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NICHOLAS P. FORESTIERE, SB#125118
OHN T. MADDEN, SB#260213
GURNEE MASON RUSHFORD
BONOTTO & FORESTIERE LLP ELECTRONICALLY FILED
2240 Douglas Boulevard, Suite 150
Roseville, California 95661 Superior Court of California,
Telephone: (916) 797-3100 County of Placer
Facsimile: (916) 797-3131 4/10/2020
By: Cristina ‘Vallan-Brown, Deputy Clerk
Attomeys for Plaintiff/Cross- Defendants
AMERICAN HOME ENERGY, INC.,
THOMAS ENZENDORFER, HUMBERTO GARCIA.
AND JORDAN PETERS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF PLACER
11
12 AMERICAN HOME ENERGY, INC., a ) Case No. SCV-43523
Delaware corporation,
13 MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
14 Plaintiff, PLAINTIFF’S MOTION TO QUASH
Vv. SUBPOENA DIRECTED TO
15 ELIZABETH VOSS, OR
PLATINUM SALES GROUP, LLC, a ALTERNATIVELY FORA
16 Califomia limited liability coi dba PROTECTIVE ORDER
SUNSTOR SOLAR ELECTRIC, and DOES 1 )
17 through 10, inclusive, Date: Al 7, 2020
Time: 8:30am.
18
Defendants. Dept: 31
)
19
) Complaint filed: 4/30/2019
20
AND RELATED CROSS ACTIONS )
21
I INTRODUCTION
22
On or about March 16, 2020, Defendant Platinum Sales Group, LLC (“Defendant” or
23
“SunStor”) provided counsel for Plaintiff American Home Energy, Inc. (“Plaintiff’ or “AHE”) witha
24
notice of intent to serve a subpoena for production of business records to third-party Elizabeth Voss
25
(‘Voss”), the prior financial Controller at AHE who was fired from AHE for theft. Defendant
26
previously served a strikingly similar subpoena on Ms. Voss on September 10, 2019. AHE
27
successfully quashed Defendant's prior subpoena to Voss on November 8, 2019.
28
1
PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA
Notwithstanding this fact, Defendant again attempts to subpoena documents from Voss,
documents
that Voss stole from AHE and that encompass matters far beyond the scope of this
litigation. Ms. Voss has no legal or contractual right to possess any property of AHE, including but
not limited to the sensitive financial information that Ms. Voss has wrongfully retained.
For the reasons presented, Plaintiff respectfully requests that this Court quash the subpoena in its
entirely, or, altematively, issue a strict protective order pursuant to Code of Civil Procedure section
1987.1.
Il. STATEMENT OF FACTS
Voss is Plaintiff's former employee and was the company’s controller. (See Declaration of
Jordan Peters (“Peters Dec.”), (2, filed concurrently herewith.) Plaintiff tenminated Voss on August 19,
10
2019 due
to Voss’s unauthorized
usage of her company credit card for personal spending. (Peters Dec.
11
§8-5.) Upon finding unauthorized personal charges, Plaintiff investigated
further and found a series of
12
personal charges to the company credit card spanning from May through August 2019. (Id.) Part of
13
Voss’s job responsibility as the company controller was to oversee the reconciliation of all company
14
credit cards on a monthly basis. (Id.) Voss herself had drafted policies for AHE goveming company
15
credit card use. AHE trusted Voss and she had unfettered access to all company financial documents
16
and to confidential employee information. (Id. {6-7.)
17
As part of her hiring, Voss signed a Confidentiality Policy on March 4, 2019 and a Proprietary
18
Information Policy on April 25, 2019, acknowledging that as controller she would be privy to
19
confidential and sensitive information. (Id. (111-14, Exhibit B.) In both these policies, Voss agreed that
20
upon her separation fromA HE all proprietary and confidential information would be retumed to Plaintiff.
21
(Id.) However, in violation of these policies, Voss did not retum—at
a minimum—an extemal hard drive
22
which contained confidential and sensitive historical financial data, client, and employee information.
23
(Id.) There
are likely other documents that Voss has in her possession
and control that belong to Plaintiff
24
and that are thus are subject to the same restrictions.
25
On August 20, 2019, one day after her termination, Plaintiff sent a correspondence
to Voss
26
demanding, among other things, the retum of the extemal hard drive mentioned above. (Id. 111,
27 Exhibit B) Subsequently, Voss confirmed in text messages that she had the hard drive and would mail
28 it to AHE. (Id. (110, Exhibit A.) To date, Voss has failed to retum AHE’s corporate property. (Id.) When
2
PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA
Voss failed to cooperate, Plaintiff was forced to file an action in Sacramento County Superior Court seeking
the retum
of all documents, of the hard drive, payment of the monies Voss misappropriated, the retum of
her office key, and payment of other damages that AHE has sustained
due to Ms. Voss’ theft. (Id., 1113,
Exhibit C.) That action is currently pending, and on April 9, 2020, AHE submitted
a Request for Entry of
Default against Defendant Voss. (See Declaration of John T. Madden, “Madden Decl.” filed concurrently
herewith {| 4.)
Defendant's second subpoena continues to be procedurally improper, beyond the scope of reasonable
discovery, and is intended to harass and prejudice Plaintiff.
Ill. LEGAL ARGUMENT
Pursuant to Code of Civil Procedure section 1987.1, the Court upon motion reasonably made by a
10
party, “may make an order quashing the subpoena entirely, modifying
it, or directing compliance with it
11 upon those tems or conditions as the court shall declare, including protective orders. In addition, the
12 court may make any other order as may be appropriate to protect the person from unreasonable or
13 oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ.
14 Proc. § 1987.1(a).) A party may make the motion pursuant to Code of Civil Procedure section 1987.1(b).
15
A THE SUBPOENA SEEKS MATERIAL THAT DEFENDANT KNOWS WAS
IMPROPERLY RETAINED BY A FORMER AHE EMPLOYEE
16
Defendant’s counsel was previously informed on or about September 10, 2019, that Voss had
17
stolen sensitive
AHE property. (Peters’ Decl. at {[16.) Defendant nonetheless issued a subpoena for these
18
documents. On September
26, 2019, AHE filed a motion to quash as to the subpoena to Voss. On
19
November8, 2019, this Court granted AHE’s motion to quash.
20
Defendant’ s current subpoena seeks financial documents that Voss used in the course and scope
21
of herjob duties at AHE as its Controller. (Peters’ Decl. 17.) (A true and comect copy of the subpoena
22
and its related documents is attached to the Madden Decl. as Exhibit
1.) Voss is in possession
of such
23
confidential documents only due to the fact that she retained confidential financial data as well as an
24
extemal hard drive with AHE’s sensitive and confidential financial, client and employee
data when she
25
‘was tenminated by AHE. (Peters Dec., {| 14). On November 28, 2019, Plaintiff filed a superior court
26
action against Voss to retrieve the hard drive and the key to its building, as well as to seek reimbursement
27
for unauthorized
credit card charges that Voss had made to her corporate
credit card for personal purposes.
28
(Id. 13, ExhibitC thereto.) The majority of the documents retained by Voss as well as the hard drive’s
3
PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA
suspected content would be responsive to Defendant’s overly broad requests in the subpoena, and its
provision would result in the improper disclosure of Plaintiffs confidential and sensitive financial
property,
The Court should not reward a former employee who steals commercially and financially
sensitive property from her former employer and then seeks to provide that data to an adversarial party
under the guise of a “legitimate” subpoena. Defendant knows that its proper course of action is to issue
w1itten discovery to Plaintiff, but Defendant continues to refuse to use legitimate avenues of discovery
that would be directed to the rightful owner of the stolen property, namely AHE. Further, it is well
settled that AHE has the right to keep its own documents until met with proper discovery requests. (See
Pillsbury, Madison Sutro v. Schectman, 55 Cal.App.4th 1279, 1284 (Cal. Ct. App. 1997), quoting Conn
10
v. Superior Court, (1987) 196 Cal.App.3d 774, 779.)
11
Defendant previously already tried, and failed, to obtain AHE’s confidential financial documents
12
from Voss via the September 2019 subpoena. The only difference
in the current subpoena, as compared
13
with the prior quashed subpoena, is that the new subpoena requests the confidential information that
14
allegedly supports the claims Voss makes in an August 29, 2019 declaration, which
was attached as
15
Exhibit 8 to Defendant’ s the Second Amended Complaint filed in this action (“Declaration”). Although
16
the current subpoena does not request every document that Voss has in her possession, it is still aimed at
17
commercially and financial sensitive documents that AHE, as the owner, has a right and duty to protect.
18
Moreover, the subpoena is aimed at obtaining documents that Voss has in her possession only due to the
19
nature of the position that she had held at AHE. (Peters Decl. at {117.)
20 B. THE SUBPOENA SEEKS INFORMATION RELATING TO THE FRAUD
CLAIMS DEFENDANT ALLEGES THE SECOND AMENDED CROSS
21
COMPLAINT WHICH WILL, AGAIN, BE SUBJECT TO AHE’S DEMURRER
22
Assetforthabove, Defendant’ s subpoena requests documents that allegedly support the allegations
23
in Voss’ Declaration, which is apparently
the basis of Defendant’
s fraud claims against AHE and several
24 individuals. Once the Courts resume regular operations, AHE will file a demumreragain challenging these
25 fraud claims as Defendant
continues to allege its claims for fraud without the required factual specificity.
26 (Madden Decl. at 915.) If AHE is again successful against Defendant's third attempt to plead fraud, Ms.
27 Voss’s Declaration will have no function in the currentaction, and it will be wholly irrelevant
to the breach
28 of contract action between the Parties.
4
PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA
1 Additionally, the subpoena is oppressive and unduly burdensome, a misuse of the discovery
process, and served primarily for the purpose of harassing Plaintiff. There is no reason that Defendant
needs or is entitled to documents that were misappropriated
by Plaintiff's fonmer controller in derogation
of heragreements
with Plaintiff and in violation of the law. Defendant has a clear path to seek documents
it, properly seeking from Plaintiff as opposed to seeking to take aclvantage of a rogue former employee
with stolen information.
There is no good cause for production of the documents and matters sought and the documents
and information sought are irrelevant and immaterial to the issues presently before
the Court. It is well-
settled that the matter upon which discovery is sought
must either itself be "admissible
in evidence" or it
must "appearreasonably calculated
to lead to the discovery of admissible evidence." (See Code Civ. Proc.
10
§ 2017(a); Calcor, Cal.App.4th at 222.) Here, Defendant seeks Plaintiff's confidential and sensitive
11
financial information that are clearly beyond the scope of permissible discovery, without even providing
12
propernotice. (Code Civ. Proc. §§ 1985.3, 1985.6). Plaintiff is troubled by Defendant's improper actions
13
and inability to pursue this litigation within the procedural framework set forth in the applicable rules
14
and statues. Beyond this speculation
by Plaintiff, there is still no legitimate dispute that the subpoena is
15
unreasonably overbroad and improper.
16
Cc A PROTECTIVE ORDER IS NECESSARY IF THE SUBPOENA IS NOT
17 QUASHED IN ITS ENTIRETY
18 Plaintiff respectfully requests that the Court quash the subpoena to V oss because it is fatally flawed.
19 Altematively, if the Court is not inclined
to quash the subpoena
in its entirety, Plaintiff
seeks a protective
20 order to cover
the documents that are in Voss's improper possession, including the opportunity to designate
21 documents both "confidential" and "attomey's eyes only." Plaintiff seeks a protective order that Voss
22
provide all responsive documents to counsel for Plaintiff, so that they may determine
whether any
23
documents may be produced that are not subject to any privacy and/or confidentiality concems. To the
extent Defendant has already received documents from Voss, Plaintiff seeks an order that Defendant
24
surrender
the original and all copies of these documents to Plaintiff and that Defendant treat the documents
25
as strictly confidential, and assure
that they are not used or disclosed
in any othermanner
unless expressly
26
pennitted by Plaintiff
or otherwise ordered by the Court.
27
28
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PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA
In the event that this Court does not quash the subpoena in its entirety, Plaintiff asks the Court
to order that a proposed protective order be filed within fourteen days of the Court's order on this motion
and that any production of records allow sufficient time for Plaintiff to review for privilege and the
application of confidential designations before any documents are provided to Defendant. While
Plaintiff remains steadfast that this is an unfair and improper subpoena, Plaintiff
seeks this altemative
relief in the event any records are permitted to be issued under it.
D. PLAINTIFF SEEKS SANCTIONS AS THIS IS DEFENDANTS’ SECOND
ATTEMPT TO OBTAIN INFORMATION FROM VOSS, RATHER THAN
FROM AHE
Under Code of Civil Procedure§ 1987.2(a), the Court may award sanctions if a motion to quash
10 is opposed "in bad faith or without substantial justification or that one or more of the requirements of the
11 subpoena
was oppressive." (See also Code of Civ. Proc. § 2023.010). Defendant
knew the nature of the
12 material it sought to subpoena when it issued a subpoena for the second time. This second subpoena
13 shows that Defendant has no qualms with abusing the discovery process and taking advantage of a thirc-
14 party's unlawful acts, rather than to direct discovery
to Plaintiff and allow the functioning of appropriate
15 discovery
devices and processes. If Defendant
opposes this motion, it will do so without substantial
16 justification
and in bad faith. This Court is authorized by statute to award reasonable monetary sanctions
17 to Plaintiff
as aresult. Plaintiff respectfully requests that the Court grant sanctions if the motion is opposed.
18 IV. CONCLUSION
19 Based on the foregoing, Plaintiff respectfully requests that the Court grant this motion to quash the
20 subpoena, if it was served, directed
at Voss in its entirety, or altematively, issue a protective order
21 Dated: April 10, 2020 GURNEE MASON RUSHFORD
BONOTTO & FORESTIERE LLP
22
23 By /s/ John T. Madden
Nicholas P. Forestiere
24
John T. Madden
25 Attomeys for Plaintiff/Cross Defendants
AMERICAN HOME ENERGY, INC.,
26 THOMAS ENZENDORFER,
HUMBERTO GARCIA AND
27
JORDAN PETERS
28
[Digital signature providedpursuant to Emergency Local Rule 10.26]
PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA
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NICHOLAS P. FORESTIERE, SB#125118 OHN T. MADDEN, SB#260213 GURNEE MASON RUSHFORD BONOTTO & FORESTIERE LLP ELECTRONICALLY FILED 2240 Douglas Boulevard, Suite 150 Roseville, California 95661 Superior Court of California, Telephone: (916) 797-3100 County of Placer Facsimile: (916) 797-3131 4/10/2020 By: Cristina ‘Vallan-Brown, Deputy Clerk Attomeys for Plaintiff/Cross- Defendants AMERICAN HOME ENERGY, INC., THOMAS ENZENDORFER, HUMBERTO GARCIA. AND JORDAN PETERS SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF PLACER 11 12 AMERICAN HOME ENERGY, INC., a ) Case No. SCV-43523 Delaware corporation, 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 14 Plaintiff, PLAINTIFF’S MOTION TO QUASH Vv. SUBPOENA DIRECTED TO 15 ELIZABETH VOSS, OR PLATINUM SALES GROUP, LLC, a ALTERNATIVELY FORA 16 Califomia limited liability coi dba PROTECTIVE ORDER SUNSTOR SOLAR ELECTRIC, and DOES 1 ) 17 through 10, inclusive, Date: Al 7, 2020 Time: 8:30am. 18 Defendants. Dept: 31 ) 19 ) Complaint filed: 4/30/2019 20 AND RELATED CROSS ACTIONS ) 21 I INTRODUCTION 22 On or about March 16, 2020, Defendant Platinum Sales Group, LLC (“Defendant” or 23 “SunStor”) provided counsel for Plaintiff American Home Energy, Inc. (“Plaintiff’ or “AHE”) witha 24 notice of intent to serve a subpoena for production of business records to third-party Elizabeth Voss 25 (‘Voss”), the prior financial Controller at AHE who was fired from AHE for theft. Defendant 26 previously served a strikingly similar subpoena on Ms. Voss on September 10, 2019. AHE 27 successfully quashed Defendant's prior subpoena to Voss on November 8, 2019. 28 1 PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA Notwithstanding this fact, Defendant again attempts to subpoena documents from Voss, documents that Voss stole from AHE and that encompass matters far beyond the scope of this litigation. Ms. Voss has no legal or contractual right to possess any property of AHE, including but not limited to the sensitive financial information that Ms. Voss has wrongfully retained. For the reasons presented, Plaintiff respectfully requests that this Court quash the subpoena in its entirely, or, altematively, issue a strict protective order pursuant to Code of Civil Procedure section 1987.1. Il. STATEMENT OF FACTS Voss is Plaintiff's former employee and was the company’s controller. (See Declaration of Jordan Peters (“Peters Dec.”), (2, filed concurrently herewith.) Plaintiff tenminated Voss on August 19, 10 2019 due to Voss’s unauthorized usage of her company credit card for personal spending. (Peters Dec. 11 §8-5.) Upon finding unauthorized personal charges, Plaintiff investigated further and found a series of 12 personal charges to the company credit card spanning from May through August 2019. (Id.) Part of 13 Voss’s job responsibility as the company controller was to oversee the reconciliation of all company 14 credit cards on a monthly basis. (Id.) Voss herself had drafted policies for AHE goveming company 15 credit card use. AHE trusted Voss and she had unfettered access to all company financial documents 16 and to confidential employee information. (Id. {6-7.) 17 As part of her hiring, Voss signed a Confidentiality Policy on March 4, 2019 and a Proprietary 18 Information Policy on April 25, 2019, acknowledging that as controller she would be privy to 19 confidential and sensitive information. (Id. (111-14, Exhibit B.) In both these policies, Voss agreed that 20 upon her separation fromA HE all proprietary and confidential information would be retumed to Plaintiff. 21 (Id.) However, in violation of these policies, Voss did not retum—at a minimum—an extemal hard drive 22 which contained confidential and sensitive historical financial data, client, and employee information. 23 (Id.) There are likely other documents that Voss has in her possession and control that belong to Plaintiff 24 and that are thus are subject to the same restrictions. 25 On August 20, 2019, one day after her termination, Plaintiff sent a correspondence to Voss 26 demanding, among other things, the retum of the extemal hard drive mentioned above. (Id. 111, 27 Exhibit B) Subsequently, Voss confirmed in text messages that she had the hard drive and would mail 28 it to AHE. (Id. (110, Exhibit A.) To date, Voss has failed to retum AHE’s corporate property. (Id.) When 2 PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA Voss failed to cooperate, Plaintiff was forced to file an action in Sacramento County Superior Court seeking the retum of all documents, of the hard drive, payment of the monies Voss misappropriated, the retum of her office key, and payment of other damages that AHE has sustained due to Ms. Voss’ theft. (Id., 1113, Exhibit C.) That action is currently pending, and on April 9, 2020, AHE submitted a Request for Entry of Default against Defendant Voss. (See Declaration of John T. Madden, “Madden Decl.” filed concurrently herewith {| 4.) Defendant's second subpoena continues to be procedurally improper, beyond the scope of reasonable discovery, and is intended to harass and prejudice Plaintiff. Ill. LEGAL ARGUMENT Pursuant to Code of Civil Procedure section 1987.1, the Court upon motion reasonably made by a 10 party, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it 11 upon those tems or conditions as the court shall declare, including protective orders. In addition, the 12 court may make any other order as may be appropriate to protect the person from unreasonable or 13 oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. 14 Proc. § 1987.1(a).) A party may make the motion pursuant to Code of Civil Procedure section 1987.1(b). 15 A THE SUBPOENA SEEKS MATERIAL THAT DEFENDANT KNOWS WAS IMPROPERLY RETAINED BY A FORMER AHE EMPLOYEE 16 Defendant’s counsel was previously informed on or about September 10, 2019, that Voss had 17 stolen sensitive AHE property. (Peters’ Decl. at {[16.) Defendant nonetheless issued a subpoena for these 18 documents. On September 26, 2019, AHE filed a motion to quash as to the subpoena to Voss. On 19 November8, 2019, this Court granted AHE’s motion to quash. 20 Defendant’ s current subpoena seeks financial documents that Voss used in the course and scope 21 of herjob duties at AHE as its Controller. (Peters’ Decl. 17.) (A true and comect copy of the subpoena 22 and its related documents is attached to the Madden Decl. as Exhibit 1.) Voss is in possession of such 23 confidential documents only due to the fact that she retained confidential financial data as well as an 24 extemal hard drive with AHE’s sensitive and confidential financial, client and employee data when she 25 ‘was tenminated by AHE. (Peters Dec., {| 14). On November 28, 2019, Plaintiff filed a superior court 26 action against Voss to retrieve the hard drive and the key to its building, as well as to seek reimbursement 27 for unauthorized credit card charges that Voss had made to her corporate credit card for personal purposes. 28 (Id. 13, ExhibitC thereto.) The majority of the documents retained by Voss as well as the hard drive’s 3 PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA suspected content would be responsive to Defendant’s overly broad requests in the subpoena, and its provision would result in the improper disclosure of Plaintiffs confidential and sensitive financial property, The Court should not reward a former employee who steals commercially and financially sensitive property from her former employer and then seeks to provide that data to an adversarial party under the guise of a “legitimate” subpoena. Defendant knows that its proper course of action is to issue w1itten discovery to Plaintiff, but Defendant continues to refuse to use legitimate avenues of discovery that would be directed to the rightful owner of the stolen property, namely AHE. Further, it is well settled that AHE has the right to keep its own documents until met with proper discovery requests. (See Pillsbury, Madison Sutro v. Schectman, 55 Cal.App.4th 1279, 1284 (Cal. Ct. App. 1997), quoting Conn 10 v. Superior Court, (1987) 196 Cal.App.3d 774, 779.) 11 Defendant previously already tried, and failed, to obtain AHE’s confidential financial documents 12 from Voss via the September 2019 subpoena. The only difference in the current subpoena, as compared 13 with the prior quashed subpoena, is that the new subpoena requests the confidential information that 14 allegedly supports the claims Voss makes in an August 29, 2019 declaration, which was attached as 15 Exhibit 8 to Defendant’ s the Second Amended Complaint filed in this action (“Declaration”). Although 16 the current subpoena does not request every document that Voss has in her possession, it is still aimed at 17 commercially and financial sensitive documents that AHE, as the owner, has a right and duty to protect. 18 Moreover, the subpoena is aimed at obtaining documents that Voss has in her possession only due to the 19 nature of the position that she had held at AHE. (Peters Decl. at {117.) 20 B. THE SUBPOENA SEEKS INFORMATION RELATING TO THE FRAUD CLAIMS DEFENDANT ALLEGES THE SECOND AMENDED CROSS 21 COMPLAINT WHICH WILL, AGAIN, BE SUBJECT TO AHE’S DEMURRER 22 Assetforthabove, Defendant’ s subpoena requests documents that allegedly support the allegations 23 in Voss’ Declaration, which is apparently the basis of Defendant’ s fraud claims against AHE and several 24 individuals. Once the Courts resume regular operations, AHE will file a demumreragain challenging these 25 fraud claims as Defendant continues to allege its claims for fraud without the required factual specificity. 26 (Madden Decl. at 915.) If AHE is again successful against Defendant's third attempt to plead fraud, Ms. 27 Voss’s Declaration will have no function in the currentaction, and it will be wholly irrelevant to the breach 28 of contract action between the Parties. 4 PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA 1 Additionally, the subpoena is oppressive and unduly burdensome, a misuse of the discovery process, and served primarily for the purpose of harassing Plaintiff. There is no reason that Defendant needs or is entitled to documents that were misappropriated by Plaintiff's fonmer controller in derogation of heragreements with Plaintiff and in violation of the law. Defendant has a clear path to seek documents it, properly seeking from Plaintiff as opposed to seeking to take aclvantage of a rogue former employee with stolen information. There is no good cause for production of the documents and matters sought and the documents and information sought are irrelevant and immaterial to the issues presently before the Court. It is well- settled that the matter upon which discovery is sought must either itself be "admissible in evidence" or it must "appearreasonably calculated to lead to the discovery of admissible evidence." (See Code Civ. Proc. 10 § 2017(a); Calcor, Cal.App.4th at 222.) Here, Defendant seeks Plaintiff's confidential and sensitive 11 financial information that are clearly beyond the scope of permissible discovery, without even providing 12 propernotice. (Code Civ. Proc. §§ 1985.3, 1985.6). Plaintiff is troubled by Defendant's improper actions 13 and inability to pursue this litigation within the procedural framework set forth in the applicable rules 14 and statues. Beyond this speculation by Plaintiff, there is still no legitimate dispute that the subpoena is 15 unreasonably overbroad and improper. 16 Cc A PROTECTIVE ORDER IS NECESSARY IF THE SUBPOENA IS NOT 17 QUASHED IN ITS ENTIRETY 18 Plaintiff respectfully requests that the Court quash the subpoena to V oss because it is fatally flawed. 19 Altematively, if the Court is not inclined to quash the subpoena in its entirety, Plaintiff seeks a protective 20 order to cover the documents that are in Voss's improper possession, including the opportunity to designate 21 documents both "confidential" and "attomey's eyes only." Plaintiff seeks a protective order that Voss 22 provide all responsive documents to counsel for Plaintiff, so that they may determine whether any 23 documents may be produced that are not subject to any privacy and/or confidentiality concems. To the extent Defendant has already received documents from Voss, Plaintiff seeks an order that Defendant 24 surrender the original and all copies of these documents to Plaintiff and that Defendant treat the documents 25 as strictly confidential, and assure that they are not used or disclosed in any othermanner unless expressly 26 pennitted by Plaintiff or otherwise ordered by the Court. 27 28 5 PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA In the event that this Court does not quash the subpoena in its entirety, Plaintiff asks the Court to order that a proposed protective order be filed within fourteen days of the Court's order on this motion and that any production of records allow sufficient time for Plaintiff to review for privilege and the application of confidential designations before any documents are provided to Defendant. While Plaintiff remains steadfast that this is an unfair and improper subpoena, Plaintiff seeks this altemative relief in the event any records are permitted to be issued under it. D. PLAINTIFF SEEKS SANCTIONS AS THIS IS DEFENDANTS’ SECOND ATTEMPT TO OBTAIN INFORMATION FROM VOSS, RATHER THAN FROM AHE Under Code of Civil Procedure§ 1987.2(a), the Court may award sanctions if a motion to quash 10 is opposed "in bad faith or without substantial justification or that one or more of the requirements of the 11 subpoena was oppressive." (See also Code of Civ. Proc. § 2023.010). Defendant knew the nature of the 12 material it sought to subpoena when it issued a subpoena for the second time. This second subpoena 13 shows that Defendant has no qualms with abusing the discovery process and taking advantage of a thirc- 14 party's unlawful acts, rather than to direct discovery to Plaintiff and allow the functioning of appropriate 15 discovery devices and processes. If Defendant opposes this motion, it will do so without substantial 16 justification and in bad faith. This Court is authorized by statute to award reasonable monetary sanctions 17 to Plaintiff as aresult. Plaintiff respectfully requests that the Court grant sanctions if the motion is opposed. 18 IV. CONCLUSION 19 Based on the foregoing, Plaintiff respectfully requests that the Court grant this motion to quash the 20 subpoena, if it was served, directed at Voss in its entirety, or altematively, issue a protective order 21 Dated: April 10, 2020 GURNEE MASON RUSHFORD BONOTTO & FORESTIERE LLP 22 23 By /s/ John T. Madden Nicholas P. Forestiere 24 John T. Madden 25 Attomeys for Plaintiff/Cross Defendants AMERICAN HOME ENERGY, INC., 26 THOMAS ENZENDORFER, HUMBERTO GARCIA AND 27 JORDAN PETERS 28 [Digital signature providedpursuant to Emergency Local Rule 10.26] PLAINTIFF’S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA