Foothill Federal Credit Union v. Superior Court

I concur in the judgment and write separately for the sole purpose of urging the Legislature to provide an effective means capable of enforcing the provisions it enacted which purport to require financial institutions to protect the privacy interests of consumers. Although many or most such institutions may elect to voluntarily abide by Code of Civil Procedure section 1985.3, after this opinion they will feel no compulsion to do so. The parties and their lawyers involved in the litigation itself are subject to various unpleasant consequences—such as monetary or evidentiary sanctions—for unlawful behavior in the litigation context. But financial institutions which violate section 1985.3 face no such possibilities.

As there is “no right without a remedy,” 1 there is no legal duty without a sanction for ignoring that duty. Otherwise the duty is only a moral duty, the violator of which risks nothing but a guilty conscience. Thus, I urge the Legislature to create—or recreate—the sanction and thus the remedy for this important aspect of the right to privacy in California.

*644 The sanction the Legislature devises might take the form of a new section expressly authorizing those harmed…

Edwin A., Janet, Jill, Amy, and Melissa King sued Foothill Federal Credit Union (FFCU) for, inter alia, invasion of privacy and intentional infliction of emotional distress, claiming that FFCU produced consumer records beyond the scope of a subpoena that had been narrowed. FFCU demurred to these causes of action on the basis of the litigation privilege (Civ. Code, § 47) as a complete bar to the causes of action, and the trial court overruled the demurrers. We grant FFCU’s petition for writ of mandate because the litigation privilege bars real parties in interest’s claims.

FACTUAL AND PROCEDURAL BACKGROUND

The gravamen of the underlying litigation is a subpoena served upon FFCU in a probate action to which Janet King was a party. The subpoena required FFCU to produce copies of all account information for all accounts *635 in the name of the individual whose estate was the subject of the action, Norman Kaplan, or in the name of Janet King, including accounts held jointly by Kaplan or Janet King and another person. The subpoena was later narrowed by agreement by counsel to records that were “in the name of Norman Kaplan or in the name of Norman Kaplan jointly (and/or) with…

Law Offices of Peter L. Tripodes and Peter L. Tripodes, Pasadena, for Real Parties in Interest.

Edwin, Janet, Jill, Amy, and Melissa King sued Foothill Federal Credit Union (FFCU) for, inter alia, invasion of privacy and intentional infliction of emotional distress, claiming that FFCU produced consumer records beyond the scope of a subpoena that had been narrowed. FFCU demurred to these causes of action on the basis of the litigation privilege (Civil Code, § 47) as a complete bar to the causes of action, and the trial court overruled the demurrers. We grant FFCU's petition for writ of mandate because the litigation privilege bars real parties' claims.

The gravamen of the underlying litigation is a subpoena served upon FFCU in a probate action to which Janet King was a party. The subpoena required FFCU to produce copies of all account information for all accounts in the name of the individual whose estate was the subject of the action, Norman Kaplan, or in the name of Janet King, including accounts held jointly by Kaplan or Janet King and another person. The subpoena was later narrowed by agreement by counsel to records that were "in the name of Norman Kaplan or in the…