Motion in Limine Evidentiary in Jarvis, Todd Henry vs. Calder, Robin Elizabeth| Trellis.Law

On August 23, 2017 a Motion,Ex Parte was filed involving a dispute between Todd Jarvis, and Robin Calder, Todd Jarvis, for Civil-Roseville in the District Court of Placer County.

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1 Port J. Parker (SBN 179256)
Jeffrey S. Einsohn (SBN 260150)
2 PARKER LAW GROUP ATTORNEYS
A Professional Corporation
3
555 Capitol Mall, Suite 1230
4 Sacramento, CA 95815 09/10/2020
Telephone: (916) 996-0400
5 Facsimile: (916) 668-5760
6
Attorneys for TODD JARVIS
7

9 SUPERIOR COURT OF CALIFORNIA
10 IN AND FOR THE COUNTY OF PLACER
11
GROUP
555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814

TODD HENRY JARVIS, Case No. SCV0039929
12
Plaintiff, PLAINTIFF’S MOTION IN LIMINE NO. 3 –
13 v. EXCLUDING EVIDENCE SUBPOENAED
FROM BANKS; DECLARATION OF
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14 ROBIN ELIZABETH CALDER, aka ROBIN JEFFREY S. EINSOHN IN SUPPORT
GOODNO CALDER, ROBIN CALDER,
15 ROBIN ELIZABETH GOODNO CALDER,
PARKER

and ROBIN GOODNO
16 Trial Date: September 21, 2020
Defendant. Time: 8:30 a.m.
17 Dept: TBD
18

19
I. INTRODUCTION
20
This is a motion in limine for an order excluding private and/or privileged financial
21
information regarding Defendant Todd Jarvis (“Jarvis”) that Plaintiff Robin Calder (“Calder”) has
22
repeatedly attempted to subpoena from financial institutions.
23
Calder is attempting to use trial subpoenas to circumvent the discovery disclosure
24
requirements and gain access to Jarvis’s confidential financial records. It is pure gamesmanship.
25
Indeed, Calder previously issued two trial subpoena duces tecum to these same banks at issue here.
26
When Jarvis filed a motion to quash, Calder withdrew the subpoenas, got a court order that the motion
27

PLAINTIFF’S MOTION IN LIMINE NO. 3 – EXCLUDING EVIDENCE SUBPOENAED FROM BANKS;
DECLARATION OF JEFFREY S. EINSOHN IN SUPPORT
1
1 was moot and then served new subpoenas to thwart Jarvis’s attempt to address what she was doing. 1
2 The current subpoenas explicitly seek Jarvis’s credit applications and tax documents. Calder
3 is not entitled to such records. Everything else requested, Calder already possesses, which is evident
4 because she attaches the documents to the subpoenas themselves. Jarvis respectfully requests that
5 the Court exclude all documents provided pursuant to the two subpoenas duces tecum and prevent
6 Calder from having access to such documents. In the alternative, and at minimum, Jarvis’s counsel
7 should be given the opportunity to remove his personal financial records before the documents are
8 turned over to Calder and her counsel.
9 The motion in limine is recognized as a proper request that the trial court has inherent power
10 to entertain and grant. (3 Witkin, Cal. Evid. 5th Presentation § 379 (2020).) It arises from the court’s
11 “inherent power” to control litigation. (See CCP § 187 (implied powers to effectuate conferred
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555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814

12 powers); CCP § 128(a)(3) (judge’s inherent authority to provide for the orderly proceedings); CEC §
13 350 (relevant evidence only admissible); CEC § 352 (authority to exclude unduly prejudicial
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14 evidence); CEC § 402(b) (preliminary fact hearings authorized).) The scope of said motions is broad
15 and can establish or eliminate evidence which could be objected to at trial either as irrelevant or subject
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16 to discretionary exclusion as unduly prejudicial. (Clemons v. American Warranty Corp. (1987) 193
17 Cal. App. 3d 44,451.)
18 II. BACKGROUND
19 Trial for this matter was previously set for March 2, 2020. On January 30, 2020,
20 approximately 30 days before that trial date, Defendant Robin Calder moved ex parte to continue the
21 trial. Importantly, Calder did not seek to reopen or extend discovery, although she could have done
22 so. The Court set the matter on shortened time and granted the motion to continue trial. It ordered
23 the parties to select a new date. The parties submitted a stipulation and order on February 14 and the
24 Court signed the order on February 20, 2020. The order did not continue the discovery deadline.
25 (Einsohn Dec. ¶3 & Ex. A.)
26 ///
27
1
Jarvis is also filing another motion to quash, however out of an abundance of caution he also seeks to exclude the improper
28 evidence if it is produced by the banks.

PLAINTIFF’S MOTION IN LIMINE NO. 3 – EXCLUDING EVIDENCE SUBPOENAED FROM BANKS;
DECLARATION OF JEFFREY S. EINSOHN IN SUPPORT
2
1 The very next day after the parties submitted their stipulation on a continued trial date,
2 February 15, 2020, Calder issued two discovery style trial subpoenas duces tecum. (Einsohn Dec. ¶4.)
3 One subpoena was to JPMorgan Chase Bank (“Chase”) seeking records for a loan application Jarvis
4 made in 2012 for 509 Monterey Avenue, a property which Calder has no interest in. The other
5 subpoena was to “Bank of America” which sought, inter alia, all documents related to the 2004
6 acquisition of “1893 Park Avenue,” encompassing Jarvis’s personal financial records, tax returns, and
7 other private or immaterial items. Jarvis attempted to meet and conferred about the subpoenas, asking
8 that they be withdrawn and that the parties meet and confer regarding a narrowed scope or the necessity
9 of the subpoenas. This was to no avail. (Einsohn Dec. ¶5.)
10 Jarvis was forced to file a motion to quash. The motion pointed out that Calder was trying to
11 circumvent the discovery deadline, was seeking irrelevant materials, and the subpoenas violated
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555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814

12 Jarvis’s privacy rights, especially with respect to tax returns, among other things. (Einsohn Dec. ¶6
13 & Ex. B.)
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14 After the motion was filed, Calder withdrew the subpoenas. (Einsohn Dec. ¶7 & Ex. C.) Calder
15 then filed an opposition to the Motion to Quash, arguing that the motion was moot because she had
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16 served a Notice of Withdrawal the same day her opposition was due. (Einsohn Dec. ¶8 & Ex. D.)
17 Jarvis filed a Reply to the Motion to Quash expressing his concern that Calder would just reissue
18 similar subpoenas after the motion was resolved. (Einsohn Dec. ¶9 & Ex. E.) The motion was denied
19 as moot, and just as Jarvis predicted, Calder then reissued similar subpoenas. (Einsohn Dec. Exs. F &
20 G.)
21 III. THE BANK OF AMERICA SUBPOENA
22 The Bank of America subpoena sought five items. The first three items are copies of
23 documents that Calder already possess. In fact, she attached copies of those documents to the
24 subpoena. There appears to be little reason for requesting additional copies of those document via
25 subpoena. However, the fourth item on the list is Jarvis’s credit application (not attached). Plaintiff’s
26 credit application contains private financial information. Even when the information sought is
27 arguably relevant, which Jarvis disputes in this case, an individual who is a party to litigation has a
28 fundamental right of privacy regarding their confidential financial affairs under California

PLAINTIFF’S MOTION IN LIMINE NO. 3 – EXCLUDING EVIDENCE SUBPOENAED FROM BANKS;
DECLARATION OF JEFFREY S. EINSOHN IN SUPPORT
3
1 Constitution, Article 1, Section 1. (Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550.) “[T]here
2 is a right to privacy in confidential customer information whatever form it takes, whether that form
3 be tax returns, checks, statements, or other account information.” (Fortunato v. Sup.Ct. (Ingrassia)
4 (2003) 114 Cal.App.4th 475, 481, (emphasis in original) “[C]confidential financial information given
5 to a bank by its customers is protected by the right to privacy that became a part of the California
6 Constitution after the judicial formulation of the tax-return privilege.” (Id. at 480–481.)
7 The same is true of item five, which is apparently a letter from Jarvis’s trustee discussing the
8 amount of his beneficiary distributions. This to is private financial information shared with the bank
9 and it should not be subject to disclosure. These issues were addressed in the Motion to Quash, which
10 Calder thwarted by withdrawing her subpoenas and reissuing them in modified form.
11 A. THE CHASE SUBPOENA
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555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814

12 The subpoena to Chase strays even further afield. Jarvis’s dealings with Chase involve a
13 refinance on an entirely different piece of property 8 years separated from the acquisition of 1869
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14 Park Ave, the subject matter of this case. This time, Calder attaches two pieces of correspondence
15 between Jarvis and his broker regarding his finances. It is unclear how Calder obtained these
PARKER

16 documents other than through her attorney-client relationship with Jarvis. However, the fourth item
17 is Jarvis’s credit application. As explained above, that is an entirely improper request. (See
18 Fortunato, supra, 114 Cal.App.4th at 480-481.)
19 Even more problematic is the fifth request “The signature page and Schedules E from the
20 federal tax return, and if more than one tax return, then the tax returns, submitted to JPMorgan Chase
21 Bank by Todd Jarvis regarding that certain loan application to refinance and use the Los Gatos
22 Property as security for a secured loan.” Jarvis’s tax returns are privileged and not subject to
23 disclosure. (Webb v. Standard Oil Co. of Cal. (1957) 49 Cal.2d 509, 513.) As Fortunato explained,
24 that privilege is not waived because Jarvis gave his lender a copy of his return in confidence.
25 (Fortunato, supra, 114 Cal.App.4th at 482. [“Given the well-recognized practice of requiring tax
26 returns as part of a loan application, it follows that forcing a bank to produce those returns routinely
27 in litigation would have the same effect as forcing the taxpayer to produce them directly, and that,
28 too, would effectively defeat the legislative purpose.”].)

PLAINTIFF’S MOTION IN LIMINE NO. 3 – EXCLUDING EVIDENCE SUBPOENAED FROM BANKS;
DECLARATION OF JEFFREY S. EINSOHN IN SUPPORT
4
1 Jarvis has not put his tax returns at issue in this case. Jarvis is not seeking damages from
2 Calder that would require tax return disclosure. In sum, there is no legal basis for Calder to obtain
3 Jarvis’s tax returns.
4 B. CONCLUSION
5 For the foregoing reasons, the Court should exclude all documents provided pursuant to the
6 two subpoenas duces tecum. Alternatively, Jarvis’s counsel should be given the opportunity to
7 remove his personal financial records before the documents are turned over to Calder and her counsel.
8
PARKER LAW GROUP ATTORNEYS
9 DATED: September 10, 2020 A Professional Corporation
10

11
____________________________________
GROUP
555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814

12 PORT J. PARKER
JEFFREY S. EINSOHN
13 Attorneys for TODD JARVIS
LAW

15
PARKER

16 DECLARATION OF JEFFREY S. EINSOHN IN SUPPORT OF PLAINTIFF’S MOTION IN

17 LIMINE NO. 3 – EXCLUDING EVIDENCE SUBPOENAED FROM BANKS

18 I, Jeffrey S, Einsohn, declare:

19 1. I am an attorney duly licensed to practice law in the State of California and am an

20 attorney at the law firm Parker Law Group Attorneys, APC, attorneys of record for the Plaintiff Todd

21 Jarvis (“Jarvis”) in the above-captioned case.

22 2. I make this declaration from my own personal knowledge and from the records kept in

23 the ordinary course of business by my law firm, except as to those matters stated on information and

24 belief, and, as to those matters, I believe them to be true.

25 3. Trial for this matter was previously set for March 2, 2020. On January 30, 2020,

26 approximately 30 days before that trial date, Defendant Robin Calder moved ex parte to continue the

27 trial. Importantly, Calder did not seek to reopen or extend discovery, although she could have done

28 so. The Court set the matter on shortened time and granted the motion to continue trial. It ordered the

PLAINTIFF’S MOTION IN LIMINE NO. 3 – EXCLUDING EVIDENCE SUBPOENAED FROM BANKS;
DECLARATION OF JEFFREY S. EINSOHN IN SUPPORT
5
1 parties to select a new date. The parties submitted a stipulation and order on February 14, the Court
2 signed the order on February 20, 2020. The order did not continue the discovery deadline. A true and
3 correct copy of the Court’s February Order Continuing Trial is attached hereto as Exhibit A.
4 4. The very next day after the parties submitted their stipulation on a continued trial date,
5 February 15, 2020, Calder issued two discovery style trial subpoenas duces tecum.
6 5. One subpoena was to JPMorgan Chase Bank (“Chase”) seeking records for a loan
7 application Jarvis made in 2012 for 509 Monterey Avenue, a property which Calder has no interest in.
8 The other subpoena was to “Bank of America” which sought, inter alia, all documents related to the
9 2004 acquisition of “1893 Park Avenue,” encompassing Jarvis’s personal financial records, tax
10 returns, and other private or immaterial items. Jarvis attempted to meet and conferred about the
11 subpoenas, asking that they be withdrawn and that the parties meet and confer regarding a narrowed
GROUP
555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814

12 scope or the necessity of the subpoenas. This was to no avail.
13 6. Jarvis was forced to file a motion to quash. The motion pointed out that Calder was
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14 trying to circumvent the discovery deadline, was seeking irrelevant materials, and the subpoenas
15 violated Jarvis’s privacy rights, especially with respect to tax returns, among other things. A true and
PARKER

16 correct copy of the memorandum in support of that motion is attached as Exhibit B.
17 7. After the motion was filed, Calder withdrew the subpoenas. A true and correct copy
18 of Calder’s Notice of Withdrawal is attached hereto as Exhibit C.
19 8. Calder then filed an opposition to the Motion to Quash, arguing that the motion was
20 moot because she had served a Notice of Withdrawal the same day her opposition was due. A true
21 and correct copy of Calder’s Opposition to the Motion to Quash is attached hereto as Exhibit D.
22 9. Jarvis filed a Reply to the Motion to Quash expressing his concern that Calder would
23 just reissue similar subpoenas after the motion was resolved. A true and correct copy of Jarvis’s Reply
24 is attached hereto as Exhibit E.
25 10. The motion was denied a moot, and just as Jarvis predicted, Calder then reissued similar
26 subpoenas.
27 11. A true and correct copy of Calder’s new subpoena to Bank of America is attached
28 hereto as Exhibit F.

PLAINTIFF’S MOTION IN LIMINE NO. 3 – EXCLUDING EVIDENCE SUBPOENAED FROM BANKS;
DECLARATION OF JEFFREY S. EINSOHN IN SUPPORT
6
1 12. A true and correct copy of Calder’s new subpoena to JP Morgan Chase is attached
2 hereto as Exhibit G.
3 I declare under the penalty of perjury under the laws of the State of California that the foregoing
4 is true and correct. Executed on September 10, 2020 at Sacramento, California.
5

6
___________________________
7 JEFFREY S. EINSOHN
8

11
GROUP
555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814

13
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15
PARKER

PLAINTIFF’S MOTION IN LIMINE NO. 3 – EXCLUDING EVIDENCE SUBPOENAED FROM BANKS;
DECLARATION OF JEFFREY S. EINSOHN IN SUPPORT
7
EXHIBIT “A”
( (

Port J. Parker (SBN 179256)
Jeffrey S. Einsohn (SBN 260150)
2 PARKER LAW GROUP ATTORNEYS

3
A Professional Corporation
555 Capitol Mall, Suite 1230
F ILED
~ uperlor Court o f California
Cou nty of Pla<:o r
Sacramento, CA 95815
4 Telephone: (91 6) 996-0400 FEB 20 2020
Facsimile: (916) 668-5760
5 Jake Chatters
Exeoutlvo Clffleor & Clark
6 ■y : 0 . Lucatuorto, Deputy
Attorneys for TODD JARVIS
7

9 SUPERIOR COURT OF CALIFORNIA

10 IN AND FOR THE COUNTY OF PLACER

a...;;.11
Case No. SCV0039929
:::)~
TODD HENRY JARVIS,
0 ) 12
[P-ROP9SMI ORDER CONTINUING
~ jC Plaintiff,
TRIAL AND CERTAIN PRE-TRIAL DATES
(j ,,~
13 V.
' 3: 8:,14 ROBIN ELIZABETH CALDER, aka ROBIN
<( ~ GOODNO CALDER, ROBIN CALDER, Date: February 6, 2020
_J
~
"
'3.15 ROBIN ELIZABETH GOODNO CALDER, Time: 8:30 a.m.
LU ~ and ROBIN GOODNO Dept. : 42
~ ; 16
~ ~- Defendant.
<( (J

a... 17
::,J

18
On February 6, 2020, Defendant Robin Calder' s Motion For Order Continuing Trial,
19
Settlement Conference, Civil Trial Conference and Depositions came on hearing on shorted time. At
20
that hearing, the Court found good cause to continue the trial and certain other pre-trial dates based
21
upon the substitution of counsel filed by Defendant Robin Calder. The Court ordered the parties to
22
stipulate to new dates. The parties have done so.
23
Based upon the stipulation of the parties, and good causes appearing,
24
IT lS HEREBY ORDERED that:
25
1. The new trial date will be April 27, 2020;
26
2. The new pretrial conference will be April 17, 2020 at 8:30 a.m. in Dept. 42;
27
3. The new mandatory Settlement conference will be April 10, 2020 at 8:30 a.m. ;
28

[PltOf>OSED] ORDER CONTLNUING TRIAL AND CERTAJN PRE-TRIAL DATES
I
(

4. The deposition of Robin Calder will take place on March 6, 2020 at 9:30 am. at the

2 law office of Lawrence D . Miller located at 630 N . San Mateo Dr., San Mateo, California;

3 5. The following depositions will take place on March 31, 2020 at I 0:00 a.m. at Phillips

4 Legal Service located at 350 University Avenue, Suite 270, Sacramento, CA 95825:

5 a. 10:00 a.m. Jarvis's Expert David Boyd

6 b. I :00 p.m. Jarvis's Expert Donna Sauter

7 c. 3:00 p.m. Jarvis' s Expert Annette Stalker

8 IT IS SO ORDERED

9 Charles Wachob
10 DATED:
JUDGE OF THE SUPERJOR COURT

24
25

tpRdPu§EOI ORDER CONTINUING TRIAL AND CERTAIN PRE-TRIAL DATES
2
EXHIBIT “B”
(

Port J. Parker (SBN 179256)
Jeffrey S. Einsohn (SBN 260150)
2 PARKER LAW GROUP ATTORNEYS
S
u=:XJtL~O .
tor c'our t of Cal lfornu1
A Professional Corporation uperc ou nt y of P lacer
3
555 Capitol Mall, Suite 1230
4 Sacramento, CA 95815 APR 22 2020
Telephone: (916) 996-0400
Jake Chatters
5 Facsimile: (916) 668-5760 Executive Officer & Clerk
By: L.Sanders, Deputy
6
Attorneys for TODD JARVIS
7

9
SUPERIOR COURT OF CALIFORNIA
10
IN AND FOR THE COUNTY OF PLACER

TODD HENRY JARVIS, Case No. SCV0039929
Plaintiff, MEMORANDUM OF POINTS AND
V. AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION TO QUASH
ROBIN ELIZABETH CALDER, aka ROBIN AND/OR MODIFY TRIAL SUBPOENAS
GOODNO CALDER, ROBIN CALDER,
ROBIN ELIZABETH GOODNO CALDER,
and ROBIN GOODNO Date: June 19, 2020
Time: 8:30 a.m. BY FAX
Defendant. Dept.:31

18
Complaint Filed: August 23, 2017
19 Current Trial Date: June 22, 2020

20 I. INTRODUCTION
21 Defendant Robin Calder (" Calder") is attempting to use trial subpoenas to conduct a last-
22 minute fishing expedition into Plaintiff Todd Jarvis's ("Jarvis") private banking records. Trial
23 subpoenas cannot be used to circumvent the discovery deadline, cannot be used to seek broad
24
categories of documents from third parties, cannot be used to seek irrelevant or immaterial records for
25 production at trial , and cannot be used to evade personal privacy protections.
26 In this case, Jarvis alleges that Calder was his attorney, advised him to sell one investment
27 property and to buy another, and succeeded in having herself placed onto title for the second property.
28 Calder admittedly did not provide any purchase money and did not make the disclosures required of

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO QUASH
AND/OR MODIFY TRIAL SUBPOENAS
I
1 any attorney who enters into a business transaction with a client. This case is about Calder’s fiduciary
2 duties to Jarvis and whether she violated them. Calder’s attempt to conduct discovery into other
3 matters by use of trial subpoena is improper and the subpoenas should be quashed, or at minimum
4 significantly modified to narrow the scope and protect well established privacy rights.
5 II. FACTS
6 In August 2017, Jarvis filed his complaint in this matter alleging, among other things, that
7 Calder was Jarvis’s attorney and that in 2004 she entered into a business transaction with him that
8 resulted in Jarvis selling an investment property in Houston, Texas and using that money to fund the
9 purchase of 1869 Park Avenue in San Jose. Calder obtained joint title to 1869 Park Avenue without
10 putting any money into the property and without proper disclosures required under the Rules of
11 Professional Conduct. (Declaration of Jeffrey S. Einsohn (“Einsohn Decl.”), filed and served herewith,
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555 Capitol Mall , Suite 1230 Sacramento, CA 95814

12 ¶3.) In 2018 and 2019 the parties conducted discovery. Trial was initially set for July 29, 2019. Due
13 in large part to the filing of another action by Calder, on or about April 12, 2019, the parties stipulated
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14 to continue the trialdate until March 2, 2020, which the court eventually and reluctantly allowed.
15 (Einsohn Decl. ¶4.)
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16 On January 30, 2020, approximately 30 days before trial was set to begin, Calder moved ex
17 parte to continue the trial again. The Court allowed Calder to bring her request on shortened time and
18 then ordered the parties to meet and confer on a new trial date. The parties jointly selected April 27,
19 2020. Importantly, Calder did not seek to reopen or extend discovery. (Einsohn Decl. ¶5.)
20 On February 15, 2020, well after discovery had closed, Calder issued two trial subpoenas duces
21 tecum. The first subpoena was to JPMorgan Chase Bank (“Chase”) seeking records related to a loan
22 application Jarvis made in 2012 related to a completely different property, 509 Monterey Avenue in
23 Los Gatos. (Einsohn Decl. ¶6 and Ex. A.) The second subpoena was to “Bank of America” which
24 sought, inter alia, all documents related to the 2004 acquisition of “1893 Park Avenue” 1, encompassing
25 Jarvis’s personal financial records, tax returns, and other private or immaterial items. (Einsohn Decl.
26 ¶8 and Ex. B.) One April 4, 2020, the Court continued the trial to June 22, 2020 due to the ongoing
27 1
None of the parties own 1893 Park Avenue. Jarvis can only assume this is referring to 1869 Park Avenue, the property
28 that Jarvis purchased without any monetary contribution from Calder. Calder’s failure to property identify the property
may render the subpoena to Bank of America invalid and/or the bank unable to respond.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH
AND/OR MODIFY TRIAL SUBPOENAS
2
1 coronavirus pandemic and court closures.
2 III. LEGAL ARGUMENT
3 A. Legal Authority for a Motion to Quash
4 Code of Civil Procedure section 1987.1(a) provides in relevant part:
5 If subpoena requires the attendance of a witness or the production of books,
documents, electronically stored information, or other things before a court… the
6 court, upon motion reasonably made by any person described in subdivision (b), …
may make an order quashing the subpoena entirely, modifying it… including
7 protective orders. In addition, the court may make any other order as may be
appropriate to protect the person from unreasonable or oppressive demands,
8 including unreasonable violations of the right of privacy of the person.
9 A party to the action, such as movant here, is explicitly authorized to make such as motion. (Code
10 Civ. Proc. § 1987.1(b).)
11 This motion is timely because it is made well in advance of trial. Section 1987.1 requires only
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555 Capitol Mall , Suite 1230 Sacramento, CA 95814

12 that a motion to quash be “reasonably made.” In assessing what constitutes reasonable notice of a
13 motion to quash, courts have held that even seven days’ notice prior to the appearance or production
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14 date is sufficient. (See Lee v. Swansboro Country Property Owners Assn. (2007) 151 Cal.App.4th
15 575, 583.)
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16 B. Trial Subpoena Duces Tecum v. Deposition Subpoena
17 A trial subpoena duces tecum is not the same as a deposition subpoena for business records
18 under the Civil Discovery Act. This is evident from the plain language of the relevant statutes. Code
19 of Civil Procedure § 2020.410 governing deposition subpoenas states in relevant part:
20 (a) A deposition subpoena that commands only the production of business
records for copying shall designate the business records to be produced either by
21 specifically describing each individual item or by reasonably particularizing
each category of item…
22 …
(c) A deposition subpoena that commands only the production of business
23 records for copying need not be accompanied by an affidavit or declaration
showing good cause for the production of the business records designated in it.
24
(Code Civ. Proc. § 2020.410 [emphasis added].)
25
Conversely, Code Civ. Proc. §1985, which authorizes a trial subpoena duces tecum, requires:
26
A copy of an affidavit shall be served with a subpoena duces tecum issued before
27 trial, showing good cause for the production of the matters and things described in
the subpoena, specifying the exact matters or things desired to be produced,
28 setting forth in full detail the materiality thereof to the issues involved in the

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH
AND/OR MODIFY TRIAL SUBPOENAS
3
case, and stating that the witness has the desired matters or things in his or her
1 possession or under his or her control.
2 (Code Civ. Proc. §1985(b) [emphasis added]; See Terry v. SLICO (2009) 175 Cal.App.4th 352, 356
3 [discussing the differences between a deposition and trial subpoena].)
4 Thus, whereas in discovery a party can ask for categories of items from a third party without
5 having to establish good cause, for purposes of trial, a party must specify the exact items to be
6 produced and to explain why those items are not just relevant under the broad discovery definition,
7 but actually material to the issues in the case.
8 These distinctions are important because they prevent a party from conducting discovery via
9 trial subpoenas when broader, investigative discovery could and should have been conducted before
10 trial. Even a cursory review of Calder’s subpoenas demonstrate that she has neither specified exactly
11 what she is seeking or provided full detail of the materiality thereof.
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555 Capitol Mall , Suite 1230 Sacramento, CA 95814

12 C. The Subpoena to Chase is Improper
13 1. The Chase Subpoena Seeks Documents that Are Not Relevant or Material
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14 The case involves a 2004 real property transaction between a lawyer and her client in which
15 the lawyer acquired title to property with the client. The property at issue is 1869 Park Avenue in San
PARKER

16 Jose. The lawyer’s primary defense is that she was not his attorney at the time and only became his
17 attorney is 2009. Thus, she argues, she did not owe fiduciary or ethical obligations to the client.
18 Despite the fact that this case centers around a 2004 transaction for acquisition of a property in San
19 Jose, Calder has subpoenaed:
20 The records maintained by JPMorgan Chase Bank, National Association regarding
that certain loan application from Todd Jarvis in 2012 for the property commonly
21 known as 509 Monterey Avenue, Los Gatos, California 95030, including but not
limited to, correspondence.
22

23 (Einsohn Decl. Ex. A, emphasis added.)
24 The subpoena states the records sought are “material” because “The documents sought will
25 disclose or tend to disclose the relationship of Plaintiff and Defendant during the year 2004.” (Id.)
26 That is nonsense.
27 Calder claims no interest in 509 Monterey Avenue in Los Gatos. (Einsohn Decl. ¶7.) The broad
28 range of documents she is seeking have nothing whatsoever to do with 1869 Park Avenue in San Jose.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH
AND/OR MODIFY TRIAL SUBPOENAS
4
1 The documents she is seeking are from eight (8) years after the relevant time period. No loan
2 application would ask or inquire into the relationship between a borrower and his lawyer or ask when
3 that relationship began. It is incredible that Calder would even attempt to obtain such documents from
4 Chase.
5 The only hypothetical document potentially contained in any 2012 loan application with any
6 possible relevance to 1869 Park Avenue in San Jose would be some disclosure that Jarvis and Calder
7 were joint title owners to 1869 Park Avenue. Calder does not know if such a document exists nor did
8 she only ask for that type of document. Likewise, Jarvis is unaware of exactly what is any in any loan
9 application he may have completed in 2012. Moreover, even if such a document exists, it does not
10 pertain to a material issue in dispute. Jarvis admits that Calder took joint title and remains on joint
11 title. Any additional evidence that Calder was on title in 2012 is redundant and does not warrant
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555 Capitol Mall , Suite 1230 Sacramento, CA 95814

12 invasive discovery into Jarvis’s financial affairs—especially with respect to other properties.
13 Calder is on a fishing expedition, which while potentially allowable during discovery, is
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14 complete inappropriate for a trial subpoena issued after discovery has closed.
15 2. The Chase Subpoena Violates Jarvis’s Constitutional Right to Privacy
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16 The Subpoena to Chase seeks everything submitted regarding a loan application. That would
17 include information about net worth, unrelated assets, banks statements, and even privileged tax
18 returns. The California Constitution, Article I, section 1, states:
19 All people are by nature free and independent and have inalienable rights. Among
these are enjoying and defending life and liberty, acquiring, possessing, and
20 protecting property, and pursuing and obtaining safety, happiness, and privacy.
21 Even highly relevant, nonprivileged information may be shielded from disclosure if it would
22 impair a person’s “inalienable right of privacy” provided by Calif. Const. Art. 1, § 1. (Britt v. Sup.Ct.
23 (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 855-856.) A right to privacy in a party’s
24 confidential financial affairs is constitutionally recognized. (See City of Carmel-by-the-Sea v. Young
25 (1970) 2 Cal.3d 259, 268.) Here, the information sought from Chase is not highly relevant. It is most
26 assuredly irrelevant and not material to the instant matter.
27 “[T]here is a right to privacy in confidential customer information whatever form it takes,
28 whether that form be tax returns, checks, statements, or other account information.” (Fortunato v.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH
AND/OR MODIFY TRIAL SUBPOENAS
5
1 Superior Court (2003) 114 Cal.App.4th 475, 481.) Fortunato involved a discovery subpoena to a
2 bank seeking nearly identical records. (Id. at p. 478 [“real party in interest caused a subpoena duces
3 tecum to be served on Washington Mutual Bank, requesting the production of nine categories of
4 documents relating to a particular loan…”].) Of particular focus were personal tax returns submitted
5 to the bank in connection with the loan application. (Id.) The Court explained: “While there is no
6 ‘bank-customer privilege akin to the lawyer-client privilege’ or other statutory privileges,
7 confidential financial information given to a bank by its customers is protected by the right to
8 privacy that became a part of the California Constitution after the judicial formulation of the
9 tax-return privilege.” (Id. at p. 480–481, emphasis added.)
10 Calder’s Chase subpoena seeks wholesale disclosure of all of Jarvis’s confidential financial
11 information, including tax returns, bank statement or other information 2 submitted to Chase in 2012,
GROUP
555 Capitol Mall , Suite 1230 Sacramento, CA 95814

12 all of which has zero relevance or materiality to the 2004 transaction or to the nature of the relationship
13 between Calder and Jarvis at that time. The Chase subpoena is improper and should be quashed.
LAW

14 D. The Bank of America Subpoena is Also Improper and Should be Quashed
15 1. The Bank of America Subpoena Seeks Records that Are Not Material to the Issues
PARKER

16 As explained above, a trial subpoena must identify exactly what items are being requested,
17 why there is good cause to seek production at trial, and why the documents are “material” to the issues

Case Info

Case No.

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Document Filed Date

September 10, 2020

Case Filing Date

August 23, 2017

County

Parties

Avilla, Paul Steven McPharlin et al LLP Attorney
Carcione, Joseph W. Jr. Attorneys for Defendants
Hajimirzaee, Marjan Parker Law Group Attorney
Miller, Lawrence David Law Office of Lawrence D. Miller Attorneys for Defendants
Miller, Lawrence David Law Office of Lawrence D. Miller Attorney for the Defendant
Parker, Port James Parker Law Group Attorney
Parker, Port James Parker Taylor Law Group, PC Attorney
Robin Calder Appellant
Robin Calder Defendant
Todd Jarvis Plaintiff
Todd Jarvis Respondent
Jeffrey Einsohn Attorney
Joshua Henderson Attorneys for Defendants
Bruce Lymburn Attorney
Sheri Damon Attorney
Matthew Gross Attorney
Peter Cianchetta Attorney
David Finkelstein Attorney
Peter Levy Attorney
James Cilley Attorneys for Plaintiffs
Garth Pickett Attorney

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Motion,Ex Parte: Jarvis, Todd Henry vs. Calder, Robin Elizabeth

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