Matter of Peter Horning Fultz Trust

Case Number

19PR00521

Case Type

Hearing Date / Time

Thu, 05/02/2024 - 09:00

Nature of Proceedings

Amended Petition to Appoint Successor Trustee; Motion to Quash; Motion to Compel

Tentative Ruling

Appearances are required to discuss the Petition to Appoint Successor Trustee & Request Accounting

HEARING:              (1)       Motion of Petitioner to Compel Production of Documents from Respondents

                             (2)       Motion of Respondents to Quash Subpoenas on Third Parties

ATTORNEYS:        For Petitioner Peter F. Fultz: William C. Beall, Eric W. Burkhardt, Carissa N. Horowitz, Beall & Burkhardt, APC

                                    For Respondents Eric H. Fultz and Susan Fultz: Miles T. Goldrick  

                                   

TENTATIVE RULING:

(1)       As set forth herein, the motion of petition to compel further responses to petitioner’s requests for production of documents, set three, to respondent Eric H. Fultz (RFP-E3), and to compel further responses to petitioner’s requests for production of documents, set one, to respondent Susan Fultz (RFP-S1) are granted in part and denied in part. The motions are granted to require further verified responses to RFP-E3 Nos. 2, 4, and 5, and to RFP-S1 Nos. 4, 5, and 7 to 10, limited as set forth herein. Respondents shall serve such further verified responses, including a log of documents withheld or containing redactions on the grounds of the privacy objection, on or before May 3, 2024. Respondents shall concurrently produce all documents identified in such further responses as document to be produced. All documents produced shall not be disclosed or used by the party receiving the documents except as necessary for the litigation of this proceeding.

(2)       As set forth herein, the motion of respondents Eric H. Fultz and Susan Fultz to quash business records subpoenas to third-party deponents Montecito Bank & Trust, issued on January 5, 2024, and Charles Schwab Corporation, issued on January 4, 2024, is granted. Montecito Bank & Trust and Charles Schwab Corporation are ordered not to produce documents pursuant to those subpoenas.

(3)       For the reasons set forth herein, all requests for awards of monetary sanctions are denied.

Background:

Petitioner Peter F. Fultz (Peter) and respondent Eric H. Fultz (Eric) are brothers and beneficiaries of the Peter Horning Fultz Trust (Trust). Respondent Susan Fultz (Susan) is the wife of Eric. (Note: The court follows the parties’ practice of referring to persons with the same surnames by their first names. No disrespect is intended.)

Eric is the successor trustee of the Trust. In Peter’s petition in this proceeding, Peter alleges that Eric has misrepresented Trust assets to Peter, improperly added Susan to Trust financial accounts, failed to make proper distributions of Trust assets, claimed improper expenses paid from the Trust, and otherwise engaged in improper management of the Trust. Eric denies improper activity.

On October 1, 2023, Peter served Requests for Production of Documents, set three (RFP-E3) on Eric and Request for Production of Documents, set one (RPF-S1) on Susan. (Horowitz decl. re RFP, ¶ 5 & exhibit E.) On November 28, 2023, Eric and Susan (collectively, respondents) served their initial responses to the RFP-E3 and RFP-S1. (Horowitz decl. re RFP, ¶ 6 & exhibit 6.)

Following an initial meet and confer discussion, respondents served supplemental responses to RFP-E3 No. 4 and RFP-S1 No. 5. (Horowitz decl. re RFP, ¶ 8 & exhibit G.)

On January 4 and 5, 2024, Peter issued deposition subpoenas for the production of business records (Subpoenas) to Montecito Bank & Trust (MB&T) and to Charles Schwab Corporation (Schwab).

On January 22, 2024, Peter filed this motion to compel. In the declaration in support of the motion, the motion seeks orders for further responses to RFP-E3 Nos. 2, 4, and 5, and to RFP-S1 Nos. 4, 5, and 7 to 10. (Motion, at p. 12.) The motion is opposed by respondents.

On January 25, 2024, respondents filed their motion to quash the Subpoenas. The motion is opposed by Peter.

Analysis:

“Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code.” (Prob. Code, § 1000, subd. (a).)

(1)       Privacy Analysis

In both motions, the right of privacy is raised by respondents. It is therefore useful to summarize the applicable principles.

“The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. [Citation.] In [(Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, (Hill)], we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (Williams).)

“The Hill test, conceived in the context of a pleaded cause of action for invasion of privacy, has been applied more broadly, including to circumstances where litigation requires a court to reconcile asserted privacy interests with competing claims for access to third party contact information.” (Williams, supra, 3 Cal.5th at p. 552.)

“[N]ot ‘every assertion of a privacy interest under article I, section 1 must be overcome by a “compelling interest.” Neither the language nor history of the Privacy Initiative unambiguously supports such a standard. In view of the far-reaching and multifaceted character of the right to privacy, such a standard imports an impermissible inflexibility into the process of constitutional adjudication.’ [Citation.] A ‘ “compelling interest” ’ is still required to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’ [Citation.] But whenever lesser interests are at stake, the more nuanced framework discussed above applies, with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures. (Williams, supra, 3 Cal.5th at p. 556.)

“The right to privacy under article I, section 1 of the California Constitution ‘extends to one’s confidential financial affairs....’ [Citation.] This right embraces confidential financial information in ‘whatever form it takes, whether that form be tax returns, checks, statements, or other account information.’ [Citation.]” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 503.) However, as Williams states, financial privacy is a lesser interest to which the Hill framework applies.

(2)       Motion to Compel

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

            “(1)      A statement of compliance with the demand is incomplete.

            “(2)      A representation of inability to comply is inadequate, incomplete, or evasive.

            “(3)      An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

“A motion under subdivision (a) shall comply with each of the following:

            “(1)      The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

            “(2)      The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b)(1), (2).)

Respondents argue that the matter should not be addressed on its merits because there was an insufficient meet and confer process. In support of the motion, counsel for Peter, attorney Carissa N. Horowitz, declares that she sent a meet and confer letter, dated December 3, 2023, after receiving the original response to RFP-E3. (Horowitz decl. re RFP, ¶ 7 & exhibit H.) (Note: Exhibit H, as contained in the court’s electronic file, is completely illegible. Counsel’s letterhead appears, but the text is simply a few random numbers and lines.) Following that letter, respondents provided supplemental responses to RFP-E3 No. 4 and RFP-S1 No. 5. (Horowitz decl. re RFP, ¶ 8.) What followed was a completely unproductive email discussion in which Horowitz insisted upon further responses and a production of documents and counsel for respondents, attorney Miles T. Goldrick, insisted that there were no documents yet to be produced except privileged or private financial documents. (Opposition, exhibit A.) (Note: Exhibit A to the opposition is attached to the opposition, but is not mentioned in the Goldrick declaration.)

The court will address the merits of the motion.

RFP-E3 No. 2 is: “All documents evidencing, identifying, mentioning, or pertaining to all open or closed checking, savings, or other deposit accounts, including all account applications, signatory cards and periodic statements (monthly, quarterly, annually) in the name of, under signature authority of, or for the benefit of You on or after January 1, 2010 through January 1, 2014.”

The original response to RFP-E3 No. 2 is: “Object. This request for inspection we previously answered in response to the Request for Production of Documents - Set One on August 31. 2020. See response number 2 and 8 to the Request for Production of Documents - Set One. There is no legal basis upon which the Petitioner may obtain Federal, State of Local tax returns filed by this responding party. This request is not calculated to lead to the discovery of any information relevant to the subject matter of this action nor to the discovery to admissible evidence. The right to privacy under Article One, Section One under the California Constitution extends to one's confidential extended financial affairs. This right embraces confidential information ‘in whatever form it takes, whether that form be tax returns, checks, statements, or other account information.’ Overstock.com Inc., v Goldman [Sachs] Group, Inc. (2014) 231 Cal App 4th, 471, 503.”

The supplemental response to RFP-E3 No. 2 is: “Object. This request for inspection we previously answered in response to the Request for Production of Documents - Set One on August 31. 2020. See response number 2 and 8 to the Request for Production of Documents - Set One. There is no legal basis upon which the Petitioner may obtain Federal, State of Local tax returns filed by this responding party. This request is not calculated to lead to the discovery of any information relevant to the subject matter of this action nor to the discovery of admissible evidence. The right to privacy under Article One, Section One under the California Constitution extends to one's confidential extended financial affairs. This right embraces confidential information ‘in whatever form it takes, whether that form be tax returns, checks, statements, or other account information.’ Overstock.com Inc., v Goldman [Sachs] Group, Inc. (2014) 231 Cal App 4th, 471, 503[,] 231 Cal App 4th, 471, 503. Without waiving the above objection, the responding party will produce the following documents:

            “1.       Letter dated December 12, 2023, to Marissa Martinez, at Well Fargo Bank from Miles T. Goldrick.

            “2.       Consumer Account Application for The Peter Homing Fultz Family Trust dated November 3, 2010.

            “3.       Final closing Statement from Wells Fargo Bank PMA Premier Checking Account number ending 8683, dated July 1, 2013 to July 31, 2013.

            “4.       Final closing statement from Wells Fargo High Yield Savings Account number ending 3469 dated January 1, 2012 to January 31, 2012.”

On its face, RFP-E3 No. 2 does not appear to request any tax returns. In any case, tax returns are privileged. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 719-721.) The court construes this request not to request any tax returns or privileged tax materials.

The objections to RFP-E3 No. 2 asserted by respondents are not limited to the tax privilege. There are objections that the request had previously been made, that the request seeks material that is not reasonably calculated to lead to the discovery of admissible evidence, and that the request seeks documents protected by the right to privacy.

The objection that the request had previously been made is overruled. A party generally must seek a response to the first request by filing a motion to compel and may not make a second request for production for the same materials. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1428.) However, the burden of demonstrating that such a request was made and the right to compel waived is on the party resisting discovery. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Respondents have not presented evidence of that previous request and have not met their burden as to this objection.

The two remaining objections—relevance and privacy—are interrelated. As quoted above, the party moving to compel has the initial burden to show good cause justifying the discovery. In this context, “the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.)

The relevance asserted by Peter is based upon Peter’s characterization of payments made from trust accounts into respondents’ personal accounts: “1. If Respondents, with a fiduciary to Petitioner, breached their duty by squandering money from the Trust account and placing it into any personal financial accounts.; 2. To verify, Respondents’ claims that all funds, including the cash withdrawals, were used to pay trust expenses since Respondents cannot establish otherwise; and 3. To trace the funds associated with Susan’s claim that ‘despite the fact that I was a signator on the account for a short period of time I never signed a check on the account nor did I ever utilize trust money for our own personal expenses. Any transfers of funds from a Trust Account into our account was to reimburse us for the expenses and/or for trust fees.’ ” (Separate Statement re Eric RFP, at pp. 4-5.)

This argument is, at least in part, a sufficient statement of good cause to satisfy the initial burden as to the motion to compel. The missing part involves the privacy objections. As discussed above, privacy objections are addressed under the Hill framework as explained in Williams.

The first three Hill factors—a legally protected privacy interest, an objectively reasonable expectation of privacy, and a threatened intrusion that is serious—are met by the requests being for personal financial records. To the extent that the requests include accounts in the name of the Trust, i.e., where the Trust is identified in the title of the Trust or in any person as a trustee of the Trust, there is no objectively reasonable expectation of privacy in such records as against a beneficiary of the Trust litigating an accounting. The explanation of good cause quoted above provides an explanation why disclosure of some personal financial records may be appropriate as a countervailing interest, but not a sufficient explanation of why all personal financial records covered by the request would be appropriately disclosed.

Bank statements and checks from a personal account generally reflect deposits and payments made at particular times. Payments made from an account of the Trust to a personal account would be reflected in the personal account as a receipt/ deposit. To the extent that the payment is challenged as an improper payment of funds belonging to the Trust, a bank statement reflecting that payment into a personal account would be relevant and discoverable evidence over a privacy objection—at least as to the part of the statement showing receipt of that payment—on the basis of verification of receipt of Trust funds.

Payments from a personal account are argued to have two types of relevance. Peter seeks to verify respondents’ claims that Trust funds were used for Trust expenses. The premise of this argument is that respondents assert that money transferred into respondents’ personal accounts was used to reimburse previously paid Trust expenses or subsequently used to pay Trust expenses. Portions of bank statements and checks which respondents assert support such a claim would thus be relevant and discoverable evidence over a privacy objection. At the same time, a reasonable inference to be drawn from bank statements or checks not identified as supporting such a claim is that all remaining funds were used for private, non-Trust purposes.

The second type of relevance is for tracing, that is, following payments from the personal account that were made for personal purposes. The premise of this argument is that Trust funds improperly deposited into respondents’ bank account were later used for personal purposes where the recovery sought is based on or from the subsequent personal payments. (E.g., Mitchell v. Dunn (1930) 211 Cal. 129, 136 [“when the money of the trustor can be traced into a particular fund, or deposit, though it be mingled with other money, the beneficiary may enforce the trust”].) Tracing for this purpose is remedial and may or may not ultimately be necessary or appropriate. Balancing the interests as the case now stands, the respondents’ privacy interests in their personal financial records outweighs the present discovery interest of this additional information. This balance of interests may change when Trust accounting issues are more fully addressed.

Thus, balancing the privacy interests in these financial records, documents showing receipt or deposit of money from the Trust and responsive documents showing payments which respondents assert were made for the benefit of the Trust must be disclosed, but other documents, or other portions of those documents (to be redacted), need not be disclosed at this time. Financial records in any account held by the Trust must be disclosed notwithstanding the privacy objection.

Disclosure presupposes the existence and availability of such documents.

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220)

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

“If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.” (Code Civ. Proc., § 2031.240, subd. (a).)

“If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

            “(1)      Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

            “(2)      Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.” (Code Civ. Proc., § 2031.240, subd. (b).)

Respondents need to provide a response that complies with sections 2031.220, 2031.230, and 2031.240. The collective significance of these sections is that it should be clear from the verified response that all documents that are responsive to this request are identified (1) as being produced, (2) as not being within the possession, custody, or control of the responding party, or (3) as being withheld from production on the ground of a privacy objection as permitted by this order.

It is not necessary for respondents to produce copies of documents that have previously been produced in discovery, but such responsive documents must be identified with sufficient particularity so that the specific documents may be readily found from a previous production. Where documents are redacted so as to exclude matter that has been found to be subject to the privacy objection, as discussed above, it is sufficient to identify the documents and to state that the redactions are pursuant to privacy objection as set forth in this order.

RFP-E3 No. 4 is: “All documents evidencing, demonstrating, setting forth, reflecting, mentioning, identifying, or pertaining to active or inactive investment accounts, security custodian accounts, IRAs, Keogh or other retirement plans in Your name, or for Your benefit, or on which You are or was a signatory or authorized agent (‘Investment Accounts’), including any periodic statements (monthly, quarterly, annually), on or after January 1, 2010 through January l, 2014.” (Note: RFP-E3 No. 4 is not completely or exactly quoted in the moving separate statement, contrary to the requirements of California Rules of Court, rule 3.1345(c)(1).)

The responses are the same as for RFP-E3 No. 2. The analysis and result as to RFP-E3 No. 4 is the same as for RFP-E3 No. 2. A further response will be required for this request.

RFP-E3 No. 5 is: “All documents evidencing, mentioning, setting forth, identifying, referring to, or pertaining to any individual stocks, bonds, securities and annuities, belonging You or in which You have or had any interest individually or jointly with any other person(s), entity or entities (‘Securities/ Annuities’), including any periodic statements (monthly, quarterly, annually), on or after January 1, 2010 through January 1, 2014.”

The analysis and result as to RFP-E3 No. 5 is the same as for RFP-E3 No. 2. A further response will be required for this request.

RFP-S1 No. 4 is: “All documents pertaining to, mentioning, containing, or evidencing any distributions or transfers to you, your spouse or your children from each trust, revocable or irrevocable referenced in request 5 above on or after January 1, 2010 through the present.”

The responses are the same as for RFP-E3 No. 2. Understanding this request as specific to distributions and transfers from the Trust and limited to transactions with Trust funds, the privacy interests balance in favor of disclosure for the reasons discussed above. A further response will be required for this request.

RFP-S1 No. 5 is the same text and response as RFP-E3 No. 2. The analysis and result as to RFP-S1 No. 5 is the same as for RFP-E3 No. 2. A further response will be required for this request.

RFP-S1 No. 7 is: “All documents evidencing, mentioning, identifying, setting forth, or pertaining to Certificates of Deposit purchased or redeemed by you or in which you have, or had, and ownership interest, including any periodic statements (monthly, quarterly, annually) or after January 1, 2010 through January 1, 2014.”

The responses are the same as for RFP-E3 No. 2. The analysis and result as to RFP-S1 No.7 is the same as for RFP-E3 No. 2. A further response will be required for this request.

RFP-S1 No. 8 is the same text and response as RFP-E3 No. 4. The analysis and result as to RFP-S1 No. 8 is the same as for RFP-E3 No. 2. A further response will be required for this request.

RFP-S1 No. 9 is the same text and response as RFP-E3 No. 5. The analysis and result as to RFP-S1 No. 9 is the same as for RFP-E3 No. 2. A further response will be required for this request.

RFP-S1 No. 10 is: “All documents evidencing, mentioning, reflecting, identifying, or pertaining to current or expired safe deposit rentals or safe by, under the signatory authority of, on behalf of, or under the control of you on or after January 1, 2010, and the contents thereof.”

The responses are the same as for RFP-E3 No. 2. Unlike RFP-S1 No. 4, which effectively seeks financial documents identifying transfers from the Trust (for which the balance of privacy interests weighs in favor of disclosure), this request asks for documents about safe deposit rentals without reference to the Trust. At the same time, documents showing the existence of safe deposit rentals (apart from contents) do not generally implicate privacy interests in the same way that documents showing the contents of such boxes would be. Documents showing the contents of such boxes more closely align with private financial information. A further response will be required but disclosure will be required only as to documents showing the existence of such rentals. Documents showing the contents of such documents either need to be identified as not existing or within the possession, custody, or control of Susan (see Code Civ. Proc., § 2031.230) or need to be specifically identified as withheld from production on the basis of privacy pursuant to this order.

Based upon the totality of the circumstances here, the court finds that an award of monetary sanctions against either party would be unjust and will be denied.

(3)       Motion to Quash

Respondents move to quash the Subpoenas to MB&T and to Schwab.

“Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.” (Code Civ. Proc., § 1985.3, subd. (g).)

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

Respondents argue in support of their motion to quash that the Subpoenas are overly broad and were issued without a showing of relevance or prior permission of the court. Respondents also argue that the responsive documents are personal financial records and disclosure would violate their right to privacy. In support of the motion to quash, respondents each declare that the bank and financial accounts are personal accounts unrelated to the Trust. (E. Fultz decl., ¶¶ 2, 4; S. Fultz decl., ¶ 1.)

With respect to the first argument of the requirement of a declaration, respondents argue that these Subpoenas require a declaration supporting the issuance of the Subpoenas, citing section 1985.3, subdivision (b), Lee v. Superior Court (2009) 177 Cal.App.4th 1108 (Lee) and Johnson v. Superior Court (1968) 258 Cal.App.2d 829 (Johnson). (Motion, at p. 5; Reply, at pp. 1-2.)

There is an earlier legal history of requiring a declaration for issuance of a subpoena:

“A copy of an affidavit shall be served with a subpoena duces tecum issued before 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, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.” (Code Civ. Proc., § 1985, subd. (b).)

So, in 1968, Johnson held:

“The clear import of all the cases dealing with the subject is that a subpoena duces tecum has no force or effect if the affidavit required by section 1985 of the Code of Civil Procedure does not comply with the provisions of that section. The requirement of that section that the affidavit must contain a showing of good cause for the production of the matters and things described in the subpoena and ‘shall set forth in full detail the materiality thereof to the issues involved in the case’ is not met by an affidavit which is totally devoid of any statement of facts.” (Johnson, supra, 258 Cal.App.2d at p. 835.)

As Johnson further noted: “As enacted in 1963, section 2036 of the Code of Civil Procedure provides that a party who is required to show good cause under the provisions of section 1985, among others ‘shall show specific facts justifying discovery and mere proof of the relevance of the information sought to the subject matter of the action shall not be sufficient.’ By the mandate of this section good cause ‘must now be articulated in any given case by an affirmative showing of specific facts justifying discovery.’ [Citation.]” (Johnson, supra, 258 Cal.App.2d at p. 836.)

Discovery law, however, has changed considerably since the 1960’s. As noted above, discovery in probate proceedings is governed by the Civil Discovery Act. (Prob. Code, § 1000, subd. (a).) Under the current Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.), discovery from third parties is by deposition subpoena, including a business records subpoena. (Code Civ. Proc., § 2020.010.) The Civil Discovery Act  incorporates the provisions of the Code of Civil Procedure relating to subpoenas generally but with exceptions: “Except as modified in this chapter, the provisions of Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of this code, and of Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply to a deposition subpoena.” (Code Civ. Proc., § 2020.030.)

The Subpoenas here at issue are subpoenas only for the production of business records. Section 2020.410, subdivision (c) provides: “A deposition subpoena that commands only the production of business 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.” This provision governs the deposition subpoenas at issue here and expressly does not require an affidavit. (See Terry v. SLICO (2009) 175 Cal.App.4th 352, 359 [testimony and records subpoena].)

Lee is not contrary to this conclusion. “Lee concerned the scope of discovery in a civil commitment proceeding under the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.). In the SPVA proceeding at issue in Lee, the district attorney had issued subpoenas duces tecum that sought the defendants’ medical and psychological records. [Citation.] The primary issue on appeal was the appropriate use of a subpoena duces tecum in an SVPA proceeding in light of the Welfare and Institutions Code section 6603, subdivision (c)(1) provision for automatic disclosure of certain medical and psychological records.” (Haniff v. Superior Court (2017) 9 Cal.App.5th 191, 204.) Lee did not address a business records subpoena in a probate proceeding or under the Civil Discovery Act generally. (Id. at p. 205.) Lee therefore does not provide any support for the proposition, directly contrary to Code of Civil Procedure section 2020.410, subdivision (c), that an affidavit or declaration is required for a business records subpoena. Tellingly, in 1999, the Legislature amended Code of Civil Procedure section 1985.3, subdivision (b) so that the service of an affidavit or declaration was required to add, “if any.” (Stats. 1999, ch. 444, § 1.)

Therefore, the absence of an affidavit or declaration does not make the Subpoenas ineffective.

The Subpoenas generally seek the same categories of documents as in the motions to compel discussed above:

“1.       All documents, writings, recordings, and communications evidencing, reflecting, mentioning, or containing any financial or other account in which Eric H. Fultz is a signatory, beneficiary, applicant, borrower, or party from January 1, 2010, to December 31, 2018.

“2.       All documents, writings, recordings, and communications evidencing, reflecting, mentioning, or containing any financial or other account in which Susan E. Fultz is a signatory, beneficiary, applicant, borrower or party from January l, 2010, to December 31, 2018.” (Motion to Quash, exhibits A, B.)

The documents sought are from personal, rather than Trust accounts of the respondents. The privacy analysis for these documents is essentially the same as in the motion to compel, with the principal difference being that identification of documents showing Trust-related transactions as distinct from personal transactions is not practical for these third-party deponents. As discussed above, for the present, the privacy balance favors disclosure where the respondents’ documents verify receipts and where the documents are asserted to support respondents’ claims of Trust-related expenses. Insofar as alternative methods of discovery (such as interrogatories to respondents) could identify specific Trust-related transactions for which narrower third-party document requests could be made, the scope of the documents subject to the Subpoenas is too broad and not feasibly narrowed. The court finds that the balance favors quashing the Subpoenas without prejudice to the later service of narrowly tailored subpoenas specific to particularly identified transactions or for which tracing is found to be appropriate.

Accordingly, the court will grant the motion to quash the Subpoenas and order that documents not be produced or disclosed pursuant to the Subpoenas.

Again, based upon the totality of the circumstances, the court finds that the imposition of monetary sanctions would be unjust and requests for sanctions will be denied.