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12:36 4154642812 BUELL BERNER PAGE 4?
12/17/2803
FILED BY FAX
E. Rick Buell, II (SBN 63924) ALAMEDA COUNTY
LAW OFFICES OFE. RICK BUELL, II
700 Larkspur Landing Circle, Suite 175 December 17, 2002
ood
Larkspur CA 94939 OF
Tel: (415) 464-2011 THE SUPERIOR COU RT
Fax: (415) 464-2012 By Rosanne Case, De# putty
email: rbuell@pbuell-law.
mail: zou aw. CASE NUN BER:
Attorneys for Plaintiff RGO3106646
GWEN R. SYKES
eo;
SUPERIOR COURT OF THE STATE OF CALIFORNIA
i
COUNTY OF ALAMEDA
oe
GWEN R. SYKES et Case No. RG03106646
UC
et
Plaintiff, MEMORANDUM OF POINTS AND
eat
AUTHORITIES IN SUPPORT OF
UlU
vs.
PLAINTIFF'S MOTION TO QUASH
DOUGLAS SYKES et.al. SUBPOENA [WELLS FARGO BANK]
el
UL
et
Defendant. Date: January 26, 2004
OULU
ol
Time: 2:00 p.m.
ee
Dept:: 31
Reservation No.: 324133
Trial Date: October 1, 2004
HOR
I. FACTUAL STATEMENT
me
Plaintiff has filed a Marvin action against defendant seeking damages for defendant’s
CO
breach of an oral contract by which defendant promised to plaintiff: (1) a 50% interest in that
SCS
single family residence located at 275 Alvarado Street, Berkeley, CA and (2) to support her for
NF
the remainder of her life, including medical care. In addition, the complaint seeks damages for
assault and battery as a result of defendant having infected plaintiff with various sexually
ee
YP
transmitted diseases (“STD”).
BF
As part of the discovery in this action, defendant has served a business records subpoena
tr
on the Custodian of Records, Wells Fargo Bank seeking all of plaintiff's banking records,
A
ee
including monthly statements, cancelled checks and loan applications in various accounts in her
“SN
Le
name at Wells Fargo Bank since 1991. Plaintiff objects to the production of these documents on
co
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFF'S MOTION TO QUASH SUBPOENA
[WELLS FARGO BANK]
12:36 4154642812 BUELL BERNER PAGE 48
12/17/2803
the basis that such subpoena invades plaintiff's right to privacy as guaranteed by Article 1,
Section | of the Califormia Constitution,
Ww
II. LEGAL ARGUMENT
WwW
A. Motion To Quash Permitted By CCP §1987.1. CCP §1987.1 provides in relevant
BRB
part:
LA
When a subpoena requires the attendance of a witness or the
To
production of ...documents... the court, upon
motion reasonably
made by the party, the witness ...may make an order quashing the
“sD
subpoena entirely, modifying it,or directing compliance with it
upon such terms or conditions as the court shall declare.
Cc
Consequently, plaintiff has standing to bring thismotion,
wo
B. Motion To Quash Should Be Granted Because Documents Sought Are Protected
il By Plaintiff's Right To Privacy. Every California citizen has a constitutional right to privacy.
12 Cal. Const., Art. I,§1. This right to privacy extends to financial, including bank, records even
13 when that information isadmittedly relevant to the litigation. See Weil and Brown, Civil
14 Procedure Before Trial at.$8:303. Once the right to privacy attaches to plaintiff's bank records,
15 the court must apply a two step analysis to determine whether documents must be produced.
16 1. The First Test. When the tight to privacy is involved, the party seeking
7 discovery initially must show a particular need for the confidential information sought. The
18 broad “relevancy to the subject matter” standard is not enough, The court must be convinced that
19 the information is directly relevant to a cause of action or defense, i.e.,that it isessential to
20 determine the truth of the matters in dispute, Weil and Brown at 8:320; Mendez v. Superior
21 Court, (1988) 206 Cal. App.3d 557, Moreover, discovery will not be ordered if the information
22 sought is available from other sources. Weil and Brown, $8:321
23 2. The Second Test. Once the court determines that a party seeking discovery
24 has met itsburden under the firsttest, the court must then “carefully balance” the interests
25 involved, i.e, the claimed right of privacy versus the public interest in obtaining just results in
26 litigation. Valley Bank y. Superior Court (1975) 15 Cal.3d 652, 657. The more sensitive the
27 information, the greater the need for discovery that must be shown. Hoffinan Corp. v. Superior
28 Court (1985) 172 Cal.App.3d 357. See Weil and Brown at9]8:323 and 324.
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFF'S MOTION TO QUASH SUBPOENA
[WELL& FARGO BANK]
12/17/2883 12:36 4154642812 BUELL BERNER PAGE 49
Defendant simply cannot satisfy his burden under either the first or second test, This
action involves plaintiff's complaint for: (1) breach of a Marvin agreement’s promises to a 50%
ha
interest in Alvarado and future support and (2) assault and battery for the infection of plaintiff
WwW
with sexually transmitted diseases, Plaintiffs bank records are not even remotely, and certainly
F&F
not directly, relevant to the issues involved inthis action, i¢., did plaintiff and defendant enter
wm
into a Marvin agreement and did defendant transmit STD to plaintiff. Nor are such documents
essential to determine the truth of the matters at issue in this action. Defendant fails the first test.
sb
Consequently, the court need not even reach the second test of balancing plaintiff's right
co
of privacy against the public interest in obtaining just results in litigation. However, even if this
Oo
test were applied, it would weigh in favor of non disclosure. Again, these are financial records
11 entitled to a great degree of protection from disclosure. Because the documents sought do not go
12 to the graverman of the complaint, they will not shed any light on the issues involved in the
13 litigation. Thus, there isno need for disclosure to protect the public interest in obtaining just
14 results in litigation.
15 IH. CONCLUSION
16 Plaintiff respectfully request that the court order the subpoena quashed.
17
18 DATED: December 16, 2003 LAW OFFICES OF E. RICK BUELL, II
19
20
21
22
Hibiaclly
Attorneys
E. Rick
For
Buell,
Plaintiff
II
GWEN R. SYKES
23
24
25
26
27
28
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFF'S MOTION TO QUASH SUBPOENA
[WELLS FARGO BANK]
Preview
12:36 4154642812 BUELL BERNER PAGE 4? 12/17/2803 FILED BY FAX E. Rick Buell, II (SBN 63924) ALAMEDA COUNTY LAW OFFICES OFE. RICK BUELL, II 700 Larkspur Landing Circle, Suite 175 December 17, 2002 ood Larkspur CA 94939 OF Tel: (415) 464-2011 THE SUPERIOR COU RT Fax: (415) 464-2012 By Rosanne Case, De# putty email: rbuell@pbuell-law. mail: zou aw. CASE NUN BER: Attorneys for Plaintiff RGO3106646 GWEN R. SYKES eo; SUPERIOR COURT OF THE STATE OF CALIFORNIA i COUNTY OF ALAMEDA oe GWEN R. SYKES et Case No. RG03106646 UC et Plaintiff, MEMORANDUM OF POINTS AND eat AUTHORITIES IN SUPPORT OF UlU vs. PLAINTIFF'S MOTION TO QUASH DOUGLAS SYKES et.al. SUBPOENA [WELLS FARGO BANK] el UL et Defendant. Date: January 26, 2004 OULU ol Time: 2:00 p.m. ee Dept:: 31 Reservation No.: 324133 Trial Date: October 1, 2004 HOR I. FACTUAL STATEMENT me Plaintiff has filed a Marvin action against defendant seeking damages for defendant’s CO breach of an oral contract by which defendant promised to plaintiff: (1) a 50% interest in that SCS single family residence located at 275 Alvarado Street, Berkeley, CA and (2) to support her for NF the remainder of her life, including medical care. In addition, the complaint seeks damages for assault and battery as a result of defendant having infected plaintiff with various sexually ee YP transmitted diseases (“STD”). BF As part of the discovery in this action, defendant has served a business records subpoena tr on the Custodian of Records, Wells Fargo Bank seeking all of plaintiff's banking records, A ee including monthly statements, cancelled checks and loan applications in various accounts in her “SN Le name at Wells Fargo Bank since 1991. Plaintiff objects to the production of these documents on co MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO QUASH SUBPOENA [WELLS FARGO BANK] 12:36 4154642812 BUELL BERNER PAGE 48 12/17/2803 the basis that such subpoena invades plaintiff's right to privacy as guaranteed by Article 1, Section | of the Califormia Constitution, Ww II. LEGAL ARGUMENT WwW A. Motion To Quash Permitted By CCP §1987.1. CCP §1987.1 provides in relevant BRB part: LA When a subpoena requires the attendance of a witness or the To production of ...documents... the court, upon motion reasonably made by the party, the witness ...may make an order quashing the “sD subpoena entirely, modifying it,or directing compliance with it upon such terms or conditions as the court shall declare. Cc Consequently, plaintiff has standing to bring thismotion, wo B. Motion To Quash Should Be Granted Because Documents Sought Are Protected il By Plaintiff's Right To Privacy. Every California citizen has a constitutional right to privacy. 12 Cal. Const., Art. I,§1. This right to privacy extends to financial, including bank, records even 13 when that information isadmittedly relevant to the litigation. See Weil and Brown, Civil 14 Procedure Before Trial at.$8:303. Once the right to privacy attaches to plaintiff's bank records, 15 the court must apply a two step analysis to determine whether documents must be produced. 16 1. The First Test. When the tight to privacy is involved, the party seeking 7 discovery initially must show a particular need for the confidential information sought. The 18 broad “relevancy to the subject matter” standard is not enough, The court must be convinced that 19 the information is directly relevant to a cause of action or defense, i.e.,that it isessential to 20 determine the truth of the matters in dispute, Weil and Brown at 8:320; Mendez v. Superior 21 Court, (1988) 206 Cal. App.3d 557, Moreover, discovery will not be ordered if the information 22 sought is available from other sources. Weil and Brown, $8:321 23 2. The Second Test. Once the court determines that a party seeking discovery 24 has met itsburden under the firsttest, the court must then “carefully balance” the interests 25 involved, i.e, the claimed right of privacy versus the public interest in obtaining just results in 26 litigation. Valley Bank y. Superior Court (1975) 15 Cal.3d 652, 657. The more sensitive the 27 information, the greater the need for discovery that must be shown. Hoffinan Corp. v. Superior 28 Court (1985) 172 Cal.App.3d 357. See Weil and Brown at9]8:323 and 324. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO QUASH SUBPOENA [WELL& FARGO BANK] 12/17/2883 12:36 4154642812 BUELL BERNER PAGE 49 Defendant simply cannot satisfy his burden under either the first or second test, This action involves plaintiff's complaint for: (1) breach of a Marvin agreement’s promises to a 50% ha interest in Alvarado and future support and (2) assault and battery for the infection of plaintiff WwW with sexually transmitted diseases, Plaintiffs bank records are not even remotely, and certainly F&F not directly, relevant to the issues involved inthis action, i¢., did plaintiff and defendant enter wm into a Marvin agreement and did defendant transmit STD to plaintiff. Nor are such documents essential to determine the truth of the matters at issue in this action. Defendant fails the first test. sb Consequently, the court need not even reach the second test of balancing plaintiff's right co of privacy against the public interest in obtaining just results in litigation. However, even if this Oo test were applied, it would weigh in favor of non disclosure. Again, these are financial records 11 entitled to a great degree of protection from disclosure. Because the documents sought do not go 12 to the graverman of the complaint, they will not shed any light on the issues involved in the 13 litigation. Thus, there isno need for disclosure to protect the public interest in obtaining just 14 results in litigation. 15 IH. CONCLUSION 16 Plaintiff respectfully request that the court order the subpoena quashed. 17 18 DATED: December 16, 2003 LAW OFFICES OF E. RICK BUELL, II 19 20 21 22 Hibiaclly Attorneys E. Rick For Buell, Plaintiff II GWEN R. SYKES 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO QUASH SUBPOENA [WELLS FARGO BANK]