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  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
						
                                

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1 LAWRENCE D. MILLER, SBN 77448 LAW OFFICE OF LAWRENCE D. MILLER 2 Post Office Box 6107 San Mateo, CA 94403 10/09/2020 3 Telephone: (650) 592-9151 4 lmiller@ldmlawyer.com 5 Attorney for Defendant, Robin Calder 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF PLACER 10 TODD HENRY JARVIS, Case No. S-CV-0039929 11 12 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 13 v. DEFENDANT’S EX PARTE APPLICATION FOR AN ORDER 14 ROBIN ELIZABETH CALDER etc., EXTENDING DEFENDANT’S TIME TO 15 OBJECT TO PLAINTIFF’S NOTICE TO Defendant. DEFENDANT TO APPEAR AT TRIAL 16 AND IN THE ALTERNATIVE FOR AN ORDER SHORTENING TIME 17 18 Date: October 13, 2020 Time: 8:00 a.m. 19 Dept: 42 Complaint Filed: August 23, 2017 20 Trial Date: November 9, 2020 21 Defendant submits the following points and authorities in support of Defendant’s ex parte 22 application for an order extending Defendant’s time to object to Item 23 of a list of 32 items from 23 Plaintiff’s Notice to Robin Calder to Appear at Trial. 24 INTRODUCTION 25 On April 2, 2020. Plaintiff served Plaintiff’s Notice to Appear on Defendant for the trial then 26 calendared for hearing on April 27. Despite an agreement allowing electronic service, the notice was 27 served by mail. (Declaration of Lawrence D. Miller at ¶ 10.) Item 23 of Plaintiff’s notice states: 28 “The original schedules (Schedule E), without redaction, for YOUR 2005-2018 tax returns, 29 1 30 _________________________________________________ MEMORANDUM OF POINTS AND AUTHORITIES [File No. 20-410] 31 1 produced and marked in redacted form at your deposition as Exhibit C.” 2 Plaintiff’s action seeks to quiet title to an investment property commonly known as 1869 Park 3 Avenue, San Jose, California (hereafter “the Property”). The property was acquired by Plaintiff and 4 Defendant as joint tenants. (Defendant’s Request for Judicial Notice, Exhibit A attached to Defendant’s 5 Exhibit Index.) Schedule E of Defendant’s tax returns, which were produced in redacted form at 6 Defendant’s deposition, disclosed that Defendant had claimed depreciation on the Property. All other 7 information on Defendant’s Schedules E was redacted. (Declaration of Lawrence D. Miller at ¶ 6.) 8 Schedules E of Defendant’s tax returns between 2005 and the 2018, to the extent Defendant’s Schedules 9 E are relevant to this action, are relevant only in relation to the Property. Whether or not the Defendant’s 10 Schedules E listed another property or properties is not relevant to the Property at issue. 11 Defendant’s counsel inadvertently failed to recognize the request sought the “unredacted” 12 versions of Defendant’s Schedules E but incorrectly understood Plaintiff sought copies of the Schedules, 13 attached as Exhibit C to Defendant’s deposition. (Declaration of Lawrence D. Miller at ¶¶ 7 and 9.) 14 Defendant’s counsel did not intend to waive Defendant’s tax return privilege as to the 15 information contained on Defendant’s Schedules E, other than as to the related on Defendant’s 16 Schedules E related to the Property. (Declaration of Lawrence D. Miller at ¶ 12.) 17 APPLICABLE LAW. 18 The tax return privilege can be overcome in only three scenarios. 19 1. An intentional relinquishment of the privilege; 20 2. The gravamen of the lawsuit is inconsistent with the privilege; and 21 3. The privilege is inconsistent with a public policy greater than the purpose of the privilege. 22 The California Supreme Court has held that Revenue and Taxation Code section 19282, which prohibits disclosure of tax returns, implicitly creates a privilege against the 23 disclosure of income tax returns. (Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, 513, 319 P.2d 621.) The privilege may be waived by an intentional relinquishment of it. 24 (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 721, 21 Cal.Rptr.2d 200, 854 P.2d 1117.) In addition, it is inapplicable where the gravamen of the lawsuit is inconsistent 25 with claiming the privilege, or where a public policy greater than the purpose of the privilege is involved. (Id. at p. 721, 21 Cal.Rptr.2d 200, 854 P.2d 1117.) 26 (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 479.) 27 The Defendant did not intentionally waive the privilege, other than as to the information relevant 28 to the Property on Defendant’s Schedules E. The gravamen of the lawsuit is not inconsistent with the 29 2 30 _________________________________________________ MEMORANDUM OF POINTS AND AUTHORITIES [File No. 20-410] 31 1 privilege, except as the privilege applies to Schedule E, limited to the Property. The public policy of 2 having a fair and just trial is arguably not inconsistent with the privilege, conditioned on the disclosure 3 of the information being limited to the Property as disclosed by Schedule E of the Federal tax returns. 4 Defendant’s counsel’s mistake was therefore not a waiver of Defendant’s tax return privilege as to the 5 information on the Schedules E that is unrelated to the Property. 6 Producing redacted versions of Defendant’s Schedule E during the discovery phase of this case 7 and even at the trial was in recognition that production of the Defendant’s tax return, limited to that 8 portion of the return that describes the Property, was intended to avoid unnecessary law and motion 9 practice. The Court, in its discretion may allow partial disclosure of a tax return. In the context of 10 discovery, the Supreme Court in Schnabel v Superior Court (1993) 5 Cal. 4th 704 discussed the 11 balancing test between a third party’s right of financial privacy and the conflicting interest of the 12 litigants. In that case, our Supreme Court opined: 13 We summarized the duty of trial courts to reconcile the conflicting interests of litigants in obtaining necessary discovery and third parties in maintaining privacy: “[I]n evaluating 14 claims for protection of bank customers, the trial courts are vested with the same discretion which they generally exercise in passing upon other claims of confidentiality. 15 [Citations.] We have previously expressed those considerations which, among others, will affect the exercise of the trial court's discretion. They include ‘... the purpose of the 16 information sought, the effect that disclosure will have on the parties and on the trial, the nature of the objections urged by the party resisting disclosure, and ability of the court 17 to make an alternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information 18 undertakes certain specified burdens which appear just under the circumstances.’ (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 382 [15 Cal.Rptr. 90, 364 19 P.2d 266].) Where it is possible to do so, ‘... the courts should impose partial limitations rather than outright denial of discovery.’ (Id. at p. 383 [15 Cal.Rptr. 90, 364 P.2d 266].)” 20 (Valley Bank, supra, 15 Cal.3d at p. 658, 125 Cal.Rptr. 553, 542 P.2d 977.) We noted the availability of procedural devices such as in camera hearings to further accommodate the 21 conflicting interests. (Ibid.) (Emphasis added.) 22 (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 712.) 23 In the case at bar the Defendant intended to avoid a discovery, and now a trial, dispute on the 24 production of Defendant’s Schedules E by yielding to a partial disclosure of that portion of the tax 25 returns which are arguably relevant to this litigation. Including information from Defendant’s tax return 26 that is irrelevant to Defendant’s tax treatment of other properties, if any, is violative of Defendant’s tax 27 return privilege. 28 (a)(1) The court may, in furtherance of justice, and on any terms as may be proper, allow 29 a party to amend any pleading or proceeding by adding or striking out the name of any 3 30 _________________________________________________ MEMORANDUM OF POINTS AND AUTHORITIES [File No. 20-410] 31 party, or by correcting a mistake in the name of a party, or a mistake in any other respect; 1 and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may 2 be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. 3 (Code Civ. Proc., § 473.) 4 Defendant’s counsel’s misreading of Item 23 of Plaintiff’s Notice to Robin Calder to Appear at 5 Trial resulted in Defendant, by Defendant’s counsel, not serving a timely objection to the Notice to 6 Robin Calder to Appear at Trial. But for the mistake, and objection to the requests would have been 7 timely served. ((Declaration of Lawrence D. Miller at ¶ 11.) 8 Code of Civil Procedure, § 1987 sets forth the procedure a party may use in lieu of a subpoena to 9 compel the attendance and the production of documents by the opposing party. A notice served on a 10 party to the lawsuit at least 20 days prior to the date required for attendance before the Court, plus 5 11 days if served by mail, has the same effect as service of a subpoena. The party served with the Notice 12 may object within five days of the service. Due to Defendant’s counsel’s mistake, an objection to having 13 to produce an unredacted version of Defendant’s schedules E was not interposed to the Notice. Code of 14 Civil Procedure, § 1987(c) allows the Court to extend a party’s time in which to object to the Notice. 15 Within five days thereafter, or any other time period as the court may allow, the 16 party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. (Emphasis added.) 17 (Code Civ. Proc., § 1987.) 18 Because of Defendant’s counsel’s mistake, Defendant requests an order extending Defendant’s 19 time in which to serve an objection to the request that Defendant produce unredacted versions of 20 Defendant’s Schedules E. 21 CONCLUSION 22 Defendant’s redacted Schedules E disclose Defendant took depreciation on the Property. The 23 remainder of Defendant’s Schedules E is both irrelevant and protected by Defendant’s tax privilege. But 24 for Defendant’s counsel’s misreading of Item 23 of 32 items described on Plaintiff Notice to Attend 25 Trial, a timely objection to Item 23 would have been served. 26 Defendant ought to be relieved of Defendant’s counsel’s mistake and the time in which to 27 interpose an objection to the Notice ought to be enlarged to allow the timely service of an objection. 28 For the reasons set forth above defendant respectfully submits Defendant’s Application ought to 29 4 30 _________________________________________________ MEMORANDUM OF POINTS AND AUTHORITIES [File No. 20-410] 31 1 be granted and Defendant allowed to interpose an appropriate objection to item 23 of Plaintiff’s Notice 2 to Attend Trial and in the alternative that an order shortening time for filing and service of a noticed 3 motion ought to issue. 4 Dated: 9, 2020 Respectfully submitted, 5 Lawrence D. Miller _________________________________ 6 LAWRENCE D. MILLER Attorney for Defendant, Robin Calder 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 5 30 _________________________________________________ MEMORANDUM OF POINTS AND AUTHORITIES [File No. 20-410] 31