California real estate broker survival skills – responding to an investigative subpoena!
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You are going along another busy day in your real estate brokerage when all of a sudden you are served with a SUBPOENA that informs you that on a certain date, at a certain time, in front of a certain DRE investigator, you are to appear, provide documents relating to a real estate transaction (mortgage loan, property management transaction, real estate transaction, etc.) or face a contempt of Court. This blog discusses who to respond to an investigative subpoena that potentially threatens your real estate business, license, and livelihood.
What is a subpoena?
A subpoena is a document that is issued with the power and force of the Court behind it, and the document commands a person or entity to produce certain things at a certain time and place. For example, the two most common things are:
1. Appear and produce records (called a “subpoena duces tecum“)
2. Appear and provide testimony (called a “deposition subpoena“)
Usually the subpoena will reference that there is an “investigation” at hand, which triggers potential rights to try to surrender your real estate license if you have reason to.
How does a subpoena have to be served?
The most common way the subpoena is served on the real estate broker, salesperson, business owner, or other person or entity is by “personal service.” This means the person was handed the document.
As one Court in California noted:
“While the Legislature has provided many different modes of serving summons, only one mode, personal delivery, is available for serving a subpoena.” (See California Code Civ. Proc., § 1987, subd. (a); In re Abrams (1980) 108 Cal.App.3d 685, 690, 166 Cal.Rptr. 749.). See Target Nat. Bank v. Rocha, 216 Cal. App. 4th Supp. 1, 7, 157 Cal. Rptr. 3d 156, 160 (Cal. App. Dep’t Super. Ct. 2013)
What defenses are available to responding to a subpoena?
There are several defenses available to seek a motion to quash a subpoena. For example:
1. The subpoena may be vague or ambiguous (what is it asking you for)?
Attorney Steve Tip: Under California Code of Civil Procedure section 2020.410:
“(a) A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.
2. No valid personal service of subpoena
Attorney Steve Tip: Cal. Code of Civil Procedure section 1987 states a subpoena must be served personally ‘ “the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally. Section 1988 provides if a witness is concealing himself, the court may order service by breaking and entering. There are no other express statutory exceptions to the requirement of section 1987 of personal service of a subpoena.”
3. The subpoena is overboard (demanding too many things or undue burdens/costs)
4. The documents are protected from disclosure due to a “privilege” such as:
a. Husband-wife privilege
b. Attorney-Client privilege (or attorney word-product doctrine)
c. Doctor-patient privilege
e. Privilege against self-incrimination (not generally available to corporations)
5. Privacy laws or confidential or proprietary company information (trade secrets)
You may beed to seek a protective order on things like this.
6. Unreasonable or oppressive demands
6. Failure to pay required mileage or witness fees (See CCP 2020.220)
IMPORTANT: Other grounds may be available. Have your subpoena reviewed immediately by litigation counsel to determine if any other privileges exist and to discuss how to respond.
Watch Attorney Steve explain the subpoena process and responses available
Subpoena explained in this video: Make sure to click on the Red “V” to subscribe to FREE legal updates! Be smarter than your friends, know your legal rights!
What is a motion to quash?
When you believe there are valid legal grounds to avoid responding to the subpoena, the receiving party may file a motion to quash or motion for protective order to avoid full compliance obligations. Normally, this should be done BEFORE the date required to produce and appear at BRE headquarters in Oakland, Los Angeles, San Diego, Fresno, or Sacramento for example. The code section CCP 1987.1 makes clear:
“(a) 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.”
“A motion to quash provides the trial court with the opportunity to determine whether documents should be produced pursuant to the underlying subpoena. If the motion to quash is granted, then the documents remain in the custody of the person subpoenaed and are not used in the litigation. The process is particularly important when dealing with presumptively privileged documents—such as the hospital records here. (See Evid.Code, §994 [physician-patient privilege].) Often the subpoena recipient does not have sufficient self-interest to object to production so the motion to quash allows a party to bring the privilege or other evidentiary objection to the attention of the court. (M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, 1392, 127 Cal.Rptr.2d 454.) A motion to quash is typically filed before the time for production (see, e.g., Code Civ. Proc., § 1985.3, subd. (g)), but the court has authority to consider the motion even if brought after the date for production. (Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312–1313, 260 Cal.Rptr. 122.).
What happens if you violate a subpoena?
If you fail to appear and produce documents at the BRE field office at the time and place set forth in the subpoena (or as otherwise agreed between your attorney and BRE investigator), you could be held in contempt of Court (the BRE could move into the Superior Court filing a motion to compel and seeking a contempt of Court, and possible monetary sanctions against the licensee or other person).
“When a witness has disobeyed a subpoena duly served upon him in a pending action, he has committed a contempt. (Code Civ.Proc. s 1209, subd. 9.) The court may then punish him for a criminal contempt by imposing upon him a fine not exceeding $500 or imprisonment not exceeding five days, or both (Code Civ.Proc. s 1218). When the contempt consists in the omission to perform an act which is still within the person’s power to perform, the court may, in the alternative, punish him for a civil contempt and order him imprisoned until he has performed the act (Code Civ.Proc. s 1219). (For a discussion of criminal and civil contempts, see In re Morris, 194 Cal. 63, 66—67 (1, 2), 227 P. 914.). See Morelli v. Superior Court, 1 Cal. 3d 328, 332, 461 P.2d 655, 658 (1969).”
For broker’s and salespersons, this is a BAD FIRST STEP if you are under investigation, and could wind up costing you your real estate license.
Contact a civil litigation lawyer when you are served with a subpoena.
What to do when you are served a subpoena?
1. Review it immediately. Don’t put it aside, you may forget about it and be held in contempt of court;
2. Determine whether you have grounds to object and/or how you want to respond. Contact a litigation law firm BEFORE you contact the party that issued the subpoena. You may accidentally say things that will be held against you;
3. Can you seek more time to respond (or are there other alternatives such as delivering the documents to the auditor or investigator by email, along with a written declaration, or are you able to set a phone conference as opposed to showing up for personal testimony)? Many times the party issuing the subpoena is a regulatory agency (such as the DBO, attorney general, DRE, BRE, or other state agency). Usually we are able to obtain extensions of time to respond so that your case and defenses can be reviewed. This is CRITICAL!
4. Contact a California BRE or DBO real estate compliance lawyer to review your case, the transactions at issue and to examine the subpoena to determine whether you should file a motion for protective order or seek to quash the subpoena.
5. DO NOT TALK TO ANYONE BEFORE YOU DISCUSS YOUR CASE WITH YOUR LAW FIRM. This includes your friends, business partners, and anyone else other than your spouse or partner.
6. Prepare the responsive documents, and go over your testimony with your legal counsel.
Contact a business & real estate subpoena response attorney
We know being served a subpoena is a stressful situation but you need to know your legal rights. We can help you sort out your defenses and help you decide how to respond. Whether you are a business owner, Realtor, broker, agent, investor, CEO, CFO, CIO, or other officer or director of a company, we can help you evaluate your legal position and raise the appropriate responses. Call us to discuss your subpoena at (877) 276-5084. We offer flexible legal fees that will fit most budgets.
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