records. 25 The need for the documents outweighs privacy interests, if any exist. 26 Further, Caramazza Construction, Inc. has no constitutionally protected privacy rights 27 since “corporations do not have a privacy right protected by the California Constitution.” SCC 28 Acquisitions, Inc. v. Sup. Ct. (2015) 243 Cal.App.4th 741, 755. The corporation also exposed its Opposition to Motion to Quash ~5~ Drohan v. Caramazza 1 financial affairs to the public through its bankruptcy filing, further reducing and waiving privacy 2 rights, if any. 3 Even though James A. Caramazza and Jaclyn Caramazza have not yet filed for 4 bankruptcy, based on information to date, these individuals are the main culprits of fraudulent 5 diversion of funds and benefited the most from the diverted funds. (Van Dyke Decl., ¶ 10). 6 IV. CONCLUSION 7 For the foregoing reasons, Plaintiffs request Defendants’ Motion to Quash be denied. 8 Dated: April 1, 2022 VAN DYKE LITIGATION 9 & TRIAL ATTORNEYS, P.C. 10 11 12 By: __________________________________ 13 GLEN A. VAN DYKE, Attorneys for Plaintiffs 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opposition to Motion to Quash ~6~ Drohan v. Caramazza 1 DECLARATION OF GLEN A. VAN DYKE 2 I, GLEN A. VAN DYKE, declare: 3 1. I am an attorney licensed to practice law in the State of California and am the 4 attorney of record for the Plaintiffs Dan and Cybelle Drohan (“Drohans”) in this action. The 5 facts set forth herein are of my own personal knowledge and if called upon to testify to the truth 6 thereto, I could and would so competently testify. 7 2. This case arises out of the construction of a custom single family home in 8 Truckee, California. Plaintiffs hired Caramazza Construction, Inc. as the general contractor to 9 build their home in 2014. Caramazza Construction, Inc. held itself out as a secure and profit- 10 making builder with several ongoing projects. Plaintiffs alleged that Caramazza Construction, 11 Inc. failed to complete construction, failed to complete work in a workmanlike manner causing 12 damage, and fraudulently overbilled on the project. Plaintiffs’ alleged damages resulting from 13 construction defects, failure to complete work, and overbilling. Plaintiffs’ alleged damages at 14 this time exceed $700,000. 15 3. On August 24, 2018, Caramazza Construction, Inc. filed for Chapter 7 16 bankruptcy. 17 4. After the bankruptcy filing, Plaintiffs filed Doe Amendments bringing into the 18 case individual owners and alter egos of Caramazza Construction, Inc.: James A. Caramazza, 19 Jaclyn Caramazza, and Helen Caramazza. James S. Caramazza was an original defendant in this 20 case. 21 5. On April 15, 2019, the Bankruptcy Trustee for Caramazza Construction, Inc.’s 22 bankruptcy subpoenaed bank records from SAFE Credit Union, where all of Defendants do their 23 banking. Attached hereto as Exhibit 1 is a true and correct copy of the subpoena. The subpoena 24 sought bank records from Caramazza Construction, Inc., James A. Caramazza, James S. 25 Caramazza, Jaclyn Caramazza, and Helen Caramazza but only for the period shortly after the 26 bankruptcy filing from August 1, 2018 to April 2019. 27 6. The documents produced by SAFE Credit Union revealed further facts supporting 28 Plaintiffs’ alter ego allegations, including the following: Defendants comingle funds with one Opposition to Motion to Quash ~7~ Drohan v. Caramazza 1 another; The non-corporate Defendants take improper draws from Caramazza Construction, 2 Inc.’s bank accounts; Caramazza Construction, Inc.’s accounts were drained by the non- 3 corporate Defendants leaving it undercapitalized; Entities other than Caramazza Construction, 4 Inc. cashed checks for construction purportedly performed by Caramazza Construction, Inc.; and 5 The bank account of Caramazza Construction, Inc. was used to pay personal expenses of the 6 alter ego Defendants. 7 7. Plaintiffs incorporated the facts learned from the documents produced by SAFE 8 Credit Union into the Fourth Amended Complaint, a true and correct copy of which is attached 9 hereto as Exhibit 2. 10 8. My review of even the limited timeframe of bank records obtained by the 11 Bankruptcy Trustee shows that despite constructing dozens of homes and selling millions of 12 dollars of homes in the years leading up to the bankruptcy, construction funds were being 13 fraudulently diverted by the corporation’s principals, named as alter egos in this case. 14 9. On September 13, 2021 Caramazza Construction, Inc.’s Chapter 7 bankruptcy 15 closed. Attached hereto as Exhibit 3 is a true and correct copy of the final decree closing the 16 bankruptcy. 17 10. Even though James A. Caramazza and Jaclyn Caramazza have not yet filed for 18 bankruptcy, based on information I have reviewed to date including the documents produced by 19 SAFE Credit Union in the bankruptcy, these individuals are the main culprits of fraudulent 20 diversion of funds and benefited the most from the diverted funds. 21 11. Attached hereto as Exhibit 4 is a true and correct copy of the Court’s tentative 22 ruling on a prior motion to quash a subpoena to SAFE Credit Union. 23 12. As a result of the Court’s order, Plaintiffs issued a new and drastically tailored 24 subpoena, this time only tailored to the Defendant corporation, and not seeking documents from 25 accounts for any individuals. 26 I declare under penalty of perjury under the laws of the State of California that the 27 foregoing is true and correct, and that this declaration was executed on April 1, 2022 at Incline 28 Village, Nevada. Opposition to Motion to Quash ~8~ Drohan v. Caramazza 1 Dated: April 1, 2022 2 3 By: __________________________________ 4 GLEN A. VAN DYKE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opposition to Motion to Quash ~9~ Drohan v. Caramazza EXHIBIT 1 , I B2570 (Form 2570 - Subeoena to Produce Documents, Information, or Objects or To Permit Inspection in a Bankruptcy Case or Adversary Proceeding) ( 12/15) UNITED STATES BANKRUPTCY COURT California - - - - - - - -Eastern ----------- District of -------------------- In re Caramazza Construction Debtor Case No. _ _1_8_-2_5_3_2_8_-A_-_7__ (Complete if issued in an adversary proceeding) 7 -- Chapter - - - Plaintiff V. Adv. Proc. No. - - - - - - - Defendant SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A BANKRUPTCY CASE (OR ADVERSARY PROCEEDING) To: SAFE Credit Union (Name ofperson to whom the subpoena is directed) ~ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: See Attachment A. PLACE DATE AND TIME DNLC: 1830 15th Street, Suite 200, Sacramento, CA 95811 04/15/19 D Inspection ofPremises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party I may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. PLACE I DA TE AND TIME The following provisions of Fed. R. Civ. P. 45, made applicable in bankruptcy cases by Fed. R. Banlcr. P. 9016, are attached - Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and 45(g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: 03/25/19 CLERK OF COURT OR Signature of Clerk or Deputy Clerk The name, address, email address, and telephone number of the attorney representing (name ofparty) Alan S. Fukushima · , who issues or requests this subpoena, are: Nicholas L Kohlmeyer: 1830 15 Street, Suite 200, Sacramento, CA 95811; (916) 443-2051; nkohlmeyer@dnlc.net Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, a notice and a copy of this subpoena must be served on each party before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4). ; B2570 (Fonn 2570 Subpoena to Produce Documents, Information, or Objects or To Permit Inspection in a Bankruptcy Case or_ Adv_ers~ry ~r~ceeding) ~-Page_ 3) Federal Rule of Civil Procedure 45(c), (d), (e), and (g) (Effective 12/1/13) (made applicable in bankruptcy cases by Rule 9016, Federal Rules of Bankruptcy Procedure) (c) Place of compliance. (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's (1) For a Trial, Hearing, or Deposition A subpoena may command a study that was not requested by a party. person to attend a trial, hearing, or deposition o~y as ~ollows: (C) Specifying Conditions as an Alternative. In the circumstances (A) within JOO miles of where the person resides, 1s employed, or described in Rule 45(d)(3)(B), the court may, instead of quashing or regularly transacts business in person; or modifying a subpoena, order appearance or production under specified (B) within the state where the person resides, is employed, or regularly conditions if the serving party: transacts business in person, if the person (i) shows a substantial need for the testimony or material that cannot (i) is a party or a party's officer; or be otherwise met without undue hardship; and (ii) is commanded to attend a trial and would not incur substantial (ii) ensures that the subpoenaed person will be reasonably expense. compensated. (2) For Other Discovery. A subpoena may command: . . (e) Duties in Responding to a Subpoena. (A) production of documents, or electronically stored tnformatton, or things at a place within JOO miles of where the person resides, is employed, (I) Producing Documents or Electronically Stored Information These or regularly transacts business in person; and procedures apply to producing documents or electronically stored (B) inspection of premises, at the premises to be inspected. information: (A) Documents. A person responding to a subpoena to produce (d) Protecting a Person Subject to a Subpoena; Enforcement. documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in (1) Avoiding Undue Burden or Expense; Sanctions. A party or the demand. attorney responsible for issuing and serving a subpoena must take (B) Form for Producing Electronically Stored Information Not reasonable steps to avoid imposing undue burden or expense o~ a pe~son Specified If a subpoena does not specify a form for producing subject to the subpoena. The court for the district where comphance 1s electronically stored information, the person responding must produce it in required must enforce this duty and impose an appropriate sanction - a form or forms in which it is ordinarily maintained or in a reasonably which may include lost earnings and reasonable attorney's fees - on a usable form or forms. party or attorney who fails to comply. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored (2) Command to Produce Materials or Permit Inspection information in more than one form. (A) Appearance Not Required A person commanded to produce · (D) Inaccessible Electronically Stored information The person documents, electronically stored information, or tangible things, or to responding need not provide discovery of electronically stored information permit the inspection of premises, need not appear in person at the pla~- of from sources that the person identifies as not reasonably accessible because production or inspection unless also commanded to appear for a depos1t10n, of undue burden or cost On motion to compel discovery or for a protective hearing, or trial. order, the person responding must show that the information is not (BJ Objections. A person commanded to produce documents or tangible reasonably accessible because of undue burden or cost. If that showing is things or to permit inspection may serve on the party or attorney designated made, the court may nonetheless order discovery from such sources if the in the subpoena a written objection to inspecting, copying, testing or requesting party shows good cause, considering the limitations of Rule sampling any or all of the materials or to inspecting the premises - or to 26(b)(2)(C). The court may specify conditions for the discovery. producing electronically stored information ~ the form_ or form~ requested. The objection must be served before the earher of the tune specified for (2) Claiming Privilege or Protection compliance or 14 days after the subpoena is served. If an objection is made, (A) Information Withheld A person withholding subpoenaed the following rules apply: information under a claim that it is privileged or subject to protection as (i) At any time, on notice to the commanded person, the serving party trial-preparation material must: may move the court for the district where compliance is required for an (i) expressly make the claim; and order compelling production or inspection. (ii) describe the nature of the withheld documents, communications, (ii) These acts may be required only as directed in the order, and the or tangible things in a manner that, without revealing information itself order must protect a person who is neither a party nor a party's officer from privileged or protected, will enable the parties to assess the claim. significant expense resulting from compliance. (B) Information Produced If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial- (3) Quashing or Modifying a Subpoena. preparation material, the person making the claim may notify any party that (A) When Required On timely motion, the court for the district where received the information of the claim and the basis for it After being compliance is required must quash or modify a subpoena that: notified, a party must promptly return, sequester, or destroy the specified (i) fails to allow a reasonable time to comply; information and any copies it has; must not use or disclose the information (ii) requires a person to comply beyond the geographical limits until the claim is resolved; must take reasonable steps to retrieve the specified in Rule 45(c); . information if the party disclosed it before being notified; and may (iii) requires disclosure of privileged or other protected matter, 1fno promptly present the information under seal to the court for the district exception or waiver applies; or where compliance is required for a determination of the claim. The person (iv) subjects a person to undue burden. who produced the information must preserve the information until the claim (B) When Permitted To protect a person subject to or affected by a is resolved. subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, (g) Contempt. The court for the district where compliance is required- and also, after a motion is transferred, the issuing court - may hold in contempt development, or commercial information; or a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013) ., ' ATTACHMENT A To Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Bankruptcy Case (Or Adversary Proceeding) [Directed to SAFE Credit Union] Pursuant to the subpoena to which this Attachment A is attached, you are directed to produce the following documents in your possession, custody and/or control. Document Requests: For accounts bearing the signatory authority and/or in the name(s) of: CARAMAZZA CONSTRUCTION, INC., TRUCKEE LAHONTAN EQUITY GROUP, LP, JAMES A. CARAMAZZA, JAMES S. CARAMAZZA, and/or JACLYN J. CARAMAZZA; and SAFE CREDIT UNION accounts that transferred or received funds concerning the above named parties, including accounts ending in XXX.549, XXX.098, XXX.413, for the period August 1, 2018 to present: 1. All documents pertaining to all open or closed checking, savings and other deposit or checking accounts in the name of, or under signature authority of, any of the named parties, including but not limited to: a. signature cards; b. account statements; c. canceled checks; d. deposit tickets; and e. items deposited. 2. All documents pertaining to all Cashier's, Manager's, or Bank Checks, Traveler's Checks, and Money Orders purchased or negotiated by any of the named parties, including but not limited to: a. documents (including checks, debit memos, cash in tickets and wires in) reflecting how the checks or money orders were purchased; b. documents (including bank checks, credit memos, cash out tickets and wires out) reflecting disbursements of the proceeds of any negotiated checks or money orders; c. applications for purchase of checks or money orders; and d. retained copies of negotiated checks or money orders. 3. All documents pertaining to wire transfers sent or received by any of the names parties, including but not limited to: a. Fed Wire, CHIPS, SWIFT, or other money transfer of message documents; b. documents (including checks, debit memos, cash in tickets and wires in) reflecting the source of the funds wired out; c. documents (bank checks, credit memos, cash out tickets and wires out) reflecting the ultimate disposition within the bank of the funds wired in; and . d. notes, memoranda or other writings pertaining to the sending or receipt of wire transfers. 4. All documents pertaining to open or closed bank credit cards in the name of, or under the signatory authority of, any of the named parties, including but not limited to: a. applications for credit; b. credit reports; c. monthly statements; d. financial statements; e. documents (including checks, debit memos, cash in tickets and wires in) reflecting payments on the account; f. correspondence files; and g. teller tapes reflecting all transactions between the bank and any of the parties named. Filed 02/07 /19 Case 18-25328 D c 37 2 2 J. RUSSELL CUNNINGHAM, SBN 130578 NICHOLAS L. KOHLMEYER, SBN 299087 3 RYAN IVANUSICH, SBN 318276 DESMOND, NOLAN, LIVAICH & CUNNINGHAM 4 1830 15th Street 5 Sacramento, California 95811 Telephone: (916) 443-2051 6 Facsimile: (916) 443-2651 7 Attorneys for Alan S. Fukushima Chapter 7 Trustee 8 9 UNITED STATES BANKRUPTCY COURT IO EASTERN DISTRICT OF CALIFORNIA 11 12 SACRAMENTO DIVISION 13 In re: Case No. 18-25328-C-7 Chapter 7 14 CARAMAZZA CONSTRUCTION, INC., DNL-3 15 Debtor. 16 17 ORDER GRANTING APPLICATION FOR AUTHORITY TO ISSUE 18 DISCOVERY PURSUANT TO FRBP 2004 19 An application for authority to issue discovery pursuant to Federal Rule of Bankruptcy Il 20 Procedure 2004 has been made by Chapter 7 trustee ALAN S. FUKUSHIMA {''Trustee"). Upon 21 consideration of the application, the Trustee's declaration and the record, and good cause I 22 23 appearing therefor, IT IS SO ORDERED that the Trustee is authorized to examine SAFE Credit Union I 24 concerning funds transferred to and from Caramazza Construction, lnc.'s SAFE Credit Union l 25 account to and from various accounts, including an account held by Truckee Lahontan Equity I{ 26 Group, LP, pursuant to Federal Rule of Bankruptcy Procedure 2004. I 27 Ill 28 Ill RECEIVED February 06, 2019 1 CLERIC, U.S. IIAIIKllUPTCY COURT EASTERH DISTllCT 01' CAI.Il'ORHIA 0006441734 i Case 18-25328 D c 37 Filed 02/07/19 1 IT IS FURTHER ORDERED that in connection with said examinations, the Trustee is 2 authorized to request, for inspection and copying, production of documents, pursuant to Federal 3 Rule of Bankruptcy Procedure 2004(b)-(c). 4 IT IS FURTHER ORDERED that attendance for examination and production of 5 documentary evidence can be compelled in the manner provided in Federal Rule of Bankruptcy 6 Procedure 9016 for the attendance of witnesses at a hearing or trial, pursuant to Federal Rule of 7 Bankruptcy Procedure 2004(c). 8 Dated: February 07, 2019 9 10 11 United SJates Bankruptcy Judge } 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 J. RUSSELL CUNNINGHAM, SBN 130578 2 NICHOLAS L. KOHLMEYER, SBN 299087 RYAN IVANUSICH, SBN 318276 3 DESMOND, NOLAN, LIVAICH & CUNNINGHAM 4 1830 15th Street Sacramento, California 95811 5 Telephone: (916) 443-2051 Facsimile: (916) 443-2651 6 7 Attorneys for Alan S. Fukushima Chapter 7 Trustee 8 9 UNITED STATES BANKRUPTCY COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 SACRAMENTO DIVISION 12 13 In re: Case No. 18-25328-A-7 14 Chapter 7 15 CARAMAZZA CONSTRUCTION, INC., 16 Debtor. 17 18 PROOF OF SERVICE 19 I am employed in the City and County of Sacramento. My business address is 1830 15th Street 20 Sacramento, California 95811. I am over the age of 18 years and not a party to the above-entitled action. 21 I am familiar with Desmond, Nolan, Livaich & Cunningham's practice whereby the mail is sealed given the appropriate postage and placed in a designated mail collection area. Each day's mail is collect 22 and deposited in the U.S. mailbox after the close of each day's business. 23 On April 4, 2019, I served the following: 24 1. SUBPOENA TO PRODUCE DOCUMENTS, OR OBJECTS OR TO PERMIT 25 INSPECTION OF PREMISES IN A BANKRUPTCY CARE (OR ADVERSARY PROCEEDING) 26 27 28 I 1 l ./) (BY MAIL) on the parties in this action by causing a true copy thereof to be placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail, 2 addressed as follows: 3 Caramazza Construction, Inc. Alan S. Fukushima 4 770 L Street, Suite 950 1640 Denton Court Sacramento, CA 95814 Folsom, CA 95630 5 Julia M. Young Van Dyke Litigation & Trial Attorneys 6 4120 Douglas Blvd., Ste. 306-494 11025 Pioneer Trail, Ste. 101 A Granite Bay, CA 95746 Truckee, CA 96161 7 8 James A. Caramazza James S. Caramazza Jaclyn Caramazza Helen Caramazza 9 1640 Denton Court 1214 Blackberry Circle Folsom, CA 95630 Folsom, CA 95630 10 I declare under penalty of perjury under the laws of the State of California that the 11 foregoing is true and correct and that this declaration is executed on April 4, 2019 at 12 Sacramento, California. 13 ELLEN ANGELLO 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 J. RUSSELL CUNNINGHAM, SBN 130578 2 NICHOLAS L. KOHLMEYER, SBN 299087 RYAN IV ANUSICH, SBN 318276 3 DESMOND, NOLAN, LIV AICH & CUNNINGHAM 4 1830 15th Street Sacramento, California 95811 5 Telephone: (916) 443-2051 Facsimile: (916) 443-2651 6 7 Attorneys for Alan S. Fukushima Chapter 7 Trustee 8 9 UNITED STATES BANKRUPTCY COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 SACRAMENTO DIVISION 12 13 Inre: Case No. 18-25328-A-7 14 Chapter 7 15 CARAMAZZA CONSTRUCTION, INC., 16 Debtor. 17 18 PROOF OF SERVICE 19 I am employed in the City and County of Sacramento. My business address is 1830 151h Street 20 Sacramento, California 95811. I am over the age of 18 years and not a party to the above-entitled action. 21 I am familiar with Desmond, Nolan, Livaich & Cunningham's practice whereby the mail is seal given the appropriate postage and placed in a designated mail collection area. Each day's mail is collect 22 and deposited in the U.S. mailbox after the close of each day's business. 23 On April 4, 2019, I served the following: 24 1. NOTICE OF SUBPOENA TO JAMES A. CARAMAZZA; 25 2. NOTICE OF SUBPOENA TO JACLYN J. CARAMAZZA; 3. NOTICE OF SUBPOENA TO JAMES S. CARAMAZZA; 26 4. NOTICE OF SUBPOENA TO HELEN CARAMAZZA; 27 28 1 I [ I (BY ELECTRONIC MAIL) on the Office of the U1tited States Trustee addressed as follows: 2 •ustpRegion 17.sc.ecf@usdoj.gov 3 • jason.blumberg@usdoj.gov 4 ( .J) (BY MAIL) on the parties in this action by causing a true copy thereof to be placed 5 in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail, addressed as foll