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1 Kevin J. Abbott, State Bar No. 281312
Email : kabbott@fennemorelaw. com
2 FENNEMORE LLP
550 E. Hospitality Lane, Suite 350
J San Bernardino, CA 92408
Tel: (909) 890-4499 lFax: (909) 890-9877
4
Richard Dreitzer, Nevada State Bar No. 6626 ELECTRONICALLY FILED (Auto)
5 (Admitted Pro Hac Vice) SUPERIOR COURT OF CALIFORNIA
Email : rdreitzer@fennemorelaw.com COUNTY OF SAN BERNARDINO
6 FENNEMORE CRAIG, P.C. 4/19/2024 2:24 PM
9275W. Russell Road, Suite 240
7 Las Vegas, NV 89148
Tel: (702) 692-8000 lFax: (702) 692-8099
8
John W. Phillips, Califomia State Bar No. 147117
9 Email : jphillips@fennemorelaw.com
Jaskaran S. Gill, Califomia State Bar No. 316615
10 Email : j gill@fennemorelaw. com
FENNEMORE DO\ilLING AARON
11 8080 N. Palm Avenue, Third Floor
Fresno, CA937ll
12 Tel: (559) 432-4500 I Fax: (559) 432-4590
13 Attorneys for Defendants, MICHAEL LYON, an
individual, DAVID OLLIS, an individual, ERICH
t4 BROESEL, an individual, STEVE HENRY, an
individual, JASON KARGER, an individual, JAMES
15 HUGHES, an individual, and AARON HAND, and
individual
l6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
17
COUNTY OF SAN BERNARDINO (JUSTICE CENTER)
18
t9 PRECIOUS T. DYKSTRA, an individual, Case No. CIVSB2318301
Plaintiff, [Hon. Jeffrey R. Erickson, Dept. S14]
20
V.
DEFENDANTS' REPLY BRIEF
2l IN SUPPORT OF MOTION TO
MICHAEL LYON, an individual, DAVID QUASH DEPOSITION
22 OLLIS, an individual, ERICH BROESEL, an SUBPOENA TO THE
individual, STEVE HENRY, an individual, CALIFORNIA FRANCHISE TAX
23 JASON KARGER, an individual, JAMES BOARD.
HUGHES, an individual, and AARON HAND,
24 and individual; Date: Apnl26,2024
Defendants.
Time: 8:30 a.m.
25 Dept.: S14
OTV INVESTMENT GROUP LLC, aNevada
26 limited liability company, and OAK TREE
MOUNTAIN LLC, a Nevada limited liability
2l company.
Nominal Defendants.
28
I
AroRN¡:Ysar Law REPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH DEPOSITION SUBPOENA ISSUED TO THE CALIFORNIA
SaN BIiRNAR¡)tNo
FRANCHISE TAX BOARD
I Defendants MICHAEL LYON ("Defendant" or "Mr. Lyon") hereby submit the following
2 Reply Brief in Support of his motion for an order to quash the deposition subpoena issued by
a
J Plaintiff Precious T. Dykstra ("Plaintiff' or "Ms. Dykstra") requiring the custodian of records of
4 the California Franchise Tax Board to produce Mr. Lyon's tax return records.
5 I. INTRODUCTION
6 Defendant Michael Lyon ("Mr. L)¡on") has moved to quash a deposition subpoena (the
7 "Motion to Quash") issued by Plaintiff Precious Dykstra's ("Ms. Dykstra") counsel to the
8 California Franchise Tax Board (the "FTB"). California recognizes a strong privilege protecting
9 taxpayer records during the course of litigation. There are only very naffow circumstances when a
10 taxpayer's records may be disclosed during the discovery process and no exception applies in this
11 case. (,See e.g., Schnabel v. Superior Court (1993) 5 Cal.4th 704,121.) Courts against counsel
12 against the compelled disclosure of a party's tax returns except in those very rare instances when
13 the narrow exceptions apply. (Weingarten v. Superior Court (2002) i02 Cal.App.4th 268, 276-
14 271 .) ft is Ms. Dykstra's burden to demonstrate a clear exception to the taxpayer privilege. (See
15 Goro v. Flowers Foods, Inc. (5.D. Cal. 2018) 334 F.R.D. 275,280 citing Schnabel v. Superior
t6 Court (1993) 5 Cal.4th704,721.)
17 In her opposition to the Motion to Quash, Ms. Dykstra effoneously asserts that the
l8 taxpayer's privilege does not apply in this case because: (1) the gravamen of the claims or defenses
T9 asserted by Mr. Lyon are inconsistent with the privilege; and (2) public policy interests in deterring
20 fraud and obtaining information for punitive damages pu{poses outweigh Mr. Lyon's interest in
2I keeping his tax returns confidential. Ms. Dykstra's position is untenable and the Motion to Quash
22 must be granted by this Court.
23 First, Mr. Lyon has not placed his tax return records at issue and he has not waived his
24 ability to assert the tax-payer's privilege by placing the contents of his tax retums at issue in this
25 case. (c.f., Wilsonv. Superior Court ("Wilson") (1916) 63 Cal.4pp.3d825,828.) In addition, Ms.
26 Dykstra has not supported her opposition with any specific examples about how any cause of action
27 or defense would be "impossible" to support without Mr. Lyon's tax retum records. (See lbÃd.)
28
a
-L-
AmoRNIaYs AT LAw
REPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH DEPOSITION SUBPOENA ISSUED TO THE CALIFORNIA
SAN Bf,RNARI)¡No
FRANCHISE TAX BOARD