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A Professional Corporation
499 Fourteenth Street, Suite 210 F j L Ee
Oakland, California 94612 AMEDA Count v
Telephone 510-835-5582 IAN 16 200
“ 4
Attorney for Douglas G. Sykes CLERK OF fHE _
Of ons coum
DH
JD
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
CO
IN AND FOR THE COUNTY OF ALAMEDA
Oo
10
GWEN R. SYKES, Case No. RG03106646
11
Plaintiff, MEMORANDUM OF POINTS AND
12 AUTHORITIES IN OPPOSITION TO
v. MOTION TO QUASH
13
DOUGLAS SYKES, an individual, DOES 1 Date: — January 26, 2004
14 through 20, inclusive, Time: 2:00 p.m.
Dept: 31
15 Defendants
Trial Date: October 1,2004
16
17
18 The legal issue in connection with this motion is not in dispute. The law is clear that
19 individuals enjoy a right of privacy in their financial affairs. But the law is equally clear that
20 “TT he constitutional right of privacy is not absolute; itmay be abridged to accommodate a
21 compelling public interest. (Citations omitted.) One such interest, evidenced by California’s
22 broad discovery statutes, is ‘’the historically important state interest of facilitating the
23 ascertainment of truth in connection with legal proceedings.” (Moskowitz v.Superior Court
339
24 (1982) 137 Cal.App.3d 313, 316, quoting from Britt vy.Superior Court (1978) 20 Cal.3d 844, 857.
25 The information sought by these subpoenas is directly relevant to the issues in this
26 litigation and directly relates to matters which have been tendered in issue by Ms. Sykes.' No
27
28 "In thisbrief,for ease ofreference, theparties arereferred to as“Gwen” and “Doug.” No disrespectto eitherparty is
intended by the use of theirfirst
names.
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STEVEN
B. PISER
MEMO IN OPPOSITION TO MOTION TO QUASH
A
other means exists for defendant to obtain this information; denial of discovery would result in
WN injustice and deny defendant his due process rights.
Any claim of privacy is bogus. According to Gwen, during her twelve-plus year
WwW
relationship with Doug, she relied on him for all financial matters and “I consulted him on
&
everything. I can’t think of a thing Ididn’t consult him on,” whether it was taxes or buying
nA
clothes. (Deposition of Gwen Sykes [“Sykes Depo.”] 653:21-655-5.)’ In her deposition, Gwen
DN
explained her lack of knowledge regarding her own financial affairs: “I have always consulted
NS
with him and he managed all of my property and assets.” (Sykes Depo. 658:8-14.)
CO
I. THE COMPLAINT
oOo
10 While characterized as a “Marvin” action, this lawsuit has three components. First, there
11 is a claim for breach of contract (both oral and implied [first and second causes of action])
12 whereby defendant allegedly agreed that he would “support plaintiff, pay for her medical needs,
13 provide financial security ...and provide her with a co-ownership interest in the home.” Plaintiff
14 also seeks to impose a constructive trust with regard to the Berkeley home (third cause of action)
15 and claims of fraud (fourth cause of action). She has also sued for personal injuries, claiming that
16 thirteen years ago she got herpes from Doug (5", 6" & 7" causes of action). The discovery
17 sought by this motion is directly relevant to the contract and house claims.
18 Among other things, plaintiff alleges that she and defendant began “‘co-habiting on a part-
19 time basis” sometime shortly after their relationship began in the spring of 1991 (complaint { 5)
20 and that “while they lived together” defendant supported plaintiff.” (Complaint { 20 p. 5:9-10.)
21 Plaintiff also claims that she is entitled to a 50 percent ownership interest in defendant’s
22 home at 275 Alvarado, Berkeley, to which defendant has exclusive title. (Complaint § 26, p.
23 6:10-12.)
24 Defendant denies the existence of any agreement to support plaintiff, denies that he
25 provided plaintiff with financial support as she claims, and denies the existence of any agreement,
26 express or implied, to provide plaintiff with any interest in his home. Defendant also asserts that
27
28 *The deposition excerpts are attached asExhibit “A” tothe Declaration of Steven B.Piser in opposition tomotion to
quash which isfiled herewith.
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STEVEN
B. PISER
MEMO IN OPPOSITION TO MOTION TO QUASH
a prenuptial agreement, which was executed on October 18, 2000, before their marriage, bars
plaintiff's claims.’
Gwen has a doctorate in public health and is the President of Bay Area Consortium for
Quality Health Care, Inc., a non-profit community-based health/social services agency. Doug is a
retired attorney.
Il. DISCOVERY SOUGHT BY THE SUBPOENA
The question presented by this motion iswhether or not the information sought, bank
records and credit applications relating to Gwen Sykes at Wells Fargo Bank, are necessary to the
fair determination of this lawsuit.
10 The subpoena seeks two categories of documents:
11 1. Monthly statements from 1991 to the present and cancelled checks from 1999 to
12 | the present for certain specified accounts of Gwen Sykes; and
13 2. Credit applications completed by Gwen Sykes
14 A. Wells Fargo Checking Account Records
15 1. Bank Account Statements
16 In order to establish an implied contract between non-married co-habitants, the behavior of
17 the parties during their relationship is a significant element of proof. Thus, a pattern of financial
18 support, pooling of finances, joint decision making, joint credit, titleto property are elements to
19 be considered in actions based upon a breach of an implied contract, and are issues in this action.
20 (Alderson vy.Alderson (1986) 180 Cal.App.3d 450, 461.)
21 To demonstrate her claim of a pattern of support, Gwen Sykes has testified that Doug
22 began giving her cash in July 1991. (Sykes Depo. 70:11-19.) These cash payments were given to
23 her on a “monthly basis” (Sykes Depo. 70:20-23) and amounted to several thousand dollars and
24 were never interrupted for more than 90 days (Sykes Depo. 71:23-72:22) including a large cash
25
>Some procedural background may be of assistanceto theCourt. The parties married on August 15, 2001 after
26 execution of a prenuptial agreement inOctober 2000. In2002, Doug fileda petitionfor dissolutionof the marriage
(action number 850186-2). The marriage was dissolved inDecember 2003. This action was filed on July 15,2003.
27 Prior todefendant’s knowledge thatthe action was filed,on July 16, 2003, defendant fileda declaratoryreliefaction
seeking a determination that the prenuptialagreement executed by the partiesbars plaintiffsclaims. Judge Kraetzer
28 sustained, without leave toamend (based on CCP 1061), Gwen’s demurrer to the declaratoryreliefaction, finding
thatthis actionprovided a vehicle fordetermination of the validityof theprenuptial agreement.
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STEVEN
B. PISER
MEMO IN OPPOSITION TO MOTION TO QUASH
payment of $15,000 (Sykes Depo. 144:16-24). Cash would be deposited into her account at
Wells Fargo (Sykes Depo. 69:16-70:6). Gwen’s banking relationship was at Wells Fargo Bank
(Sykes Depo. 570:18-19).
WwW
Other than the bank records, Gwen knows of no other source where the information with
eR
regard to the cash payments from Doug would exist. She believes bank account records would,
MN
however, reflect the deposits (Sykes Depo. 160:1-161:9).
NWN
No such documents were provided in discovery, despite having been requested. (See
I
Steven B. Piser declaration.)
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Gwen also claims that she provided Doug with $7,000 in cash which she got from her
Oo
10 Wells Fargo account sometime in 1999 or 2000 (Sykes Depo. 584-585). Doug denies any such
11 payments.
12 Doug denies the existence of any large cash payments to Gwen and denies the existence of
13 financial support provided to Gwen at any time prior to their marriage. Starting in approximately
14 1994, Doug made regular interest payments to Gwen on promissory notes which were secured by
15 deeds of trust. However, those payments were by check and are easily traced.
16 The Wells Fargo checking account statements and deposit slips would disclose the
17 existence of any cash deposits, as testified to by Gwen. It isthe only documentary evidence in
18 existence to prove or disprove an essential element of plaintiff's Marvin claim; that there was
19 cash support from the time she claims to have co-habited with Doug.*
20 2. Cancelled checks from 1999-2003.
21 Gwen has testified that she paid many expenses associated with the construction of the
22 Berkeley home and its maintenance (Sykes Depo. 587:25-589:20). However, she has not
23 produced any cancelled checks reflecting such payments, nor do her check registers reflect any
24 such payments. None were produced in discovery. The cancelled checks would demonstrate the
25 existence or non-existence of such payments and are directly relevant to Gwen’s claim of
26
27 *Doug denies any co-habitation. Indeed, Gwen testified
that she stayed with Doug on a “part-time” basisuntilthey
were actuallymarried inAugust 2001. There is no evidence of any intenton her part tomake any ofDoug’s homes
28 her primary residence. She testifiedthatthe residence thatshe lived in,her parents’,was aprimary residence. Ms.
Sykes has two primary residences apparently.
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STEVEN
8. PISER
MEMO IN OPPOSITION TO MOTION TO QUASH
a
residence.
The cancelled checks are also relevant to the issue of the prenuptial agreement. The
prenuptial agreement recites that Gwen’s liability for household expenses “shall be a maximum of
$500 per month.” See prenuptial agreement { 10, p. 6. The cancelled checks would reflect
whether or not Ms. Sykes performed in accordance with the prenuptial agreement.
Cancelled checks are also germane to the issue as to the alleged scope of the alleged
sD
support provided by defendant. Defendant denies paying for any of plaintiff's expenses or
supporting her at any time before marriage. Disclosure of the cancelled checks would reflect
oe)
what expenses Ms. Sykes paid out of her own substantial earnings as the president/director of a
10 large non-profit organization.
11 B. Financial Statement/Loan Application
12 Title to the Berkeley home is in Doug alone. Under Evidence Code section 662, “{t]he
13 owner of the legal title to property is presumed to be the owner of the full beneficial title. This
14 presumption may be rebutted only by clear and convincing proof.” This rule applies to Marvin
15 claims. Tannehill v. Finch (1986) 188 Cal.App.3d 224, 228.
16 According to Gwen’s complaint, her agreement with Doug with regard to the Berkeley
17 home was reached in 1994 ({ 8) and from that point on Gwen considered herself to be an owner
18 of the Berkeley home. Notwithstanding Gwen’s firm belief that she had an interest in the
19 Berkeley home, residential loan applications that she admits to signing in 2001 (Exhibits B, C &
20 D to Piser Declaration) do not contain any reference to Alvarado as being an asset in which she
21 has any interest.
22 The reason that the financial statements provided to Wells Fargo Bank are germane is
23 because Ms. Sykes testified that she provided a written asset and liability statement to Wells
24 Fargo Bank which showed Alvarado as an asset. This statement was prepared for Wells Fargo
25 Bank (Sykes 278:6-279: 10). She recalls preparing the financial statement atthe Piedmont branch
26 of the Bank (Sykes 283:21-284:16), that the financial statement was filled out by her (Sykes
27 Depo. 332:4-6), and that she signed an application for a line of credit atWells Fargo Bank and on
28 that application she identified the value of Alvarado as being in the range of $1.4-$1.6 million
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STEVEN
8. PISER
MEMO INOPPOSITION TO MOTION TO QUASH
(Sykes Depo. 596:17-25). The Wells Fargo financial statement is the only financial statement
that has Alvarado listed on itas being an asset.
Plaintiff's claim of privacy regarding these documents is in bad faith and specious.
According to Gwen, the last time she saw loan applications listing her as an owner of Alvarado
was when she provided them to Doug for “tax purposes.” (Sykes Depo. 280:6-14.)
C. The Need for Discovery Outweighs Any Privacy Claim.
Discovery of these financial statements is appropriate. Moreover, to the extent that Gwen
claims that they contain private financial information, she cannot argue that that information
should be kept secret from Doug, as ithas been her claim throughout this lawsuit that Doug acted
10 as her financial advisor, knew everything about her private financial affairs, and actually had
11 more knowledge about her financial situation than did she (Sykes Depo. 191:7-192:18.).
12 The information sought by this subpoena is crucial to the resolution of issues in this case.
13 Plaintiff has claimed that defendant provided her with cash support throughout their relationship,
14 which defendant denies. The bank account records are the only records available in order to shed
15 light on this issue. Bank statements and deposit slips would reflect the existence of cash deposits.
16 Cancelled checks from plaintiff's checking account would reflect the existence of
17 payments that she made for items she claimed were purchased for the joint benefit of the parties
18 (which defendant denies) and would also reflect whether or not the parties performed in
19 accordance with the terms and conditions of the prenuptial agreement.
20 No other source exists to obtain that information.
21 Financial statements prepared by Gwen Sykes, which she claims asserted the existence of
22 an interest in real property in which title is held in defendant’s name and his name alone, is one
23 piece of evidence that may tend to demonstrate whether or not in fact such an interest existed,
24 particularly in light of the three financial statements she signed which do not contain any
25 reference to such an interest.
26 Finally, all of the documents sought by the subpoena may be impeachment on matters
27 directly in issue in the case.
28 Defendant has no objection to agreeing to a form of protective order which would provide
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STEVEN
B. PISER
MEMO INOPPOSITION TO MOTION TO QUASH
Y
reasonable limitations on the disclosure of the documents.
WN I. CONCLUSION
Given the facts of this case, and the undisputed deposition testimony of plaintiff, no
WY
reasonable basis exists to prevent defendant from obtaining financial information with regard to
FSF
plaintiff, which financial information plaintiff claims she has already provided to him,
vA
particularly where that financial information is directly relevant to the issues in this case.
DH
Balancing the privacy rights of plaintiff (which defendant contends have been waived) with the
SA
necessity of ascertaining the truth, mandates disclosure.
oe]
Respectfully submitted,
10 Dated:January 16, 2004 LAW OFFI@GES OF STEVEN B. PISER
11 A Professfonal Corporation
12
By: / i
13 Steven B: Piser
Attorney ‘for Defendant
14 Douglas:Sykes
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STEVEN
B. FISER
MEMO INOPPOSITION TO MOTION TO QUASH
Sykes v. Sykes
Alameda County Superior Court Action No. RG03 106840 & RG0O3 106646
PROOF OF SERVICE BY MAIL
I, Carole Aubuchon, declare as follows:
I am employed in Alameda County, California, am over eighteen years of age, and
am not a party to the within action or proceeding. My business address is 499 Fourteenth
Street, Suite 210, Oakland, California 94612.
I served a copy of:
NOTICE OF TAKING DEPOSITION BY, SUBPOENA OF PATRICIA BLYTH
AND REQUEST FOR THE PRODUCTION OF DOCUMENTS AT THE
DEPOSITION; DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE
AND PRODUCTION OF DOCUMENTS
by placing said copies in a sealed envelope addressed as follows:
E. Rick Buell, II
Law Offices of E. Rick Buell, II
700 Larkspur Landing Circle, Suite 175
Larkspur, CA 94939-1754
for next day delivery by Federal Express, fully prepaid, and deposited in a Federal
Express collection facility located atOakland, California. The date of deposit with
Federal Express was January 16, 2004.
I declare under penalty of perjury that the foregoing is true and correct. Executed
January 16, 2004, at Oakland, California.
Carole Aubuchon
Preview
Pe ° om A Professional Corporation 499 Fourteenth Street, Suite 210 F j L Ee Oakland, California 94612 AMEDA Count v Telephone 510-835-5582 IAN 16 200 “ 4 Attorney for Douglas G. Sykes CLERK OF fHE _ Of ons coum DH JD IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA CO IN AND FOR THE COUNTY OF ALAMEDA Oo 10 GWEN R. SYKES, Case No. RG03106646 11 Plaintiff, MEMORANDUM OF POINTS AND 12 AUTHORITIES IN OPPOSITION TO v. MOTION TO QUASH 13 DOUGLAS SYKES, an individual, DOES 1 Date: — January 26, 2004 14 through 20, inclusive, Time: 2:00 p.m. Dept: 31 15 Defendants Trial Date: October 1,2004 16 17 18 The legal issue in connection with this motion is not in dispute. The law is clear that 19 individuals enjoy a right of privacy in their financial affairs. But the law is equally clear that 20 “TT he constitutional right of privacy is not absolute; itmay be abridged to accommodate a 21 compelling public interest. (Citations omitted.) One such interest, evidenced by California’s 22 broad discovery statutes, is ‘’the historically important state interest of facilitating the 23 ascertainment of truth in connection with legal proceedings.” (Moskowitz v.Superior Court 339 24 (1982) 137 Cal.App.3d 313, 316, quoting from Britt vy.Superior Court (1978) 20 Cal.3d 844, 857. 25 The information sought by these subpoenas is directly relevant to the issues in this 26 litigation and directly relates to matters which have been tendered in issue by Ms. Sykes.' No 27 28 "In thisbrief,for ease ofreference, theparties arereferred to as“Gwen” and “Doug.” No disrespectto eitherparty is intended by the use of theirfirst names. LawOffices of 1 STEVEN B. PISER MEMO IN OPPOSITION TO MOTION TO QUASH A other means exists for defendant to obtain this information; denial of discovery would result in WN injustice and deny defendant his due process rights. Any claim of privacy is bogus. According to Gwen, during her twelve-plus year WwW relationship with Doug, she relied on him for all financial matters and “I consulted him on & everything. I can’t think of a thing Ididn’t consult him on,” whether it was taxes or buying nA clothes. (Deposition of Gwen Sykes [“Sykes Depo.”] 653:21-655-5.)’ In her deposition, Gwen DN explained her lack of knowledge regarding her own financial affairs: “I have always consulted NS with him and he managed all of my property and assets.” (Sykes Depo. 658:8-14.) CO I. THE COMPLAINT oOo 10 While characterized as a “Marvin” action, this lawsuit has three components. First, there 11 is a claim for breach of contract (both oral and implied [first and second causes of action]) 12 whereby defendant allegedly agreed that he would “support plaintiff, pay for her medical needs, 13 provide financial security ...and provide her with a co-ownership interest in the home.” Plaintiff 14 also seeks to impose a constructive trust with regard to the Berkeley home (third cause of action) 15 and claims of fraud (fourth cause of action). She has also sued for personal injuries, claiming that 16 thirteen years ago she got herpes from Doug (5", 6" & 7" causes of action). The discovery 17 sought by this motion is directly relevant to the contract and house claims. 18 Among other things, plaintiff alleges that she and defendant began “‘co-habiting on a part- 19 time basis” sometime shortly after their relationship began in the spring of 1991 (complaint { 5) 20 and that “while they lived together” defendant supported plaintiff.” (Complaint { 20 p. 5:9-10.) 21 Plaintiff also claims that she is entitled to a 50 percent ownership interest in defendant’s 22 home at 275 Alvarado, Berkeley, to which defendant has exclusive title. (Complaint § 26, p. 23 6:10-12.) 24 Defendant denies the existence of any agreement to support plaintiff, denies that he 25 provided plaintiff with financial support as she claims, and denies the existence of any agreement, 26 express or implied, to provide plaintiff with any interest in his home. Defendant also asserts that 27 28 *The deposition excerpts are attached asExhibit “A” tothe Declaration of Steven B.Piser in opposition tomotion to quash which isfiled herewith. LawOffices of 2 STEVEN B. PISER MEMO IN OPPOSITION TO MOTION TO QUASH a prenuptial agreement, which was executed on October 18, 2000, before their marriage, bars plaintiff's claims.’ Gwen has a doctorate in public health and is the President of Bay Area Consortium for Quality Health Care, Inc., a non-profit community-based health/social services agency. Doug is a retired attorney. Il. DISCOVERY SOUGHT BY THE SUBPOENA The question presented by this motion iswhether or not the information sought, bank records and credit applications relating to Gwen Sykes at Wells Fargo Bank, are necessary to the fair determination of this lawsuit. 10 The subpoena seeks two categories of documents: 11 1. Monthly statements from 1991 to the present and cancelled checks from 1999 to 12 | the present for certain specified accounts of Gwen Sykes; and 13 2. Credit applications completed by Gwen Sykes 14 A. Wells Fargo Checking Account Records 15 1. Bank Account Statements 16 In order to establish an implied contract between non-married co-habitants, the behavior of 17 the parties during their relationship is a significant element of proof. Thus, a pattern of financial 18 support, pooling of finances, joint decision making, joint credit, titleto property are elements to 19 be considered in actions based upon a breach of an implied contract, and are issues in this action. 20 (Alderson vy.Alderson (1986) 180 Cal.App.3d 450, 461.) 21 To demonstrate her claim of a pattern of support, Gwen Sykes has testified that Doug 22 began giving her cash in July 1991. (Sykes Depo. 70:11-19.) These cash payments were given to 23 her on a “monthly basis” (Sykes Depo. 70:20-23) and amounted to several thousand dollars and 24 were never interrupted for more than 90 days (Sykes Depo. 71:23-72:22) including a large cash 25 >Some procedural background may be of assistanceto theCourt. The parties married on August 15, 2001 after 26 execution of a prenuptial agreement inOctober 2000. In2002, Doug fileda petitionfor dissolutionof the marriage (action number 850186-2). The marriage was dissolved inDecember 2003. This action was filed on July 15,2003. 27 Prior todefendant’s knowledge thatthe action was filed,on July 16, 2003, defendant fileda declaratoryreliefaction seeking a determination that the prenuptialagreement executed by the partiesbars plaintiffsclaims. Judge Kraetzer 28 sustained, without leave toamend (based on CCP 1061), Gwen’s demurrer to the declaratoryreliefaction, finding thatthis actionprovided a vehicle fordetermination of the validityof theprenuptial agreement. LawOffices of 3 STEVEN B. PISER MEMO IN OPPOSITION TO MOTION TO QUASH payment of $15,000 (Sykes Depo. 144:16-24). Cash would be deposited into her account at Wells Fargo (Sykes Depo. 69:16-70:6). Gwen’s banking relationship was at Wells Fargo Bank (Sykes Depo. 570:18-19). WwW Other than the bank records, Gwen knows of no other source where the information with eR regard to the cash payments from Doug would exist. She believes bank account records would, MN however, reflect the deposits (Sykes Depo. 160:1-161:9). NWN No such documents were provided in discovery, despite having been requested. (See I Steven B. Piser declaration.) CO Gwen also claims that she provided Doug with $7,000 in cash which she got from her Oo 10 Wells Fargo account sometime in 1999 or 2000 (Sykes Depo. 584-585). Doug denies any such 11 payments. 12 Doug denies the existence of any large cash payments to Gwen and denies the existence of 13 financial support provided to Gwen at any time prior to their marriage. Starting in approximately 14 1994, Doug made regular interest payments to Gwen on promissory notes which were secured by 15 deeds of trust. However, those payments were by check and are easily traced. 16 The Wells Fargo checking account statements and deposit slips would disclose the 17 existence of any cash deposits, as testified to by Gwen. It isthe only documentary evidence in 18 existence to prove or disprove an essential element of plaintiff's Marvin claim; that there was 19 cash support from the time she claims to have co-habited with Doug.* 20 2. Cancelled checks from 1999-2003. 21 Gwen has testified that she paid many expenses associated with the construction of the 22 Berkeley home and its maintenance (Sykes Depo. 587:25-589:20). However, she has not 23 produced any cancelled checks reflecting such payments, nor do her check registers reflect any 24 such payments. None were produced in discovery. The cancelled checks would demonstrate the 25 existence or non-existence of such payments and are directly relevant to Gwen’s claim of 26 27 *Doug denies any co-habitation. Indeed, Gwen testified that she stayed with Doug on a “part-time” basisuntilthey were actuallymarried inAugust 2001. There is no evidence of any intenton her part tomake any ofDoug’s homes 28 her primary residence. She testifiedthatthe residence thatshe lived in,her parents’,was aprimary residence. Ms. Sykes has two primary residences apparently. LawOffices of 4 STEVEN 8. PISER MEMO IN OPPOSITION TO MOTION TO QUASH a residence. The cancelled checks are also relevant to the issue of the prenuptial agreement. The prenuptial agreement recites that Gwen’s liability for household expenses “shall be a maximum of $500 per month.” See prenuptial agreement { 10, p. 6. The cancelled checks would reflect whether or not Ms. Sykes performed in accordance with the prenuptial agreement. Cancelled checks are also germane to the issue as to the alleged scope of the alleged sD support provided by defendant. Defendant denies paying for any of plaintiff's expenses or supporting her at any time before marriage. Disclosure of the cancelled checks would reflect oe) what expenses Ms. Sykes paid out of her own substantial earnings as the president/director of a 10 large non-profit organization. 11 B. Financial Statement/Loan Application 12 Title to the Berkeley home is in Doug alone. Under Evidence Code section 662, “{t]he 13 owner of the legal title to property is presumed to be the owner of the full beneficial title. This 14 presumption may be rebutted only by clear and convincing proof.” This rule applies to Marvin 15 claims. Tannehill v. Finch (1986) 188 Cal.App.3d 224, 228. 16 According to Gwen’s complaint, her agreement with Doug with regard to the Berkeley 17 home was reached in 1994 ({ 8) and from that point on Gwen considered herself to be an owner 18 of the Berkeley home. Notwithstanding Gwen’s firm belief that she had an interest in the 19 Berkeley home, residential loan applications that she admits to signing in 2001 (Exhibits B, C & 20 D to Piser Declaration) do not contain any reference to Alvarado as being an asset in which she 21 has any interest. 22 The reason that the financial statements provided to Wells Fargo Bank are germane is 23 because Ms. Sykes testified that she provided a written asset and liability statement to Wells 24 Fargo Bank which showed Alvarado as an asset. This statement was prepared for Wells Fargo 25 Bank (Sykes 278:6-279: 10). She recalls preparing the financial statement atthe Piedmont branch 26 of the Bank (Sykes 283:21-284:16), that the financial statement was filled out by her (Sykes 27 Depo. 332:4-6), and that she signed an application for a line of credit atWells Fargo Bank and on 28 that application she identified the value of Alvarado as being in the range of $1.4-$1.6 million LawOffices of 5 STEVEN 8. PISER MEMO INOPPOSITION TO MOTION TO QUASH (Sykes Depo. 596:17-25). The Wells Fargo financial statement is the only financial statement that has Alvarado listed on itas being an asset. Plaintiff's claim of privacy regarding these documents is in bad faith and specious. According to Gwen, the last time she saw loan applications listing her as an owner of Alvarado was when she provided them to Doug for “tax purposes.” (Sykes Depo. 280:6-14.) C. The Need for Discovery Outweighs Any Privacy Claim. Discovery of these financial statements is appropriate. Moreover, to the extent that Gwen claims that they contain private financial information, she cannot argue that that information should be kept secret from Doug, as ithas been her claim throughout this lawsuit that Doug acted 10 as her financial advisor, knew everything about her private financial affairs, and actually had 11 more knowledge about her financial situation than did she (Sykes Depo. 191:7-192:18.). 12 The information sought by this subpoena is crucial to the resolution of issues in this case. 13 Plaintiff has claimed that defendant provided her with cash support throughout their relationship, 14 which defendant denies. The bank account records are the only records available in order to shed 15 light on this issue. Bank statements and deposit slips would reflect the existence of cash deposits. 16 Cancelled checks from plaintiff's checking account would reflect the existence of 17 payments that she made for items she claimed were purchased for the joint benefit of the parties 18 (which defendant denies) and would also reflect whether or not the parties performed in 19 accordance with the terms and conditions of the prenuptial agreement. 20 No other source exists to obtain that information. 21 Financial statements prepared by Gwen Sykes, which she claims asserted the existence of 22 an interest in real property in which title is held in defendant’s name and his name alone, is one 23 piece of evidence that may tend to demonstrate whether or not in fact such an interest existed, 24 particularly in light of the three financial statements she signed which do not contain any 25 reference to such an interest. 26 Finally, all of the documents sought by the subpoena may be impeachment on matters 27 directly in issue in the case. 28 Defendant has no objection to agreeing to a form of protective order which would provide LawOffices of 6 STEVEN B. PISER MEMO INOPPOSITION TO MOTION TO QUASH Y reasonable limitations on the disclosure of the documents. WN I. CONCLUSION Given the facts of this case, and the undisputed deposition testimony of plaintiff, no WY reasonable basis exists to prevent defendant from obtaining financial information with regard to FSF plaintiff, which financial information plaintiff claims she has already provided to him, vA particularly where that financial information is directly relevant to the issues in this case. DH Balancing the privacy rights of plaintiff (which defendant contends have been waived) with the SA necessity of ascertaining the truth, mandates disclosure. oe] Respectfully submitted, 10 Dated:January 16, 2004 LAW OFFI@GES OF STEVEN B. PISER 11 A Professfonal Corporation 12 By: / i 13 Steven B: Piser Attorney ‘for Defendant 14 Douglas:Sykes 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LawOffices of 7 STEVEN B. FISER MEMO INOPPOSITION TO MOTION TO QUASH Sykes v. Sykes Alameda County Superior Court Action No. RG03 106840 & RG0O3 106646 PROOF OF SERVICE BY MAIL I, Carole Aubuchon, declare as follows: I am employed in Alameda County, California, am over eighteen years of age, and am not a party to the within action or proceeding. My business address is 499 Fourteenth Street, Suite 210, Oakland, California 94612. I served a copy of: NOTICE OF TAKING DEPOSITION BY, SUBPOENA OF PATRICIA BLYTH AND REQUEST FOR THE PRODUCTION OF DOCUMENTS AT THE DEPOSITION; DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS by placing said copies in a sealed envelope addressed as follows: E. Rick Buell, II Law Offices of E. Rick Buell, II 700 Larkspur Landing Circle, Suite 175 Larkspur, CA 94939-1754 for next day delivery by Federal Express, fully prepaid, and deposited in a Federal Express collection facility located atOakland, California. The date of deposit with Federal Express was January 16, 2004. I declare under penalty of perjury that the foregoing is true and correct. Executed January 16, 2004, at Oakland, California. Carole Aubuchon